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Belcher v. Astrue

June 8, 2010

JOHN BELCHER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff John Belcher ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on August 9, 2005, alleging disability since November 1, 1990, due to back and leg pain. AR 107-110, 144-153. After Plaintiff's application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 47-51, 53-57, 58. On May 29, 2008, ALJ Michael J. Haubner held a hearing. AR 325-362. He denied benefits on July 24, 2008. AR 18-28. The Appeals Council denied review on May 15, 2009. AR 3-6.

Hearing Testimony*fn2

ALJ Haubner held a hearing on May 29, 2008, in Fresno, California. Plaintiff appeared and testified without an attorney. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 325. At the beginning of the hearing, ALJ Haubner confirmed that Plaintiff received a notice in the mail explaining his right to representation. Plaintiff indicated that he understood this right, and wished to give up that right and go forward without an attorney. AR 327.

Plaintiff testified that he was born in 1950 and completed his third year of college. AR 334. He has not looked for work since 1990. Plaintiff lives with his wife, who is on disability. AR 336. Plaintiff has a driver's license and drives an average of three times a week. AR 326-327. He is able to take care of his personal needs and feed his dog and cat. AR 337-338. He does not do dishes, take out the trash or make his bed. AR 339. Plaintiff goes shopping once a month and does laundry once a week. AR 341, 343. He visits with friends and family about twice a month. AR 343.

During the day, Plaintiff watches television and reads. He estimated that he spends about two hours a day reading and about six hours a day watching television. AR 343.

Plaintiff testified that he is compliant with his treatment. He confirmed that his diagnoses include a history of high blood pressure, diabetes, back surgery, obesity, status post gunshot would to the right foot, and low back pain. AR 345. Plaintiff was 5 feet, 10 inches tall and weighed 285 pounds. His doctors have not told him to lose weight or exercise, though one doctor has told him to cut down on saturated fats. AR 346. Plaintiff thought that he followed his diet about 65 percent of the time. AR 346.

Plaintiff testified that he could not lift or carry any weight without hurting himself, but when asked how much he could lift and carry "without having to call an ambulance," he estimated that he could easily lift about 200 pounds. AR 347. He could lift 200 pounds for two hours out of an eight hour day. Plaintiff thought he could stand for about 10 minutes, sit for about an hour and walk for half a block. AR 348. He estimated that out of eight hours, he needs to lay down or elevate his feet for three hours. AR 349. Plaintiff thought that he could concentrate on something for 12 hours. AR 350.

Plaintiff explained that his lower back pain is constant. When he irritates it, which is about twice a week, he believed that the pain rated as a seven on a scale of one to ten. When his back is not irritated, he rated the pain as a three. AR 350. To relieve the pain, he changes positions frequently, lays down and takes hot baths. AR 351.

Plaintiff also has constant leg pain and believed that if his leg was not irritated, the pain rated as a two. About once a month, the pain in his leg reaches a nine. AR 351. He explained that at a nine, he is "on his knees vomiting," and that this has happened in supermarkets and parking lots. In the last three years, he has vomited from pain about four times. He has narcotic pain medication, but testified that if he takes as much as he needs to "make [himself] mobile," he is so intoxicated that he can't drive or function. Plaintiff explained that the pain in his back cannot be cured by surgery because if they try to remove the scar tissue, there's a 50/50 chance he could be paralyzed. If the scar tissue could be removed, it would grow back immediately. AR 352.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and background. This person could lift and carry 50 pounds occasionally, 25 pounds frequently, stand for about six hours out of eight and sit for about six hours out of eight. This person could occasionally climb ramps and stairs, but could never climb ladders, ropes or scaffolds. This person can occasionally stoop, kneel, crouch and crawl, and can frequently balance. The VE testified that this person could perform the entire range of sedentary and light jobs, as well as some medium jobs. As an example of medium work, the VE testified that Plaintiff could perform the positions of hand packager, machine packager, and extractor operator.

AR 354-356.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 50 pounds occasionally, 25 pounds frequently, and could frequently bend, stoop and crouch. This person could frequently handle, feel, grasp, and finger. The VE testified that this person could perform the entire world of unskilled sedentary, light and medium work. The positions cited in the first hypothetical would also be available to this person. AR 356-357.

For the third hypothetical, the ALJ asked the VE to assume that this person could lift and carry 50 pounds occasionally, 25 pounds frequently, stand or walk about six hours a day and sit for about six hours a day. This person could perform the same positions. AR 357-358.

For the fourth hypothetical, the ALJ asked the VE to assume that this person could lift and carry up to 200 pounds, but could not do so for up to two hours out of eight. This person could stand for 10 minutes at a time, sit for one hour at a time and walk for a half block at a time. This person would need to elevate their feet for three hours out of eight. The VE testified that this person could not perform any work. AR 358.

Medical Record

On April 1, 2004, Plaintiff saw his treating physician, Nauman Qureshi, M.D., after receiving treatment elsewhere for one and half years. Plaintiff complained of back pain but was not taking any medications. His complete physical examination was unremarkable. Plaintiff was diagnosed with chronic back pain and high blood pressure. Dr. Qureshi prescribed a nonsteroidal anti-inflammatory for his back pain and high blood pressure medication. AR 193.

On April 15, 2004, Dr. Qureshi's examination revealed high blood pressure, a weight of 297 pounds and a blood sugar level of 328. AR 192.

Plaintiff saw Dr. Qureshi on April 28, 2004. He forgot to bring his blood sugar records and was given extensive diet and exercise instructions for his diabetes, obesity and cholesterol. His examination was unchanged. AR 191.

On September 10, 2004, Dr. Qureshi strongly urged Plaintiff to check his blood sugar while fasting and to bring his records to every visit. His examination was unremarkable. He was given diet and exercise instructions and diagnosed with diabetes, obesity and chronic back pain. Dr. Qureshi continued the anti-inflammatory medication and planned to observe his back issues. Plaintiff had lost 1.5 pounds since the last visit. AR 190.

On September 26, 2004, Plaintiff was admitted to Tulare District Hospital with a gunshot wound to his right foot. He was discharged the next day. AR 246.

An MRI taken on September 27, 2004, revealed disc desiccation with disc space narrowing at L4-L5 and L5-S1. At the L4-L5 level, there was right paracentral disc protrusion causing severe right foraminal stenosis with probable mass effect on the right L5 nerve root. At the L5-S1 level, there was left paracentral disc protrusion causing severe left foraminal stenosis with probable mass effect on the left S1 nerve root. AR 249.

Plaintiff returned to Dr. Qureshi on October 28, 2004. Dr. Qureshi noted that he was not taking his medication as prescribed and "strongly emphasized" the need to be compliant. His examination was unchanged and he was diagnosed with high blood pressure and diabetes. Plaintiff also forgot to bring his blood sugar records. AR 188.

On December 9, 2004, Plaintiff complained of increasing back pain. Dr. Qureshi reviewed his recent MRI. His physical examination was unchanged. Plaintiff was diagnosed with back pain, high blood pressure and diabetes. He was given Vicodin for pain and referred to a neurosurgeon. Plaintiff again forgot to bring his blood sugar records to the examination and was urged to bring them in the future. AR 187.

Plaintiff returned to Dr. Qureshi on January 7, 2005, for results of his blood tests. His examination was unchanged. He was diagnosed with diabetes and his medication was increased. AR 186.

At his June 2006 follow-up, Plaintiff's blood sugar and blood pressure were high. The rest of the examination was unchanged. Plaintiff had run out of his medications. He was given diet and exercise instructions and strongly urged to check his blood sugars and to bring the records to every appointment. He was also strongly urged to be compliant. AR 185.

Plaintiff returned to Dr. Qureshi for follow-up on July 15, 2005. His examination was unchanged and unremarkable except for his blood pressure, which was 140/90. Plaintiff's high blood pressure medication was changed and he was given diet and exercise instructions. He was also prescribed a different non-steroidal anti-inflammatory for his back. Plaintiff complained of one of his fingers getting numb and he was referred to a neurologist for an expert opinion. AR 184.

Plaintiff saw Dr. Qureshi on December 23, 2005. Plaintiff's blood tests revealed elevated LDL cholesterol, blood sugar and white blood cells. His examination was unremarkable. Plaintiff was diagnosed with obesity, an elevated white blood cell count, high blood pressure, diabetes and hyperlipidemia. He was also diagnosed with anxiety and depression. Plaintiff was not suicidal and Dr. Qureshi planned to observe him. Plaintiff was given diet and exercise instructions. He was started on medication for high blood pressure and told to keep a "very close eye" on his blood pressure. He was also started on medication for his diabetes and hyperlipidemia. Plaintiff was also strongly urged to follow-up with the foot doctor, eye doctor, dentist and diabetic educator on a regular basis. AR 182.

Plaintiff returned to Dr. Qureshi on June 20, 2006, after a sixth month lapse. He was not checking his blood sugars, continued to complain of back pain and was only taking baby aspirin. His examination remained unchanged and he was diagnosed with chronic lower back pain, high blood pressure, obesity and diabetes. He received diet and exercise instructions and was started on medication for his high blood pressure. Plaintiff was also given pain medication for his back. Plaintiff received a glucometer and was instructed to check his blood sugar at least twice a week while fasting and to bring the records with him to every visit. AR 181.

Plaintiff saw Dr. Qureshi again on June 27, 2006. His examination was unchanged and unremarkable. He was given diet and exercise instructions and diagnosed with obesity, high blood pressure, diabetes, hyperlipidemia and back pain. Plaintiff was urged to check his blood sugars regularly and while fasting. Plaintiff was started on Lipitor and was given samples of Ultram for his back pain. Dr. Qureshi wrote prescription for Darvocet for use if the Ultram did not help. AR 180.

On August 24, 2006, State Agency physician Lyle N. Yates, M.D., completed a Physical Residual Functional Capacity Assessment form. Dr. Yates opined that Plaintiff could occasionally lift and carry 50 pounds, 25 pounds occasionally, stand and/or walk for six hours and sit for six hours. He could occasionally climb ramps and stairs and could never climb ladders, ropes or scaffolds. Plaintiff could frequently balance and could occasionally stoop, kneel, crouch and crawl. AR 270-277.

Plaintiff returned to Dr. Qureshi for follow-up on September 12, 2006. His examination was unchanged. Plaintiff reported that the Ultram was "somewhat effective" and Dr. Qureshi increased the dose. AR 179.

On September 26, 2006, Plaintiff returned to Dr. Qureshi. His examination was unchanged. He was given diet and exercise instructions and was diagnosed with obesity, high blood pressure, chronic back pain and diabetes. Dr. Qureshi continued the current regime for management of Plaintiff's back pain. Plaintiff forgot to bring his blood sugar records to the appointment. AR 178.

Plaintiff returned to Dr. Qureshi on October 25, 2006. His blood pressure was elevated but his physical examination was otherwise unchanged. Dr. Qureshi diagnosed morbid obesity, allergic rhinitis and sinusitis, high blood pressure and diabetes. Dr. Qureshi gave Plaintiff diet and exercise instructions and stressed the importance of bringing his blood sugar records to the appointment. He was again "strongly urged" to follow-up with an eye doctor, foot doctor, dentist and diabetes educator on a regular basis. AR 177.

Plaintiff saw Dr. Qureshi on December 11, 2006. He was diagnosed with morbid obesity, high blood pressure, diabetes, hyperlipidemia and chronic back pain. His examination was unchanged. Dr. Qureshi gave Plaintiff "extensive" diet and exercise instructions and told him that he must check his blood sugars and blood pressure on a regular basis. He was instructed to continue Ultram. AR 176.

On March 12, 2007, Dr. Qureshi noted that Plaintiff was not compliant with his medications and diabetes regimen. His examination was unchanged and he was again given diet and exercise instructions. Plaintiff forgot to bring his blood sugar record and was checking his blood sugar very infrequently. Plaintiff was to continue Ultram for pain. AR 175.

On April 14, 2007, Plaintiff saw Sarupinder Bhangoo, M.D., for a consultive examination. Plaintiff complained of a long history of back pain. He reported that he is able to care for his personal needs and do some cooking and cleaning, but that he mostly stayed home and watched television. On examination, Plaintiff was a fairly large sized male who came into the examination room without any difficulty and moved around well. Plaintiff did not seem to be in pain and was able to get on and off the examination table without problems. Plaintiff's gait was normal and he could do tip-toe and heel walking. Straight leg testing was negative, with no paravertebral muscle spasms, tenderness, crepitus, or effusions. Motor strength was 5/5 with good muscle tone and bulk, and grip strength was normal. Plaintiff's sensory examination was normal. AR 169-172.

Dr. Bhangoo opined that Plaintiff should be able to stand and/or walk for at least six hours, sit for eight hours, and lift and carry at least 50 pounds occasionally and 25 pounds frequently. He could frequently bend, stoop and crouch and could frequently reach, handle, feel, grasp and finger. Based on his examination and evidence of previous back problems with no specific musculoskeletal or neurological deficits, Dr. Bhangoo believed that Plaintiff could perform at least medium work. AR 172-173.

On May 4, 2007, State Agency physician J. V. Glaser, M.D., completed a Physical Residual Functional Capacity Assessment form. He opined that Plaintiff could occasionally lift and carry 50 pounds, 25 pounds occasionally, stand and/or walk for six hours and sit for six hours. He had no further limitations. AR 160-164.

ALJ's Findings

The ALJ first explained that in a prior hearing decision dated November 18, 2003, Plaintiff was found to retain the residual functional capacity ("RFC") to perform medium work. The presumption of continuing non-disability applied to the unadjudicated period after November 18, 2003. AR 21.

As to the current application, the ALJ found that Plaintiff had the severe impairments of obesity, hypertension, diabetes mellitus, status post back surgery, status post gunshot wound with history of right foot fracture and lumbar disc protrusions with lumbar scar tissue and low back pain. Despite these impairments, the ALJ determined that Plaintiff retained the RFC to lift and carry 50 pounds occasionally and 25 pounds frequently, sit, stand and walk for six hours in an eight hour day, and frequently bend, stoop, crouch, reach, ...


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