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Wallace v. Commissioner of Social Security

September 27, 2010

STEPHEN WALLACE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 15) and defendant's cross-motion for summary judgment (Doc. 16) and amended cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits protectively on March 29, 2006. In the application, plaintiff claims his disability began on March 29, 2005. Plaintiff claims his disability is caused by a combination of heart problems, heart attack, blood clot, sarcoidosis, and reflective sympathetic dystrophy (RSD). Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on April 10, 2008, before Administrative Law Judge ("ALJ") James M. Mitchell. In a September 22, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following findings:

1. The claimant meets the insured status requirements of the Social Security Act though December 31, 2010.

2. The claimant has not engaged in substantial gainful activity since March 29, 2005, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following severe impairment: coronary artery disease with a history of anterior myocardial infarction, a history of pulmonary embolism, a history of sarcoidosis and reflex sympathetic dystrophy of the right upper extremity (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with the following additional non-exertional restrictions: diminished but correctable vision, slightly limited overhead, side and front reaching with the right dominant features, slightly limited fine and gross manipulative ability in the right dominant features, slightly limited with simple and routine tasks, requires occasional supervision, and has slight to moderate pain.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on August 5, 1961 and was 43 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c) and 404.1566).

11. The claimant has not been under a disability, as defined in the Social Security Act, from March 29, 2005 through the date of this decision (20 CFR 404.1520(g)).

After the Appeals Council declined review on March 19, 2009, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

A. Treating Records

Ambulatory Surgery Center of Stockton

Following a work related injury on April 6, 2002, plaintiff began treatment with Dr. Jeff Jones at the Ambulatory Surgery Center. On October 14, 2002, Dr. Jones performed a right stellate ganglion block. After the procedure, plaintiff had a marked decrease in pain. Plaintiff still had persistent numbness in his hand. At that time due to the numbness, Dr. Jones was uncertain if plaintiff's condition was a pure brachial plexopathy, pure chronic regional pain syndrome, or a combination of both.

On October 28, 2002, plaintiff underwent an interscalene brachial plexus block. After this procedure performed by Dr. Jones, plaintiff had a complete absence of pain and improvement in the numbness in his hand. Dr. Jones performed another right stellate ganglion block on plaintiff on November 8, 2002, which resulted in evidence of a sympathetic block of plaintiff's pain.

In 2003 plaintiff saw Dr. Jones for another series of right stellate ganglion blocks on January 6, January 13, January 20 and January 27 in an attempt to control his pain.

Lodi Memorial Hospital

On January 29, 2003, plaintiff was admitted to Lodi Memorial Hospital by his general physician, Dr. David Duncan, on an emergency basis due to anterior pleuritic chest pain, shortness of breath, dyspnea on exertion, palpitations, periods of near syncope and faintness. (244-47). A CT scan of plaintiff's lung revealed a bilateral pulmonary emboli.

Dr. Duncan referred plaintiff to Dr. Robert Monie for evaluation at the hospital on January 30, 2003, for assessment of pulmonary emboli. Dr. Monie ordered more tests in an attempt to determine if the series of injections had caused the event. (CAR 256-58).

Dr. Roy Kaku also consulted on plaintiff's condition on January 30, 2003. Dr. Kaku determined that plaintiff had recently suffered an apical myocardial infarction in addition to the bilateral pulmonary emboli and a right brachioplexopathy. (CAR 254). Dr. Kaku opined that plaintiff would require long term Coumadin anticoagulation and suggested adding enteric coated aspirin for his myocardial infarction

While plaintiff was still in the ICU at Lodi Memorial Hospital on January 31, 2003, Dr. Yeh Gong consulted and opined that Plaintiff would have an ongoing risk for another pulmonary embolus which may be severely detrimental to his overall well being. (CAR 248-51).

Dr. John Chin concluded in an Echocardiography Report dated February 3, 2003, that the study was abnormal demonstrating left ventricular dysfunction with apical and septal dyskinesis with evidence of apical thrombus which appears to be stable. (CAR 260). Plaintiff was discharged from the hospital by Dr. Chin on February 5, 2003, with prescriptions for Coumadin, Ecotrin therapy, Altace, Pravachol and Toprol.

On February 7, 2003, Plaintiff was taken by ambulance to the emergency room after his wife thought he had suffered a seizure. Dr. Richard Buys assessed plaintiff with an altered mental state, seizure versus syncope. (CAR 236).

Plaintiff was again admitted to the hospital by Dr. Duncan on February 8, 2003, with diagnoses of pre-syncope leading to a near syncope episode, recent anterior myocardial infarction with left ventricular clot, left deep venous thrombosis (DVT), and chronic reflex sympathetic dystrophy of the right arm with chronic pain complex. (CAR 238).

On March 22, 2003, Plaintiff had a venous doppler sonogram of his right leg due to swelling and tenderness, and to rule out DVT. The examination showed normal deep venous flow; the impression was no sonographic evidence of deep vein thrombophlebitis. (CAR 454).

On March 18, 2003, Plaintiff was brought by his wife to the emergency room with complaints of a right supraorbital headache, heaviness and confusion, numbness in the left arm, chest burning and stinging and, after examination, was admitted by Dr. Duncan. After undergoing various tests, plaintiff was examined by Elizabeth Hereford, M.D., on March 23, 2003, who diagnosed plaintiff with two vessel coronary disease with some less significant disease in the circumflex. (CAR 219).

Sierra Valley Lung and Sleep Medical Group

On October 30, 2003, plaintiff was assessed by Dr. Robert G. Monie with an abnormal CT and PET scan, pulmonary emboli, CAD S/P MI, anticoagulation and right arm injury with brachioplexus injury. (CAR 284). A November 13, 2003, CT abdominal scan was normal. (CAR 286). In a letter dated December 16, 2003, addressed to Dr. Duncan, Dr. Monie gave plaintiff a diagnosis of sarcoid. (CAR 282). A January 19, 2005, chest x-ray was essentially normal. (CAR 285). On March 11, 2005, Plaintiff had a whole-body FDG PET scan which found no abnormal activity in his neck, low level activity in the right superolateral chest, but no abnormal uptake in the chest, abdomen or pelvis. The impression was "Low level uptake anterolaterally in the right superior chest along the pleural surface is non specific and may represent pleural reaction or an inflammatory process." (CAR 287). A pulmonary function test completed on March 4, 2005, was normal. (CAR 310).

Bay Area Pain and Spine

The records submitted by H. Darien Behravan, D.O., reveal that plaintiff was evaluated at UCSF Medical Center for pain management on May 14, 2003, and was assessed with brachial plexus injury as well as complex regional pain syndrome in the right upper extremity. (CAR 375-77). At that time it was noted that he was taking Oxycotin, Coumadin, Altace, Coreg, and Pravachol. (CAR 376). The records reflect that plaintiff was referred to Dr. Behravan as treating physician for pain management in 2003 and continued thereafter. Dr. Behravan referred Plaintiff to the Health Education for Living with Pain (HELP) Program in July 2005.*fn1

Plaintiff was evaluated by HELP on August 1, 2005. His physical therapy screening noted Plaintiff's reported limitations at thirty minutes of sitting, forty-five minutes of standing, and one mile of walking. (CAR 347). The mental health screening by HELP noted a diagnosis of pain disorder associated with both psychological factors and a general medical condition, and major depressive disorder, recurrent, mild, without psychotic features. (CAR 344). He was assessed with a Global Assessment of Function (GAF) of 57. Plaintiff then participated in a six week daily pain management program through HELP beginning January 9, 2006. (CAR 319). The discharge summary, dated February 17, 2006, noted he was successful in weaning down his methadone to a great extent, but was unable to totally eliminate it. "He showed no cognitive impairment on the methadone and in fact shows functional improvement on it." (CAR 320). His functional capabilities improved by fifty-percent , and his depression was reduced. It was further noted as to Plaintiff's working ability: "Permanent disability is expected however we defer to the treating physician and/or appropriate medical legal evaluator for further disability rating. . . . In terms of work status, the patient may not return to the usual and customary job and is medically appropriate for vocational rehabilitation within the work preclusion parameters outlined." (CAR 322).

In a February 22, 2006, Dr. Behravan diagnosed coagulopathy which is severe in nature, and noted Plaintiff described what Dr. Behravan referred to as total body allodynia. (CAR 317-18).

Dr. Behravan's examinations of plaintiff on May 1 and June 8, 2006, showed that his condition was unchanged, but was gaining weight on the Lyrica so was discontinuing it. (CAR 605-08). At the office visit with Dr. Behravan July 12, 2006, Plaintiff's condition was noted as unchanged but that plaintiff was having some right side neck and finger pain and was experiencing numbness in his fingers with some stabbing pain. (CAR 603).

At follow-up visits on September 27 and November 1, 2006, plaintiff was having occasional flare up of pain and his condition was noted by Dr. Behravan as unchanged. (CAR 595-598).

Plaintiff had another follow-up visit on January 22, 2007. Dr. Behravan noted Plaintiff was doing well on the medications, including methadone (now three times a day), Cymbalta, and Lidoderm. He was not having any side effects and no breakthrough pain. (592-93).

Plaintiff was also seen by Dr. Behravan for follow up visits on March 1, August 9, and September 13, 2007, and then again on April 3, 2008. In March 2007, Plaintiff stated he was doing very well, but was having some right shoulder pain and left foot pain. He was trying to keep his feet up. Dr. Behravan noted he was taking his medications responsibly without any problem. (CAR 700-01). In August 2007, Plaintiff complained of pain over his back. His medications included Cymbalta, Lidoderm, and Methadone. Dr. Behravan stated:

He is doing the same, he is applying for disability and federal disability. I see no reason why he can not work at least 6 hours a day in a sedentary job. I believe that he needs to develop more active coping skills with respect to his pain, he can use his left hand only, he can not use his right had for typing. I believe that he has had this chronic pain for so long that he has developed chronic pain syndrome and has developed somatoform. (CAR 698-99).

In September 2007, Dr. Behravan noted Plaintiff was doing the same, continuing to complain of the same symptoms and the pain waxing and waning. Dr. Behravan noted the same as quoted above. (CAR 696-97).

In April 2008, Plaintiff's symptoms had remained the same with the usual complaints of a plethora of right upper extremity symptoms and discomfort. Dr. Behravan noted that there is not much in the way of objective findings, but that Plaintiff's complaints were consistent with his ...


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