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Whitley v. Astrue

September 13, 2010


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Plaintiff Scott Whitley ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying his application for a period of Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI"). Alternatively, Plaintiff asks for a remand. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.


On May 22, 2006, Plaintiff filed an application for DIB and SSI claiming that he became disabled beginning September 30, 2001. (Administrative Record ("AR") 10). The Agency initially denied his application on August 4, 2006. (Id.). After submitting a request for reconsideration, the application was again denied on December 26, 2006. (Id.). On February 14, 2007, Plaintiff requested a hearing. The hearing was held before Administrative Law Judge ("ALJ") Gene Duncan on January 23, 2008. (AR 18). Plaintiff appeared with counsel and testified. (AR 21-24, 34-46). Also testifying were Samuel Landau, a medical expert, Gregory S. Jones, a vocational expert, and Gail Wagner, Plaintiff's fiancé. (AR 25-33, 47-64). On February 15, 2008, the ALJ issued a decision denying benefits. (AR 7-17). Plaintiff sought review before the Appeals Council, which denied the request on November 9, 2009. (AR 1-3). On December 16, 2009, Plaintiff filed the instant action.


Plaintiff was born on June 27, 1958, and was forty-three years old at the time of the alleged disability onset date. (AR 16). He has a tenth grade education and is able to communicate in English. (Id.). Plaintiff formerly worked as a construction worker. (Id.). Plaintiff's claimed impairments include rheumatoid arthritis, Hepatitis C, a back injury, arthritis, and high blood pressure. (AR 116).

A. Plaintiff's Medical History

In May 2005, while serving a sixteen-month sentence for a DUI conviction at Calipatria State Prison, Plaintiff was treated for pain and trouble breathing. (AR 134). The prison doctors prescribed Malox, Metamucil, Motrin, Penicillin, and Prilosec to Plaintiff. (Id.). Both before and after his incarceration, Plaintiff visited Rancho Springs Medical Center for treatment of back pain. (AR 119, 133, 143). At Rancho Springs, he received x-rays, a CT scan, and medication. (AR 133, 143). Plaintiff was treated by Dr. Moody, Dr. Wayne, Dr. Odubela, and Dr. Simms, all affiliated with Rancho Springs Medical Center. (AR 148).

Plaintiff listed Dr. Jesus Lucas as his primary physician. (AR 234). Dr. Lucas ordered numerous tests through Quest Diagnostics, UniLab, and Cardiopulmonary Diagnostic Services. (AR 329, 339, 349, 353, 354, 356, 363, 364, 366, 367, 369, 370, 371, 375). Dr. Lucas is listed as prescribing Plaintiff various medications for herpes, an infection, and an undisclosed stomach ailment. (AR 149).

On May 26, 2006, Dr. Lucas completed a Consent for Release of Medical Information form. (AR 336). In this one-page, fill-in-the-box form, Dr. Lucas diagnosed Plaintiff with degenerative disc disease, arthritis, and Hepatitis C. (Id.). The form does not indicate what type of examination was conducted to reach these conclusions. (Id.). The boxes did not provide space for elaboration. (Id.). In the "prognosis and recommendations for treatment" box, Dr. Lucus found Plaintiff "temporarily disab[led] at least until 9/1/06 while the above work-up and therapy are being carried out." (Id.).

On March 29, 2007, Dr. Lucas completed an Authorization to Release Medical Information form. (AR 335). Dr. Lucas again concluded in this check-off-the-box form that Plaintiff does not require someone to care for him, and that Plaintiff could provide care to children in his home. (Id.). Dr. Lucas found that Plaintiff did not have any limitations that affect his ability to work or participate in education or training. However, Dr. Lucas also checked the box indicating that Plaintiff was not, in fact, able to work. Dr. Lucas did not provide any other specific diagnosis on this release form. (Id.).

B. Consultative Examinations

At the Agency's request, Dr. Thomas J. Sabourin completed an Orthopedic Consultation on July 25, 2006. (AR 188-92). The examination included formal physical examination procedures and observations of Plaintiff's movements. (AR 189). Dr. Sabourin found that Plaintiff had normal gait and did not need an assistive device. (Id.). Dr. Sabourin performed x-rays which showed no significant decrease in the disc spaces of Plaintiff's back except for some perhaps slight decrease at L5-S1. (AR 191). The examination revealed that Plaintiff's range of motion was normal in his extremities. (AR 190-91). Furthermore, Dr. Sabourin found that Plaintiff had no manipulative limitations. (AR 192). Dr. Sabourin concluded that Plaintiff's symptoms were "somewhat disproportionate to the determinable condition" and that Plaintiff could lift fifty pounds occasionally, twenty-five pounds frequently, and is capable of standing, walking, or sitting for six out of eight hours. (Id.).

On August 1, 2006, Dr. A.W. Lizarraras completed a Physical Residual Functional Capacity ("RFC") Assessment after reviewing medical evidence in the file. (AR 197-202). Dr. Lizarraras found that Plaintiff had no limitations with regard to manipulation, vision, communication, or environment. (AR 199-200). Dr. Lizarraras found that Plaintiff's postural limitations included climbing, balancing, stooping, kneeling, crouching, and crawling due to back strain. (AR 199). Dr. Lizarraras concluded that Plaintiff had frequent postural limitations, but no manipulative limitations. (AR 202). He found that Plaintiff's allegations are partially credible for arthritis. (Id.). However, the examination discovered no indication of significant liver disease and Plaintiff appeared capable of at least medium work. (Id.).*fn1

On December 26, 2006, Dr. G.D. Taylor-Holmes also completed a Physical RFC Assessment after reviewing the evidence in the file. (AR 206-10). Dr. Taylor-Holmes also found Plaintiff to have frequent postural limitations, but no limitations with regard to manipulation, vision, communication, or environment. (AR 208-09). In conclusion, Dr. Taylor-Holmes also found that Plaintiff could perform medium level work. (AR 210).

C. Subjective Complaints

In his disability report, Plaintiff complained that he suffers from rheumatoid arthritis, Hepatitis C, a back injury, arthritis, and high blood pressure. (AR 116).

On June 10, 2005, Plaintiff completed an Exertional Daily Activities Questionnaire. (AR 125-27). In the questionnaire, he complained of chronic joint pain, chronic hip pain, a metatarsal stress fracture to his right foot, dizziness, and difficulty sleeping because of pain. (AR 125). Plaintiff stated that to temporarily relieve pain he tries to "put in a mile or two of walking a day, [he] swim[s] and sit[s] in a hot spa . . . ." (Id.). Further, he stated that he "walk[s] to the grocery store, which is 3/4 of a mile." (AR 126). However, Plaintiff also states in the same questionnaire that he does not do his own grocery shopping. (Id.).

Plaintiff reported that he does not drive a car, clean his home, or do yard work even though he used to be able to. (AR 126-27). Because of pain he is forced to rest every few hours. (AR 127). He is only capable of sleeping for a few hours at a time because his pain causes substantial discomfort. (Id.).

Testifying before the ALJ on January 23, 2008, Plaintiff stated that he has a tenth grade education and has worked in construction. (AR 21). Also, he testified he has not been able to eat correctly because of his sickness and, as a result, has lost weight. (Id.). He further testified that he last worked in 2001. (AR 23). He has sustained injuries from a car accident and has carpal tunnel syndrome. (AR 23-24). Plaintiff testified that, while in prison, he discovered that he had liver problems and also had broke his foot. (AR 35-36). He rates his pain at a level of seven or eight on a scale of one-to-ten. (AR 42). Generally, he complains about ...

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