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Lawrence v. Astrue

August 27, 2010

DAVID M. LAWRENCE, 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 David M. Lawrence ("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 February 16, 2006, alleging disability beginning January 9, 2005. AR 117-119. His application was denied initially (AR 91-95) and on reconsideration (AR 97-101). Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 104. ALJ Bert C. Hoffman, Jr., held a hearing on October 22, 2008. (AR 22-70), and issued an order denying benefits on February 3, 2009. AR 8-21. Plaintiff requested a review of the decision (AR 5-7) and on April 10, 2009, the Appeals Council denied review. AR 1-4.

Hearing Testimony

ALJ Hoffman held a hearing on October 22, 2008, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Melissa Proudian. AR 22-70.

Plaintiff was born in Selma, California, on July 16, 1957. AR 25. He was 51 years old on the date of the hearing. Id. He is five feet, six and one-half inches tall. Id. He weighs about 200 pounds. Id. His normal weight is about 170 pounds, which he last weighed about one to one and one-half years ago. AR 25-26. He thinks the weight gain is due to the medications, but he does not know which one. AR 26. He completed the twelfth grade and attended about one year of junior college. AR 29-30. He also had vocational training at General Motors and Suzuki of America. AR 30. His last vocational training was in 2004. Id. He is right-handed. AR 26, 69.

Plaintiff lives in Chowchilla, California. AR 27. He is not married, but has a 28-year old son who lives in Iowa and a 27-year old daughter who lives in Madera. AR 26-27. He has a girlfriend, but she does not live with him. AR 54. His parents, both 74 years old, live in Chowchilla and they come by to check on him almost every day. AR 44, 56. They go out for breakfast two to three times per week. AR 56. His brother and sister also live in Chowchilla. AR 57. His best friend moved to Arkansas and they do not keep in contact. AR 57.

For fun, Plaintiff plays on his computer and tries to do some things around the house. AR 54. He has a valid California driver's license and drives three days per week, but "hardly ever go[es] out of Chowchilla." AR 28. He has limited his driving because the reduced range of motion in his neck makes it difficult for him to look around, and he does not want to injure his neck. AR 28, 43. He also limits his driving because of his depression medication. AR 28. He drives in the evenings because there are fewer people. Id. However, he does drive to his doctor's appointments in Fresno. Id. The last time he left the San Joaquin Valley area was about two weeks ago. AR 28-29. He went to Laughlin and Las Vegas for four days with his parents and his sister. AR 28-29, 44. His father drove and Plaintiff sat in the back seat. AR 44. They stopped every hour to get out and stretch. Id. The last time he left the United States was two years ago. AR 55-56. His parents took him on a cruise to Mexico and Guatemala. AR 56. There have been no other out-of-town trips in the last two years. AR 56.

The last time Plaintiff worked was for almost three months between May and August, 2008. AR 30, 34. He worked as a service writer for John Deere in Madera. AR 30-31. He did clerical work because he could no longer do physical work. AR 31. He got that job by submitting an application and interviewing with the service manager and the owner. AR 31-32. He worked 40 hours per week plus some overtime. AR 34. He had difficulty sustaining the hours and it affected his ability to do the job. AR 34-35. He was "mentally beat" after about three days. AR 34. He was incapable of doing everything asked of him and had a problem interacting with people. AR 32. The owner's sister, who was in charge of transportation, harassed him while he worked there. AR 32-33. This kept him from doing his job, which he was having trouble doing anyway. Id. Plaintiff and his manager mutually agreed that his employment should be terminated. Id. He has filled out some job applications since he stopped working at John Deere. AR 33.

For about one month in January, 2005, Plaintiff worked as a temporary night janitor at Chowchilla High School. AR 36. He got the job by submitting an application in response to a newspaper advertisement. Id. He worked from 4:30pm until midnight. AR 37. The job was three or four blocks from his house and he could walk to work. Id. The temporary position ended when regular employees returned from sick leave. AR 36-37.

Prior to his work at John Deere and Chowchilla High School, Plaintiff was a journeyman mechanic for over 15 years. AR 36-38. As a mechanic, the heaviest weight he had to lift was 100 pounds. AR 37-38. He was a foreman at one job for about one year, until he got pneumonia. AR 38. He also did service writing for about six months, and off and on throughout his years of working as a mechanic. AR 39. He stopped mechanic work in January, 2005, because reaching overhead caused excessive pain. AR 37-38.

On a scale of one to ten, Plaintiff describes his daily neck pain as "about a three." AR 41-42. Reaching overhead with his left arm and looking up exacerbate his neck pain. AR 42. Cold weather also increases the pain. AR 46. He has problems with his neck "snapping and cracking and popping... every day." AR 35. While working at John Deere, Plaintiff had problems with his neck and arm. AR 33-34. He sat in front of a computer for "hours on end" and had to get up and stretch periodically. Id. He can look at a computer screen for about 10 to 15 minutes before his neck gets "locked up," and he has to get up and walk around for about five minutes to stretch it out. AR 34-35, 42-43.

The pain in Plaintiff's left arm is on the outside of his shoulder, and occurs daily. AR 48. He can use his left arm for about an hour, as long as he is not lifting anything heavy, and then he would have to stretch it out. AR 52. His left thumb and index finger have been numb every day for a few years. AR 48. The numbness affects his ability to use his left hand because he cannot feel what he is holding and he cannot grab objects. AR 48-49. However, he can feel extreme temperatures in his left hand and he can sometimes perform fine finger manipulation. AR 49. He can hold up to 20 pounds with his left hand for five minutes, but then would need five to ten minutes to rest. AR 49-50.

Plaintiff is being treated for neck pain by his family doctor. AR 46. He takes Vicodin as needed which is usually a couple times per day or week. AR 46-47. It makes the pain in his neck and arm bearable, but it causes tiredness, and he has to lay down. Id. There are no other side effects. Id. He prefers to take Advil when he can because he does not like to take narcotics unless it is necessary. Id. He also treats his neck and shoulder with a hot pack, sometimes nightly, until he goes to sleep. AR 50. He has not had epidural injections or physical therapy. AR 50.

Surgery was performed is 2006, and again in 2007. AR 35. After the first surgery, Plaintiff still had problems with pressure on his nerves. Id. The second surgery was not as successful as he thought it would be. Id. He still has problems with his left hand, and the fingers on his left hand are numb. Id. The doctor recommended an MRI to identify the cause of the numbness, but Plaintiff could not afford the MRI and had no medical coverage. AR 35-36. He did have two MRIs performed, but neither were on his left shoulder. AR 36.

Once per week or once per month, Plaintiff has anxiety and panic attacks. AR 40, 60. He does not know what triggers the anxiety attacks, but they occur when he is around large groups of people. Id. Sometimes he can be around large groups of people and sometimes he cannot. AR 40. He does not do well around noise and kids, but does okay around family. Id. The timing of the attacks is variable, so he does his shopping at night and avoids being around large groups of people. AR 41. He had anxiety attacks when he worked as a service writer but not when he worked as a janitor because there were no other people around. AR 62. When he has an anxiety attack, his heart will start racing and he will start crying for no reason. AR 61. He takes Xanax to relieve the attacks and it usually takes 20 to 30 minutes for the Xanax to begin working. AR 60-61.

Plaintiff fights depression on a daily basis and has to force himself to get up. AR 53. He stated that his depression is a lot better, but still varies day to day. AR 64. He also has a hard time concentrating. AR 62. The longest he can focus or concentrate at one time is 10 to 15 minutes, then his mind wanders and he has to take a break. AR 63. It is a couple hours or the next day before he could go back to what he was concentrating on. Id.

Dr. Ziar, a psychiatrist, treats Plaintiff every one to three months, depending on how he feels, and monitors his medications. AR 58-59. He is currently taking Wellbutrin, Cymbalta, Abilify, and Alfrazonlan, but his medication is constantly being changed. AR 53, 59. He takes his medications every day, as prescribed. AR 60. The medications help with the depression and anxiety and he is able to function throughout the day. Id. Side effects of the Wellbutrin include insomnia and tiredness. AR 59-60.

Plaintiff did not have to get permission from a doctor to go back to work. AR 51. Dr. Brant said Plaintiff could "do whatever [he] felt like [he] was capable of doing." Id. Overall, Plaintiff thinks his neck is about the same, but his arm is getting worse. Id. He has more pain more frequently, and the pain affects his ability to use his left arm. AR 52. Plaintiff feels that he cannot perform any work for eight hours per day, five days per week, because of pain in his arm and neck, and because he gets tired easily and cannot think clearly when he is tired. AR 39. Either the pain or his medications cause him to get tired. AR 39-40.

The last time Plaintiff used illegal drugs was in 2006. AR 65. He used methamphetamines recreationally, once or twice per week for about a month. Id. The last time he consumed alcohol was the day before the hearing. AR 66. The last time he "tied one on" was about a year ago. Id. He does not usually have more than two drinks because the alcohol interacts with his medication and makes him sick. AR 67.

Medical Record

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

Satwant Samrao, M.D.

On January 31, 2005, internist Satwant Samrao, M.D., completed an Employment Development Department (EDD) "Claim for Disability Insurance Benefits - Doctor's Certificate" on behalf of Plaintiff. AR 232. Dr. Samrao's diagnoses included cervical spondylitis with left-sided radiculopathy and depression. Id. He opined that Plaintiff was "incapable of performing his regular or customary work" as of January 9, 2005. Id. He anticipated releasing Plaintiff to return to work on March 31, 2005. Id.

On August 25, 2005, Plaintiff was seen br Dr. Samrao for review of the MRIs done on August 2, 2005 at Community Regional Medical Center, Department of Medical Imaging. AR 238-240. The MRIs revealed mild central stenosis and left neural foraminal stenosis at C3-4 and bilateral neuroforaminal stenosis at C4-5. AR 238. They also revealed bilateral neuroforaminal stenosis and mild central stenosis at C5-6 and left neuroforaminal stenosis C6-7. Id. Dr. Samrao assessed Plaintiff with severe cervical spondylitis with stenosis of the cervical spinal cord and stenosis of neural foramina at multiple levels. Id. He also assessed Plaintiff with hypertension, chronic obstructive pulmonary disease (COPD), and hypercholesterolemia. Id. The doctor referred Plaintiff to neurosurgery for evaluation of a laminectomy. Id.

On December 15, 2005, Dr. Samrao completed an EDD "Request for Medical Information" on behalf of Plaintiff. AR 233-234. The diagnoses included cervical spondylitis with radiculopathy, cervical spinal stenosis, and COPD, based upon an MRI of the cervical spine. Id. The doctor noted that Plaintiff had been "disabled" as of January 9, 2005, and estimated that he could resume work on February 28, 2006. Id.

On December 16, 2005, Plaintiff was seen by Dr. Samrao for complaints of constant left arm pain, occasional right arm pain, and left hand hypersensitivity to the thumb and pointer finger. AR 237. Plaintiff stated that he tried physical therapy and chiropractic treatment with minimal results. Id.

On March 22, 2007, Plaintiff was seen by Dr. Samrao for medication refills and complaints of fluctuating blood pressure. AR 386. The doctor assessed Plaintiff with uncontrolled hypertension, hypercholesterolemia, benign prostatic hyperplasia (BPH), cervical spondylitis with exploration and fusion, chronic pain syndrome, and insomnia. Id. Dalmane, Alprazolam, and Premarin were prescribed. Id.

On March 24, 2008, Plaintiff was seen for a Xanax refill. AR 363. Dr. Samrao noted that Plaintiff's neck was a "little stiff" due to a laminectomy. Id. The doctor assessed Plaintiff with hypertension under "good control," cervical spondylitis, and insomnia. Id. Alprazolam, Lotensin, and Atenolol were prescribed. Id.

On April 24, 2008, Plaintiff was seen for a monthly assessment. AR 361. He requested a change in medications because they were not helping and he could not afford them. Id. Dr. Samrao noted that Plaintiff's neck was "supple" and assessed him with hypertension under "good control," chronic continuous smoking, cervical spondylitis, and depression with chronic anxiety neurosis. Id. Benazepril, Atenolol, Alprazolam, and Cymbalta were prescribed. Id.

On July 24, 2008, Plaintiff was evaluated again. AR 359. He requested a change in his medications because they were not helping him. Id. Dr. Samrao noted that Plaintiff's neck was "supple" and assessed him with weight gain due to cessation of smoking, hypertension under "good control," depression with anxiety neurosis, and BPH. Id. Benazepril, Atenolol, Cymbalta, Ambien, Wellbutrin, and Levitra were prescribed. Id.

Ricardo S. Centeno, M.D.

On March 29, 2006, radiologist Ricardo S. Centeno, M.D., at Chowchilla District Memorial Hospital, performed x-rays of Plaintiff's cervical spine at the request of Dr. Samrao. AR 249. The x-rays revealed multiple degenerative disc changes prominent spurs encroaching into the right intervertebral foramina. Id.

Chowchilla Physical Therapy

From April 20, 2005, to May 4, 2005, Plaintiff attended physical therapy at Chowchilla Physical Therapy, at the request of Dr. Samrao. AR 254. Plaintiff reported no change in left thumb hypersensitivity, but a 25 percent reduction in neck grinding noise that occurred with rotation. Id. He still complained of aching finger joints bilaterally. Id. The physical therapist noted overall mild improvement in muscle tone, range of motion, and pain after six visits. Id. An additional six visits were recommended. Id.

Adam J. Brant, M.D.

On April 19, 2006, Plaintiff was seen by neurosurgeon Adam J. Brant, at Neurosurgical Associates Medical Group, Inc., at the request of Dr. Samrao. AR 296-299. Plaintiff's chief complaints were cervical spondylosis and spinal stenosis. AR 296. Dr. ...


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