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Sebbern v. Astrue

January 28, 2010


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



Plaintiff Wilbert C. Sebbern, Jr. ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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


Plaintiff filed an application on or about November 17, 2003, alleging disability since January 24, 2002, due to degenerative disc disease, hearing loss in the right ear and an adjustment disorder. AR 20, 22, 123-125. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 90-94. ALJ Michael Friedman held a hearing on May 18, 2005, in New York, and issued an order denying benefits on June 16, 2005. AR 37-53, 491-498. On August 2, 2006, the Appeals Council vacated the decision and remanded for further proceedings. AR 506-508. On March 22, 2007, ALJ James Berry held a video hearing in Fresno; Plaintiff appeared in Bakersfield. On July 3, 2007, ALJ Berry issued an order denying benefits. AR 20-28. On September 23, 2008, the Appeals Council denied review. AR 8-10, 16.

2007 Hearing Testimony

ALJ Berry held a video hearing on March 22, 2007, in Fresno, California. Plaintiff appeared and testified from Bakersfield, California. He was represented by Robert Lowenstein. Vocational Expert ("VE") Jose Chaparro also testified. AR 54-88.

Plaintiff is married and has two children, aged twenty months and sixteen years. AR 68-69. He completed twelfth grade and attended vocational training to become a cook in the early 90's. AR 69.

Plaintiff stopped working on January 24, 2002, because he was injured on the job. He and a co-worker were delivering 400 pounds of material via a hand truck, down a set of basement stairs. A portion of a step "chipped away," the material on the hand truck toppled, and Plaintiff was crushed. AR 58. He suffered injuries to his head, neck, back, right shoulder, right elbow, both hands and right knee. AR 58. The workers' compensation case related to his injuries was resolved in 2005. AR 69.

With regard to the injury to his head, Plaintiff suffers "consistent" headaches, every day. AR 58. He experiences bad headaches three to four times per week, "like a migraine." AR 66.

Sometimes the headaches last a day or two. AR 66. When he gets such a headache, he turns out the lights to darken the room as much as possible and closes his eyes. He uses medication and hot towels to obtain relief. AR 67. He suffered hearing loss in his right ear due to a severed ear drum. AR 58-59.

Plaintiff underwent surgery on his right shoulder and has a limited range of motion as a result. AR 59. The surgery was performed in December of 2003 or 2004. AR 62. When he lifts and extends the shoulder, he gets "a pull across the whole back, and a sensation of pain up and down the back, and across the shoulders." AR 59. He cannot raise his arm in the air, nor can he rotate his shoulder as he would have been able to do prior to the injury. AR 65.

With regard to the right elbow and hand injuries, he "chipped a bone" in his right elbow and experiences pain that travels down his arm. Both hands are affected and there is a visible knot on his left hand. AR 59.

Plaintiff suffers from constant, every day back pain, and participates in a pain management program. The pain radiates down the back of his legs and into the heels of his feet. Both feet swell, and on occasion he cannot wear shoes. The pain intensifies with movement and he cannot get comfortable when lying down. He testified that it is "a miserable feeling." AR 60. Plaintiff indicated doctors wanted to perform a back surgery involving placing "a rod in the spine." He elected not to proceed with the surgery because it offered only a thirty percent chance of relief. AR 62.

Right knee surgery was performed on March 24, 2002, however, as he was returning home from the surgery itself, he was involved in a motor vehicle accident. He believes the knee never fully or properly healed as a result. AR 60, 62. He has a limited range of motion in the right knee, coupled with "consistent" swelling in the right knee and foot. AR 60-61.

Plaintiff indicated a cane was prescribed by "Dr. Flum" at the time he underwent surgery on his right knee. AR 61.

Plaintiff also suffers from anxiety and mood swings. AR 61. "[A] lot of mental [anxiety] . . . aggravating all of the other injuries" he suffered from prior to the car accident. AR 61. He does not like to be around a lot of people; he prefers to stay secluded and unto himself where he is most comfortable. AR 65-66. Being around others makes him nervous; he believes they are watching him. AR 66. A doctor prescribed Wellbutrin; sometimes it helps and other times it does not. AR 67.

Following the car accident, Plaintiff also suffered injuries to his left shoulder and left knee. The left knee is an on-and-off again situation. He believes those injuries "aggravate[] everything else that was there and intensi[fy] the headaches even more." AR 61.

When asked how long he could stand without requiring a break, Plaintiff indicated if it were a bad day he could stand for about fifteen to twenty minutes before needing a break. He suffers bad days about four or five days a week. AR 62-63. Plaintiff can sit for about thirty to forty minutes before he would need to stand up and move around. AR 63-64. He can lift ten to fifteen pounds, but cannot do so repetitively. He surmised he could lift that weight four or five times during the course of a day. AR 64.

Plaintiff cannot grasp items well because his hands are "clumsy." AR 64. He has carpal tunnel syndrome in both hands, and suffers from tremors in both hands. He has dropped items several times as a result of this condition. AR 65.

The side effects from prescribed medications cause Plaintiff difficulty as well. He is "drowsy all the time [and] nauseous." AR 67. Anti-inflammatories will intensify his headaches for "three, four, five days straight." AR 68.

The ALJ asked Plaintiff to imagine an eight-hour work day. Considering morning and afternoon breaks, and a one-hour lunch period, the ALJ asked how long he could stand. Plaintiff replied "[a]bout two and a half hours if that." AR 70. Asked how much walking he could do, with or without a cane, Plaintiff replied that he could not walk much without the cane. Using the cane, Plaintiff could walk about a half a block to a block. AR 69-70. Plaintiff believes he could lift and carry seven to ten pounds during day, with his cane. AR 70-71. He could sit for about forty-five minutes to an hour during the course of an eight-hour workday. AR 71.

Plaintiff typically spends his day lying, sitting and standing, trying to get comfortable. He will try to make the bed. He has attempted to do some cooking, but he had an accident and his wife does not want him in the kitchen. On that particular occasion, he did not realize the pot was hot, touched the lid and burned the insides of his hands. He drives short distances when necessary. AR 72-73.

When Plaintiff last worked in 2002, he was working at a warehouse for a specialty food store. The warehouse would deliver high end foods to restaurants in the area. He operated a forklift, supervised others, and assisted the drivers when the job called for a two-man delivery. AR 74-75. In that position, he would lift and carry well over 50 to 150 pounds. AR 75. Plaintiff also has previous experience in child care. He worked for the Mission of the Immaculate Virgin, assisting children with disabilities and mental disorders at a group home facility. He was a child care counselor on site from 4 p.m. in the afternoon until midnight. He assisted the children with homework after school, various activities, et cetera. The counselors "were like parents." AR 75-76. The position did require the ability to restrain children who may weigh up to 250 to 300 pounds. AR 77. Additionally, Plaintiff worked as an institutional cook for the North Hampton County Board of Education, and was a machine operator at Borden Chemical on the east coast. He ran product through a "splitter." In both the institutional cook and machine operator positions, he would lift 50 to 100 pounds. AR 76-77.

VE Chaparro testified that Plaintiff's previous work included the following Dictionary of Occupational Titles ("DOT") codes: children's institutional attendant, defined as medium yet performed as heavy work, DOT 359.677-010; store laborer, unskilled, DOT 922.687-058; institutional cook, defined as medium work, DOT 315.361-010. AR 78-81.

The VE was asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a thirty-eight year old individual with a twelfth grade education and the past work experience previously described, who has the ability to lift and carry twenty pounds occasionally and ten pounds frequently, with the ability to stand and walk for six hours of an eight-hour work day, who can perform simple repetitive tasks and can maintain attention, concentration, persistence and pace, has the ability to relate to and interact with others and adapt to usual changes in the workplace and can adhere to safety rules, but must avoid concentrated exposure to loud noise. AR 81. The VE opined that such an individual would be unable to perform Plaintiff's past work. AR 81-82. However, such an individual could perform jobs in the national economy. For example, the individual could perform work as a bottling line attendant, a light, unskilled position, DOT 920.687-042. There are currently 1,000 such jobs in California and 7,500 nationally. AR 81-82. The individual could also perform work as a case splitter of meat products, light, unskilled, DOT 525.687-014. There are approximately 900 jobs in California and 9,800 nationally. Lastly, the individual could perform work as a housekeeping cleaner, light, unskilled, DOT 323.687-014. There are approximately 18,900 positions in California and 143,300 nationally. AR 82.

In a second hypothetical, the ALJ asked the VE to assume an individual with the same vocational parameters, but whom could stand two and a half hours in an eight-hour work day, could walk the distance of one block, could sit for forty-five to sixty minutes in an eight-hour work day, could lift ten to fifteen pounds occasionally and seven to ten pounds frequently, who had difficulty gripping and grasping, must avoid exposure to large crowds and loud noise, and must avoid dominant use of the right upper extremity in overhead activities. AR 83. This individual could not perform Plaintiff's past work according to the VE. Further, this individual would be unable to perform any work in the national economy. AR 83.

In a third hypothetical posed by Plaintiff's counsel, the VE was asked to assume that the individual in hypothetical number one also was unable to perform fine hand manipulations. The VE indicated such an individual would be unable to perform work as a bottling line attendant or housekeeping cleaner. AR 84. Asked to add a moderate limitation regarding the ability to work with other, interact appropriately with the general public, ask simple questions or request assistance, accept instructions and respond appropriately to criticism by supervisors, with a moderate ability get along with co-workers or peers, and moderate ability to set realistic goals and make plans independently of others, the VE opined that such an individual would be unable to perform any of the jobs identified. AR 84.

Next, the VE was asked to assume what impact the individual's need for a cane at all times would have such that the individual could perform a job with one hand. The VE responded such an individual could not perform the jobs he identified previously. AR 85-86. Thereafter, the VE was asked to assume the same individual in the third hypothetical scenario, including the limitation regarding fine hand manipulation, who could stand and walk for two hours in an eight-hour day and sit for six hours in an eight-hour day, such that the individual was limited to sedentary work. The VE indicated that the individual would be unable to perform the previously identified positions as a bottling line attendant and housekeeping cleaner, but could still perform the duties of a case splitter. AR 86. Lastly, the VE was asked to assume that the individual had the ability to lift five pounds, stand and walk less than two hours in an eight-hour work day, sit less than six hours in an eight-hour work day, without the ability to lift, carry, reach, pull, and push with his shoulder, including the limitation related to fine hand manipulation. Such an individual, according to the VE, would be unable to perform any other work. AR 87.

Medical Record

The entire medical record was reviewed by the Court. A summary of the most relevant reports and treatment notes is provided below.

Bellevue Hospital Center

Records of January 24, 2002, indicate Plaintiff was seen in the emergency room after sustaining injuries when a hand truck weighing 100 pounds fell on him. Plaintiff complained of pain to the right ear, right shoulder, right elbow and right knee. AR 183-187. A radiology report of that same date of the C-spine reveals prevertebral soft tissues within normal limits, normal alignment and height of the vertebral bodies, and intervertebral disc spaces within the normal range. No acute fracture or dislocation was found. AR 188. A CT scan of Plaintiff's head on January 24, 2002, revealed no acute intracranial pathology. AR 189, 193. X-rays of the right elbow and right shoulder likewise revealed no acute fracture or dislocation. AR 191-192.

Donald R. Weisman, M.D.

Dr. Weisman treated Plaintiff with regard to the hearing loss in his right ear on a single occasion, March 7, 2002. His treating diagnosis was sensorineural hearing loss. Dr. Weisman's findings revealed audiometer testing with reduced findings in the right ear, to wit:

DecibelsLeft EarRight Ear 500 HZ1560 1000 HZ1545 2000 HZ1055 3000 HZ3060

The testing did not include the use of a hearing aid. Plaintiff's ability to produce speech which can be heard, understood and sustained was good. Dr. Weisman's notes indicate he could not answer an inquiry as to Plaintiff's work-related physical activities and any limitations thereto. The records indicate Plaintiff failed to keep three additional follow-up appointments. AR 216-222; see also AR 270.

Cabrini Medical Center

Plaintiff underwent right knee surgery, performed by surgeon Francis A. Pflum, M.D., on May 24, 2002, to repair a tear of the medial meniscus. Surgical repairs were made by way of arthroscopy, partial medial meniscectomy, and chondroplasty. AR 226-227.

Physical Therapy Records

A May 29, 2002, record of Arthur J. Nelson, Ph.D., F.A.P.T.A., records subjective complaints of sleep disturbance due to pain in the morning and evening, loss of hearing in the right ear, "pulling" on the right side of the neck, continuous low back pain, and pain rated at a 9.5 on a scale of 1 to 10. AR 210. Dr. Nelson's objective findings include active cervical ROM on the CROM device with findings of rotation on the left side at thirty-five degrees and twenty-five degrees on the right side with pain; flexion of twenty-five percent on the left side with pain; extension of twenty degrees on the left side with pain; and lateral flexion of twenty-five percent on both the left and right sides with pain. AR 210. A positive Tinel's sign was noted at the right elbow, and numbness present at the right leg, and right forearm and hand. AR 211. Dr. Nelson's treatment goals included decreased pain, increased flexibility, and strengthening of the right upper extremities, neck, truck and right leg. Treatment was recommended three times a week for a four-week period. AR 211. A June 13, 2002, evaluation by Dr. Nelson notes sixty-five percent flexion of the right knee with the ability to straighten the knee. AR 214. Plaintiff was also seen in Dr. Nelson's office on June 6, 13, 20. AR 213, 215-216.

Dr. Charles Connolly

Chiropractor Charles Connolly examined Plaintiff on May 31, 2002. The doctor's diagnosis included cervical disc displacement, cervalgia, thoraco-lumbar radiculopathy, lumbar myofascitis/lumbalgia, and left knee pain. AR 239. Dr. Connolly's treatment plan included sessions two to three times per week, consisting of manipulation, trigger point therapy and various stretching techniques. Prognosis was guarded. AR 240.

Dr. Eleanor Lipovsky, M.D.

Internist Eleanor Lipovsky, M.D., completed an internal medicine consultation on June 3, 2002. Her objective findings regarding Plaintiff included a normal general appearance, and limping gait with use of walking cane. Normal findings were recorded regarding the head, neck, chest, and abdomen. Decreased range of motion was present in the cervical and lumbar spine. Muscle spasm and tenderness were present as well. Straight leg raising test was positive on both sides. Muscle spasm, tenderness and decreased range of motion were recorded in both knees, with swelling and increased palpitation and spasm upon palpitation. AR 244-245. Dr. Lipovsky diagnosed headaches, anxiety, cervical spine sprain/strain, lumbosacral sprain/strain, bilateral knee sprain/strain, and sought to rule out cervical disc displacement, cervical radiculitis/radiculopathy, lumbosacral disc displacement, lumbosacral radiculitis/radiculopathy, and bilateral knee ligament tear/meniscus tear. AR 245. The doctor's treatment plan involved no heavy work, physical therapy and a home exercise rehabilitation program. Numerous referrals were made for further testing and evaluation. Plaintiff was prescribed Motrin and Flexeril. AR 246. Dr. Lipovsky noted a guarded prognosis. AR 247.

Plaintiff attended physical therapy following referral by Dr. Lipovsky at Physical Therapy, P.C., at the same location. See AR 248-252.

Richmond Radiology, P.C.

Plaintiff was seen by Board Certified Radiologist Robert D. Solomon, M.D., on June 7, 2002, for an x-ray of the left knee. The doctor's impressions included patellar spurs, equivocal bone island distal femur, and lucency with some sclerosis proximal tibia of uncertain significance. AR 234. An MRI of the cervical spine performed this same date revealed straightened cervical lordosis, prominent adenoids and palatine tonsils, C3-C-4, C4-C5 and C5-C6 central herniations, and cord compression and spinal stenosis. AR 235.

On July 1, 2002, Dr. Solomon performed an MRI of the left knee. Comparison was made to the earlier x-ray. Dr. Solomon's impression included intrameniscal signal, posterior horn medial meniscus, and bone island formation of the distal femur. AR 233.

Plaintiff was seen by Dr. Solomon again on July 17, 2002. An MRI of the lumbar spine revealed a moderate bulging disc at L5-S1, with thecal sac effacement and bilateral neural canal narrowing. The remainder of the study was normal. Dr. Solomon's impression included straightened lumbar lordosis, transitional vertebrae, lumbo-sacral junction, moderate disc bulging at L5-S1, and resulting thecal sac effacement and bilateral neural canal narrowing. AR 231.

Richmond Imaging

An MRI of the right shoulder was performed on March 21, 2002, by Alan Berlly, M.D. Dr. Berlly's impression noted no evidence of a rotator cuff tear, and minor degenerative changes of the AC joint without evidence of impingement. AR 378, 389.

An MRI of the head was performed on November 25, 2002, by Alan Berlly, M.D. Dr. Berlly's impression included normal non-gadolinium enhanced MRI of the brain. Some rhino-sinusitis was noted, but otherwise the examination findings were normal. AR 271-272.

An MRI of the cervical spine was performed on December 6, 2002, by David Rosenthal, M.D. Dr. Rosenthal's impression included bulging of the annulus at C3-4, C4-5 and C5-6, including reversal of the normal cervical lordosis suggesting spasm; suggestion of a 10mm signal alteration involving the dorsal aspect of the cord at C3-4 with ...

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