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Schwarz v. Commissioner of Social Security

June 3, 2010

LARRY SCHWARZ, 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. 16) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 11, 2005. In the application, plaintiff claims that disability began on March 8, 2005. In his motion for summary judgment, plaintiff claims that disability is caused by a combination of: (1) stress; (2) swollen left foot; (3) anxiety, depression, and anger management issues; (4) bilateral carpal tunnel syndrome; (5) hypertension; (6) diabetes mellitus; (7) heart problems; (8) obesity; (9) chest pain; and (10) back, neck, and leg pain. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on April 23, 2007, before Administrative Law Judge ("ALJ") Plauche F. Villere, Jr. In a August 16, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: stress, hypertension, diabetes mellitus, heart problems, pain in chest, pain in back, neck, and legs, and swollen left foot;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform the full range of sedentary work; and

4. The claimant is capable of performing his past relevant work as an insurance clerk.

After the Appeals Council declined review on October 16, 2008, this appeal followed.

II. SUMMARY OF THE EVIDENCE

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

April 25, 1984 -- Records from U.C. Davis Medical Center indicate that plaintiff was hospitalized following a high-speed vehicle accident. Plaintiff sustained rib fractures, concussion, renal contusion, left ulnar fracture, right shoulder dislocation, and burns over 25% of his body.

February 28, 2005 -- X-rays of plaintiff's chest revealed mild cardiomegaly, chronic left upper rib deformity, and minor left lower lobe scarring.

March 2, 2005 -- Initial assessment notes prepared by physician's assistant Ann Winship reflect that plaintiff was being treated for chest pain. On physical examination, Ms. Winship offered the following assessment: (1) history of recent chest pain; (2) probable past myocardial infarction; (3) family history of alcoholism; (4) obesity; (5) status post cervical fusion; and (6) status post severe burns to the chest. Plaintiff's weight at the time was 220 pounds.

March 23, 2005 -- Follow-up notes by Dr. Factor indicate that, upon examination, plaintiff was a "[h]ealthy-looking, though overweight gentleman in no acute distress." Plaintiff's weight at the time was 224 pounds.

August 13, 2005 -- Plaintiff's friend, Maureen Clark, submitted a "Function Report -- Adult -- Third Party." When asked to describe plaintiff's daily activities, Ms. Clark responded: "He has been trying to do less strenous [sic] things to keep his stress level down he takes short walks." She also reported that plaintiff breathes in a "strange way" as if he is catching his breath. Ms. Clark stated that plaintiff has no problems with personal care tasks. She stated that he does minimal cooking, vacuums sometimes, and makes his bed, but not every day because he requires assistance. Ms. Clark reported that plaintiff "gets really tired a lot faster lately." She also stated that plaintiff has "fatigue, sweating, and shortness of breath. . . ." Ms. Clark stated that plaintiff was "moody -- agitated over things more lately." She offered the following remarks:

When I first noticed his getting agitated or upset is when he can't do the things he use to do like chores, shopping, etc. Now he is sometimes tired less energetic and has a harder time and it takes longer to do. It upset him that he can[not] play sports with son or do some of things he would like to do because of his ability now and its stress on him now.

September 20, 2005 -- Agency examining doctor Timothy Canty, M.D., reported on a comprehensive psychiatric evaluation. There were no psychiatric records available for the doctor to review. At the time of the evaluation, plaintiff's chief complaint was "A lot about stress." Dr. Canty outlined the following history as reported by plaintiff:

His wife died suddenly of cardiac problems in August of 2002. He says he has been under a lot of stress since then and was involved in a malpractice case against the hospital. At one point he developed chest pain, shortness of breath, and was diagnosed with high blood pressure. He describes situational anxiety related to stress and has tried to cut back. He does not have mental health treatment and has never been psychiatrically hospitalized.

Plaintiff was not currently taking any psychiatric medications. Plaintiff reported the following family, social, and employment history:

He lives in a house with his two children ages 20 and 18. He graduated from high school and has never been arrested. His last job was working for an insurance company. He did data entry and filing. He worked for four years and quit on March 11, 2005. He said he found the job too stressful. He was awarded a settlement in April or May of 2005 from his malpractice suit.

Plaintiff reported that he does his own chores and handles his own finances. He said he socializes well with his girlfriend. He also told the doctor that he likes to go for walks, watch television, and "go on the computer." Plaintiff admitted to smoking marijuana and said that the last time he had done so was two months prior. Following mental status evaluation, Dr. Canty was unable to diagnose any psychological problem and assigned a GAF score of 80. Dr. Canty concluded that plaintiff is "fully functional from a psychiatric standpoint and can manage money.

September 28, 2005 -- An agency consultative doctor submitted a psychiatric review technique form. The doctor concluded that plaintiff had no medically determinable psychological impairment.

September 30, 2005 -- Plaintiff's treating cardiologist Dennis R. Breen, M.D., reported on a cardiologic consultation. Plaintiff reported the following history to the doctor:

Mr. Schwarz is a 44-year-old, white male who has a history of chest discomfort occurring in the context of high blood pressure and diabetes, as well as hyperlipidemia. He has chest discomfort with features of angina pectoris in that it is retrosternal, exertional in nature with no radiation to the neck, shoulders, or arms. He is fairly vague in describing the frequency with which he gets this. He has nitroglycerine in his possession, but has not used it. He denies associated diaphoresis, but does have occasional shortness of breath.

For social history, plaintiff reported that he lives with his two children ages 15 and 17.*fn1

Following his examination, the doctor listed the following impressions: (1) chest pain with features suggestive of angina pectoris; (2) electrocardiographic abnormalities suggestive of coronary artery disease; (3) diabetes mellitus type 2; (4) hypertension by history; (5) hyperlipidemia by history; (6) obesity; and (7) positive family history of premature heart disease. Dr. Breen offered the following recommendation:

Mr. Schwarz had a cardiac evaluation in March of 2005. Part of that evaluation consisted of a myocardial perfusion imaging study on March 18th. The results of that are reported only in part. The key piece, which was the interpretation of the imaging portion of the study, was not reported for me to review. Obtaining that would be worthwhile. Otherwise, I am forced to speculate that he probably does have underlying ischemic heart disease. In fact, I would say there is a high probability he has a significant degree of cardiac ischemia.

He will require life-long medical supervision and appears to be limited in his exercise capacity, although precise quantization of that is difficult. He states that he can walk for between one-quarter and one-half miles on level ground before he must stop to rest.

October 26, 2005 -- An agency consultative doctor submitted a physical residual functional capacity assessment. The doctor concluded that plaintiff could lift 20 pounds occasionally and 10 pounds frequently. He also concluded that plaintiff could stand/walk for at least two hours in an eight-hour workday, and that plaintiff could sit for six hours in an eight-hour workday. The doctor concluded that plaintiff's ability to push/pull was unlimited. Plaintiff could perform postural activities, ...


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