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Gray v. Astrue

September 29, 2010

EDWARD W. GRAY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Doc. 1)

BACKGROUND

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") and Supplemental Security Income ("SSI") payments pursuant to Titles II and XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 401, et seq. 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

FACTUAL BACKGROUND

Plaintiff was born in 1955, has a high school education, and previously worked at a tire shop where his job duties included sweeping, cleaning, and mounting, dismounting, and disposing of tires. (Administrative Record ("AR") 22, 121.) On April 14, 2006, Plaintiff filed an application for DIB and SSI payments, alleging disability beginning April 1, 2003, due to a back injury, depression, anxiety, and a learning disability. (AR 87-97.)

In May 2002, Plaintiff was involved in a work-related accident that resulted in injury to his right knee. (AR 184-203.) After returning to work following his right-knee injury, Plaintiff was again injured in October 2002. (AR 195-99.) Plaintiff was diagnosed with lower back strain and was told by his doctor not to return to work until October 16, 2002. (AR 195-99.) Plaintiff continued to undergo treatment for his lower back injury, but was ultimately unable to relieve much of the pain associated with the injury. (AR 210-48.) Dr. Jackie Chan, Plaintiff's treating physician, diagnosed him with myofascial pain and degenerative disc disease with bilateral lumbar radiculitis. Id. At some time prior to April 1, 2003, Plaintiff stopped working due to his medical impairments.

Between May 2003 and February 2004, Plaintiff continued to seek treatment from Dr. Chan. (AR 210-35.) Plaintiff underwent epidural steroid injections. Id. Ultimately, Dr. Chan opined that Plaintiff "will likely require vocational rehabilitation" and work restrictions should include "no lifting greater than 20 lbs. and no repetitive bending or stooping at [the] waist." (AR 215-16.)

On June 16, 2005, Plaintiff was admitted to the Doctors Medical Center with chest pain. A myocardial perfusion stress test "showed no strong evidence of ischemia or infarction," and an echocardiogram indicated "focal aortic and mitral valve thickening with moderate aortic insufficiency." (AR 356.) Based on these tests, Dr. Daniel Diep found that Plaintiff "likely has hypertension, as he had elevated blood pressures on admission." (AR 357-404.)

On June 9, 2006, Amber Pierce, a Social Security Administration Disability Examiner (See AR 44) compiled the medical evidence in the case, and provided "conclusions and recommendations" as to both a physical residual functional capacity ("RFC") and a mental residual functional capacity ("MRFC"). Ms. Pierce's "conclusions/recommendations" included the following:

CONCLUSIONS/RECOMMENDATIONS: LIGHT RFC W/OCC STOOP; FORM COMPLETED & SAVED IN J DOCUMENTS.

PSYCHIATRICALLY, APPEARS CLT HAS A SIGNIFICANT IMPAIRMENT WHICH WOULD PRECLUDE WORK ACTIVITY. UNFORTUNATELY, PSYCH ISSUES 1ST MENTIONED IN 1/06. WHILE CLT HAS LONG-STANDING LEARNING DISABILITY, HE WAS ABLE TO WORK SUCCESSFULLY FOR YRS DESPITE IT. APPEARS THAT CLT'S ADD'L ISSUES OF INCREASING LOW BACK PAIN AND ANXIETY/DEPRESSION HAVE WORSENED HIS COGNITIVE DIFFICULTIES W/ADVERSE ONSET OF 1/06. AS WE HAVE INSUFFICIENT PSYCH INFO PRIOR TO THIS TIME FOR EARLIER ONSET. J DOCUMENTS CREATED PREPARED. (AR 450.)

Ms. Pierce's conclusions and recommendations were followed by a written statement from Dr. Jackson: "MC RESPONSE: W Jackson, MD; Spec. Code 45; 6/16/06[:] Agree with the above recommendation. See RFC." (AR 450.)

On June 15, 2006, Plaintiff underwent a psychological evaluation by Roxanne Morse, Ph.D. Dr. Morse diagnosed Plaintiff with a cognitive disorder, not otherwise specified ("NOS"), a depressive disorder, NOS, and learning disorders. (AR 440.) Dr. Morse found that Plaintiff showed a "marked impairment" in reading, spelling, and arithmetic. (AR 441.) Dr. Morse also found that Plaintiff had difficulty maintaining attention, concentration, pace, and persistence for the duration of the evaluation. (AR 441.) As a result of Plaintiff's mental impairments, Dr. Morse opined that Plaintiff is limited to a fourth grade reading level, a second grade level for math, and is only able to spell at a first grade level. (AR 440.)

On June 16, 2006, Dr. Jackson reviewed and signed a physical RFC assessment.*fn2 The RFC assessment indicates that Plaintiff can occasionally lift more than 20 pounds, can frequently lift or carry 10 pounds, can stand or walk about six hours in an eight-hour workday, can sit for a total of about six hours in an eight-hour workday, and is unlimited in his ability to push or pull. (AR 442-46.)

On August 9, 2010, Dr. Richard Gann completed a Psychiatric Review Technique Form ("PRT") and a Mental RFC Assessment Form ("MRFC") evaluating Plaintiff's mental condition. (AR 452-70). Dr. Gann diagnosed Plaintiff as having depressive disorder, NOS and a cognitive disorder, NOS. (AR 455.) Dr. Gann checked boxes on the PRT Form indicating that Plaintiff had mild restrictions of activities of daily living, mild difficulties in maintaining social function, and no episodes of decompensation of extended duration. (AR 463.) However, Dr. Gann checked a box on the PRT Form indicating that Plaintiff had "moderate" difficulties in maintaining concentration, persistence, or pace. (AR 463.)

In the course of completing the MRFC, Dr. Gann checked boxes indicating that Plaintiff was "moderately limited" in his ability to (1) carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances; and (4) sustain an ordinary routine without special supervision. (AR 467.)

In concluding his review of Plaintiff's medical records, Dr. Gann opined as follows: The claimant is able to understand, remember, and carry out simple one and two step instructions. The claimant is able to relate to co-workers and supervisors adequately on a sustained basis, as well as accept instructions and respond appropriately to criticism. The claimant is able to maintain [concentration, persistence, or pace] for two-hour intervals, maintain regular attendance, and complete a normal workweek. The claimant is able to adapt to changes in the work setting. (AR 469.)

After completing the evaluation forms related to Plaintiff's mental functional capacity, Dr. Gann provided an opinion regarding Ms. Pierce's disability evaluation "conclusions and recommendations." He provided a written statement below Ms. Pierce's "conclusions and recommendations" as follows: "Disagree with conclusions regarding mental issues. See PRTF & MRFC." Dr. Gann initialed this statement. (AR 450.)

On October 3, 2007, Dr. Robert Bixler determined that Plaintiff had chronic low back pain secondary to a 2003 job injury that had become worse since an assault in June 2006 as well as congestive heart failure. (AR 511.) Dr. Bixler opined that Plaintiff could not sustain prolonged exertion or bending. (AR 511.) Dr. Bixler also checked a box indicating that Plaintiff was not able to work full time. (AR 511.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 43-46, 61-63.) On January 7, 2008, ALJ Sandra K. Rogers held a hearing where Plaintiff and Vocational Expert ("VE") David M. Dettmer provided testimony. (AR 11-23.) The VE testified that Plaintiff's past position at the tire shop could be categorized as a "tire technician" and is considered heavy*fn3 and semi-skilled work. (AR 39-40.) A hypothetical person with the same age, education, language, and work experience as ...


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