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Pangle v. Astrue

February 22, 2010

JIMMY PANGLE, 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 Jimmy Pangle ("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 application on July 5, 2005, alleging disability since July 25, 2003, due to back and knee problems. AR 47-49, 75-82. After Plaintiff's application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 14, 40, 43-44. On April 3, 2008, ALJ Robert A. Evans held a hearing. AR 259-281. He denied benefits on April 25, 2008. AR 11-22. The Appeals Council denied review on September 11, 2008. AR 4-7.

Hearing Testimony

ALJ Evans held a hearing on April 3, 2008, in Palmdale, California. Plaintiff appeared with his non-attorney representative, Issac Finch. Vocational expert ("VE") Gail Maron also appeared and testified. AR 259.

Plaintiff testified that he was 49 years old at the time of the hearing and completed high school. He last worked part-time from September 2004 through January 7, 2005, when he was released because his restrictions could not be accommodated. AR 262. He was working for the government as an office assistant. AR 264.

Plaintiff explained that he could no longer work because he was in "a lot of pain and agony" trying to sit and stand up. When he stands, his legs get weak and he has to sit back down. AR 270. He also needs to lay down "once in a while." AR 271. He rated his pain as an eight to nine, with medication. Plaintiff thought he could sit for an hour and a half to two hours but could only stand for a few minutes. AR 271. He lays down most of the day, and estimated he needed two or three one-hour breaks during the day. He uses a heating pad two or three times a night and ices two or three times a night. He also uses a heating pad and ices every hour to two hours during the day. AR 272.

Plaintiff testified that his pain medications cause drowsiness, dizziness, confusion and shortness of breath. He also uses a prescribed cane and back brace. AR 273. Plaintiff's wife and children do the housework and he only drives in an emergency because of his medications. AR 274.

Plaintiff further testified that he gets "pretty irritable" at times and takes it out in his family, who get angry and stop helping him. AR 274. He feels helpless that he can't support his family and his friends stopped talking to him a long time ago. Plaintiff is not receiving mental health treatment because he can't afford it. AR 275.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person could lift at the light level, stand or walk for four hours and sit for four hours total, 30 minutes at a time. He would need a cane for standing or long walking and would need to frequently alternate between sitting and standing. AR 276. He could occasionally bend, stoop, crouch, crawl, climb and kneel. The VE testified that this person could not perform Plaintiff's past work as a receptionist because he wouldn't have the option to sit or stand. AR 277. However, there were light jobs that would allow for alternating of sitting and standing, such as inspector of surgical instruments and assembler of electrical accessories. AR 277.

For the second hypothetical, the ALJ asked the VE to assume that this person, with pain medication, could maintain attention, concentration, pace and persistence for at least two hours before needing to take a brief break. He could then go back for another two hours, etc., throughout an eight hour day. The VE testified that this would not change the positions available since most employers offer breaks every two hours. AR 287.

If this person's pain is so severe that he could not maintain attention, concentration, pace and persistence for "anything closely approaching two hours, but would need other multiple breaks during the day," the VE testified that this person could not work. AR 278-279.

Plaintiff's representative asked the VE to assume the same person in the first hypothetical, with a limitation to lifting up to five pounds on an occasional basis. The VE testified that this person could not work. AR 279.

Plaintiff's representative next asked the VE to assume a person who could perform the following functions on an occasional basis: understanding, remembering and carrying out detailed instructions, maintaining attention and concentration, maintaining activities within a schedule, keeping regular attendance and being punctual, sustaining an ordinary routine without special supervision, working in coordination with others, completing a normal workday and work week, interacting appropriately with the general public, accepting instructions and criticism and getting along with co-workers. The VE testified that this person could not work. AR 279-280.

Medical Record

X-rays of Plaintiff's lumbosacral spine taken on July 14, 1997, showed no acute injury. AR 251. An MRI performed on August 22, 1997, was also normal. AR 253.

Lumbosacral spine x-rays taken on August 9, 1999, showed no changes. AR 252.

On April 4, 2002, Plaintiff underwent an MRI of his lumbosacral spine. The test showed minimal desiccation of the L4-L5 disc with minimal diffuse posterior annular bulging that was not clinically significant. AR 254.

On July 8, 2004, Plaintiff saw Young N. Paik, M.D., for an Initial Comprehensive Orthopedic Evaluation. He noted Plaintiff had been cleared to return to work on May 4, 2004, but was recently instructed to "stay out of work." AR 231, 240. On examination, there were no muscle spasms though there was minimal tenderness of the lumbosacral junction. Plaintiff could stand on his toes and heels. Dr. Paik diagnosed status-post lumbar strain of the lumbosacral spine and degenerative disc disease, caused by a work-related injury on July 14, 1997. He had recurrent muscle strain for the past six years. Dr. Paik believed that Plaintiff was permanent and stationary and could return to his previous work activities with job modification. AR 241-247.

Plaintiff underwent x-rays of his lower back on July 17, 2004. The x-rays were normal. AR 230.

On September 14, 2004, neurosurgeon Abdallah S. Farrukh, M.D., performed a facet block bilaterally at L3-L4, L4-L5 and L5-S1. AR 248.

Plaintiff returned to Dr. Farrukh in February 2005. He complained of persistent low back pain. Dr. Farrukh noted that Plaintiff was cane dependent. Straight leg raising was positive bilaterally. Muscle tone was within normal limits in the upper and lower extremities. Dr. Farrukh diagnosed chronic low back pain. AR 157-158.

On July 10, 2005, Plaintiff went to the emergency room because he ran out of morphine. On examination, he had significant spasm in his lumbar region and straight leg raising was positive bilaterally in the sitting position. Barbara Dodd, D.O., diagnosed chronic low back pain. Plaintiff was given a Heparin lock and morphine IV. He also received a prescription for morphine and told to follow up with Dr. Farrukh. He was also told to follow up with Dr. Shamie at the UCLA spine institute. AR 193.

An MRI of Plaintiff's lumbar spine taken on August 9, 2005, revealed broad based bulge of the annulus fibrosis at L4-L5, slightly eccentric and to the right with associated facet arthropathy causing very mild right sided foraminal stenosis. AR 147-148.

On September 14, 2005, Plaintiff returned to Dr. Farrukh and complained that he was having constant lower back pain that radiated down his hips. The pain was worse after sitting for a long time. Plaintiff was only able to sleep for 45 minutes at night. On examination, there was no sensory loss and muscle tone in his upper and lower extremities was within normal limits. He diagnosed chronic pain, facet joint disease and bilateral carpal tunnel syndrome. AR 144-145.

Plaintiff underwent an MRI of his cervical spine on October 5, 2005. The test revealed cervical spondylosis, most prominent at C5-6, where there was abnormal signal intensity within the disc space, presumably degenerative. There were posterior disc/osteophyte complex and uncovertebral degenerative changes ...


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