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Pintar v. Astrue

July 15, 2010

JOHN S. PINTAR, 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 John S. Pintar ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") 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 Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed his application on or about March 21, 2006, alleging disability beginning May 8, 2005. AR 74-76. His application was denied initially (AR 47-51) and on reconsideration (AR 55-59); thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 46. ALJ Sally C. Reason held a hearing on March 3, 2008 (AR 25-43), and issued an order denying benefits on July 22, 2008. AR 5-18. Plaintiff requested a review of the decision (AR 19-22) and on February 26, 2009, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Reason held a hearing on March 3, 2008 in Los Angeles, California. Plaintiff appeared and testified. He was represented by attorney Alex Boudov. Vocational Expert ("VE") Ron Hatakyamo also testified. AR 25-43.

Plaintiff worked as a golf caddy for over 20 years.*fn3 AR 28. He last caddied on May 5, 2005 and has not worked in the past 15 years. AR 28-29. He has a history of drug and alcohol abuse, but he has not taken drugs since April 2005. AR 38-39.

Plaintiff stopped working because he had a "grand mal" seizure. AR 29. He subsequently saw a neurologist who prescribed some trial medications, but he hasn't "found one that works." AR 30. He has no side effects from the seizure medications. AR 31. He had additional seizures on November 8, 2007 and February 1, 2008. AR 30. The 2007 seizure occurred when he tried to return to work. Id. The 2008 seizure, which required him to go to the hospital, occurred because he ran out of medication. Id.

Plaintiff had a physical examination as a result of the 2005 seizure. AR 31. The blood tests from the physical examination resulted in a diagnosis of Hepatitis C in approximately June 2005. Id. He underwent a treatment program at the University of Southern California (USC) one year later. AR 32. The treatment consisted of Pegasys (Interferon and Ribavirin) and lasted only 16 weeks because he was not responding to the treatment. Id. Currently, he is seeing a counselor at the Hollywood Free Clinic twice per month, but he is not being treated for hepatitis. AR 37-38.

Plaintiff's side effects of Pegasys include lack of energy, inability to go outside, vomiting, and weight loss. AR 32. His hepatitis also causes him to have anxiety, depression, headaches, and insomnia. AR 33. Plaintiff has headaches every day, which he can "kind of get through" by taking ibuprofen. AR 33-34. However, one day per week the headache is "unbearable" and "extremely debilitating" for about eight hours. Id. He describes it as "a massive hangover... a vice on each side of each temple... a typical migraine." AR 34.

When asked about his anxiety, Plaintiff stated he feels like he is enclosed in a box and cannot go outside. AR 35. He cannot talk to people and has anger issues and road rage. Id. He will "cut people off in traffic" and "run little old ladies off the sidewalk." Id. This happens every day, and he is taking medication to address these issues. Id. He used to take Xanax but now takes Klonopin (Clonazeopam) because it has a "longer shelf life" and it is more effective. AR 35-36. The Klonopin is prescribed to be taken three times per day, but he only takes it one time per day so he can conserve the medication. AR 36.

Plaintiff suffers from depression and feels helpless as a result of the hepatitis. AR 36. It affects his day-to-day life because he does not want to speak to anybody and cannot do any type of work. Id. Plaintiff also suffers from insomnia, which is also a side effect of hepatitis. AR 37. He has to take prescription medication including Klonopin and Seroquel, to sleep. Id. He is lethargic and does not have the energy to do meaningful work. AR 39. He would like to return to caddying someday. Id. He eats, but has nevertheless lost 20 pounds. Id.

VE Hatakyamo testified that Plaintiff's past jobs are classified as medium and very heavy under the Dictionary of Occupational Titles (DOT),*fn4 but classified as light as Plaintiff has performed them.*fn5 AR 40. Plaintiff's counsel asked VE Hatakyamo to consider an individual that is going to be absent from work twice per month due to various problems involving insomnia, depression, or headaches. AR 41-42. When asked by Plaintiff's counsel if this would be acceptable in Plaintiff's past relevant work or any other work, VE Hatakyamo testified that usually up to two absences per month is tolerable, but two absences per month on a consistent basis would be unacceptable. Id.

Medical Record

The entire medical record was reviewed by the Court. Summaries of the relevant reports and treatment notes are provided below.

Saint Joseph Medical Center

On May 6, 2005, Plaintiff was admitted to the emergency room at Saint Joseph Medical Center following a seizure. AR 140. He was diagnosed with recurrent acute generalized tonic clonic seizure, acute scalp abrasion, and history of cocaine abuse. AR 142.

On February 1, 2008, Plaintiff was taken to the emergency room after a seizure lasting approximately one minute. AR 524-525, 530-531. Lawrence E. Wells, M.D., diagnosed Plaintiff with acute seizure and history of recurrent seizure disorder. AR 524, 530. Ativan and Xanax were prescribed. Id.

Valley Community Clinic

On August 18, 2005, Plaintiff was seen for a lab follow-up visit at Valley Community Clinic. AR 152. He was diagnosed with Hepatitis C, including high liver enzymes, and referred to USC hepatology. Id.

On September 27, 2005, Plaintiff was seen for a follow-up visit on biopsy results. AR 150. He complained of headaches, and an ankle injury he sustained while "motor cross biking." Id. He declined counseling and medication for anxiety. Id.

On January 31, 2006, Plaintiff was seen for complaints of severe headaches and inability to sleep. AR 148. He was still waiting for a hepatitis consultation at USC. Id.

On February 28, 2006, Plaintiff was seen for a follow-up visit. AR 147. He complained of diarrhea, vomiting, ...


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