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Dustman v. Astrue

September 28, 2010


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Robert J. Dustman ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability 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


Plaintiff filed his application on or about April 13, 2004, alleging disability beginning December 5, 1998. AR 126-129. His application was denied initially and on reconsideration; thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 68-73, 79. ALJ James S. Carletti held a hearing on July 2, 2007, and issued an order denying benefits on August 18, 2007. AR 54-63, 86-90. On January 11, 2008, the Appeals Council vacated ALJ Carletti's decision and remanded the matter for a new administrative hearing proceeding. AR 65-67. Upon remand, the Appeals Council directed as follows:

Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations [citation]. In so doing, evaluate the nonexamining source opinions in accordance wit the provisions of 20 CFR 404.1527(f) and . . . 96-6pm, and explain the weight given to such opinion evidence.

Evaluate the lay statements given by the claimant's spouse pursuant to the adjudicative provisions set forth in 20 CFR 404.1513(d)(4) and . . . 06-3p, as part of the assessment of the claimant's credibility.

Depending on the limitations and/or restrictions ultimately found, determine whether further evidence from a vocational expert is needed. AR 67.

ALJ Christopher Larsen conducted an administrative hearing on June 24, 2008, and issued an order denying benefits on July 25, 2008. AR 15-20, 115-119.

Hearing Testimony

ALJ Larsen held a hearing on June 24, 2008, in Fresno, California. Plaintiff appeared and testified via video conference from Bakersfield. He was represented by attorney Joshua Potter. Gloria Dustman, Plaintiff's wife, also testified. AR 421-463.

Plaintiff was fifty-two years old at the time of the hearing. AR 427. He is six feet, two and a half inches tall and weighs 400 pounds. For the previous nine years, 400 pounds has been his usual weight. At the time of his heart attack, he weighed about 300 pounds. AR 440. He cannot exercise because he suffers from a shortness of breath and cramping in his extremities due to arteriosclerosis. AR 440.

Plaintiff last worked on January 15, 1999, as a material manager for "Slumber J." He maintained the chemical inventory and mixed and blended chemicals. AR 427. It was customary for him to lift and carry one hundred pound sacks of material. He performed that type of work for nearly twenty years before being terminated because he could no longer perform his job. The stress of new regulations and the amount of physical labor required were too much. AR 427-428.

About the time he was treated for a heart attack and arteriosclerosis, Plaintiff was initially followed by cardiologist Metta. About three months later, he began treating with Dr. Desai, whom he has seen ever since. AR 428.

Plaintiff currently suffers from both physical and mental problems. AR 429. He has been under the care of a psychiatrist for about three years. AR 429. He is being treated for depression, in part because he does not "fit in comfortably with people anymore" and prefers to be alone. AR 430. Plaintiff does not feel good about himself as he has "nothing to do in life" or "nothing to live for except my firm belief in, you know, my beliefs." AR 430. Previously, Plaintiff suffered from "fairly active suicidal thoughts," but he does not suffer from that problem to the same extent today. AR 431. He feels worthless because he can longer be a provider for his family. His wife acts as his caretaker and he is "not a blessing to [his] grandkids" because he cannot play with them or build things with them; he cannot be a teacher or mentor. AR 434. Plaintiff has been depressed since 2001, after two years of being told he "can't do anything anymore." AR 437-438. He continues to see a psychiatrist, but his condition has not improved much. AR 438. His treating psychiatrist has told him that his condition should not worsen as a result of the medications prescribed, but that the "situation controls [him] getting better. And [his] situation is what it is and that's what she says." AR 448.

Plaintiff has no social life and considers himself to be a recluse. He does not want to go out because he cannot "party" or dance anymore. People look at him with disdain. He sees his wife's family if they come to his home, however, he will "hide" by finding "a way to go upstairs," in order to avoid being uncomfortable. AR 435. For example, the day prior to the hearing, his wife's family came by the house to enjoy the back porch, but Plaintiff remained upstairs. AR 436. He believes his wish to avoid people and family is a combination of depression and stress. AR 447. For example, if he spends time with family and the conversation turns to something he is not comfortable discussing, he will experience an episode of chest pain due to the stress. AR 447.

Following the heart attacks, Plaintiff has been unable to concentrate. Simple things, like looking something up on the computer, cause his attention to wander. For example, he can only stay on the computer for five to ten minutes maximum, otherwise he will lose focus. AR 434-435.

Asked whether he had difficulty sleeping, Plaintiff stated he cannot get a good night's sleep and takes "[c]atnaps here and there." AR 431-432. He explained his "sleep is interrupted by [his] physical condition and . . . lethargy." AR 432.

Plaintiff still mows his own lawn, however, he uses a self-propelled mower and when his legs give out he takes a break, either sitting down with a glass of ice tea or lying down, depending upon the pain and cramps. It takes him two to three days to mow the lawn in an area 100 feet by 120 feet. AR 433. Likewise, Plaintiff will start to do laundry by picking it up and putting in the basket, but it will be the next day before he takes it down to the washer. AR 436-437. He has a garden he "like[s] to nurture," and he will start to fertilize the garden but will not finish the project. A week will go by before his wife reminds him that he's left the project incomplete. AR 437.

The decreased energy Plaintiff feels also affects his ability to walk and climb. If he climbs stairs or walks an area with "even a little bit of a grade," Plaintiff's legs give out and "burn." However, ninety percent of the time, sitting down "doesn't cure it." AR 433. There are stairs in Plaintiff's home and his bedroom is upstairs. If he has difficulty climbing the stairs, he will just stay downstairs because there is a comfortable couch he can stay on. That may happen two or three times a week. AR 442-443. Going up stairs presents the difficulty; he can support his weight on the banisters going down the stairs and therefore, once he is upstairs, he does not have any difficulty returning downstairs. AR 453. If he rests for a twenty-four hour period, Plaintiff can go back upstairs. AR 443. He cannot climb the stairs more than once however, otherwise he will become exhausted and his feet will cramp. AR 443.

Plaintiff is able to walk a quarter to one half of a block. AR 444. He walks around his own yard, or up and down the street, but not around the block. AR 444. The burning and cramping in his feet will cause his legs to give out. The cramping is very painful, and his feet feel as if they "want to curl." AR 444. It takes lying down for fifteen minutes to obtain relief. Sitting down will not resolve the cramping. AR 445. Typically, Plaintiff can only sit for ten to fifteen minutes before he would have to change his position due to discomfort. AR 445.

Catnapping means lying down fifty to seventy percent of the day, said Plaintiff. He lies down this much because he can avoid discomfort that way. The chest pains are relieved by lying down. AR 445.

For about a month after he had heart surgery, Plaintiff's chest pains ceased. Then, he relapsed and had two additional surgeries. AR 440. He currently suffers from chest pains and described the pain as similar to "running into a brick wall." The pain becomes sharper and sharper and he has to either sit or lie down. AR 441. Plaintiff takes nitroglycerin when he suffers such an episode, and did so the week prior to the hearing. His cardiologist has advised him that if he has to take more than three tablets, he should call for an ambulance. He has curtailed all activity because of the pain. AR 441. Once or twice a month he finds it necessary to take the nitroglycerin tablets or liquid. AR 441-442. The chest pain is a daily occurrence and it varies. He frequently experiences chest pain when he gets emotional. AR 446. Asked to describe the chest pain again, Plaintiff indicated the pain radiates into his left arm, creating a "dead feeling." AR 442. The pain is very similar to the pain he felt while he was having a heart attack. AR 442.

According to Plaintiff, his cardiologist told him that the cramping and pain is what he has to live with, and that it will worsen due to the arteriosclerosis. AR 448. In July 2007, the cardiologist noted Plaintiff becomes short of breath after taking fifteen to twenty steps. AR 448. Plaintiff understands his cardiologist "wants to do a bunch of testing" and states the doctor "is of the firm belief that [he is what he is]." AR 452.

Plaintiff admitted his weight can vary between 400 and 420 pounds, depending upon the mood he is in. If he is very depressed he will "eat stuff." Over the previous year however, he has lost six pounds. He wishes he could have lost more, however, without being more active it is difficult to lose weight. AR 449.

Asked to describe what he does during the day, Plaintiff indicated that he watches television lying down. He stated he gets up about 5 o'clock and "putt[s] in the yard" until about 8:30 or 9:00 a.m., until it gets too warm. Then he will go inside and "mess around." By two o'clock in the afternoon he is "done" and has to lie down. AR 449. His wife prepares his meals and helps him get around the house. AR 449. His wife must help him because he "is not all there." AR 450. He no longer cooks for himself because he has left the fire on underneath the pot. AR 450. He has to be reminded to change his clothes and to bathe. AR 437. Plaintiff can do simple, minor things like change a light bulb, but his "mechanical ability" is limited. As another example, Plaintiff stated he can change a washer in a faucet. AR 450.

Because he cannot walk in the grocery store, Plaintiff does not do the grocery shopping. He can go if it is to get "one or two items," but if the shopping to be done is for a week or two weeks worth of groceries, he is unable to walk to the grocery store with his wife. AR 451. When the groceries are brought home, however, Plaintiff will hand his wife the cans to put away in the cupboard. AR 451.

Asked about the medications he is taking, Plaintiff indicated he takes the nitroglycerin as needed, Lipitor, Ibuprofen, Wellbutrin, Lexapro, and aspirin. He has been under a doctor's care for diabetes since February and the disease is currently being treated with diet versus prescribed medications. AR 452.

Plaintiff cannot go back to the work he used to perform because it involves heavy lifting and is stressful. Asked about other work, Plaintiff stated he is not aware of any position that would permit sitting or standing for ten to fifteen minutes only followed by a break. He cannot walk nor perform any physical task. He cannot perform any mental task because those tasks were the reason for his heart attack. He is skeptical of performing mental tasks for that reason. AR 452. He cannot "serve hamburgers out a window" because he cannot sit or stand for the necessary periods of time without requiring a break. Plaintiff added that he would "miss days of work because [he couldn't] get up that day." AR 452-453.

Gloria Dustman has been married to Plaintiff since 1993. She works from home, performing tailoring and alterations, and this allows her to observe her husband "always." AR 454. He has put on a lot of weight. Her husband is depressed and has previously expressed the desire to kill himself. Plaintiff does not socialize with family nor does he want to be around people anymore. AR 454-455.

Asked about her husband's activities during the day, Mrs. Dustman indicated that he lies down and watches television if he is upstairs. If he is downstairs, he sits and watches television. AR 455. Plaintiff wants to mow the lawn, but he is unable to do so. He does not finish things around the house. For example, he cannot finish mowing the lawn or writing a letter. Mrs. Dustman said Plaintiff "just can't do anything. His mind isn't right." AR 455. Asked what she meant by her statement that Plaintiff's mind is not right, she said "[h]'s just not right. He's just not right." AR 455. She has seen her husband cry and talk to himself. AR 455. She cannot make out what Plaintiff is saying when he speaks to himself, but stated it is "[s]cary." AR 456. Plaintiff does not interact with his children. If they come over, he goes upstairs or "just sits there." AR 456.

At night, because Plaintiff is in pain, he tosses and turns and is unable to sleep well. His legs fall asleep, cramp, and cause him pain. AR 456. That has been going on since the second or third heart attack. AR 456.

Plaintiff does not have much energy. He does not help Mrs. Dustman prepare meals; she does not know whether it is because he cannot do so or because he does not wish to do so. She said, "[s]omething is just not right with him." He is depressed, "talks crazy talk" and cries. Mrs. Dustman does not know how to help her husband. AR 457; see also AR 462 ("he's just not right. Just not right anymore. He wears me out"). He does not help with the grocery shopping at all. He does not put the food away when she brings it home from the grocery store. She takes care of Plaintiff's laundry. She does the cooking and the cleaning, and she has to "fight with him to get dressed at times." AR 457. More particularly, she has to argue with him before he will get in the shower and shave. AR 457. When he does shower, she has to stay there to be sure he does not fall were his legs to give out. She calls it "scary all the way around." AR 457-458. Asked to identify the last time Plaintiff's legs went out, Mrs. Dustman replied it was the week prior to the hearing. AR 458.

The chest pain arises when Plaintiff gets emotional, but also when he's not emotional. He "gets himself all riled up" and it scares her "to death." She will give him up to four nitroglycerin tables to stop the pain. Plaintiff turns "colors" and she does not know what to do. AR 458. The family does not have health insurance coverage. AR 458. The nitroglycerin tablets are stored on the night stand or table, or in the glove box of her car or purse, "depending upon what's going on." AR 459. She stated that on three occasions in the previous month, she had to administer nitroglycerin to her husband. AR 459.

Plaintiff also has difficulty breathing, as was the case the day prior to the hearing. AR 459-460. It has been a constant problem for years. AR 460. Mrs. Dustman believes most of the changes in Plaintiff occurred after the second surgery, rather than the third. She believes that second surgery changed his "mindset." He felt worthless and wanted to kill himself. AR 460.

Mrs. Dustman believes the mental and physical problems are equally limiting to her husband. AR 461. She is afraid to leave or take a trip because Plaintiff needs her to be there with him. He cannot do anything by himself, and even if he could, "he wouldn't do it." AR 461.

It is not safe for Plaintiff to be in the kitchen anymore. Mrs. Dustman indicated Plaintiff "almost chopped his little finger off" on one occasion. AR 461. In the past, Plaintiff has also forgotten to turn the heat off on the stove and the "pot just scorched." AR 462.

Medical Record

The entire medical record was reviewed by the Court. Because a significant portion of Plaintiff's medical record was previously summarized by Magistrate Dennis L. Beck in his order of July 14, 2005, this Court will incorporate that portion below, and will then proceed to summarize the subsequent medical evidence that appears in the instant record.

On February 10, 1998, Plaintiff had an acute myocardial infarction. AR 291. He was admitted to Bakersfield Memorial Hospital and underwent emergency angioplasty. AR 289. He was discharged on February 14, 1998, in stable condition. AR 288.

On February 26, 1998, Plaintiff underwent testing that revealed significant coronary artery disease. AR 248.

On March 31, 1998, Plaintiff underwent angioplasty and stent placement in his right coronary artery. AR 266. The procedure was successful. AR 266.

In June 1998, Plaintiff complained of chest pain and left extremity weakness. AR 276. An exercise treadmill test performed on June 9, 1998, revealed an excellent exercise capacity. AR 328.

On April 13, 1999, Plaintiff underwent a stress test that revealed evidence of ischemia in the inferior wall, which suggested possible right coronary artery restenosis. AR 322.

On May 21, 1999, Plaintiff was admitted to Bakersfield Memorial Hospital for placement of a second stent in his right coronary artery. AR 280-281. His discharge diagnoses were angina pectoris, coronary artery disease and arteriosclerotic heart disease. AR 282. He was discharged in stable condition. AR 282.

On June 10, 1999, Plaintiff indicated to his treating physician, Kirit R. Desai, M.D., that he was feeling well except for pain in his left elbow. AR 319. He ...

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