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Molano v. Astrue

August 17, 2010

CHRISTOPHER L. MOLANO, 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 Christopher L. Molano ("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 applications on December 5, 2006, alleging disability since January 19, 2006, due to degenerative spine disease, nerve damage and numbness. AR 98-101, 104-106, 128-135. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 46-47, 55, 62, 77. ALJ Michael J. Haubner held a hearing on November 4, 2008, and denied benefits on April 24, 2009. AR 10-21, 22-45. The Appeals Council denied review on June 9, 2009. AR 5-7.

Hearing Testimony

ALJ Haubner held a hearing on November 4, 2008, in Fresno, California. Plaintiff appeared with his attorney, Melissa Proudian. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 22.

Plaintiff testified that he was born in 1972 and received a high school diploma. AR 27. He worked making and installing signs in 1999 and 2000, and worked in concrete in 2001. AR 27-28. He lives with his wife, five children and one grandchild. AR 32. He has a driver's license, but has only driven three times in the last six months. AR 32-33.

Plaintiff is compliant with his treatment, but still has pain in his neck all the way down to his feet. He rates his pain as an 8 out of 10. He also has about the same level of pain in each leg and rated it as a 6 out of 10. AR 28-29. Plaintiff has constant numbness and tingling in his fourth and pinky fingers on his right hand. This affects his ability to grasp things and get a secure hold. He thought he could hold a coffee cup with his right hand for about two minutes and would then need to rest his hand for an hour to an hour and a half. AR 29-30. Plaintiff thought that he could stand for about 10 minutes and sit for 15 to 20 minutes. He could walk about 30 feet. AR 30-31. Plaintiff thought he could lift about five pounds and could hold his head straight for about 10 to 15 minutes. AR 38.

Plaintiff explained that he has to lay down during the day for about four hours. He has difficulty concentrating because of pain and thought he could focus for about 30 to 45 minutes. AR 31. Plaintiff is able to care for himself and feed himself, though he needs help showering about once a week. AR 34. He does not cook but can prepare simple meals once a day. AR 34. He does not do dishes and does not shop for groceries. Plaintiff is able to attend church once a week. AR 35. Plaintiff waters the yard once a week and visits with friends once a month. AR 35-36. He does not take out the trash or do laundry. AR 37.

During the day, Plaintiff estimated that he spends about four hours watching television and about 20 minutes reading the newspaper. He does not attend his children's school functions and does not help them with homework. AR 37.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education, language and background. This person could stand/walk no more than six hours out of an eight hour day, and lift no more than 50 pounds occasionally, 25 pounds frequently. This person could not perform Plaintiff's past work but could perform the full world of unskilled sedentary, light and medium work. AR 41.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 50 pounds occasionally, 25 pounds frequently, stand and walk about six hours and sit about six hours. This person could push and pull without limitation, kneel occasionally and climb, balance, stoop, crouch and crawl frequently. The VE testified that this person could not perform Plaintiff's past work but could perform the full world of unskilled sedentary, light and medium work. AR 41-42.

For the third hypothetical, the ALJ asked the VE to assume that this person could lift, push and pull no more than 20 pounds, could not perform repetitive movement of the back, and could not perform repetitive bending or stooping. The VE testified that this person could not perform Plaintiff's past work, though he could not answer the question as to other work because the back limitation was too nebulous. AR 42.

For the fourth hypothetical, the ALJ asked the VE to assume that this person could not lift, push or pull more than five pounds on an occasional basis and could not climb ladders. This person could climb stairs occasionally, stand for 10 out of 60 minutes, walk for 15 out of 60 minutes and sit for 30 out of 60 minutes. This person would also need to alternate sitting, standing or walking, and could not bend or stoop more than three times per hour. The VE testified that this person could not work. AR 42-43.

For the fifth hypothetical, the ALJ asked the VE to assume a person with the limitations in Plaintiff's testimony. The VE testified that this person could not perform any work. AR 43.

Medical Record

January 16, 2006, x-rays of Plaintiff's lumbosacral spine revealed severe degenerative change at the L5-S1 level. AR 163.

A February 16, 2006, MRI of Plaintiff's lumbar spine revealed L5-S1 broad-based disc bulge with central protrusion, annual tear without definitive nerve contact, bilateral moderate neural foraminal narrowing at L5-S1 due to far lateral disc, focal endplate degenerative changes at L5-S1, and mild L5-S1 facet joint hypertrophy. AR 162.

On May 8, 2006, Plaintiff saw Mythili Sundaresan, M.D., for low back pain with radiation down to his heels for the past five years. His pain occurs throughout the day and is more in the left leg than right. Plaintiff reported that if he stands on his heel, he has pain going from the back to the left gluteal region. On examination, Plaintiff was well-built and was not in distress. His cranial nerves were within normal limits. Power, tone, coordination and deep tendon reflexes in the upper and lower extremities were also within normal limits. Sensory modalities showed impaired pinprick throughout the right arm and right leg, reduced vibratory sensation distally in his legs, right more than left, and distally in his hands, right more than left. Dr. Sundarensan diagnosed cervical and lumbosacral radiculoneuropathy, and degenerative cervical and lumbosacral disc disease with radiculoneuropathy. AR 179-180.

X-rays of Plaintiff's cervical spine taken on May 11, 2006, were normal. AR 173.

On June 16, 2006, Plaintiff saw Dr. Sundaresan in follow-up. Plaintiff's main problem was back pain with radiating pain down his legs. He also complained of numbness in the left leg and both hands, right more than left. Plaintiff complained of neck pain with pain shooting down both arms. EMG/NCV studies of the lower extremities showed findings consistent with bilateral L5, S1 root lesion or mononeuropathy of the lower extremities. The upper extremities show extensive axonal type of neuropathy consistent with radiculoneuropathy or brachial plexopathy. Dr. Sundaresan diagnosed cervical and lumbosacral radiculoneuropathy with degenerative disc disease and spondylosis. He recommended that Plaintiff see a neurosurgeon and believed that if he was not a surgical candidate, he would need a spinal tap. AR 174.

On June 28, 2006, Plaintiff began treating with Sanjay J. Chauhan, M.D. Plaintiff reported pain on the right side of his lower back with radiation to the right posterior thigh. He denied any numbness or tingling and stated that the pain was eased by taking medication or resting. He also complained of right hip pain. On examination, muscle strength was 5 out of 5 in both lower extremities. Muscle tone was normal and no focal atrophy was noted. Reflexes and sensation to light touch was normal. Plaintiff's gait was normal. There was slight to moderate paralumbar muscle spasm on the left and mild spasm on the right. Range of motion in the lumbar spine was limited and straight leg raising was positive on the left at 75 degrees in a sitting and supine position. It was negative on the right. Back flexion was 90 percent of normal. He had tenderness of the lateral greater trochanteric area with mildly positive Patrick's test on the right. Range of motion in the hips was normal. Dr. Chauhan diagnosed right lumbar strain, right hip strain and left-sided lower back strain with left lumbar radiculopathy. He opined that Plaintiff could do modified work, with a restriction of no lifting, pushing or pulling more than 20 pounds, no repetitive movements of the back and no repetitive bending or stooping. Dr. Chauhan prescribed ibuprofen 800 mg. for pain/inflammation and Soma for muscle spasm. AR 336-341.

An MRI of Plaintiff's cervical spine performed on July 24, 2006, was normal. AR 181. Plaintiff underwent a CT scan of his pelvis for abdominal pain on November 26, 2006. "Incidental note" was made of advanced degenerative disc space narrowing at L5-S1 with posterior disc bulge and mild marginal spurring. AR 193.

On March 3, 2007, Plaintiff saw Juliane Tran, M.D., for a consultive examination. Plaintiff reported back pain with radiation to both legs, and neck pain with radiation to the right shoulder, right arm and right first through third fingers. Plaintiff also reported numbness in his left leg and in the sole of his left foot. Plaintiff ambulated with a normal gait though he seemed to exhibit "painful behavior." His general mobility was mildly slow but "seemed to be comfortable." Plaintiff tolerated sitting and could take his shoes on and off. Effort seemed to be associated with painful behavior. Plaintiff was able to perform toe, heel and tandem walking, though he exhibited painful behavior. Pulses were intact bilaterally. Range of motion testing in his neck produced complaints of pain and range of motion testing in his back was limited by pain. There was painful behavior during lumbar range of motion for flexion and extension. Plaintiff also complained of back pain during forward flexion of his hips. Straight leg raising on the right was negative and on the left, testing produced back pain without radicular symptoms. Plaintiff had tenderness of palpation over the cervical spine, diffusely along the right and left lower lumbar spine, diffusely over the thoracic spine and along the right and left sacroiliac joints, sacroiliac notches and bilateral gluteal regions. Plaintiff exhibited painful behavior during the palpation exam. Muscle strength was 5 out of 5 throughout and grasping strength was 5 out of 5 bilaterally. Plaintiff had decreased sensation in the right and left L4-L5 dermatome to pinprick. Sensation was decreased in all fingers of the left hand and decreased in all fingers of the right hand and right forearm, though not in a specified dermatomal pattern. AR 195-198.

Dr. Tran diagnosed neck pain, probably cervical strain or strain, and back pain, probably lumbosacral sprain or strain. Plaintiff had a subjective radicular symptom to the right and left lower extremity, but his reflex examination was normal and straight leg raising was negative. Plaintiff demonstrated painful behavior during the examination and despite restricted range of motion, there was no evidence of an active lumbar radiculopathy and no obvious evidence of sacroiliac joint pain. There was a component of low pain threshold. AR 198. Dr. Tran opined that Plaintiff could not stand or walk more than six hours and could lift 50 pounds occasionally, 25 pounds frequently. AR 198-199.

Plaintiff returned to Dr. Sundaresan on March 5, 2007. He reported that his pain was more on the left and had been for two years prior to first being seen in 2006. Dr. Sundaresan noted that the February 2006 MRI showed outlet stenosis at L5, S1. Dr. ...


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