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Paul W. Angevine v. Michael J. Astrue

December 16, 2010


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



Plaintiff Paul W. Angevine ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits and supplemental security income benefits pursuant to Titles II and XVI 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 an application for disability insurance and supplemental security income benefits on or about February 27, 2006, alleging disability as of April 22, 2005. AR 113-122. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 86-99. ALJ Bert C. Hoffman, Jr. held a hearing on September 4, 2008, and issued an order regarding benefits on February 27, 2009, finding Plaintiff was not disabled. AR 13-20, 33-70. On January 9, 2009, the Appeals Council denied review. AR 3-6.

Hearing Testimony

ALJ Hoffman held a hearing on September 4, 2008, in Fresno, California. Plaintiff appeared and testified, and was represented by attorney Robert Ishikawa. AR 33-70.

Plaintiff was fifty-two years old at the time of the hearing; his date of birth is June 10, 1956. AR 37. He dropped out of high school as a junior and joined the Army at seventeen years of age. He earned his GED in 1977. About two years ago he began taking college courses and has completed about fifteen units thus far. AR 38. Currently he is taking courses in drug and alcohol counseling, law, psychology and history at Fresno City College. AR 38. In the Fall of 2007, Plaintiff passed two of his four classes, earning a C and B respectively. He took two classes in the spring or summer of that year, failing math and passing English. AR 39-40. In the Spring of 2008, Plaintiff took twelve units, however, he earned failing or incomplete grades that semester "because [he] was drinking." AR 39.

In 2005, Plaintiff was working for Petro Stopping Centers in Los Banos. AR 40. He began his career with Petro in 1998 in a restaurant preparation position and worked his way up to general manager before being fired for "drinking and depression" in April 2005. AR 41. Prior to working for Petro, Plaintiff was employed by Wal-Mart working in its distribution center in Red Bluff, California. AR 41. In 1990 through 1993, Plaintiff worked in a few grocery stores, either in the bakery, deli or produce section. AR 41-42.

Plaintiff took his last drink on July 30, 2008. AR 43. When asked when he last "lit up a joint," he indicated it had been "years ago" and that he does not "do any other drugs but drink." AR 43. Prior to abstaining from alcohol, Plaintiff was drinking a "fifth and a pint a day" of vodka. He stayed in his room and would drink all day, staying away from other people. AR 44. Prior to quitting drinking, Plaintiff attended a Bulldog football game with his grandson. When he was told he could not take vodka into the stadium, he "gulp[ed] it down" and was later taken by ambulance to the hospital after taking a fall. AR 52. Asked whether or not there has been a period of time within the last ten years when he has not been using drugs or abusing alcohol, Plaintiff responded "no" and indicated that drugs and/or alcohol have been a problem since he "started in the Army." AR 54-55.

In August 2008, Plaintiff attended a Veterans Administration (VA) disability hearing in Oakland, California. AR 44. It concerned his ongoing disabilities regarding his hand, right ankle, left kneecap, back, neck, and jaw, as well as post-traumatic stress disorder (PTSD), depression and alcohol use. AR 45. Prior to the hearing, Plaintiff's VA disability rating was thirty percent for his right hand and left knee, jaw and mouth issues, and an ulcer. AR 45.

When asked why he cannot work now, Plaintiff indicated his inability to work is due to depression and alcoholism, and a broken toe and bunions which make walking difficult, as well as his right hand which makes writing difficult. AR 46.

With specific regard to treatment for depression, Plaintiff indicated he sees counselors and a psychologist, whom he can see on an "on-call basis." AR 46. Asked on average how often he obtains psychiatric treatment, Plaintiff indicated about twice a month. AR 46-47. He also attends Dual Recovery Anonymous meetings once a week or once every other week. AR 48.

The symptoms of Plaintiff's depression include wanting "to be shut out from everything," not wanting to be around others and isolating himself. AR 48. He acknowledges attending college classes on Mondays, Wednesday and Fridays from 8 a.m. to 12:50 p.m., but reported he thereafter returns to his room and stays there. AR 49.

Plaintiff got married in June of 2007. His wife works as an in-home care provider to her mother, and has done so for the previous eight years. His wife's mother suffers from dementia and must be watched twenty-four hours a day, seven days a week. He will stay with his mother-in-law while his wife does the shopping, for example. AR 49. His wife has grown children; he has two grown children with whom he has telephone contact, as well as a teenage daughter whom he does not see. AR 50, 57.

While he does have a driver's license, he is often driven to and from locations by his wife or others. AR 49-50. In June, he traveled to Junction City, Oregon, by car to visit his ailing mother. AR 50. He and his wife stayed with his mother for about three weeks; his father has passed away. AR 51.

Plaintiff enjoys watching television, particularly crime shows, movies, and game shows. He is "not very active outside." AR 58. Reading causes him to fall asleep. AR 57-58.

When he goes to school or is on his feet "for a while," Plaintiff will use a cane. He did not use a cane to attend today's hearing because he "thought [he] was going to be sitting most of the time." AR 58. The problems with his feet involve bunions and a broken toe. Additionally, his left knee snags and catches. AR 58. Asked more specifically about how far he can walk, Plaintiff indicated he can walk across campus - approximately three to four blocks - with his cane and then rest for the length of the fifty-minute class. AR 59. He can stand for twenty to thirty minutes at a time before needing a break. AR 59. Plaintiff reported his toe was broken when he jumped off a tank in the military; "[i]t's an old break and it's not healed right." AR 59. His left knee gets "arthritis or cramps in it or something." AR 60.

Muscle relaxers treat his back and neck problems. He gets muscle spasms in his back at night. He injured his back and neck when he fell from a tank after it struck a tree limb. He also "knocked out" his teeth in that incident. His back and neck are "constantly sore, and [he] can't get comfortable." AR 60. His back and neck also bother him when sitting because he'll get "little twinges" and muscle spasms. AR 60.

Asked how long he believed he was capable of sitting during an eight-hour day, Plaintiff indicated perhaps three hours if permitted to stand up and move around during that period to avoid spasms. AR 60-61. While attending classes, Plaintiff sits for fifty minutes at a time, in four classes over about a three and one-half hour period. He keeps his legs stretched out to avoid having his left knee lock up. AR61.

With regard to his right hand, Plaintiff reported difficulty taking notes. For example, he can take a half page of notes before he needs to move his hand to avoid cramping, or his hand will "start[] making funny shapes." AR 61. Other students help him keep up with note taking if he misses something while exercising a cramp. AR 61-62.

Diabetes has been a problem as well, and Plaintiff reported it is "somewhat" controlled. He has recently lost some weight and that has helped. He admitted the past drinking would cause his blood sugar to rise. AR 62. Plaintiff is five feet, seven inches tall. He currently weighs about 180 pounds, and he was heaviest at about 230 pounds. He believes the prescription drug "Byetta" has helped because it curbs hunger. AR 62-63.

Plaintiff experiences numbness in his hands and feet everyday. He takes pain medication every morning and evening, and a muscle relaxer before he goes to sleep. When asked how the numbness in his hands or feet affects his ability to walk or use his hand, Plaintiff replied:

At night I'll be laying there, and all of a sudden I'll get a cramp in my foot on the, on the arch of my foot, and I'll have to get up and stand, move it around and stuff. I mean, it's just an everyday thing. I'm just kind of getting used to it, you know. AR 64.

Plaintiff reported his hypertension is not under control. AR 64. Plaintiff also has difficulty concentrating in class. During the lecture, he will begin to "start thinking of situations that are all around . . . my wife, the home front . . . bills . . ., [his] mind wanders." AR 64-65. He also has difficulty concentrating at home while watching TV. AR 65.

Plaintiff has reported to his physicians at the VA about flashbacks concerning an Army buddy's death after his friend crashed his vehicle over a cliff, his daughter's kidnap and rape at six years old, and the people he "put in prison through . . . the Army court." AR 65. Last night he dreamt he was reaching for a weapon during a fight, and he fell out of bed. On another occasion he was dreaming about protecting someone, when in reality he hit his wife during the dream. AR 65-66.

Medical Record

The medical record was reviewed by the Court, however, those medical records relevant to the issues on appeal will be ...

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