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Tallman v. Astrue

January 27, 2010

MURRAY TALLMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Murray Tallman ("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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his initial application on November 5, 2004, alleging disability since September 21, 1991, due to crushed bones in his right foot.*fn2 AR 74-77, 83-88. After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 38-42, 45-49, 50. ALJ Eve Godfrey held a hearing on April 21, 2008, and denied benefits on July 22, 2008. AR 9-19, 312-334. On October 29, 2008, the Appeals Council denied review. AR 4-7.

Plaintiff filed previous applications for disability benefits, which were denied at the hearing level on October 26, 2004. This Court affirmed the Commissioner's decision and entered judgment on April 20, 2006. AR 12, 25-30.

Hearing Testimony

ALJ Godfrey held a hearing on April 21, 2008, in Bakersfield, California. Plaintiff appeared with his attorney, Young Cho. Vocational expert ("VE") John Kilcher also appeared and testified. AR 312.

During the hearing, Plaintiff's attorney argued that the ALJ should adopt the prior ALJ's finding that Plaintiff was limited to sedentary exertion. AR 317. He argued that although there was no opinion limiting him to sedentary exertion in the instant claim, res judicata requires that the limitation be adopted because there were no changed circumstances. AR 317.

When questioned by the ALJ, Plaintiff testified that he previously worked as a trash collector's helper and sprinkler head inspector. AR 327. He also worked as a "pipe picker." AR 329.

The VE testified that a person who could perform light work could return to Plaintiff's past work as a sprinkler head examiner. AR 331. This person could also perform the positions of small products assembler, nut and bolt packer and garment sorter. AR 331.

If this person needed to have an opportunity to sit down, he could still perform the assembler position, though it would be eroded by about 60 percent. AR 332. The positions of parking lot attendant and cashier would also be available. AR 332.

Medical Record

In 1991, Plaintiff broke his right ankle and underwent surgery to repair the break with internal hardware. AR 150. His right ankle has been persistently painful since the surgery. AR 172.

In August 2004, Plaintiff's treating physician, Nadim Sarkies, M.D., wrote a letter indicating that Plaintiff has a permanent disability based on his 1991 injury to his right foot. Dr. Sarkies noted that Plaintiff was diagnosed with a fractured, deformed right foot. AR 189.

In December 2004, Plaintiff underwent surgery to remove painful hardware in his right*fn3 foot and repair the foot. AR 148, 284.

X-rays of Plaintiff's right foot dated January 5, 2005, revealed postoperative changes and degenerative changes of the right talonavicular joint. AR 278.

On February 19, 2005, Plaintiff saw Porter McRoberts, M.D., for a consultive orthopedic examination. Plaintiff complained that he could not run because he had a screw in his foot. Plaintiff reported that his foot was injured in 1991 when it was run over by a garbage truck. He had a screw placed at that time and was pain free until recently. Plaintiff was in a walking cast after his December 2004 surgery. He explained that he could not work because he could not run and "any job out there would result in keeping my leg elevated, which would be painful." Plaintiff reported that he could walk about 10 feet, though he was able to walk about 300-400 feet from the parking lot to the doctor's office. He said he could climb two flights of stairs, which he admitted was more than 10 feet. He reported he could sit for about five minutes and could stand for about three minutes. AR 192-193.

On examination, Plaintiff was in no apparent distress and displayed ease in ambulation, dexterity and climbing off and on the examination table. He was able to sit for 30 minutes without any apparent discomfort. His gait was an-antalgic and he had a limp on the right secondary to use of the cane with the cast. His examination was essentially normal, though range of motion and strength testing were not performed on the right foot. Dr. McRoberts diagnosed Plaintiff with status-post re-instrumentation and replacement of right foot screw, unknown location. Based on Plaintiff's current condition, Dr. McRoberts believed that he could stand and/or walk for four hours and could sit without limitation. His cane seemed medically necessary at that time. Plaintiff could lift and carry 30 pounds frequently and 10 occasionally. Dr. McRoberts stressed that his assessment was for Plaintiff's current situation, which was dynamic and expected to change at his next appointment. AR 194-199.

X-rays of Plaintiff's right foot taken on February 22, 2005, revealed fusion of the right talonavicular joint with a surgical pin across the joint space, compression at the lateral portion of the right navicula, and degenerative changes and fusion of the joint spaces in the right navicula and the right cuneiforms. There was no ...


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