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Donald Wayne Gray v. Michael J. Astrue

December 16, 2010


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



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") payments pursuant to Title 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


Plaintiff was born in 1957, has a General Education Development certificate, and previously worked in construction, was an assembler of component wood, and worked as a farm machine operator. (Administrative Record ("AR") 14, 22-24.) On February 27, 2006, Plaintiff filed an application for SSI payments, alleging disability beginning February 2, 2006, due to a pinched nerve in his lower back, arm pain, and hepatitis C. (AR 87-97.)

In February 2006, Plaintiff was examined by Dr. Mohammed M. Ali. (AR 204-07.) Plaintiff was diagnosed with hepatitis C and a right arm sprain. (AR 204.) Dr. Ali noted that Plaintiff was to consult with Dr. Kumar for further treatment. (Id.)

On June 29, 2006, Plaintiff was examined by Dr. Zaky Z. Moussa. (AR 152-55.) Dr. Moussa assessed Plaintiff's blood pressure and the range of motion of Plaintiff's spine and extremities. (Id.) In Dr. Moussa's functional assessment, he concluded that "the physical exam shows no objective findings to prevent the patient from doing a full time job with regular breaks." (AR 154).

On July 18, 2006, Plaintiff was examined and evaluated by Dr. Parmod Kumar. Dr. Kumar listed his impression as "Viral hepatits C subtype 2B." (AR 188.) Dr. Kumar stated the following plan for treatment:

The patient is a candidate for drug intervention. The patient's Social Security case is pending. He has no insurance. I told him I can arrange a compassionate drug program but he is worried that if he has to be hospitalized for further care he has no insurance and he will have to pay all those bills out of his pocket, which I do understand. I told him I would be happy to support his case for disability and Social Security due to viral hepatitis C. He has a lot of systemic side effects of arthralgias,*fn2 myalgias*fn3 and weakness. This should qualify him for the benefits. He will make an appointment to see me when everything is through. This letter can be used as a letter of appeal for Social Security. (Id.)

On August 8, 2006, Plaintiff was again examined by Dr. Ali. (AR 186,) Plaintiff presented with complaints of redness, itching, and pain on his right thigh. (Id.) Dr. Ali noted that "he always gets this problem. He was diagnosed with staph infection in the past and wants some treatment. Otherwise, no other symptoms." (Id.)

In September 27, 2006, Dr. Kumar completed a medical report stating that Plaintiff needs MediCal and needs to get the necessary treatment for his hepatitis C. (AR 184.) On January 12, 2007, Plaintiff returned for a follow-up evaluation with Dr. Kumar. (AR 174.) Dr. Kumar again noted that Plaintiff had not yet received his medications. (Id.) On January 19, 2007, Plaintiff again presented for follow-up treatment. (AR 172.) Dr. Kumar stated that he had "been trying to get from the drug company a compassionate drug program for his medicine for his viral hepatitis C. He finally got the MediCal denial." (Id.)

On March 26, 2007, Dr. James V. Glaser completed a Physical Residual Functional Capacity ("RFC") Assessment of Plaintiff. (AR 215-21.) He found Plaintiff capable of occasionally lifting or carrying 20 pounds and frequently lifting or carrying 10 pounds. (AR 216.) Dr. Glaser also reported that Plaintiff could stand or walk for about six hours in an eight-hour work day and that he could sit for a total of about six hours in an eight-hour work day. (Id.) He noted that Plaintiff's ability to push or pull was unlimited and that Plaintiff had no postural, manipulative, visual, communicative, or visual limitations. (Id.) However, Dr. Glaser specifically noted his disagreement with Dr. Moussa's assessment that Plaintiff had no limitations in that Dr. Glaser found that Plaintiff was limited by decreased energy due to his diagnosed hepatitis C. (AR 219.)

On April 20, 2007, Plaintiff was again treated by Dr. Kumar who reported that Plaintiff had a "very severe form of viral hepatitis C with systemic complications of arthralgias, myalgias and abnormal liver function tests." (AR 167.) Dr. Kumar explained that Plaintiff was then currently being treated with chemotherapy and had symptoms including: (1) severe arthralgias and myalgias,

(2) severe depression, (3) insomnia, (4) loss of appetite, and (5) flu-like symptoms. (Id.) He stated that "[a]ll of the above symptoms are related to the underlying viral hepatitis C as well as side effects of chemotherapy. This patient is unable to have gainful employment. I have given him disability and he is advised to apply for disability benefits." (Id.)

On April 27, 2007, Plaintiff was examined by Dr. Mohammed Ali and complained of swelling and pain of the upper back. Dr. Ali noted that, otherwise, there were no symptoms. (AR 165.) Dr. Ali, however, advised Plaintiff to follow up with Dr. Kumar regarding his hepatitis C. (Id.)

On May 16, 2007, Dr. Kumar wrote a letter regarding his treatment of Plaintiff. Dr. Kumar's letter provided, inter alia, the following:

In his earnest [sic] he really wants to work, but physically he is incapable of performing any gainful employment. My plea to you is that he be granted some sort of help from your court. He can't even afford an attorney to present his case to you. I hope you will take a compassionate view on my patient's plea for help and hopefully in your court he will get the necessary favorable decision. (AR 160.)

On September 14, 2007, Plaintiff was again examined by Dr. Kumar who noted that "he still feels very, very bad." (AR 238.) Dr. Kumar listed in his treatment plan that there was not much that he could do for the side effects or for the symptoms of Plaintiff's disease. (Id.) Dr. Kumar opined that "[Plaintiff] remains disabled and unable to have gainful employment. (Id.) Hopefully the social services department will be compassionate enough to grant this patient the help he needs." (Id.)

On April 9, 2008, Dr. Kumar completed a "physical capacities evaluation" regarding Plaintiff. (AR 225.) Dr. Kumar reported that Plaintiff could sit one hour in an eight-hour work day. (Id.) Plaintiff was limited to lifting or carrying up to ten pounds only occasionally and never lifting anything heavier than 10 pounds. (Id.) Plaintiff was able to perform no fine manipulation and could not climb, kneel, or stoop. (Id.) Dr. Kumar described Plaintiff as having a "poor" ability to

(1) understand and carry out simple one- or two-step job instructions, (2) deal with the public, (3) maintain concentration and attention for at least two-hour increments, (4) withstand stress and pressures associated with an eight-hour work day and day-to-day work activity, and (5) handle funds. (AR 227.) Dr. Kumar noted that Plaintiff's expected prognosis was "very poor" and that his response to treatment was also "poor." (AR 228.) Dr. Kumar also provided a diagnosis of end-stage liver disease. (AR 226, 228.)

On April 30, 2008, Plaintiff's sister, Karen Gray, provided a written statement of her lay observations of Plaintiff's condition and limitations. (AR 150-51.) Ms. Gray explained that as Plaintiff's hepatitis C has worsened, "his body gets winded easily and his legs give out easily. He has always been a really good mechanic. His illness is [l]iver[-]related and so now his hands swell and make it impossible to do what ...

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