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Stearnes v. Astrue

July 28, 2010

DONTE MARKELL STEARNES, 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 Donte Markell Stearnes ("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 July 27, 2006, alleging disability beginning January 1, 2003. AR 139-143. His application was denied initially on January 19, 2007 (AR 67-75), and upon reconsideration on April 26, 2007. AR 92-95. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 96. ALJ Christopher Larsen held a hearing on August 26, 2008 (AR 19-55) and issued an order denying benefits on October 17, 2008. AR 6-17. Plaintiff requested a review of the hearing (AR 18) and the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Larsen held a hearing on August 26, 2008, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Dennis Bromberg. Vocational Expert ("VE") Thomas C. Dachelet also testified. AR 19-55.

Plaintiff was born on July 11, 1968. AR 25. He is five feet, nine inches tall, weighs 178 pounds, and is left handed. Id. He completed the twelfth grade and has no special job training. Id. He lives at a boarding house, which is paid for by a Welfare Department voucher. AR 42, 52. He has no income, but does receive food stamps. AR 52. He has health insurance through the County Medical Services Program (CMSP). AR 52-53. He has a valid California driver's license which requires him to wear corrective lenses. AR 44-45.

When asked about his last job, Plaintiff indicated he last worked from August 2001 to February 2002, as a janitor at a truck stop. AR 26-27. He mopped floors, changed doorknobs, took out the trash, and restocked cabinets. AR 26. He occasionally lifted approximately 45 pounds. Id. He stopped working there because he was fired. AR 34.

Plaintiff has constant pain in the "inside ball and joint" of his right ankle everyday. AR 28. Walking more than one quarter to one half mile makes the pain worse, and his foot swells after about 20 minutes of walking. AR 28-29. He can walk about one quarter of a mile and stand for about 20 minutes before he has to sit down. AR 29. He can sit for about 45 minutes before he has to stand up. Id. His feet swell when he sits. Id. Taking medication and soaking his feet alleviates the pain. AR 31.

Plaintiff is taking Vicodin, Soma, and Naprosyn. AR 31-32. He takes Vicodin once per day if he is at home and three times per day if he is not at home. AR 33. He takes Soma twice per day. AR 32. He takes Naprosyn three time per day and it alleviates the swelling. AR 31, 33-34. Medication side effects include drowsiness, dizziness, nausea, stomach aches, and headaches. Id. Plaintiff stated that his pain and pain medications also affect his ability to focus and concentrate. AR 42-43. When reading a book or watching television, he can focus for about 30 minutes at one time. AR 43.

When asked about his eyes, Plaintiff stated that he started having problems when he was working at the truck stop. AR 34. The first symptoms were cloudiness and blurriness. Id. He has been wearing glasses since 2003, which helps his vision. AR 34, 43. He started using steroid drops about three years ago to relieve pressure from glaucoma. AR 35, 41. He uses the drops three times per day. AR 35. Two times per week his eyes remain cloudy until about 3:00 or 4:00 in the afternoon. Id. When his eyes are cloudy, he can't read the newspaper. AR 36. On a day when his eyes are clear, he has some double vision and has to squint to see beyond six or seven feet. AR 36-37. When his eyes are cloudy, it affects his peripheral vision. AR 37. He sees black spots. AR 37-38. Plaintiff could perform a job requiring him to assemble gadgets but on days where he had cloudiness he would not be able to keep up with other workers. AR 38.

Plaintiff also has cataracts. AR 38-39. His doctors recommend cataract surgery, but they cannot proceed until the pressure from the glaucoma is reduced. AR 39. The doctors stated that he has a 40 percent chance of seeing better after the surgery, and a 60 percent chance that his vision would be worse. AR 39-41.

On days when his vision is cloudy, Plaintiff does chores around the house. AR 41. He washes dishes, feeds the dogs, takes out the trash, and does laundry. Id. He can do this for about two hours. AR 42. On days when his vision is clear, he does chores for about three to three and one half hours. Id. The most physically demanding chore that he does is laundry. Id.

VE Dachelet testified that Plaintiff's previous work as a janitor was considered a medium physical demand, unskilled. AR 44. He was then asked to consider a hypothetical worker of Plaintiff's age, education, and work experience, who is capable of light physical exertion, can never climb ladders, ropes, or scaffolds, can frequently climb ramps or stairs, can occasionally walk over uneven terrain, and has visual acuity inadequate for detailed or close work. AR 45-47. The VE indicated that a person with these restrictions would be unable to work. AR 47, 50.

VE Dachelet was asked to consider a second hypothetical worker, of Plaintiff's age, education, and work experience, who has similar impairments to the first hypothetical worker, except that visual acuity is consistent with the ability to work as a janitor. AR 48. He indicated that such an individual could perform jobs that exist in the national economy, including a car wash attendant, goodwill ambassador, and an inspector/tester/sorter/sampler. There are 9,217, 2,230, and 8,000 jobs respectively in California. AR 48-49.

VE Dachelet was asked to consider a third hypothetical worker, of Plaintiff's age, education, and work experience, who can stand and walk a total of two hours or less, and sit a total of two to four hours, in an eight hour day. AR 50. The VE indicated that such an individual could not work in the national economy. Id.

Finally, VE Dachelet was asked to consider a fourth hypothetical worker posed by Plaintiff's counsel which referenced the second hypothetical worker, except that one to two times per week due to eye conditions and medication used for the eye, this person would not be able to do work requiring near or far acuity for three quarters of a work day. AR 50-52. The VE indicated that these limitations would close the world of work normally found in the national economy. AR 52.

Medical Record

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

William H. Hawkins, D.O.

On August 29, 2002, Plaintiff was seen by his primary medical care provider, osteopathic physician William H. Hawkins, at Madera Medical Association, for complaints of difficulty seeing. AR 310.

On October 17, 2002, Plaintiff was seen by Dr. Hawkins for a follow up. AR 305. During this visit, Plaintiff stated that the eye drops "really help" him. Id. The doctor assessed his vision as 20/140 without correction. Id. He was diagnosed with iridocyclitis and arthritis of the right foot, ankle, and right wrist. Id.

On December 9, 2002, Plaintiff was seen for complaints of right ankle and right wrist pain. AR 304. Dr. Hawkins' notes indicate Plaintiff had been disabled for eight months, but he hurt his ankle after working for two to three hours, taking care of animals. Id. Vicodin and Naprosyn were prescribed. Id.

On five visits between September 7, 2005 and December 13, 2006, Dr. Hawkins indicated that Plaintiff's condition had improved. AR 249-250, 254, 265, 268.

On May 2, 2007, Plaintiff was seen for a follow-up computed tomography (CT) scan. AR 334. He was also seen for complaints of pain in his right ankle and in the bottom of his foot when walking for long periods of time. Id.

On August 8, 2007, Plaintiff was seen for medication refills and follow-up regarding his right ankle. AR 333. Dr. Hawkins noted chronic pain and a limp, which affected Plaintiff's right hip. He recommended an MRI. Id.

On February 4, 2008, Plaintiff was seen for complaints of pain in his right hip, lower back, and right foot. AR 326. Dr. Hawkins noted that Plaintiff shifted his weight when walking, which caused hip imbalance. Id.

On March 17, 2008, Plaintiff was seen for complaints of blurry vision. AR 325. He stated that he was still using the eye drops, still seeing Dr. Kummerfeld, and still wanted surgery. Id.

Rodney C. Remington, M.D.

On September 3, 2002, Plaintiff was examined by ophthalmologist Rodney C. Remington at Fogg, Maxwell & Lanier EyeCare Medical Group. AR 183. Dr. Remington diagnosed Plaintiff with chronic iritis and secondary cataracts in both eyes. Id. Eye drops were prescribed. Id.

On June 7, 2004, Plaintiff was again examined by Dr. Remington. AR 183. The doctor indicated that Plaintiff's vision was 20/200 in both eyes and that eye pressures were increased. Id. The doctor diagnosed Plaintiff with secondary glaucoma from chronic iritis in the eyes, and cataracts in both eyes. Id. Treatment included topical steroid and glaucoma eye drops. The doctor opined that Plaintiff may need cataract surgery to try to improve his vision. Id.

Kevin R. Kummerfeld, M.D.

On January 2, 2003, Plaintiff was examined by ophthalmologist Dr. Kevin R. Kummerfeld, M.D. at the Eye Medical Center of Fresno. AR 241-242. Dr. Kummerfeld's examination revealed that Plaintiff's visual acuity without correction was 20/200 bilaterally and his left pupil was irregular with no afferent pupillary defect. AR 241. The slit-lamp examination was significant for bilateral pinguecula, bilateral nasal pterygia, bilateral significant posterior synechiae nearly 360 degrees in each eye, and bilateral cell-and-flare. Id. The doctor's diagnosis included bilateral nongranulomatous iritis with bilateral severe posterior synechiae, cystoid macular edema, bilateral cataracts, and bilateral pterygia. Id. Pred Forte 1 percent and atropine sulfate 1 percent eye drops were prescribed. AR 242.

On May 7, 2004, Plaintiff was seen for complaints of blurry vision. AR 240.

On April 11, 2005, Plaintiff was seen again for complaints of blurred and foggy vision. AR 239. Dr. Kummerfeld assessed Plaintiff's vision at 20/200 in both eyes. Id. He noted that Plaintiff had been given a prescription for glasses by Dr. Howell but Plaintiff had not gotten the prescription filled. Id.

On April 18, 2005, Plaintiff was seen for complaints of itchy eyes and cracked eyelids. AR 238. His vision was assessed at 20/100 in both eyes. Id. Plaintiff was diagnosed with inflammatory v. steroid induced glaucoma. Id.

On April 19, 2005, Plaintiff was seen for a 24-hour follow-up. AR 237. He stated his eyes were still a little itchy and there were no new noticeable changes. Id. Dr. Kummerfeld noted that there ...


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