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Her v. Commissioner of Social Security

March 29, 2010

CHA HER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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. 20) and defendant's cross-motion for summary judgment (Doc. 22).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on October 29, 2002. In the application, plaintiff claimed that his disability began on March 8, 2002. Plaintiff claims that his disability is caused by a combination of left eye problems - face wounded, joint pain, right wrist pain, right shoulder pain, right hand numb, back pain, depression, poor concentration, and poor memory. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on November 6, 2003, before Administrative Law Judge ("ALJ") Antonio Acevedo-Torres. In a December 22, 2003, decision, the ALJ concluded that Plaintiff was not disabled based on the following findings:

1. The claimant has not engaged in substantial gainful activity since March 8, 2002.

2. The medical evidence establishes that the claimant has severe status post gunshot wounds to the face, left eye visual loss and an anxiety disorder, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4.

3. The claimant's testimony is not credible for the reasons stated in the body of the decision.

4. The claimant has the residual functional capacity to perform the exertion requirements of work except for frequently lifting more than 25 pounds and occasionally lifting more than 50 pounds (20 CFR 404.1545). He is also precluded from working in high stress environments, frequently socially interacting with the public and handling large objects, using power tools, working on an assembly line and working in hazardous environments.

5. The claimant has the residual functional capacity to perform medium work eroded by visual, environmental and mental impairment related non-exertional limitations (20 CFR 404.1567).

6. The claimant is unable to perform his past relevant work.

7. The claimant is 41 years old, which is defined as a younger age individual (20 CFR 404.1563).

8. The claimant has a high school education (20 CFR 404.1564).

9. In view of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.

10. Section 404.1569 of Regulations No. 4 and rule 203.29 of Table No. 3, of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled within the framework of this rule.

11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR 404.1520(f)).

(Certified Administrative Record ("CAR") 19).

After the Appeals Council declined review on March 29, 2004, Plaintiff filed an appeal with this court, case number 04cv1014-KMJ. The parties entered in to a stipulated remand, wherein the parties agreed that the ALJ was to "obtain vocational expert testimony to clarify the effects of Plaintiff's assessed limitations on the occupational base." (CAR 267-70). In addition, the ALJ was directed to consolidate Plaintiff's current and subsequent claims, which were filed on May 27, 2004, and issue a new decision.

Following the stipulated remand order, the Appeals Council directed the ALJ to consult with a vocational expert and articulate Plaintiff's high stress environment restrictions. In addition, the Appeals Council noted that "the State Agency concluded that the claimant became disabled on June 1, 2004," based on his May 27, 2004, subsequent application. (CAR 277). The ALJ was therefore directed to consider only the period prior to June 1, 2004, and to consult with a mental health medical expert in determining whether an earlier onset date is possible. The ALJ was further directed to offer Plaintiff a new hearing and address any additional evidence submitted. (CAR 276-77).

A new administrative hearing was held November 2, 2005. In a December 27, 2005, decision, the ALJ again concluded that Plaintiff is not disabled based on the following findings:

1. The claimant has not engaged in substantial gainful activity since March 8, 2002.

2. The medical evidence establishes that the claimant has severe status post gunshot wounds to the face, left eye visual loss and an anxiety disorder (posttraumatic stress disorder), but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4.

3. The claimant's testimony is not credible for the reasons stated in the body of the decision.

4. The claimant has the following residual functional capacity: the claimant remains capable of lifting 50 pounds occasionally and 25 pounds frequently. Therefore, he remains capable of performing medium work. However, he is further restricted to performing unskilled work where no bilateral visual acuity is required. The claimant must also avoid working with large objects, power tools and he is unable to perform assembly work.

5. The claimant is unable to perform his past relevant work.

6. The claimant is 43 years old, which is defined as a younger age individual (20 CFR 404.1563).

7. The claimant has a high school education (20 CFR 404.1564).

8. In view of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.

9. Pursuant to the testimony of the vocational expert, Ms. Clavel, given the above residual functional capacity and considering the claimant's age, education and past relevant work experience, the claimant would be able to perform the following jobs which exist in significant numbers in the national economy: An auto detailer. See Dictionary of Occupational Titles 915.687-034. There are 120,000 jobs in the United States and 10,000 jobs in California. The claimant could also work as a laundry factory worker with 2,400 jobs in California and 10,000 jobs in the United States. See Dictionary of Occupational Titles 361.687.018. The claimant could also work as a dishwasher with 37,000 jobs in California and 400,000 in the United States. See Dictionary of Occupational Titles DOT 599.687-030. At the light level, the claimant could work as an usher in a theater. There are 6,700 jobs available in California and 57,000 jobs in the U.S. See Dictionary of Occupational Titles 344.677-014. He could work as a storage facility clerk. There are 5,800 jobs in [] California and 55,000 jobs in the United States. See Dictionary of Occupational Titles 295.367-026. He could also work as a mail clerk. There are 79,000 jobs in the U.S. and 7,800 in California. See Dictionary of Occupational Titles 209.687-026. At the sedentary level, the claimant could work as a food order clerk. There are 17,000 jobs available in the United States and 12,000 in California. See Dictionary of Occupational Titles 209.567-014. He could work as a telephone information clerk. See Dictionary of Occupational Titles 237.367-046. There are 93,000 jobs available in the U.S. and 12,000 jobs in California. Finally, he could work as a charge account clerk. See Dictionary of Occupational Titles 205.367-014. There are 38,000 jobs in the U.S. and 4,000 jobs available in California.

10. Within the framework of Section 404.1569 of Regulations No. 4 and rule 203.29 of Table No. 3, of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled within the framework of this rule.

11. The claimant was not under a "disability," as defined in the Social Security Act, from his alleged onset date of March 8, 2002 through the end of May of 2004. However, as noted above, the claimant submitted a subsequent application dated May 27, 2004 while the current application was pending on appeal and at this time, as ordered by the Appeals Council, the undersigned will not disturb the determination that the claimant was disabled as of June 1, 2004 (20 CFR 404.1520(f)). (CAR 255-56)

Following Plaintiff's appeal of that decision to the Appeals Council, on June 18, 2008, the Appeals Council issued a denial stating it found no reason to assume jurisdiction. This appeal followed.

II. SUMMARY OF THE EVIDENCE

The CAR contains the following evidence, summarized chronologically below:

1. Medical Records, U.C. Davis Medical Center, March 12, 2002 through August 7, 2002(CAR 109-55);

2. Medical Records, We Care Medical Center, August 22, 2002 through February 7, 2003 (CAR 156-64);

3. Internal Medicine Consultative Examination, James L. Martin, M.D., December 30, 2002 (CAR 165-67);

4. Psychiatric Evaluation, Andrea Bates, M.D., December 28, 2002 (CAR 168-74);

5. Medical Consultant's Review of Physical Residual Functional Capacity Assessment, January 14, 2003 (CAR 175-82);

6. Psychiatric Review Technique Form, DDS physician, January 16, 2003 (CAR 183-96);

7 Psychiatric Review Technique Form, DDS physician, April 30, 2003 (CAR 197-210);

8. Medical Assessment of Ability to Do Work-Related Activities (Mental) April 30, 2003 (CAR 211-14);

9. Medical Records, We Care Medical Center, May 28, 2003 through October 16, 2003 (CAR 218-22);

10. Medical Assessment of Ability to Do Work-Related Activities (Mental) from Wu-Hsiung Su, M.D., November 1, 2003 (CAR 223-24);

11. Medical Assessment of Ability to Do Work-Related Activities (Physical) from Wu-Hsiung Su, M.D., November 1, 2003 (CAR 225-26);

12. Medical Records, Sacramento Community Health Center, December 23, 2003 through July 9, 2004 (CAR 292-304);

13. Medical Records, Sacramento County Mental Health, June 23, 2004 through September 7, 2005 (CAR 305-25);

14. Psychiatric Review Technique Form (Medical Expert) November 2, 2005 (CAR 326-41);

A. TREATMENT RECORDS*fn1 2002

Plaintiff summarizes his treatment at U.C. Davis Medical Center as follows:

On March 8, 2002, Mr. Cha Her was shot in the face during an attempted robbery. He was taken to U.C. Davis Medical Center by ambulance. His diagnoses were: left orbital fracture; left mandibular fracture; left visual field loss; left maxillary sinus fracture; and status post gunshot wound x 2 to face. TR 138. Radiological evidence documented: multiple bullet fragments superimposed on the mandible bilaterally, as well as over the left maxillary sinus. There is a comminuted fracture of the body of the left mandible, with multiple fracture fragments interspersed with shrapnel. This results in a fairly large defect of the left mandible, although the roots of the teeth are not involved.

TR 145.

During the hospitalization he underwent surgery to extract a right submandibular foreign body. TR 155. Mr. Her was seen by multiple physicians and psychiatry. He was advised to continue the Remeron and contact Victims of Violent Crime. TR 137. Mr. Her was discharged on March 13, 2002, and instructed to follow-up with Ophthalmology and the Trauma Clinic. TR 137-138. (Pl.'s Mot. at 4-5).

Plaintiff summarizes his treatment at We-Care Medical Center, which the court notes contain the most illegible notes, as follows:

On August 22, 2002, Mr. Her reported neck and shoulder pain, and memory lost. The notes reflected that his left eye was blind and that he had severe pain. TR 163.

On September 19, 2002, Mr. Her reported eye problems. He was assessed with status post gunshot wound. TR 162.

On October 28, 2002, he reported neck, shoulder, and back pain. It was noted that his left eye was blind. He was prescribed Vioxx and Tylenol. TR 161.

On December 6, 2002 he reported that he was tired, had headaches, body pain, and mental problems. Insomnia, headaches, and fearfulness were noted. He was assessed with PTS (Post Traumatic Stress) as the victim of an assault. TR 160. (Pl.'s Mot. at 5).

2003

On January 7, 2003, he reported body pain and mouth bleeding. He was assessed as blind in left eye and referred to Ophthalmology.

On February 7, 2003, he reported back pain and an inability to sleep. He was given an eye referral. TR 158.

On May 28, 2003, Mr. Her was seen in follow-up for pain on the left side of his face. He was assessed with headaches secondary to gunshot wound. TR 222.

On June 26, 2003, Mr. Her reported back and eye pain. Left eye was termed "abnormal" with some tenderness. He was assessed status post gun shot injury ...


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