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Ojeda v. Astrue

July 22, 2010

JOSE M. OJEDA, 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 Jose M. Ojeda ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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 January 3, 2005, alleging disability since August 8, 2004, due to pain resulting from disorders of the spine. AR 16, 64, 65. After Plaintiff's applications were denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). AR 42, 66-70, 74-78. On May 29, 2007, ALJ Stephen W. Webster held a hearing. AR 47. He denied benefits on July 14, 2007. AR 10-23. The Appeals Council denied review on April 23, 2009. AR 4-6.

Hearing Testimony

On May 29, 2007, ALJ Webster held a hearing in Fresno, California. Plaintiff appeared with his attorney, Rosemary Abarca. Vocational expert ("VE") Tom Dachelet also appeared and testified. An interpreter assisted during the hearing. AR 47.

Plaintiff testified that he was born in 1960 and lives with his wife and three children. AR 50-51. Plaintiff has a driver's license and does not limit his driving, though he gets fatigued when he drives a lot. His children also take him to where he needs to go. Plaintiff is able to care for his personal needs though his wife does the cooking, cleaning and laundry and his children do the dishes and work in the yard. AR 51-52. Plaintiff completed the fourth grade in Mexico and cannot read or write in English. He can speak very little English. AR 53.

Plaintiff watches television for an hour or two per day. He does not read because his eyesight is poor due to his diabetes. AR 52. He visits friends and family and is able to attend church. AR 53.

Plaintiff testified that he has not worked since August 8, 2004. He has problems with diabetes and an injury to his neck and back. Medication and a chiropractor help relieve the pain in his neck, back and lower back "a little." He had problems sitting and has to stand up when he becomes numb. Plaintiff estimated that he could sit for about 15 to 20 minutes and could stand for about 10 to 15 minutes. He can walk for a block or two. He thought the heaviest thing he could lift was "a chair like this or something." AR 53-55

Plaintiff testified that surgery has been recommended for his back. He has tried injections in his neck and back but they did not help. Plaintiff tried to pick up a gallon of milk one week ago and it caused him pain. He also has a condition called "drop foot" in both of his feet. The toes on his right foot go numb. This affects his ability to walk because he doesn't have good balance and it also affects his ability to stand because his lower back and feet get numb. AR 56-58.

Plaintiff did not believe that he could return to his prior job as a farm worker because he has a lot of pain in his back and neck. His medications also make his stomach upset. AR 58.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift 20 pounds occasionally and 10 pounds frequently, and sit, stand and walk for six hours. This person would be precluded from overhead reaching. The VE testified that this person could not perform Plaintiff's past work but could perform the positions of bagger, garment sorter and grader. AR 59-60.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift 10 pounds on occasion and sit and stand at will. The VE testified that this person could perform a reduced number of sedentary positions. AR 61.

The ALJ asked a third hypothetical, although the transcript states that the related testimony is "inaudible." AR 62.

Medical Record

On August 9, 2004, Plaintiff was in a motor vehicle accident. When he arrived at the emergency room, he complained of neck and low back pain. A lumbar spine x-ray revealed minimal anterior wedging of L1 and a thoracic spine x-ray showed mild to moderate compression deformity and anterior wedging of T11 associated with degenerative changes of T11/T12. AR 142. He was discharged later that night with diagnoses of hyperglycemia, cervical strain and left flank contusion. Plaintiff was given a prescription for Vicodin and ordered to follow-up with his physician for possible diabetes. AR 128-150.

An August 27, 2004, MRI of Plaintiff's cervical spine showed right posterior focal protrusion of the C6-7 disc with associated mild distortion of cord shape, bilateral foraminal stenosis and mild circumferential bulging of discs C3-4, C4-5 and C5-6.

AR 167-168

On December 8, 2004, Plaintiff was seen by Arturo Palencia, M.D, at Advanced Spine Care & Pain Management. He complained of constant neck pain, worse on the left side, constant left arm pain and constant back pain. He also complained of left leg pain and numbness. On examination, Plaintiff appeared in moderate distress. Range of motion testing in his neck produced pain. He could stand and walk on his heels and toes. Range of motion testing in his back produced pain and he had tenderness to palpation in his lumber spine. Compression test on the bilateral wrists was positive in the left wrist consistent with carpal tunnel syndrome and he had diminished sensation to pinwheel, bilateral C6 and C7 dermatomes. Range of motion in his shoulders was within normal limits though he had obvious discomfort in the left shoulder. Lower extremity strength was 4/5 with mild low back pain and he had decreased sensation to pinwheel on the right S1 dermatome and left L5 dermatome. Straight leg raising produced mild to severe low back pain. Dr. Palencia diagnosed mechanical low back pain, mechanical neck pain, left sacroiliitis, rule out various causes, myofacial pain syndrome, left upper extremity radiculopathy, left chest wall pain, rule out rib fracture. He recommended an MRI and started Plaintiff on muscle relaxants and pain medication. AR 151-154.

On December 17, 2004, Plaintiff began treating with Alan P. Moelleken, M.D. Plaintiff reported his pain level in his neck, left arm, back and both legs as an 8 out of 10. On examination, Plaintiff's gait was normal and he could heel and toe walk. He had diffuse tenderness in his cervical spine and limited range of motion. He also had diffuse lumbosacral tenderness and limited range of motion. Plaintiff had diminished sensation at left C5, C6, C7, C8, L3, L4 and L5-S1. Plaintiff was hyperreflexic in his upper and lower extremities. Dr. Moelleken reviewed the August 27, 2004, MRI and opined that the disc protrusion distorts his spinal cord. He diagnosed cervical radiculopathy, cervical spinal cord compression, herniated cervical diss and lumbar problems consistent with traumatic disc herniation. Dr. Moelleken recommended an MRI and EMG/NCS studies of his upper and lower extremities. He also directed Plaintiff to continue his conservative care with Dr. Palencia. AR 188-190.

A December 29, 2004, MRI of Plaintiff's lumbar spine showed L5-S1 mild bilateral lateral recess, left foraminal stenosis secondary to broad-based central annular bulge and moderate facet arthropathy. It also showed mild to moderate bilateral facet arthropathy, L1-2 through L4-5 levels. AR 187.

On January 10, 2005, Plaintiff saw Bradford Anderson, M.D., with complaints of constant neck, low back and left arm pain. Plaintiff rated his pain as an 8 out of 10 and felt that it was rapidly worsening. Plaintiff was in mild distress. He had limited range of motion in his neck and tenderness at the cervical paraspinal muscles on the right and the levator scapula muscle and trapezius on the left. Plaintiff showed slight weakness on the left side compared to the right. Dr. Anderson diagnosed degenerative ...


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