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Milici v. Astrue

September 24, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Dan E. Milici, by his attorneys, Binder and Binder, L.L.C., seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff for failure to prove disability existed before the expiration of insurance coverage.

I. Administrative Record

A. Procedural History

On February 9, 2006, Plaintiff filed for disability insurance benefits, alleging disability beginning June 1, 1999, attributable to chronic pancreatitis and hyperlipedemia. AR 13. His claim was initially denied on December 5, 2006, and upon reconsideration, on March 12, 2007. AR 13. On May 15, 2007, Plaintiff filed a timely request for a hearing. AR 13. Plaintiff appeared and testified at a hearing on December 15, 2008. AR 22-55. On December 30, 2008, Administrative Law Judge Sharon L. Madsen denied Plaintiff's application. AR 13-21. The Appeals Council denied review on April 22, 2009. AR 1-3. On June 22, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Background*fn2

Plaintiff Dan Milici (born October 30, 1949) graduated from vocational nursing school in 1971or 1972. AR 28, 122. He worked as a licensed practical nurse ("LPN") for Goleta Valley Community Hospital in Goleta, California until June 1997, when he decided to leave the profession. AR 30. He then lived on his savings and explored the possibility of working "in the trades," as his friends did. AR 30.

As an LPN, Plaintiff provided patient care, administered medications, took specimens, changed dressings, changed and made beds, assisted in emergencies and in surgery, prepared patients for surgery, and transported them to the operating room. AR 117. He used machines, tools, and equipment; applied technical knowledge and skill; and wrote, completed reports, and performed similar duties. AR 117. He typically walked, stood, stooped, knelt, crouched, reached, and handled large, heavy objects seven hours each day. AR 117. In the remaining hour, he sat and wrote, typed, or handled small objects. AR 117. He frequently lifted 150 pounds and lifted as much as 422 pounds. AR 117. He supervised four people. AR 117.

Plaintiff's testimony. Plaintiff testified that, despite his illness, he takes care of his own personal needs. AR 28. He does household chores, cooking, and shopping, but hires help to maintain the yard. AR 28-29. He socializes with friends, doing "cowboy activities." AR 29.

Plaintiff experiences chronic pain. AR 32. Although he tries to tolerate his pain at home, he sometimes requires hospitalization for severe pain. AR 32. His pancreatitis causes pseudo asthma with attendant shortness of breath. AR 32-33. He is prone to respiratory infections caused by bad air days and very low humidity. AR 33. The high levels of proteolytic enzymes that are administered during acute pancreatic attacks have ruined his teeth. AR 33. His spleen ruptured and was removed during a pancreatitis attack in June 2003. AR 33.

At the time of the administrative hearing, Plaintiff's medications included Tricor (for triglycerides and lipids); Protonix (for gastroesophageal reflux disease); Robaxin (a muscle relaxer for muscle cramps and restless leg syndrome); Vicodin (a pain reliever), as needed; and the fentanyl (pain reliever) patch. AR 30-31. He observes a low-fat, low-cholesterol diet. AR 31.

On a good day, Plaintiff wakes up, makes his wife's lunch, and sees her off to work. AR 29. He does the morning household chores, waters the trees, if necessary, and feeds the horses. AR 29. He may putter about the yard, fixing fences or doing work that needs to be done for the horses. AR 29. On a bad day, Plaintiff lies in bed with a pillow at his side and spends a lot of time in the bathroom. AR 29. He described pancreatitis as "the most painful chronic nonfatal chronic disease there is," likening the pain to being stabbed with a sword. AR 37.

Plaintiff testified that he routinely experiences nausea, vomiting, and diarrhea. AR 38. He may spend as many as six hours a day in the bathroom. AR 38. He is generally fatigued since he has difficulty eating. AR 39. As a result, he cannot consistently work five-day, eight hour days. AR 41. In addition, many employers will not hire him because he takes narcotic pain relievers as needed. AR 41.

Plaintiff testified that his acute attacks are more controlled now than in the period from August 1998 to December 30, 2000, because his medication regime has become established.*fn3 AR 36. In the initial three years after his diagnosis he was "down most of the time." AR 37. Testimony of Plaintiff's wife. Sandra Schaffer, an emergency room physician, has lived with Plaintiff since 1997. AR 42. They married in 2005. AR 42.

Schaffer testified that Plaintiff was first admitted to Cottage Hospital with pulmonary edema in August 1998. AR 42. Before his hospitalization, Schaffer had attempted to treat him at home since the couple had limited money. AR 43. Plaintiff spent about two weeks in the intensive care unit before being released to regular hospital care. AR 43. When he returned home, he was very weak. AR 43. Although Plaintiff's condition is now "a chronic, steady state of inflammation," in the early years he was "like a yo-yo," alternating between getting better and experiencing severe attacks several times a year and less serious attacks monthly. AR 43-44. The couple attempted to avoid his hospitalization since they were uninsured and the hospitalizations cost thousands of dollars. AR 44.

Plaintiff's pain was different in the early years than that he now experiences. Schaeffer explained that, at first, the pain related primarily to the acute pancreatitis attacks. AR 45. As the disease has progressed the pain relates more to continuing formation of scar tissue, which causes more chronic pain. AR 45. Plaintiff also experiences the pain typical to diarrhea and upper gastrointestinal distress (nausea and vomiting). AR 46.

Medical records and opinions. Plaintiff was initially hospitalized for pancreatitis from August 24 through 31, 1998. AR 453. X-rays taken on August 25 revealed left pleural effusions; those taken on August 26 showed bilateral pulmonary edema. AR 435-437, 439, 440. Although Plaintiff's condition had improved, x-rays continued to show pulmonary edema on August 27. AR 434. An abdominal ultrasound administered on August 27 revealed that Plaintiff had an enlarged liver and moderately enlarged spleen, but no liver or spleen lesions. AR 433. His gallbladder, bile duct, and kidneys were unremarkable or normal. AR 533. Plaintiff had some ascites (fluid in abdominal cavity). AR 433. Lab results appear at AR 428-432, 439, 441-455.

Plaintiff was examined by his internist, Stephen K. Lemon, M.D., on September 4, 1998. AR 427. Lemon noted that Plaintiff had initially been diagnosed as having pancreatitis on August 22, 1998, and tried home therapy until he became sicker and went to the hospital on August 24. AR 427. Lemon reported that Plaintiff was gradually increasing his physical activity since returning home but was experiencing abdominal discomfort if he over-exerted. AR 427. His respiratory difficulties had resolved. AR 427. Lemon described Plaintiff as "slowly recovering" from hyperlipidemic pancreatitis. AR 427.

Plaintiff was examined by his internist, Brent J. Kovacs, M.D., on September 10, 1998. AR 426. Plaintiff continued to have abdominal pain and was taking two Vicodin tablets every four to six hours. AR 426. Kovacs switched Plaintiff's pain medication from Vicodin to Darvocet at Plaintiff's request. AR 426. Plaintiff denied fevers, chills, nausea, or vomiting. AR 426. Kovacs noted, "Overall, he looks much better than when he was discharged from the hospital." AR 426. The doctor's impression was:

Pancreatitis secondary to Hypertriglyceridemia. He is continuing to improve, and looks better overall, but likely has developed at least 1, if not 2, pseudocysts. This may just represent inflammatory mass in the [abdomen], but it does appear to extend extremely low down on the [right], and therefore likely represents 1-2 or more pseudocysts.

AR 426.

Plaintiff was re-admitted to the hospital for pain control on September 13, 1998. AR 422-425. His discharge summary noted that Plaintiff began experiencing increased abdominal pain and nausea on September 10, 1998. AR 418-420, 422. The Darvocet did not control the pain as effectively as the Vicodin did. AR 418-420, 422. In addition, Plaintiff had increased his activity level. AR 422. Plaintiff was given a morphine pump to get his pain under control. AR 422. A CAT scan of his abdomen showed fluid and inflammation, but no pseudocysts. AR 415-417, 422.

Plaintiff saw Lemon for a follow-up appointment on September 29, 1998, about two weeks after his two-day hospitalization. AR 411. Although Plaintiff continued to experience abdominal discomfort, aggravated by stretching, turning, or bending, he was using pain medication only once or twice a day. AR 411. He retained some parapancreatic fluid but had no specific area of pseudocyst. AR 411. His bowel movements had returned to "near normal." AR 411. Lemon noted "[s]lowly resolving pancreatitis." AR 411.

At the next routine follow-up appointment on October 26, 1998, Lemon noted, "He has had continuing [abdominal] discomfort, but does notice that the episodes of worsening pain are fewer and farther between. No nausea, no vomiting." AR 410. Lemon diagnosed "[s]evere pancreatitis with slow resolution." AR 410.

Plaintiff again saw Lemon on January 13, 1999, for left upper quadrant abdominal pain experienced after straining his abdomen while changing a tire. AR 345. Lemon noted that Plaintiff "had been doing well" since his hospitalizations in 1998. AR 345. Plaintiff had tenderness in his superficial abdominal muscles. AR 345. Lemon found no active signs of pancreatitis and ...

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