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Brian L. Randall v. Michael J. Astrue

December 17, 2010

BRIAN L. RANDALL,
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 (Doc. 2) SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). 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 1965, has an eleventh-grade education, and previously worked as a diesel mechanic and roughneck on a drilling rig. (Administrative Record ("AR") 12, 21-22, 104.) On March 13, 2006, Plaintiff filed applications for DIB and SSI, alleging disability beginning on January 27, 2006, due to chronic obstructive pulmonary disease ("COPD"), high blood pressure, sleep apnea, and lung infection. (AR 103-06, 120.)

A. Medical Evidence

On March 24, 2006, pulmonary function testing by San Joaquin Valley Pulmonary Medical Group indicated moderate obstructive airways disease. (AR 315.) On April 12, 2006, a sleep study noted Plaintiff's mild obstructive sleep disordered breathing. (AR 249.) On May 5, 2006, an echocardiogram revealed mild left atrial enlargement, moderate left and right ventricular enlargement, normal cardiac valves, and trace tricuspid regurgitation. (AR 245.)

On May 2, 2006, Plaintiff reported on a questionnaire regarding his daily activities that he shopped for groceries at least three times a month, vacuumed his living room, and took out the garbage. (AR 129.)

On July 10, 2006, Emanuel Dozier, M.D., an internist, performed a consultative examination of Plaintiff. (AR 219-222.) As for Plaintiff's medical history, Dr. Dozier noted that "[t]here is no oxygen used." (AR 219.) Dr. Dozier observed Plaintiff "in ambulation down the hall and shows no signs of pain, ataxia or shortness of breath. He walks with a normal steppage gait. He is able to sit during the interview without discomfort. He is able to transfer on and off the examination table without assistance." (AR 220.)

On August 18, 2006, Anne Khong, M.D., a state agency physician, assessed Plaintiff's physical residual functional capacity ("RFC") and found that Plaintiff (1) could occasionally lift and/or carry up to 10 pounds and frequently less than 10 pounds; (2) stand for at least two hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing/pulling with the upper and lower extremities. (AR 281.) Plaintiff could occasionally climb ramps and stairs (but never ladders, ropes, or scaffolds), balance, stoop, kneel, crouch, and crawl. (AR 282.) Plaintiff had no manipulative, visual, or communicative limitations, but he was to avoid concentrated exposure to fumes, odors, dust, and gases because of his COPD. (AR 282-83.) Dr. Khong's findings were affirmed by another physician on March 15, 2007. (AR 276,279.)

On June 11, 2007, a treatment note indicated that Plaintiff continued to smoke cigarettes and was advised to decrease his tobacco use. (AR320.)

B. Administrative Hearing

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 44-60, 63-69.)

1. Plaintiff's Testimony

On May 13, 2008, ALJ James P. Berry held a hearing where Plaintiff testified to the following. He stopped working because of breathing problems, chest pain, high blood pressure, diabetes, and a "flushing disease." (AR 23.) He also suffered from carpal tunnel syndrome involving both wrists, swollen feet, heart failure, and back, shoulder, arms, hips, and knee pain. (AR 23-24, 26-27.) Plaintiff, however, did not undergo surgery for his carpal tunnel syndrome, and he did not wear braces on his hands. (AR 27.) He had lost weight and now weighed 325 pounds. (AR21.)

Plaintiff used oxygen "sometimes" every day, depending "on the weather at times." (AR 24.) According to Plaintiff, he was using an oxygen machine at the time of Dr. Dozier's examination, but did not bring it with him because his prescription had not been filled. (AR29.)

Plaintiff also had right thigh weakness, had surgery on the right thigh and foot, and could not kneel, stoop, or squat. (AR 29.) Two weeks before the hearing, Plaintiff was admitted to the hospital because he believed he had a heart attack. (AR 31, 34.) Plaintiff suffered from headaches every day, and his blood pressure was uncontrolled even with ...


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