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Campbell v. Astrue

June 25, 2010

TERRENCE W. CAMPBELL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Terrence W. Campbell ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title II 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his application on or about September 7, 2005, alleging disability beginning April 29, 2005. AR 72. His application was denied initially (AR 48-52) and on reconsideration (AR 39-43); thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 39. ALJ Plauche F. Villere, Jr. held a hearing on August 14, 2007 (AR 172-195), and issued an order denying benefits on April 12, 2008. AR 12-24. Plaintiff requested a review of the decision (AR 10-11) and on February 26, 2009, the Appeals Council denied review. AR 4-6.

Hearing Testimony

ALJ Villere held a hearing on August 14, 2007, in Sacramento, California. Plaintiff appeared and testified. Plaintiff was represented by attorney Charles Oren. AR 172-195.

Plaintiff's date of birth is March 13, 1953; he was 54 years old on the date of the hearing. AR 177. He is five feet, eight inches tall and weighs 250 pounds. AR 192. He has a twelfth grade education and can read and write. AR 179. Plaintiff lives at home with his wife and five-year-old granddaughter, of whom he and his wife have permanent guardianship. AR 191.

When asked about his work history, Plaintiff testified that he last worked as an order man for Certified Grocers, selecting orders at a dry grocery warehouse. AR 180. The job required heavy lifting. AR 181. He stopped working there in April 2005 because he was "unable to pace [himself] for the production standard required." AR 179, 181. His back hurt too much and his hands "were unable to grasp." AR 181. Even if Plaintiff's job did not require heavy lifting, he still would not be able to do it now because his hands are weak and fatigued. AR 181.

Degenerative disc disease makes it difficult for Plaintiff to stand, stoop, bend, and lift. AR 182. The pain is aggravated with physical activity and excruciating if he has to bend over. AR 190, 193. Plaintiff takes Vicodin for his back pain. AR 187. However, he does not need a cane or brace. AR 177. Plaintiff's doctor recommended swimming to treat his back pain. He has a pool and swims "pretty much every day" for 15 or 20 minutes. AR 184, 194.

In response to the ALJ's inquiry about performing a job without heavy lifting, Plaintiff stated he could not do it because he has had problems with his hands since his carpal tunnel surgery in 1998. AR 181-182, 187. The surgery was successful but the side effects are fatigue and lack of "grasping power." AR 182. Plaintiff cannot do any type of repetitive work with his hands, such as writing or lifting, for more than 10 or 15 minutes. AR 181, 186. Plaintiff can write a quarter to a half page before he has to stop and take a break. AR 187. He takes Motrin to relieve the pain. AR 187.

With regard to the diagnosis of Type II diabetes, Plaintiff's condition is controlled through oral medication. AR 182-183. Plaintiff also has high blood pressure and high cholesterol, which are also controlled through medication. AR 183. Additionally, Plaintiff has diverticulitis, which is controlled through a high-fiber diet. AR 183. Plaintiff also has peripheral neuropathy, which is a burning sensation in his leg that occurs two to three times per week for about an hour, and is extremely uncomfortable. AR 193-194. Plaintiff used to have a problem with the use of marijuana but quit twelve years ago. AR 177-178. He does not smoke tobacco. AR 178.

Side effects of Plaintiff's medication include dizziness, headaches, upset stomach, diarrhea, and constipation. AR 189-190, 192. The dizziness is cause by Plaintiff's blood pressure medication and occurs on a daily basis. AR 183, 192. The diarrhea occurs two or three times per week. AR 190. The headaches occur once or twice per week. AR 189. Once or twice per month he has "migraine type" headaches, caused by stress. AR 189. When he gets the "migraine type" headaches he is "completely incapacitated," and will take medication and try to sleep in a quiet dark room. Those headaches typically last "a day." AR 189.

Plaintiff can lift approximately 10 pounds but drops things occasionally. AR 186. He can stand for 15 minutes before needing to sit, recline, or lie down. AR 194. He can sit for 30 minutes at one time and can walk approximately 300 to 500 feet, no more than 10 to 15 minutes, before he has to take a break. AR 190. Plaintiff can mow the lawn on a "good day." AR 187. His bad days are approximately every other day. AR 187-188. On a bad day, even after taking Vicodin, Plaintiff described his pain as an eight out of ten. AR 188. On a bad day, he lies down, sits in a recliner, sleeps, and avoids physical labor of any sort, including cleaning around the house. AR 188.

When asked about daily activities that he can perform, Plaintiff testified that he does not need assistance with personal hygiene and grooming, however, he cannot put on or take off his own shoes. AR 179-180, 193. He cooks, cleans up around the house, and does light grocery shopping. AR 180. Plaintiff also looks after his granddaughter. AR 191. He can drive for one hour before he has to stop and walk around to take a break. AR 180, 191.

Medical Record

The entire medical record was reviewed by the Court. A summary of the reports and treatment notes is provided below.

Xing-Jian Lu, M.D.

On August 12, 2004, Plaintiff was seen by Xing-Jian Lu, M.D., his primary treating physician, for complaints of bilateral foot problems, numbness and tingling in his feet and legs, and severe dry cough. Dr. Lu diagnosed Plaintiff with diabetes, hypertension, and high cholesterol. AR 117-118.

On September 3, 2004, Dr. Lu diagnosed Plaintiff as having Diabetes Mellitus Type 2 and obesity, and recommended "DM class" and a weight management program. Dr. Lu noted that Plaintiff's blood sugar continued to fluctuate and Plaintiff had not attended DM class yet. AR 115-116.

On April 29, 2005, Plaintiff was seen for complaints of bilateral lower back pain. The pain had existed for three to five days but was not precipitated by injury. AR 109. Dr. Lu prescribed Vicodin and Robaxin and put Plaintiff on light duty for one month. AR 110. At the time, Plaintiff was five feet, eight inches tall, weighed 250 pounds, and his body mass index ("BMI") was 40. AR 109.

On May 31, 2005, Plaintiff was again seen for complaints of lower back pain. Plaintiff requested an extension of light duty. AR 105. Dr. Lu's examination revealed tenderness in the sciatic and lower lumbar paraspinal areas. The doctor ordered an X-ray, refilled Plaintiff's Vicodin prescription, and referred him to physical therapy. AR 106.

On June 30, 2005, Plaintiff reported no change in his back pain and requested another extension of light duty. AR 103. Dr. Lu placed Plaintiff on light duty until August 31, 2005. The doctor also noted that Plaintiff declined physical therapy but said he would do water therapy. AR 104.

On July 15, 2005, Plaintiff was seen by Lan Zhang, M.D., another Kaiser Permanente physician, for complaints of nausea caused by his medications, yet Plaintiff did not want to change medications. AR 102.

June 25, 2007 and July 9, 2007 notations indicate that Plaintiff was noncompliant with "all labs outreach." AR 137-138.

Philip Seu, M.D.

On December 8, 2005, Philip Seu, board certified surgeon, performed a comprehensive internal medicine evaluation of Plaintiff. AR 122-125. Plaintiff's chief complaints were low back pain and carpal tunnel syndrome. AR 122. Dr. Seu reviewed X-ray reports dated June 1, 2005, and August 23, 2005, as well as medical reports dated July 11, 2005, and August 31, 2005. AR 122.

Plaintiff reported that he had low back pain for three to four years as the result of heavy lifting. He complained of pain across his lower back with occasional radiation to his left buttock and left upper leg. AR 122. Plaintiff stated that he was treated with pain medication and tries to swim everyday as recommended. AR 122. Plaintiff also reported that he had carpal tunnel surgery on both wrists, which eliminated the numbness, however, he still experiences fatigue in his hands after 10 to 15 minutes of working with them. AR 122. Plaintiff indicated to the doctor that he spends most of his time at home. He takes the trash out, babysits, swims, and drives. He can walk approximately 500 yards, but he cannot lift heavy objects. AR 123.

Dr. Seu's findings indicate that Plaintiff was obese, moved slowly, and had difficulty bending over and getting on and off the examination table. AR 123. Plaintiff was five feet, eight inches in height and weighed 274 pounds. AR 123. Dr. Seu's general findings included decreased range of motion of the lumbar spine, positive bilateral lumbar tenderness, and healed surgical incisions on both wrists. AR 124. The doctor opined that Plaintiff's low back pain was due to lumbosacral strain. AR 125. The X-rays showed minimal L1-L2 findings. AR 122. Dr. Seu noted "no objective findings" regarding Plaintiff's carpal tunnel syndrome, only a subjective fatigue after prolonged use. AR 125.

Dr. Seu determined that Plaintiff could stand and/or walk six hours in an eight-hour day with more frequent breaks, and could sit without restriction. He could lift 20 pounds occasionally and 10 pounds frequently. Plaintiff has postural limitations due to decreased range of motion in his back, yet Dr. Seu found no manipulative or environmental limitations. AR 125.

Nazar R. Alsaffar, M.D.

On February 9, 2006, Nazar R. Alsaffar, M.D. performed an MRI of Plaintiff's lumbar spine at the request of Dr. Lu. Dr. Alsaffar noted significant degenerative disc disease at L1-2 with posterior spurs and bulging disc, probably causing mild degree of spinal stenosis. He found no focal disc herniation and no significant spinal stenosis. AR 150.

C. Lawlor, D.P.M

On February 17, 2006, podiatrist C. Lawlor conducted a routine diabetic foot check of Plaintiff. Plaintiff complained of toenail fungus, indicating that he only walks barefoot or wears flip flops. AR 99. Upon examination, Dr. Lawlor found no signs of infection; however, he noted that Plaintiff's hygiene was poor and advised Plaintiff to wear socks and lace-up athletic shoes. AR 108.

On April 28, 2006, Dr. Lawlor conducted another routine diabetic foot check. He noted minimal improvement. The doctor also noted that Plaintiff wore flip flops again and that his feet were very dirty and green from mowing the lawn in bare feet. Dr. Lawlor told Plaintiff he was low risk at that time, but that could change in the future if Plaintiff did not take better care of his feet. AR 145.

Michael M. Kiekhaefer, M.D.

On August 21, 2006, neurologist Michael M. Kiekhaefer examined Plaintiff at the request of Dr. Lu. Dr. Kiekhaefer noted that the MRI showed relatively mild degenerative changes, at L1-2, but no significant nerve root impingement and only mild spinal stenosis. The doctor's physical examination of Plaintiff revealed 5/5 motor strength in all extremities, bilateral deep tendon reflexes in the upper and lower extremities, and normal toe/heel walking. Plaintiff's sensation was intact to light touch and pinprick in all extremities with the exception of decreased pinprick at the left anterolateral proximal thigh. Dr. Kiekhaefer found no need for surgery. AR 143. He diagnosed Plaintiff with chronic low back pain and meralgia paresthetica in the left thigh. Dr. Kiekhaefer encouraged weight loss and exercise but noted that Plaintiff refused a physical therapy referral. He also discussed with Plaintiff that he try a chronic pain medication, but Plaintiff deferred. AR 143.

Fariba Vesali, M.D.

On October 4, 2007, Fariba Vesali, M.D. performed a comprehensive orthopedic evaluation of Plaintiff. AR 162-165. Plaintiff complained of chronic low back pain, chronic hand pain, and diabetes. AR 162. He stated that he has had lower back pain for 10 to 12 years, that lifting more than a gallon of milk or walking more than 250 feet aggravates his pain, and that sitting and raising his legs decreases the pain. AR 162. Plaintiff also stated that his hand pain included fatigue and numbness and ...


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