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Doty v. Astrue

April 8, 2010


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



Lionel Doty ("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") and Supplemental Security Income ("SSI"). 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 and SSI on September 20, 2006. (Administrative Record ("AR") 73-79). He alleged a disability onset date of September 4, 2006, (AR 73, 77), for muscle pain due to a gun shot wound to the right chest and abdomen. (AR 14). Plaintiff further alleged that the pain was triggered when bending or stooping. (Id.).

The Agency denied Plaintiff's claim for DIB and SSI initially on January 5, 2007. (AR 40-44). This denial was upheld upon reconsideration on February 23, 2007. (AR 46-50). Plaintiff then requested a hearing, (AR 51-53), which was held by video before Administrative Law Judge ("ALJ") Thomas P. Tielens on April 24, 2008. (AR 10). Plaintiff appeared without counsel and testified. (AR 19-35). Plaintiff's mother, Kathleen Cain, and a vocational expert also testified. (Id.).

On August 15, 2008, the ALJ issued a decision denying benefits. (AR 7-9). Plaintiff sought review of the ALJ's decision before the Appeals Council, which denied his request on June 4, 2009. (AR 1-3). The ALJ's decision therefore became the final decision of the Commissioner. (Id.). Plaintiff commenced the instant action on July 13, 2009. Pursuant to the Court's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on March 1, 2010.


Plaintiff was born on January 2, 1958 and was fifty-years old at the time of the hearing. (AR 84). His highest grade of education is seventh grade. (AR 92). Plaintiff speaks, reads, and writes English. (AR 87). Plaintiff's past work experience has been as a cook. (AR 89).

A. Plaintiff's Medical History

Plaintiff's injury occurred in September 2006. According to medical records from Loma Linda University Medical Center ("Loma Linda") dated September 3 to September 25, 2006, Plaintiff underwent several surgeries and tests for a "post gunshot wound to the right chest wall with the bullet trajectory traversing through the lower anterior mediastinum into the abdomen, with the bullet terminating within the pelvis." (AR 136-61). The surgeries were for the repair of the initial chest and abdominal trauma and liver laceration, exploration and complications related to the gunshot wound, and finally for permanent closure of the abdominal wound. (Id.). The Loma Linda medical records further indicated gradual improvement in Plaintiff's condition with some complaints of abdominal pain by Plaintiff. (Id.).

Beginning in October 2006, Plaintiff was treated at Arrowhead Regional Medical Center ("Arrowhead Regional"). (AR 247-62, 270-300). The Arrowhead Regional medical reports revealed that Plaintiff initially sought follow-up treatments to have his abdominal wound checked. (AR 248-62, AR 281-92). The initial reports further revealed that Plaintiff consistently complained of abdominal pain. (Id.). However, from March 2007 to March 2008 (shortly before April 24, 2008 hearing), Plaintiff consistently and on several occasions reported that he had experienced very little (two on a scale of ten) to no pain. (AR 271-80). Furthermore, during that time period, Plaintiff was treated only for symptomatic treatment of other medical conditions including hypertension and hepatitis C. (Id.). Plaintiff was also prescribed medication for his pain, high blood pressure, and cholesterol. (AR 26).

B. State Agency Physicians

On December 29, 2006, medical consultant D. B. Rose, M.D., ("Dr. Rose"), reviewed Plaintiff's medical records for the Disability Determination Service ("DDS") and issued a Physical Residual Functional Capacity Assessment. (AR 236-42). Dr. Rose's case analysis detailed an extensive summary of Plaintiff's surgeries and injuries to determine Plaintiff's residual functional capacity ("RFC"). (AR 241-42).*fn1 Dr. Rose reported that Plaintiff could occasionally lift and/or carry twenty pounds, could frequently lift and/or carry ten pounds, could stand, walk or sit for about six hours per eight hour work day, and had unlimited pushing and pulling abilities. (AR 237). Additionally, Dr. Rose checked the boxes indicating that Plaintiff's injury did not affect his ability to occasionally climb ramps and/or stairs, balance, stoop, kneel, crouch or crawl, however the injury did limit Plaintiff's ability to climb ladders, ropes and/or scaffolds. (AR 238). Dr. Rose noted that after taking into consideration the most restrictive of scenarios, and giving the Plaintiff the benefit of the doubt, she suggested Plaintiff's capacity for a range of work at the light exertional level. (AR 241).

On February 21, 2007, after reviewing Plaintiff's medical file and detailing Plaintiff's surgeries, medical consultant M. H. Yee, M.D. reported the same conclusion as Dr. Rose's assessment of Plaintiff's residual functional capacity for a range of work at the light level. (AR 263).

C. Plaintiff's Testimony

On April 24, 2008, Plaintiff appeared at a hearing before the ALJ. (AR 19). Plaintiff testified that he had five operations on his stomach due to a gunshot wound in September 2006. (AR 25). He stated that he was initially treated at Loma Linda for the wound and then went to Arrowhead Regional for follow-up treatments. (See AR 22). As a result of his surgeries, Plaintiff explained that he had muscle pain in the morning, when he came home from work, and in the evening. (AR 26). He further described his pain as coming from his stomach muscles, and usually occurring when he stooped or bent over. (Id.).

Plaintiff testified he took medications for his high blood pressure, cholesterol, and pain. (AR 26). He further noted that since getting out of the hospital, he had been taking Norco daily for pain.

(Id.). Although Plaintiff indicated he had diabetes, Plaintiff testified that his diabetes no longer affected him. (AR 26-27).

Plaintiff also testified that he went back to work as a short order cook in November 2007. (AR 23). He worked four to five hours a day, five days a week. (Id.). Plaintiff explained that while he worked, he stood most of the time, but was able to sit down when business was slow. (AR 24). Plaintiff also stated that he was able to lift up to 30 pounds. (Id.).

The ALJ questioned Plaintiff regarding his activities at the time of the hearing. (AR 27). Plaintiff responded that he lived alone. (Id.). He drove himself to and from work as well as to the grocery store. He also frequently visited his mother. (AR 27, 30). Plaintiff further stated that he cleaned his house and collected cans and bottles around his mother's complex to make money. (AR 30).

D. Vocational Expert's Testimony

Linda Berkley testified at the April 24, 2008 hearing as a vocational expert ("VE"). (AR 31-33). After the VE heard Plaintiff's testimony and reviewed Plaintiff's file, the ALJ posed two hypotheticals to the VE. (AR 33-34). In both, the VE considered a person "the same age as [Plaintiff], who ha[d] the same educational background and past work experience." (AR 33). In the first hypothetical, the ALJ described a person that "could do light work; only occasionally climb, balance, stoop, crouch, or crawl; should not use ladders, ropes or scaffolds." (Id.). Given this hypothetical, the VE found that such a person could not perform any of Plaintiff's past work ...

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