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Wilson v. Commissioner of Social Security

March 31, 2010

ROBERT WILSON, 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. 21) and defendant's cross-motion for summary judgment (Doc. 23).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on April 13, 2005. In the application, plaintiff claimed that his disability began on January 1, 2004. In his application, Plaintiff claimed that his disability is caused by a combination of "feet hurt, walk with a cane, right leg gives out, low back pain. Depression." (CAR 37, 76). The disability determination and transmittal noted Plaintiff's primary diagnosis to be affective (mood) disorder, and his secondary diagnosis as disorders of muscle, ligament and fascia. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on March 5, 2007, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a May 15, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following findings:

1. The claimant meets the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.

2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

3. The claimant's major depressive disorder, marijuana dependence and an anxiety disorder are considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(c).

4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

5. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.

6. The claimant has the following residual functional capacity to perform unskilled work. In particular the claimant retains the ability to understand, remember and carry out simple one or two-step instructions. The claimant also has the ability to relate and interact with others with limited public contact and he can adapt to stresses common to a normal work environment. The claimant also can maintain concentration, attention, persistence and pace and he can maintain regular attendance.

7. The claimant is unable to perform any of his past relevant work (20 CFR § 404.1565).

8. The claimant is an "individual closely approaching advanced age" (20 CFR § 404.1563).

9. The claimant has "a limited education" (20 CFR § 404.1564).

10. The claimant has no transferable skills from semi-skilled work previously performed as described in the body of the decision (20 CFR § 404.1568).

11. The claimant has no exertional limitations (20 CFR § 404.1545).

12. Considering the range of work at all levels that the clamant is still functionally capable of performing, in combination with his age, education, and work experience, and using section 204.00 of the Medical-Vocational Guidelines as a framework for decision-making, the claimant is not disabled.

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

After the Appeals Council declined review on December 15, 2007, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized below:

1. Psychiatric Evaluation, July 7, 2005, Joanne M. Roux, MD (CAR 112-23);

2. Orthopedic Consultative Examination, July 15, 2005, Rajeswari Kumar, MD (CAR 124-30);

3. Medical Records, April 11, 2005 to October 3, 2005, VA/Redding (CAR 131-54);

4. Residual Functional Capacity (RFC) Assessment - Mental (DDS physician) (CAR 155-60);

5. Psychiatric Review Technique Form (DDS physician), January 30, 2006 (CAR 161-74);

6. Medical Records, March 29, 2000 to July 20, 2006, Veterans Administration (CAR 175-259).

A. TREATMENT RECORDS

Plaintiff summarizes his treatment records as follows:*fn1

Veteran's Administration(VA)/Redding medical records

A November 24, 1998, x-ray report on his foot reflected a diagnostic impression of:

Mild spurring along the dorsal aspect of the proximal foot bilaterally. Bilateral pes planus. Healed fracture of the distal aspect of the fifth metatarsal of the right foot. No calcaneal spurs are seen.

TR 184.

On March 29, 2000, Mr. Wilson reported painful feet. TR 258.

On July 12, 2000, Mr. Wilson again complained of pain in his feet. He reported that Vicodin and marijuana helped with the pain. He stated that he felt a lot of pain the mid-arch of his feet. He was given a referral to podiatry. TR 257.

A July 12, 2000, radiograph of his feet included the following diagnostic impression:

Radiographs of the right foot show an old healed fracture of the right fifth metatarsal and a very small developing plantar calcaneal spur. No other findings.

TR 183.

July 17, 2000, treatment notes reflected that Mr. Wilson was seen by the podiatrist. He had calluses and pain with palpation of plantar fascia. He was diagnosed with plantar fasciitis. TR 256.

On August 7, 2000, Mr. Wilson was seen for follow-up on his foot pain. He was still experiencing continuous pain in his feet. The plan was for him to be seen for casting for custom foot inserts (orthotics) and given a prescription for Vicodin. TR 255.

On December 18, 2000, Mr. Wilson was not wearing his orthotics as he felt they were too high in the arch and too hard. He also complained of a callus on his right foot. He was diagnosed with porokeratotic lesions and asked to bring in his orthotics for modification. TR 253.

On January 16, 2001, Mr. Wilson reported that his orthotics were causing him pain. He felt that he needed more padding. He was to bring the orthotics back and make a follow-up appointment. TR 252.

On May 14, 2001, Mr. Wilson had his orthotics adjusted but was unable to wear them due to irritation to his feet. He complained the arches were to high. He was to get another adjustment and follow-up in 4-6 weeks. TR 245.

On June 25, 2001, and August 27, 2001, Mr. Wilson had a painful callus on the bottom of his right foot. On both these dates there was debridement of the lesion with relief without bleeding. At both appointments the record reflected that he was to have a reduction in the arches of his orthotics. TR 244.

On February 5, 2002, Mr. Wilson complained of painful callus on the bottom of his right foot. He stated that his feet were no better with the orthotics. He felt that a flat insole and trimming of the callus with a razor would help him, along with the pain medication. He had debridement of the lesion with relief without bleeding and was scheduled to return in 2 months for follow-up. TR 244.

On April 9, 2002, Mr. Wilson complained of a painful callus on the bottom of his right foot. He reported that he felt better with his pain medication. He had debridement of the lesion with relief without bleeding. The record noted that his orthotics arches would be decreased. TR 243.

On August 6, 2002, Mr. Wilson was wearing his orthotics with thick padded insoles but was still experiencing pain. He had a painful callus on the bottom of his right foot. The record reflected that he had debridement of the lesion with relief without bleeding and he had his Vicodin refilled. TR 242.

On October 28, 2002, Mr. Wilson was wearing his orthotics but was still experiencing pain. He had a callus on his right foot. He reported that both feet were very painful when he walked. TR 242.

On May 13, 2003, and August 19, 2003, Mr. Wilson reported that he was not wearing his orthotics all the time. He had calluses removed from his right foot during each visit and was advised to wear his orthotics when he walked. TR 241.

On December 9, 2003, Mr. Wilson complained of a painful callus on the bottom of his right foot. He reported that he was wearing his orthotics but not when he was at home. He noted that the insole arch reduction was helpful but that he still experienced pain in other parts of his feet when wearing them. He reported that he had some relief with the Vicodin. Mr. Wilson was advised to wear the orthotics when at home as well. TR 240-241.

On January 7, 2004, Mr. Wilson complained of rectal bleeding and was diagnosed with hemorrhoids. TR 239.

On January 8, 2004, Mr. Wilson had a chest x-ray. The diagnostic impression was:

1.4 cm left basal nodule. A CT scan of the chest is advised for further evaluation.

TR 182.

On February 9, 2004, Mr. Wilson had a painful callus on the bottom of his right foot that was trimmed without bleeding. He reported that he was wearing his orthotics all the time but he felt that he had a lump in his arch. TR 237-238.

On April 9, 2004, Mr. Wilson had a CT of the thorax. The diagnostic impression was:

The lesion in the left lower lobe appears to be benign, demonstrating calcification along with no evidence for enhancement or spiculations.

TR 181.

On July 12, 2004, Mr. Wilson had painful calluses on both his feet. He reported that he was not wearing the orthotics because of irritation. He had three calluses trimmed without bleeding. TR 235.

On August 11, 2004, Mr. Wilson was seen for his hyperlipidemia, chronic obstructive pulmonary disease (COPD), and nicotine dependence. He reported that he still had foot pain and had run out of Elavil. The record reflected that his Lovastatin was increased to 40 mg and his Elavil was increased to 75 mg. TR 234-235.

On October 12, 2004, Mr. Wilson had painful callouses on both heels and his right foot. The record stated:

Deep IPK sub 5 right met head - painful to palpation/ reduction. Deep porokeratotic lesion plantar 5 left met head with pain to palpation. Callus with superficial fissuring sub plantar first met head right with fissured callused skin plantar heels b/1 without bleeding without vesicles or signs of T. Pedis. P/ trimming lesions x 4 with relief without bleeding. Rx: lac-hydrin with 5 refills, for heels and area sub first right met head to prevent future fissuring/infection. RTC x 2 months or sooner if problems.

TR 233.

On October 12, 2004, Mr. Wilson had a chest x-ray which reflected a "minor abnormality." TR 180.

On December 14, 2004, Mr. Wilson had painful calluses on both heels and his right foot. He reported that the lac-hydrin made the cracking go away and that the pain medication made it possible for him to perform his daily activities without severe pain. He had the calluses trimmed without bleeding. TR 230.

On March 1, 2005, Mr. Wilson was assessed with a right inguinal hernia and referred for surgery. He was seen by Podiatry for his foot pain. TR 226-227.

On March 29, 2005, Mr. Wilson had an enlarging right groin mass [hernia] that caused him pain. He was scheduled to have surgery on May 26, 2005. TR 223.

On April 11, 2005, Mr. Wilson reported a painful callus on the bottom of his right foot. The notes stated, "Deep porokeratotic lesion plantar 5 left met head with pain to palpation. Plantar feet without evidence of fissuring or calluses at this time. A/ IPK right foot - painful foot, p/trimming lesions x1 with relief without bleeding." TR 153. Mr. Wilson was prescribed Lac-hydrin and a cane. TR 153.

A May 10, 2005, chest x-ray report reflected a minor abnormality and with no significant interval ...


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