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Jon J. Sprout v. Michael J. Astrue

January 27, 2011

JON J. SPROUT,
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

SOCIAL SECURITY COMPLAINT ORDER REGARDING PLAINTIFF'S

(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") pursuant to Title II and XVI of the Social Security Act. 42 U.S.C. § 405(g). 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 1950 and previously worked as a tax preparer, telemarketer, estimator, and project manager. (Administrative Record ("AR") 19, 20-23.) Plaintiff began to receive treatment in September 2003 for symptoms of eye irritation, tearing, blurry vision, and drooping eye lids. (AR 146-173.)

On October 30, 2003, Reginald Sampson, M.D., performed a surgical ectropian*fn2 repair of the Plaintiff's lower eyelids. (AR 172.) Similar procedures were performed by Dr. Sampson on January 15, 2004, March 4, 2004, and July 29, 2004. (AR 163, 161, 149.)

Plaintiff stopped working on November 1, 2004, because the company he worked for, H & R Block, stopped putting him on the schedule. (AR 20, 22.) Plaintiff believed that the change in schedule was due to the fact that his eye condition made him slow at processing tax returns. (AR 22.)

On February 10, 2006, Plaintiff filed an application for DIB and SSI, alleging disability beginning on November 1, 2004, due to elbow, leg, and eye problems. (AR 106.)

On July 17, 2006, Emanuel Dozier, M.D., a state agency consultative examiner specializing in internal medicine, performed a consultative evaluation. (AR 176.) Dr. Dozier opined that Plaintiff could (1) lift and carry 20 pounds occasionally and 10 pounds frequently; (2) stand, walk and sit 6 hours each in an 8-hour workday; (3) perform occasional pushing and pulling, climbing ladders, ropes and scaffolds, kneeling, crouching, fingering, grasping and fine manipulation with the non-dominant left upper extremity. (AR 179.) Dr. Dozier did not include any visual limitations in his functional assessment, but noted Plaintiff's constant tearing. (AR 179.)

On August 1, 2006, S.N. Grossman, M.D., a state agency, non-examining physician, assessed

Plaintiff's physical residual functional capacity ("RFC").*fn3 (AR 181.) He came to the same conclusions as Dr. Dozier regarding Plaintiff's exertional limitations and concluded Plaintiff had unlimited near acuity, far acuity, depth perception, accommodation, color vision, and field of vision. (AR 181-83.) He made no mention of Plaintiff's tearing and concluded that Plaintiff's reported symptoms were disproportionate to the expected severity and duration of his impairment. (AR 185.)

On September 27, 2006, Dr. Gary Williams, an optometrist, evaluated Plaintiff and noted 20/20 corrected vision and grade 4 ectropian. (AR 238.) Dr. Williams opined that additional surgery would not likely correct the deformity in Plaintiff's eye lids and, due to that permanent condition, Plaintiff was unable to perform gainful employment. (AR 238.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, on April 20, 2007, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 43-50, 51-56, 70.)

On June 6, 2007, Roger Kohn, M.D., performed surgery on Plaintiff's eyelids. (AR 381-82.) Thereafter, Dr. Kohn performed two additional surgeries, one on October 3, 2007, and the other approximately two weeks before the hearing. (AR 25-26.)

On September 29, 2008, ALJ James P. Berry held a hearing in which Plaintiff testified to his functional limitations. (AR 19-37.) He testified that he was able to perform small chores at the center where he lives. (AR 29.) Although he has a driver's license, he felt uncomfortable driving because of his eye condition. (AR 30.) Plaintiff claimed that he had problems looking at a computer screen for even brief periods of time and that, when looking at the computer screen, or being outside, his eyes would water and his vision would become blurry. (AR 22, 32-33.) Plaintiff stated that he was still able to read books, which he did in short intervals for long periods of the day. (AR 33.) He testified that his eye condition is not painful and does not interfere with his ability to sleep. (AR 32-33.)

Kenneth Farrah, a vocational expert, testified that Plaintiff's past work as a tax preparer and a telemarketer was sedentary and semi-skilled. (AR 37.) Plaintiff's past work as an estimator was Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

sedentary and skilled. (AR 37.) His past work as a project manager was considered to be light*fn4 and skilled. (AR 37-38.) Mr. Farrah concluded that a hypothetical person of the same age, education, and work experience as Plaintiff, could perform all of Plaintiff's past relevant work, if that person had a combination of severe impairments leaving him with the RFC to (1) lift and carry 20 pounds occasionally and ten pounds frequently, (2) stand, walk, and sit for six hours each, and (3) occasionally push and pull, climb ropes, ladders, and scaffolds, kneel and crouch, finger, grasp and use fine manipulation with the non-dominant upper left extremity. (AR 38-39.) However, when the limitations of the same hypothetical individual were changed, such that the individual could lift 25-30 pounds, sit eight hours, stand four hours, walk approximately ...


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