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Gifford v. Astrue

February 8, 2010


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Keith G. Gifford ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.


Plaintiff filed an application for DIB on August 7, 2006 (Administrative Record ("AR") 87-92). He alleged a disability onset date of July 17, 2005, (AR 87), due to back pain and addiction to prescription medication. (AR 29-32). The Agency denied Plaintiff's claim for DIB initially on October 18, 2006. (AR 53-57). This denial was upheld upon reconsideration. (AR 61-65).

On June 23, 2008, Administrative Law Judge ("ALJ") Thomas P. Tielens conducted a hearing to review Plaintiff's claim. (AR 20-50). The ALJ denied benefits on July 21, 2008. (AR 7-16). Plaintiff sought review of the ALJ's decision before the Appeals Council, which denied his request on July 23, 2007. (AR 1-3). The ALJ's decision therefore became the final decision of the Commissioner. (AR 1). Plaintiff commenced the instant action on May 15, 2009.


Plaintiff was born on November 26, 1955 and was fifty-two years old at the time of the hearing. (AR 25). He has completed high school and briefly attended college. (Id.). In 1991, Plaintiff took a course in telecommunication equipment installation at ITT Tech. (Id.). Approximately two years before the hearing, Plaintiff completed twelve classes through Global University to become a certified minister. (Id.). Plaintiff previously worked as a plumber. (AR 227).

A. Plaintiff's Medical History

The ALJ noted that Plaintiff had the severe impairments of status post right hip replacement as well as multilevel degenerative disk disease of the thoracic and lumbar spine. (AR 12). Plaintiff was also diagnosed with depression and polysubstance abuse, as well as alcohol dependence and pain medication addiction. (Id).

Plaintiff's medical records show that he has been seeking treatment for hip problems, back pain, and narcotics addiction since mid 2003. Plaintiff was treated numerous times by Dr. Thomas W. Jackson ("Dr. Jackson") beginning in May of 2003. (AR 217-26). On May 23, 2003, Plaintiff underwent a total hip replacement on the right hip. (AR 222, 225). On June 25, 2003, Dr. Jackson noted that Plaintiff's hip was "extremely stable" and that his pain had "decreased." (AR 225). Dr. Jackson further noted, however, that Plaintiff "had some troubles with some of the narcotic dependency problems, which w[ere] expected." (Id.). On August 12, 2003, Dr. Jackson noted that Plaintiff's pain in his right hip was "drastically reduced," but that Plaintiff still had "ongoing back problems." (AR 223). On September 12, 2003, Dr. Jackson noted that Plaintiff was doing "exceptionally well" with his hip replacement and that his "major current problem" was the heavy use of narcotic pain medication. (AR 221). On November 10, 2003, Dr. Jackson noted that Plaintiff had "basically no pain in the hip at all," but that he still had "ongoing troubles with his back and [wa]s scheduled for back surgery." (AR 220).

Plaintiff was also treated numerous times by Dr. A. Cook ("Dr. Cook") from mid 2003 to early 2004. (AR 217-26). On May 8, 2003, July 8, 2003, and September 16, 2003, Dr. Cook performed a variety of surgical procedures to treat Plaintiff's back pain.*fn1 (AR 202-09). On September 16, 2003, Dr. Cook noted that Plaintiff reported a "substantial reduction" in pain following the surgical procedures, but that Plaintiff still had "substantial pain present." (AR 200). Dr. Cook further reported that Plaintiff's range of motion in his lumbar spine had "markedly improved since the previous procedure was performed." (Id.). On January 6, 2004, Dr. Cook noted that Plaintiff described his pain on a scale of 0-10 as a 5. (AR 199). Dr. Cook further noted that Plaintiff was taking Hydrocodone and Robaxin and that Plaintiff "denie[d] any side effects or dysfunction associated with the medication." (Id.). Specifically, Dr. Cook reported that Plaintiff "state[d] that he [wa]s able to function and maintain his level of activity with the use of the medication." (Id.).

By August 10, 2005, Dr. Jackson reported that Plaintiff was doing "extremely well" with his hip replacement and did not "limp or have any other symptoms." (AR 217). Dr. Jackson further noted that Plaintiff's lower back pain "tended to decrease" as a result of the successful hip replacement. (Id.). Dr. Jackson diagnosed Plaintiff with "multiple level degenerative disc disease and spondylosis with spinal stenosis of the lumbar spine." (AR 218). Dr. Jackson recommended a lumbar epidural and facet injections as treatment instead of further surgery. (Id.). Dr. Jackson concluded that if this treatment was successful, "nothing else would [need to] be done." (Id.).

On September 18, 2006, Plaintiff was admitted at the Hemet Valley Medical Center for drug and alcohol detoxification. (AR 246). Dr. Aung Thu ("Dr. Thu") reported that Plaintiff had been taking Morphine Sulfate, Methadone, Fentanyl, Norco, and Soma, as well as drinking alcohol "once or twice a week for the last eight months." (AR 248). Dr. Thu diagnosed Plaintiff with: (1) "Opiate dependence"; (2) "Alcohol dependence, episodic"; (3) "Nicotine dependence, in remission" (4) "Chronic back pain"; (5) "Status post right total hip replacement" (6) "Moderately severe" psychosocial and environmental problems; and (7) a "Global Assessment of Functioning" or "GAF" of 35. (AR 251). Plaintiff "successfully finished the detoxification treatment protocol and . . . was discharged home on September 29, 2006." (AR 247).

B. Consultative Examinations

Dr. Romualdo R. Rodriguez ("Dr. Rodriguez"), a psychiatrist, examined Plaintiff on October 9, 2006. (AR 263-69). Dr. Rodriguez diagnosed Plaintiff with: (1) "Alcohol Dependence"; (2) "Alcohol Dependence, Supposedly in Full Sustained Remission"; (3) "Major Depressive Disorder in Remission"; (4) "Psychosocial stressors over the past year: Moderate"; and (5) "Current GAF: 70." (AR 267-68). Dr. Rodriguez noted that "as long as [Plaintiff] stays clean from all drugs and totally sober and continues on his psychiatric medications he will continue to be relatively stable." (AR 268). Dr. Rodriguez concluded that Plaintiff was: (1) "Able to understand, remember, and carry out simple one or two-step job instructions"; (2) "Able to do detailed and complex instructions" (3) "Minimally limited in ability to relate and interact with supervisors, co-workers and the public"; (4) "Minimally limited in ability to maintain concentration and attention, persistence and pace"; (5) "Minimally limited in ability to associate with day-today work activity, including attendance and safety"; (6) "Minimally limited in ability to adapt to the stresses common to a normal work environment"; (7) "Minimally limited in ability to maintain regular attendance in the work place and perform work activities on a consistent basis"; (8) "Minimally limited in ability to perform work activities without special or additional supervision"; and (9) "[N]ot capable of independently managing funds in an appropriate manner." (AR 268-69).

Dr. Bunsri T. Sophon ("Dr. Sophon"), an orthopedic surgeon, examined Plaintiff on October 10, 2006. (AR 256-61). Dr. Sophon diagnosed Plaintiff with: (1) "Status post right total hip replacement"; (2) "Fracture, right femur, status post IM nailing and removal of nails"; and (3) "Thoracic and lumbosacral spine strain." (AR 260). Dr. Sophon noted that despite Plaintiff's claims of constant back pain, "the physical examination revealed excellent range of motion of the thoracolumbar spine." (Id.). Dr. Sophon concluded that Plaintiff could lift and carry 50 pounds occasionally and 20 pounds frequently and that Plaintiff did not have any limitations in sitting, standing, or walking. (Id.).

C. State Agency Physicians

Medical consultant H. Amado, M.D., ("Dr. Amado") reviewed Plaintiff's medical records for the Disability Determination Service ("DDS") and issued a Psychiatric Review Technique on October 12, 2006. (AR 278-89). Dr. Amado diagnosed Plaintiff with "[d]epression NOS related to general medical condition," (AR 281), and "PSA, early remission from ethanol." (AR 284). Dr. Amado concluded that these conditions imposed only mild functional limitations on Plaintiff. (AR 286). Because Plaintiff's mental condition imposed only mild functional limitations, Dr. Amado determined that Plaintiff did not have a severe mental impairment. (AR 288).

Medical consultant K. D. Gregg, M.D., ("Dr. Gregg") also reviewed Plaintiff's medical records for the DDS and issued a Case Analysis on March 22, 2007. (AR 303). Dr. Gregg noted that Plaintiff's medical records showed addiction to alcohol and illegal substances which was in remission. (Id.). Dr. Gregg further noted that Plaintiff's mental impairments placed only "minimal limits on [his] ability to do adl's and interact with others and tol[e]rate stress." (Id.). Dr. Gregg ultimately concluded that Plaintiff's mental impairment was not severe. (Id.).

D. Plaintiff's Testimony

On June 23, 2008, Plaintiff appeared at a hearing before the ALJ. (AR 22). Plaintiff testified that he stopped working in July of 2005. (AR 26). Plaintiff explained that he did not think he could work in his former field, but that he hoped to get back to work and believed he was "making progress." (AR 28). Plaintiff stated that he thought he "could handle a job" where he "could sit up or . . . be able to stand up[]" and "move around a little bit." (AR 30). Plaintiff explained that he just needed to be able to move around because his pain is triggered by staying in a certain position for extended periods of time. (Id.). Plaintiff further stated that he believed he could do computer work because he could "adjust the seating, get up and stand and walk." (AR 35).

Plaintiff testified that he sometimes can stand "for a long time, especially if [he is] doing something that takes [his] mind off the pain." (AR 33). On a good day, Plaintiff stated that he could stand for 2 hours. (Id.). Plaintiff further stated that he was "building up [his] stamina" and that he was hoping to improve his limit. (Id.). Plaintiff explained that he could sit for approximately an hour and a half or two hours and then he would need to stand up for "a little while." (AR 33). Plaintiff stated that he could "sit back down" again after taking a break to stand up. (Id.). Plaintiff explained, however, that "[b]ending over forwards is terrible." (AR 33). Plaintiff similarly explained that lifting is very difficult, "especially if [he is] bending forward to do [it]." (AR 34).

Plaintiff acknowledged having a history of alcohol and drug use and stated that the last time he used alcohol was in August of 2006. (AR 35). Plaintiff stated that he had not used drugs in "almost 2 years . . . except for [a] little experience with . . . Adderall." (Id.). Plaintiff explained that he was "all strung out" on Morphine and Fentanyl for approximately two years and needed medical detox. (AR 29). Plaintiff testified that he was unable to "take narcotic medication because [he is] an addict." (AR 30).

Plaintiff explained that he was currently taking Trazodone at night to help him sleep as well as Wellbutrin, Lithium, and Lamictal. (AR 31). Plaintiff was also taking Provigil to help him stay awake and he stated that the Provigil was "working pretty well." (AR 37). Plaintiff testified that he was initially prescribed Adderall to help him stay awake, (AR 36), but that he could not "seem to handle" it because of his addiction to narcotics. (AR 31). Plaintiff similarly testified that he was initially prescribed Xanax, but that he no longer takes the medication because it made him "too depressed." (Id.). Plaintiff stated that if his pain becomes unmanageable, he sometimes takes Toradol ...

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