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Gary Gonsalves v. Michael J. Astrue

March 14, 2011

GARY GONSALVES,
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 SOCIAL SECURITY COMPLAINT (Doc. 1)

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 1950, has an eleventh-grade education, and previously worked as a glazer and roofer. (Administrative Record ("AR") 25-26, 105.) On October 18, 2006, Plaintiff filed applications for DIB and SSI, alleging disability beginning on March 30, 2004, due to arthritis and pain in his knees, feet, and shoulders. (AR 76-84, 92, 97.)

A. Medical Evidence

1. Modesto Radiology Imaging

On January 29, 2007, X-rays of Plaintiff's left knee revealed mild degenerative changes with no acute fracture. (AR 136-37.) X-rays of Plaintiff's right shoulder, right elbow, and left ankle were "negative." (AR 136-37.)

2. State Agency Physicians

On March 7, 2007, Charles Fracchia, M.D., a state agency physician, opined that Plaintiff's physical impairments were not severe. (AR 146-47.) On May 15, 2007, another state agency physician, I. Ocrant, M.D., affirmed Dr. Fracchia's finding. (AR 148-49.)

3. David Kerwin, M.D.

On April 4, 2007, X-rays of Plaintiff's left knee revealed mild osteoarthritis but no fracture or other acute abnormality. (AR 162.)

On August 27, 2007, Dr. Kerwin, Plaintiff's family doctor, noted that Plaintiff was "ok" with medications, but "terrible if he forgets it [sic]." (AR 159.)

Dr. Kerwin completed questionnaires in April 2007 and April 2008, in which he indicated that Plaintiff was precluded from performing any full-time work at any exertional level. (AR 19-20, 154, 163.) Dr. Kerwin opined that Plaintiff had degenerative joint disease of the spine, shoulders, hand, and feet, as well as knee problems. (AR 16-17, 154, 163.) He stated that his opinion was based on Plaintiff's pain on motion, some joint swelling, decreased range of motion, and lax knee ligaments that "gave out" when Plaintiff walked. (AR 16-17, 154, 163.) In April 2007, Dr. Kerwin opined that Plaintiff could sit for two to three hours and stand and/or walk for three to four hours in an eight-hour day. (AR 16, 154.) In April 2008, Dr. Kerwin opined that Plaintiff could sit, stand, and/or walk for three to four hours in an eight-hour day. (AR 163.) Dr. Kerwin also reported that Plaintiff had been unable to work at any exertional level since 2001 or 2002. (AR 16, 17, 154, 163.)

4. Rosalinda Serrano, M.D.

On December 30, 2006, Dr. Serrano perform a consultative orthopedic evaluation of Plaintiff, who reported arthritis in his feet, knees, elbows, and shoulders. (AR 130.) Dr. Serrano noted Plaintiff's medical history as follows:

[Plaintiff] said onset was "quite a while, probably 9-11 years ago." It started when he was working as a cable television technician for Cablevision Company. He was climbing telephone poles while working as a technician. It became worse when he started working as a window installer. When he was installing windows, he was carrying sheets of glass weighing approximately 100 pounds. He did not file a Worker's Compensation claim from these two employers.

With regard to both feet, the left foot is worse. With regard to both knees and elbows, the pain is equal. With regard to both shoulders, [the] right side is worse. He describes the pain intensity as 10/10. He had insurance through these employers, but he said he has not sought medical attention about his problems because he had no time as he was working. When he stands or walks, his knees will give out and his feet will "curl out." He has not worn any knee brace. He has not had physical therapy or x-ray. He buys pain medications over the counter. When he wakes up in the morning his shoulders and elbows will hurt.

Pain is less with rest, and when not doing anything, and changing position. The pain is worse with kneeling and climbing stairs. He does not use any assistive device for ambulation. (AR 130.)

Dr. Serrano noted that Plaintiff's reported hobbies included "tinkering with watches and clocks." (AR 130.) Plaintiff's knee pain increases when he stands while washing dishes. (AR 130.) When Plaintiff vacuums, his shoulders and elbows hurt. (AR 130.) Plaintiff, however, could reportedly do all household chores, "but after doing them for a prolonged period of time he starts hurting in the affected body parts." (AR 130-31.) Dr. Serrano noted that Plaintiff's only current medication was ibuprofen. (AR 131.)

Dr. Serrano's physical examination of Plaintiff revealed that he had full grip strength and full strength in his upper extremities, with slightly decreased strength in his knees and feet. (AR 18, 132.) Plaintiff's range of motion of his extremities was normal. (AR 18, 132.)

Dr. Serrano's diagnoses included (1) sprain/strain in both shoulders, elbows, and knees;

(2) bilateral foot pain; (3) rule out degenerative joint disease in both knees, shoulders, and elbows;

(4) rule out any internal derangement in both knees; and (5) tendonitis in both elbows and shoulders. (AR 133.)

Dr. Serrano's functional assessment of Plaintiff was as follows:

* The number of hours Plaintiff could be expected to stand and walk in an eight-hour workday would be about six hours because ...


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