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Martinez v. Commissioner of Social Security

March 26, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Doc. 20, 21).


Plaintiff applied for social security benefits on March 1, 2005. Plaintiff claims that his disability began on January 1, 2005. In his application, Plaintiff claims that disability is caused by a combination of bipolar disease, diabetes, left eye blindness, knee problems and arthritis.*fn1 Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 13, 2007, before Administrative Law Judge ("ALJ") L. Kalei Fong. In a January 16, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following findings:

1. The claimant has not engaged in substantial gainful activity since March 11, 2005, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe combination of impairments: left eye vision loss, degenerative joint disease of the right knee, non-insulin dependence diabetes mellitus, ADHD, and mild depression (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work except, occasional climbing ramps and ladders, stooping, balancing, kneeling and crawling; frequent stooping and crouching; no climbing ladders, ramps, scaffolds, and visual limitation in depth perception and avoid even moderate exposure to hazards of machinery and heights due to left eye low vision; and simple repetitive tasks.

5. The claimant is unable to perform any past relevant work (20 CFR 416.965).

6. The claimant was born on May 21, 1977 and is 30 years old, which is defined as a younger individual age 18-49 (20 CFR 416.963).

7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c) and 416.966).

After the Appeals Council declined review on April 11, 2008, this appeal followed.

Additional background review indicates Plaintiff had previously been found to be disabled, as of December 1, 1987, due to Attention Deficit Hyperactivity Disorder (ADHD), that decision having been rendered on October 28, 1991. Following a Continuing Disability Review (CDR) in 1999, it was determined his condition had not significantly improved, and that he had additional injuries from a 1998 automobile accident. A second CDR was conducted and in February 2004 it was determined he was no longer disabled as of July 2003. In a January 26, 2005, decision, ALJ Antonio Acevedo-Torres found Plaintiff's medical impairments, noted as ADHD, right knee and leg, and left eye vision, had improved. The ALJ found he had the residual functional capacity (RFC) to perform the requirements of light work; he had the ability to occasionally lift twenty pounds; frequently lift ten pounds, stand, or walk at least six of eight hours and sit at least six of eight hours, but noted the visual limitations of his left eye. Based on that RFC, the ALJ found Plaintiff's disability ceased on July 1, 2003.


The certified administrative record ("CAR") contains the following medical evidence as summarized in Plaintiff's motion for summary judgment.*fn2

Letter Report of Consultative Physician, Jenna Beech, M.D. - May 18, 2005

On May 18, 2005, Mr. Martinez was seen by Dr. Beech for an internal medicine evaluation. His chief complaints were right knee pain, headache, and bipolar disorder. TR 260. Mr. Martinez rated his right knee pain at a 6 out of 10. He stated "it is worse with standing more than 15 minutes or walking more than a block." TR 260. He explained that "it swells and locks up and occasionally buckles because of weakness, causing him to fall." TR 260. He reported that he gets some pain relief from Tylenol. TR 260.

Mr. Martinez reported that his headaches were real bad. He stated that they occurred 2-3 times week and lasted all day. He stated that they "sapped his energy." TR 260. He explained that he was only able to see light out of his left eye. He described it as looking "up from the bottom of the ocean to the sky." TR 260. Mr. Martinez reported that he was unsure how long he had bipolar disorder but he was diagnosed in October of 2004 after he drove his truck into a tree. TR 261.

Dr. Beech described Mr. Martinez as obese. He weighed 268 pound and his blood pressure was 130/100. He reported that he lived with his parents and that he could "do simple cooking and his laundry." TR 261.

Upon examination of his left eye, Dr. Beech noted that there was some periorbital scarring and deformity. She also noted that his lid was tacked upward and his eye appeared larger. TR 262. Dr. Beech reported that he walked with a limp favoring his left leg. She stated:

The claimant does have scarring around his right knee region with some swelling that is 2 cm greater in circumference than in the left knee. He does have tenderness to palpation over the entire knee joint as well as crepitus.

TR 262.

Dr. Beech diagnosed Mr. Martinez with:

1. Right knee pain status post accident and surgery with tenderness to palpation, crepitus, swelling, decreased range of motion, and weakness, also causing him to limp.

2. History of headaches, possibly related to head trauma.

3. Bipolar disorder with history of psychotic features

4. Left eye blind secondary to injury.

TR 263.

In Dr. Beech's opinion, Mr. Martinez could stand/walk for six hours in an eight hour workday. She reported that he could sit without limitations. She noted that he could lift/carry 50 pounds occasionally and 25 pounds frequently. Dr. Beech reported that he could bend with limitations, but... limits for stooping, and/or crouching occasionally. TR 263. She noted that he had workplace environmental limitations as he needed to avoid activities requiring binocular vision because of the blindness in his left eye. TR 263.

Letter Report of Consultative Physician, Jeff Gray, M.D. - May 26, 2005

On May 26, 2005, Mr. Martinez was seen by Dr. Gray for a psychiatric evaluation. Mr. Martinez complained that he was depressed. TR 268. He reported that when he was 14 years of age his older brother was killed and he became very depressed. He was treated with antidepressants until the age of 18. He stated that he has had chronic knee pain and bad migraine headaches since his accident in 1998, which caused left eye blindness and required placement of a metal plate in his face. TR 268. Mr. Martinez believed that he became gradually depressed thereafter and in October of 2004 attempted suicide by driving his car into a telephone pole. He reported that he is currently taking Lexapro at 20 mg. per day and Topamax at 200 mg at bedtime. TR 269.

Mr. Martinez reported his Activities of Daily Living (ADL) as washing his clothes, watching television, and playing video games. He noted that he lived with his parents, and his mother, father and brother maintained the house. TR 269-270. Dr. Gray reported that Mr. Martinez had no social life. The majority of his time was spent with his daughter occasionally or his family at home. Dr. Gray noted that he had a short attention span and could only concentrate for about ten minutes before he had to do something else. TR 270.

Dr. Gray described Mr. Martinez as a male who had nervous mannerisms. Dr. Gray noted that he looked around the room, fidgeted and moved frequently in his chair. Dr. Gray stated that Mr. Martinez had rapid speech and that although he described himself as mellow, it was inconsistent with his nervous mannerisms and fidgeting. TR 270. Dr. Gray reported that Mr. Martinez could only repeat four digits forward and three in reverse. In his opinion, Mr. Martinez had difficulty concentrating and retaining information. TR 270.

Dr. Gray diagnosed Mr. Martinez as:

Axis I: Depressive disorder NOS

Axis II: Attention Deficit Hyperactivity Disorder (ADHD), combined type.

Axis III: Left eye blindness, migraine headaches, right knee arthritis, non-insulin dependent diabetes mellitus, hypertension, and hypercholesterolemia.

Axis IV: Stress - moderate to severe, chronic mental illness, chronic physical disability, and unemployment. Axis V: GAF 55.

TR. 271.

Dr. Gray discussed his opinion of Mr. Martinez prognosis:

The claimant has chronic physical disabilities, chronic ADHD, and he has developed a significant depressive disorder, in part secondary to the two previously mentioned problems. He is currently in treatment and has improved somewhat. Although, some of his problems are not likely to get better in the next 12 months, his depression may improve, but this is difficult to predict. The claimant's ADHD is chronic. He may need additional treatment for this.

TR 271-272.

In his functional assessment, Dr. Gray noted:

The claimant does have the ability to perform simple and repetitive tasks, as well as detailed and complex tasks. The claimant can accept instructions from supervisors. The claimant may have some difficulty with co-workers and the public because of his short attention span and difficulty attending to one thing for any length of time. The claimant could perform work activities on a consistent basis without special supervision.

The claimant can maintain regular attendance in the workplace and he could complete a normal workday and workweek; however, depending on the job, he would have interruptions from this ADHD. The claimant should be able to deal with ...

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