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Nunes v. Astrue

September 15, 2010


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1945, has a high school education, and previously worked as a forklift operator and truck mechanic. (Administrative Record ("AR") 22, 138, 549-50, 552-54.) On November 4, 2004, Plaintiff filed an application for DIB, alleging disability beginning October 1, 1999, due to low back pain, bilateral hearing loss, leg pain, bilateral shoulder pain, bilateral foot pain, and obesity. (AR 13, 16, 94-95.)*fn2 Plaintiff contends that his disability precludes his performance of even sedentary work.

Between approximately 1998 to 2006, Plaintiff underwent various examinations at Department of Veterans Affairs ("VA") facilities. (AR 119-27, 138-356, 472-81.) On March 19, 1998, a VA medical examiner found Plaintiff had no mental impairments, and diagnosed Plaintiff with chronic pain, hypertension, a history of malaria, asymptomatic since 1967, a hiatal hernia, lower back pain post lumbar laminectomy, status post left and right shoulder fractures secondary to injuries while riding a horse, and lipomas in the left and right chest wall.

On May 4, 1999, the VA determined that Plaintiff was disabled and unemployable due to Plaintiff's physical limitations, age, education, and occupational background and training and was entitled to non-service connected disability pension effective November 24, 1997. (AR 119-21.)

On September 3, 2003, a VA medical examiner diagnosed Plaintiff with Post-Traumatic Stress Disorder ("PTSD"), but noted that, although the PTSD diagnosis conformed with the DSMIV, the condition "does not seem impairing at this particular time from an emotional or mental point of view." (AR 321-32.)

On October 29, 2003, Plaintiff was evaluated by clinical psychologist Dr. James P. Murphy. (AR 381-84.) Dr. Murphy opined that Plaintiff was suffering from PTSD, but found that he was able to verbalize his thoughts, was considered to be within normal expectations, demonstrated orientation to all three spheres, appeared to have good social judgment, and understood the circumstances surrounding his problems that prompted him to seek treatment. (AR 383.) However, the examination only described Plaintiff's symptoms at the time of the examination, not the existence or level of severity of symptoms during the relevant time period from October 1, 1999, to December 31, 1999.

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 46-62.) Subsequently, three administrative hearings were held in this matter. On November 21, 2006, ALJ David Flierl held a hearing where Plaintiff testified that he has trouble reading and writing, despite completing high school. (AR 519-41.) The ALJ noted that Plaintiff was awarded VA disability benefits effective from November 1997. (AR 533.) At the conclusion of the hearing, the ALJ held the record open so that it could be supplemented with additional VA records Plaintiff's counsel could acquire. (AR 540.)

On June 19, 2007, at the request of ALJ Flierl, Dr. Judith Willis reviewed Plaintiff's medical records and provided a retrospective opinion as to Plaintiff's physical limitations from October 1, 1999, through December 31, 1999. (AR 482.) Dr. Willis noted the lack of medical assessments during that time period, but she found that there were records from a few months before and a year following the relevant period that provided the foundation for her opinion. Id. Dr. Willis found that, from October 1999 through December 1999, Plaintiff could not frequently lift or carry more than 25 pounds or walk or stand longer than two hours without a ten-minute sitting break. Id. However, she determined that Plaintiff could take breaks and work over an eight-hour day. Dr. Willis also found that Plaintiff's condition at that time required that he avoid the following: (1) frequent use of foot pedals; (2) frequent, sustained overhead reaching with both arms; or (3) frequent bending, stooping, crouching, and crawling. Id.

After acquiring additional records, including Dr. Willis' retrospective medical opinion, a supplemental hearing was held on October 24, 2007, before ALJ Flierl. (AR 542-72). Plaintiff testified that in his past relevant work he would regularly lift between 20 and 50 pounds. (AR 554.)

Plaintiff also testified that, up to December 31, 1999, he could lift 20 pounds for two or three hours in an eight-hour work day; could stand 30 to 40 minutes before needing to sit down; in total, he could sit approximately three hours and could stand and walk for approximately three hours of an eight-hour work day. (AR 559-60.) Plaintiff testified that he was also having trouble stooping and bending at that time and that bending to put on shoes and socks was difficult. (AR 561.) Plaintiff stated that during the relevant time period he played nine holes of golf three to four times a week, so long as a cart was available. (AR 565.)

A vocational expert ("VE") also testified that Plaintiff's past work as a forklift driver was medium*fn3 and semi-skilled. (AR 556.) According to the VE, a hypothetical person with the same residual functional capacity ("RFC") and limitations as Plaintiff would be unable to perform Plaintiff's past relevant work.

On January 3, 2008, ALJ Flierl issued a decision, finding Plaintiff not disabled through December 31, 1999, the last date of his insured status. (AR 496-506). Plaintiff sought review of the ALJ's decision before the Appeals Council. (AR 513-15.) The Appeals Council remanded the matter, determining that the ALJ erred by not adequately considering the May 4, 1999, VA disability determination, by failing to consider Plaintiff's obesity, and by failing to assess the credibility of lay statements in support of Plaintiff's claim. (AR 508-10.)

On October 28, 2009, Plaintiff appeared for another hearing before ALJ Bert C. Hoffman. (AR 573-612.) Plaintiff testified again as to his education, ability to read, write, perform math, work experience, and physical limitations. (AR 577-87.) He provided testimony as to the nature and extent of his daily activities that included trips to play golf, ranching, ...

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