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Calderon v. Astrue

November 10, 2009

GILBERTO CALDERON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Gilberto Calderon ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

On or about July 18, 2005, Plaintiff filed an application alleging disability since April 4, 2005, due to torn meniscus in both knees. AR 95-96. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 6, 9-14. ALJ Edward D. Steinman held a hearing on December 12, 2007 , and issued an order denying benefits on January 15, 2008. AR 15-21, 241-62. On May 22, 2008, the Appeals Council denied review. AR 3-5.

Hearing Testimony

ALJ Steinman held a hearing on December 12, 2007, in Bakersfield, California. Plaintiff appeared and was represented by Rosemary Abarca. Plaintiff was assisted by a Spanish language interpreter. Vocational Expert ("VE") Kenneth Ferra also provided testimony. AR 241.*fn3

Plaintiff has not worked since April 4, 2005. He previously worked as a laborer in the oil fields and as a machine operator or puller in a lumber mill. AR 245.

Plaintiff currently suffers from bilateral knee pain. The pain is constant and he takes Tylenol once or twice a week to treat the pain. AR 245-46. He can stand for about twenty minutes before his knees become swollen and he has difficulty walking. AR 247. Plaintiff was using a cane for assistance and used a brace on the right knee everyday. He was scheduled for surgery on the left knee in January of 2008. AR 247. Plaintiff testified that he can sit for about twenty minutes before needing to move around. AR 252-53. He has been using the cane for about two years, and does so everyday. AR 253.

With regard to medication other than Tylenol, Plaintiff indicated that after his surgery the pain medication he was taking affected his "nerves" and body and that it took six or seven months "to get [his] regularity back." AR 253. He receives injections in both knees after talking to his doctor about the pain medication, and the injections are to last six months. However, the first injection lasted only four months, and he finds that the effect wears off after three or four months. AR 253-54.

Plaintiff has to move or elevate his legs every twenty to thirty minutes or so or "they get stuck." Further, he will lie down for thirty to forty minutes at a time before getting up. AR 254-55. His sleep is disturbed because when he moves during sleep and his knees pop, it causes him to lie awake for two to three hours. AR 255.

Approximately ten pounds is the weight Plaintiff could carry without increasing the pain in his knees. AR 255. He denied telling a doctor that he was able to pick up and carry fifty pounds. AR 255-56. Overall, Plaintiff's knee problems are worsening. AR 256. As a result, he can no longer work eight hours a day, five days a week. AR 256.

Asked whether he could converse in English, Plaintiff indicated that he is able to speak "[a] little of the basics," but he speaks the language better than he comprehends it. AR 247. He spoke Spanish in his prior position because he frequently worked with others who spoke Spanish. AR 248. He does speak English with his children at home, for example, asking his daughter how she is doing in school, whether there were any problems at school and about homework. AR 248. When Plaintiff goes to the store he can speak to the cashier in English if "it is something easy," but if he needs something more than basic conversation permits, he cannot communicate in English. AR 249.

Plaintiff has never taken English language classes and he has learned to speak English through his wife and children. AR 249. His wife primarily converses with him in Spanish, but will occasionally do so in English. His children speak with him in English. AR 249-50. He watches television and can watch English language channels "sometimes . . . if it's not real hard" but there are times he does not understand it all. AR 250. Reading and writing in English is limited. AR 250-51.

About once a day Plaintiff will drive to the store. AR 251-52. He does not carry the groceries however. AR 252. He does not help his wife with chores like vacuuming, cleaning, or laundry because he is barely able to walk. AR 252.

VE Ferra testified that Plaintiff's prior work in the oil service industry is heavy and semi-skilled, with a Dictionary of Occupational Titles ("DOT") code of 930.684-014 and an Specific Vocational Preparation ("SVP") of 3. The saw or lumber mill position as a supervisor is classified as medium and skilled with a DOT code of 669.130-026 and an SVP of 7. AR 246.

The VE was asked to assume a hypothetical worker, who can speak English and can occasionally lift twenty pounds, frequently lift ten pounds, stand and walk three to four hours in an eight-hour day, sit for six hours in an eight-hour day with intermittent position changes, may not use ropes, ladders or scaffolds, but may occasionally climb, crouch or crawl, and avoid uneven terrain. AR 256-57, 259. The VE concluded that the limitation of standing or walking only two hours in an eight-hour day precluded light work. Thus, the VE concluded the hypothetical worker was restricted to sedentary work. AR 259. Approximately 200 sedentary type jobs are available, such as assembler, DOT code 734.687-018 with an SVP of 2. More specifically, there are 20,000 such assembler positions in the national economy and 2,000 in California. AR 259. Another sedentary position is nut sorter, DOT code 521.687-086 with an SVP of 2. There are approximately 1,500 nut sorter positions in California, and about 15,000 in the national economy. AR 259-60. An order clerk is a DOT code of 209.567-014 with an SVP of 2. In California, there are approximately 4,000 order clerk positions; in the nation, there are approximately 40,000. AR 260.

In a second hypothetical, the VE was asked to assume a hypothetical worker that could occasionally lift fifteen pounds, frequently lift ten pounds, stand or walk forty-five to sixty minutes at a time, for a total of three to four hours in an eight-hour day with frequent position changes, and who should avoid kneeling, squatting and climbing. AR 261. This individual, the VE found, could perform the same work as that identified in the first hypothetical. AR 261.

Medical Record

The entire record was reviewed by the Court, however, only those portions relevant to the instant proceedings are briefly summarized below.

On April 6, 2005, Plaintiff was seen by Dr. Oliver Droppers at Kaiser Permanente in Bakersfield for severe pain in the right knee. Dr. Droppers considered possible torn cartilage with a bucket handle tear and referred Plaintiff for an MRI and an appointment with an orthopedist. AR 186.

An MRI of the right knee, dated April 9, 2005, concluded degenerative change in the medial joint compartment with some focal loss of articular cartilage and early subchondral signal change, and a complex tear of the medial meniscus. AR 162.

On April 21, 2005, Robert B. Christopher D.O. examined Plaintiff. The results included right knee tenderness, minimal grating was present at flexion and extension and Plaintiff was unable to fully flex or extend the right knee. Dr. Christopher noted a review of the MRI shows a complex tear of the medial meniscus with significant degenerative joint disease on the medial compartment with some minimal in the lateral compartment. AR 178.

Surgery was performed on April 25, 2005 by Dr. Christopher. The preoperative diagnosis was internal derangement, right knee with complex tear medial meniscus and early degenerative arthritis. The surgeon performed an arthroscopy with partial medial meniscectomy of the right knee. AR 164-65.

Dr. Christopher prepared a report on May 5, 2005, following surgery. Swelling was down and range of motion had improved somewhat. While tenderness remained, the pain was less. Plaintiff believed he was making satisfactory progress and sutures were removed. AR 175. The doctor believed a combined instability brace would allow for the possibility of Plaintiff's return to work. AR 175.

A May 20, 2005, progress note reports Plaintiff is "not really any better" and was continuing to experience "clicking and catching" in the right knee after surgery. He reported difficulty walking. AR 173. Rehabilitation efforts were to continue and an MRI of the left knee was recommended. AR 174.

A physical therapy report dated June 8, 2005, prepared by Cory Frehner, noted objective findings of decreased right knee extension at the end of the swing phase resulting in decreased heel strike, medial right knee tenderness, and an increased range of motion. It was recommended Plaintiff continue receiving physical therapy. AR 167.

In a report dated June 9, 2005, Dr. Christopher noted that Plaintiff reported tenderness and swelling after he walks for a period of twenty-five to thirty minutes. Plaintiff's need to continue using the knee brace for stability was noted, and the doctor opined that Plaintiff was "totally disabled in regards to the type of work" he performed as a "laborer . . . heavy work, pulling, tugging." AR 170.

Jonathan M. Gurdin, M.D., performed an orthopedic evaluation on December 15, 2005. Plaintiff reported pain in his knees for the previous twelve to fourteen years with worsening pain. Following surgery, Plaintiff complains of constant slight aching in the joint, that worsens with activity including walking, standing, kneeling, squatting and climbing stairs. Plaintiff reported swelling every day and occasional popping, but no locking or collapsing. An MRI of his left knee showed a complex tear of the medial meniscus requiring surgery, but Plaintiff reported he lost his medical coverage and was unable to have the surgery performed. Plaintiff was using a hinged brace on his right knee and occasionally used a cane. Plaintiff reported he was limited to walking two to three blocks and could be on his feet for thirty to forty minutes at a time. He can lift fifty pounds, but is unable to carry the weight due to his knee problems. He avoids climbing stairs. AR 190.

Dr. Gurdin's physical examination noted Plaintiff was five feet, nine inches in height, weighed 248 pounds with a prominent abdomen. He was alert, cooperative and "speaks fairly good English." Plaintiff moved poorly about the examination room. AR 190.

Plaintiff walked with a mild right-side antalgic limp. He could perform the heel-to-toe test on both feet and did not have any difficulty getting on and off the examination table, or lying in the supine position and sitting back up. AR 190. Plaintiff did not complain of any back pain. AR 190. An examination of Plaintiff's right knee revealed surgical scars, slight soft tissue swelling, and slight tenderness "medially about the joint line." The ligament was intact. There was mild grinding and mild subpatellar crepitus with motion. Plaintiff's left knee was not tender and there was no soft tissue swelling present. The ligament was intact. "[V]ery slight grinding" and "slight subpatellar crepitus with motion" was present in the left knee. AR 191.

Range of motion with regard to the knees revealed 135 and 140 degrees flexion, respectively; zero degrees extension on each knee was noted. AR 191.

Dr. Gurdin diagnosed degenerative changes in the right knee with a prior arthroscopic surgery, internal derangement of the left knee with probable degenerative changes, and obesity. The doctor expressly noted that "the patient's excess weight is aggravating his knee problems." AR 191. The doctor stated:

At the present time he could probably be on his feet for no more than 45 to 60 minutes at a time and for 3 or 4 hours out of 8 hours. He could probably sit for 2 hours at a time and for 5 or 6 hours out of 8 hours but would need to frequently move his knees to minimize stiffness in the joints. He would have considerable difficulty kneeling, squatting and climbing stairs and should avoid these activities. He could probably lift at least 50 pounds but would have difficulty carrying with knee pain. He could probably lift and carry no more than 20 pounds to 25 pounds on a one-time basis, 15 pounds occasionally and 5 to 10 pounds frequently with the knee problems. Manual dexterity was intact.

AR 191.

On or about January 27, 2006, consultive medical examiner J. T. Bonner completed a Physical Residual Functional Capacity Assessment. Plaintiff's exertional limitations included the ability to lift and carry twenty pounds occasionally, ten pounds frequently, to stand or walk for at least two hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and with limited ability to push or pull with the lower extremities. AR 192-193. With regard to postural limitations, the examiner noted Plaintiff should never climb ladders, ropes or scaffolds, or kneel; he could occasionally climb ramps or stairs, crouch or crawl, and could frequently balance and stoop. AR 194. The examiner did not find any manipulative, visual, or communication limitations. AR 195-196. One environmental limitation was identified: Plaintiff was to avoid concentrated exposure to hazards such as machinery and ...


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