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Emilio Temores v. Michael J. Astrue

December 14, 2010

EMILIO TEMORES, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are undisputed. [JS 2]. Plaintiff filed his benefits applications on February 12, 2007. He alleged that he had been disabled since June 6, 2006, due to chronic low back pain, degenerative joint disease of the lumbar vertebrae, lumbar disc herniation, and sciatica. [JS 2]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") found that plaintiff had lumbosacral strain that was severe, but that he retained the residual functional capacity ("RFC") to perform heavy work. [Administrative Record ("AR") 11-15]. The ALJ found that plaintiff could perform his past relevant work as an agricultural picker and packer.*fn1 Therefore, the ALJ concluded that plaintiff was not disabled. [AR 14-15].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Need for a cane

Plaintiff contends that the ALJ erroneously overlooked or ignored treating source evidence indicating that plaintiff needs to use a cane for support. [JS 3-8].

During the February 2009 hearing, plaintiff testified with the assistance of a Spanish-language interpreter. [AR 18-19, 24]. He said that he had been using a cane for two years, and that the cane was not prescribed by a doctor. [AR 23]. Plaintiff testified that he had back pain. He said that he took medication for pain, and then lay down for about two to three hours in the morning and afternoon. [AR 23]. Plaintiff testified that he currently was taking only over-the-counter Tylenol for pain, and that he sometimes used a heating pad. [AR 22-23]. He said that he had been prescribed pain medication, but that he stopped taking it because "they canceled the insurance for the clinic." [AR 22]. Plaintiff said that he had last seen a physician for pain in April 2008. [AR 23]. He had been in prison for 13 months beginning in 2005 for "smuggling marijuana." [AR 24]. Plaintiff said that he had been treated for a gastrointestinal infection in prison, but not for back pain. Plaintiff testified that he no longer had abdominal pain, but he said that his back pain had "increased. . . Because I think they did some kind of tests from up and down." [AR 24].

Plaintiff testified that he had no income and lived with a family friend, who supported him. [AR 26. Plaintiff testified that during a normal day, he watched television, read, and "may go back and lie down for a while." [AR 24-25]. He said that he had a driver's license and drove before he went to prison, but that he could not renew the license because he could not see well with his current eyeglass prescription, which dated from 2005. [AR 26]. Plaintiff said that he could lift five pounds, stand for 30 minutes before having to sit, and sit for about two hours, provided he could stretch his leg. [AR 25]. Plaintiff testified that he did not have any surgery or medical visits planned in the next six months. [AR 25].

Treatment reports in the record indicate that plaintiff presented to the McKee Clinic, an Arrowhead Regional Medical Center ("ARMC") facility, on June 15, 2007. [AR 260, 262-263]. Plaintiff complained of low back pain, and he reported a long history of severe low back pain secondary to lumbar herniated disk. [AR 263]. The treatment note states that plaintiff "was previously seen in the Westside Clinic, and he's unsure why he was transferred to McKee [Clinic]." [AR 263]. The record, however, does not contain previous records from the Westside Clinic. The attending physician, Dr. Lanum, noted that plaintiff was on Norco (hydrocodone bitartrate and acetaminophen), a narcotic analgesic, and Soma (carisoprodol), a muscle relaxant and pain reliever, "for pain control," but that his pain was "only moderately controlled" on those medications. [AR 263]. Dr. Lanum also wrote that plaintiff "walks w/cane." [AR 263]. Plaintiff's Norco prescription was refilled, and a follow-up appointment was scheduled. [AR 262].

The next note is dated December 7, 2006, from the Westside Clinic, another ARMC facility. Spinal x-rays dated December 1, 2006 also are included in the record. [AR 13, 242-245]. Plaintiff complained of right-sided low back pain radiating to his right leg. He described the pain as "sharp" and "stabbing" and rated it 8 on a 1-to-10 scale. Plaintiff reported taking Soma and Ultram (tramadol), a medication for chronic pain, with "moderate relief." He said that he experienced pain with each step and when pressure was applied to the right leg, and that the pain was most severe after long periods of sitting. [AR 243].

Under objective findings, the treating source (whose signature is illegible) noted that plaintiff walked with "a severe limp and needs a cane for support, unable to do straight leg raise of [right lower extremity].*fn2 [Plaintiff] is unable to forward flex at the waist [due to] severe ...


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