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Zabian R. Crosby v. Michael J. Astrue

March 18, 2011


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



Plaintiff Zabian R. Crosby ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability 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 January 14, 2005, alleging disability beginning August 7, 2002. AR 102-107, 589-592. Plaintiff's application was denied initially and upon reconsideration. AR 87-99. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 83. On March 23, 2007, ALJ William C. Thompson Jr. held a hearing and issued an order regarding benefits on June 29, 2007, finding Plaintiff was not disabled. AR 52-65, 692-716. On August 13, 2009, the Appeals Council denied review. AR 5-8.

Hearing Testimony

ALJ Thompson, via videoconference from Stockton, held a hearing on March 23, 2007. Plaintiff personally appeared and testified in Fresno, and was represented by attorney Richard Hudnell. Vocational Expert ("VE") Susan Creighton-Clavel also testified via telephone. AR 692-716.

Plaintiff was born on May 19, 1975, and thus was thirty-two years old on the date of the hearing. AR 696. He is five feet, ten inches tall, weighs 127 pounds, and is right handed. AR 696-697. Plaintiff is single and does not have any children. He lives as a roommate in someone's home; the home does not belong to a friend or relative. AR 697. He has a valid California driver's license and continues to drive. AR 703.

Plaintiff relies upon a monthly pension from the Veterans Administration ("VA") for income. AR 697. Plaintiff is considered twenty percent disabled due to a tear in the meniscus of his left knee, and has received the VA disability pension since January 2006. AR 697.

Following high school, Plaintiff graduated from Devry University with a degree in computer information systems. AR 696. When he was asked about the last time he worked, Plaintiff indicated he last worked at boot camp in the United States Navy. He did not finish basic training and was medically discharged primarily as the result of the knee injury. AR 698; see also AR 708. He was discharged from the Navy in November 2004. AR 709.

Obtaining all of his medical care at the VA hospital in Fresno, Plaintiff is being treated for asthma, hypertension, fibromyalgia, his left knee, depression, obsessive compulsive disorder, obsessive compulsive personality disorder, irritable bowel syndrome and agoraphobia. AR 698. He sees a primary care provider and a psychiatrist. AR 698. With regard to the treating psychiatrist, Plaintiff sees the doctor once a month, and more if the doctor believes he needs additional treatment. Plaintiff receives counseling and medication. AR 699. He began seeing the psychiatrist in July or August of 2005. He is currently prescribed Wellbutrin, Zoloft, and Quetiapine, and indicated that he continues to experience symptoms of his mental difficulties. AR 699.

Specifically, Plaintiff continues to feel nervous and anxious. He does not feel comfortable being around others, feels as though "something bad is imminent or about to happen," has low self esteem, and is depressed. AR 699-700. Plaintiff identifies his depression as his most significant illness affecting his daily life. AR 707. Because of the medications he has been prescribed, "some days" he feels better, but for the most part, he continues to struggle. AR 700. The side effects of the medications involve bouts of uncontrollable shaking and tremors in his hands. He has lost the ability to focus and concentrate, and he is not motivated. AR 700. About three times a week he does not have the motivation to even get out of bed. When he was asked about the other four days in the week, Plaintiff indicated that he manages to get up and tend to hygiene matters and straightening up, but a few hours later he feels weak and tired again. If he is sitting down, he'll then lie down and sleep for about two or three hours before getting up again. AR 700.

The VA is treating Plaintiff's left knee with pain medication - cyclobenzaprine - as needed. The pain is not persistent throughout the day, however, it is painful on a daily basis. He tries to take the pain medication infrequently because it makes him "feel extremely groggy, to the point [he] cannot even stand up straight." AR 700-701. He has never had surgery on the knee, nor has he had injections. He has occasionally used a knee brace, but the use is sporadic. AR 701. When he was asked how far he could walk, Plaintiff indicated he could walk for "a few minutes . . . maybe five minutes." AR 701. After five minutes, he would become tired, get short winded from the asthma, and his knee pain would worsen. AR 701-702.

Asthma is a problem with physical activity. Plaintiff indicated that the more he does, the sicker he gets. Additionally, the asthma is triggered by emotional factors, such as stress and anxiety. It can also lead to a panic attack such as the one he suffered the previous year. AR 702. Plaintiff estimated his asthma is a problem about three or four times a month. He uses two inhalers, but does not use a nebulizer as one has never been prescribed. AR 702.

With regard to his ability to stand for a period of time, Plaintiff indicated he can stand for ten to fifteen minutes before he begins to feel weak and light headed. AR 702. He can sit for about thirty to forty-five minutes before becoming tired and weak. AR 702-703. Plaintiff tries to pass the time by watching television, but can only do so for an "hour or so." He can read for about fifteen to twenty minutes before having trouble focusing and concentrating. AR 703. When asked the heaviest weight he could lift, Plaintiff indicated between five and ten pounds. He has never been physically strong and stated his "general weakness would prevent [him] from lifting anything heavier." AR 703. Additionally, his knee problem would prevent him from attempting to lift anything heavy. AR 703.

Plaintiff does not cook. He buys frozen dinners during his once a month grocery shopping trip. AR 703. He does not buy a gallon of milk because it is too large and heavy. He will buy a half gallon or less, and he asks the clerk to place the groceries in his car. AR 704. Pushing the grocery cart causes him pain in his leg, knee and arms. AR 704.

Following a diagnosis of fibromyalgia, Plaintiff's doctor prescribed cyclobenzaprine. It "only helps when [he] immediately takes the medicine." When it wears off, the pain continues throughout the day, and when he is anxious or nervous, Plaintiff feels pain in his chest and neck. He also feels "pressure on the top of [his] eyes." AR 704.

Following a question by his attorney, Plaintiff indicated his weight has fluctuated in the last few months; he would like to gain weight but he has been unable to do so. AR 705. He understands that his doctor attributes the weight fluctuation to stress and anxiety. Plaintiff said he will "just have bouts of depression and [he] won't eat for days." AR 705. Specifically, Plaintiff becomes anxious when people mistreat him. This has occurred in the workplace and continues to occur and is the reason he moves every three or four months. AR 705. He has explained to his roommates that he is not healthy and needs peace and quiet, and that he does not wish to be around a lot of people and noise, however, "that's what ends up happening" and he cannot relax. AR 705-706.

When he was asked about family or friends he sees on a social basis, Plaintiff indicated that his family has abandoned him as a result of their religious beliefs. He was raised Jehovah's Witness, and as the result of mistreatment "there in the religion" he decided to leave it in 2001. Following his decision, his family refuses to speak with him. His mother, his brother and his sister do not have any contact with him. His father has passed away. AR 706-707. He has tried to make friends at church, but it does not work out. Plaintiff does not socialize with anyone. AR 706.

With regard to his obsessive compulsive disorder, Plaintiff indicated that things must be done "in a certain order" or he cannot "think straight" and function. He cannot manage his bank account "with dollars and cents . . . everything has to be in whole numbers." AR 707.

Plaintiff indicated that at one point he believed he was having a heart problem because the pain was so bad. He sought treatment at the VA and was advised he did not have a heart attack, but the concentrated pain he feels in his chest - a sharp pain as if someone is cutting him -is related to fibromyalgia. AR 707. The pain spreads to the bottom of his neck and causes the pressure he feels "on the top of [his] eyes." AR 707-708.

Sleep is a problem because even if Plaintiff takes the medication he cannot stop having "thoughts" of people talking about him and calling him names, and of the wrongs people and his family have done to him. AR 708. When he was asked whether the medications he has been prescribed for anxiety and depression have helped, Plaintiff indicated that they "help a little bit" however "the underlying problem" remains. AR 708.

Prior to entering the Navy, Plaintiff worked as an administrative assistance at Earth Tech for about a year. Prior to that position, he worked for county government for about eight months, and also worked for GE Capital for about six months. He has never held a job for longer than a year. AR 709. In the last ten years, he has probably had ten jobs. AR 709. After six to nine months Plaintiff is terminated and indicated that he is never given a specific reason for the termination. AR 709. Plaintiff does not believe he can hold a job now because he still suffers from anxiety and nervousness. Being in an office makes him "nervous and jittery wondering what people are thinking about" him. AR 710. He just does not feel comfortable being around others, and would prefer to be by himself. AR 710.

VE Susan Creighton-Clavel was asked to consider a hypothetical worker of the same age and education as Plaintiff. The hypothetical worker had no exertional limitations but was to avoid excessive amounts of dust, fumes, smoke and other respiratory irritants. The worker was limited to simple instructions, and was to have restricted contact with the public and co-workers. The worker could work in the presence of others, but was not to be a part of a work team. AR 712. The VE indicated that such an individual could perform simple unskilled jobs. AR 712-713. For example, the hypothetical worker could work as: (1) a laundry classifier in a laundromat, Dictionary of Occupational Titles ("DOT") number 361.687-014, light, specific vocational preparation ("SVP") of 2, with over 17,000 positions in California and over 153,000 nationally; (2) a can filling machine operator, DOT 529.685-282, light SVP of 2, with over 7,000 positions in California and over 79,000 nationally; (3) an investigator for dealer accounts, DOT 241.367-038, light, SVP of 2, with over 5,000 positions in California and 37,000 nationally; (4) a mail clerk, DOT 209.687-026, light SVP of 2, with over 7,800 positions in California and over 60,000 nationally; and (5) a small parts assembler, DOT 706.684-022, light, SVP of 2, with over 33,000 positions in California and over 350,000 nationally. The VE's testimony is consistent with, and did not depart from, the DOT. AR 713.

In a second hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's same age and education who is restricted to lifting ten pounds occasionally, to standing and walking not more than thirty minutes at a time with no more than two hours standing and walking in a workday, and whom could sit without restriction, including the same non-exertional limitations provided in the first hypothetical. AR 713-714. The VE indicated such an individualcould perform sedentary, unskilled work. For example, electronics assembly, DOT 687-030*fn3 , sedentary, SVP of 2, with over 5,000 positions in California and over 56,000 nationally; telephone clerk, DOT 237.367-046, sedentary, SVP of 2, with over 12,000 positions in California and over 93,000 nationally; and pharmaceutical laborer, DOT 559.687-014, sedentary, SVP of 2, over 1,800 positions in California and over 12,000 nationally. AR 714.

Plaintiff's attorney asked the VE to consider hypothetical worker number one with a limitation that the worker may miss work more than three times a month. The VE responded that such a worker could not perform any of the work previously identified. AR 714-715. Additionally, the VE was asked to consider the second hypothetical worker with the same limitation. Again, the VE responded that such a worker could not perform the work previously identified. AR 715. Lastly, the VE was asked to consider Plaintiff's physician's fibromyalgia impairment questionnaire wherein the doctor indicates Plaintiff has "bilateral impairments" in the cervical spine, shoulders, arms, hands, fingers, hips, legs, knees, ankles and feet, preventing him from even "occasional movements." The VE indicated such a worker could not perform of any of the work previously identified. AR 715.

Medical Record

The entire medical record was reviewed by the Court, however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ's Findings

The ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 7, 2002, and had the severe impairments of an obsessive-compulsive disorder, a psychotic disorder, not otherwise specified, and a torn meniscus of the left knee. AR 54-55. Nonetheless, the ALJ determined that none of the severe impairments met or exceeded one of the listing impairments. AR 55.

Based on his review of the medical evidence, the ALJ determined that, Plaintiff had the RFC to perform work as follows:

I find the claimant has the residual functional capacity to perform work without exertional limitations. The claimant would be required to avoid concentrated exposure to respiratory irritants such as fumes, dust, smoke, gasses, vapors, temperature extremes, or high humidity. The claimant is limited to performing no more than the simple and repetitive tasks characteristic of unskilled work. The claimant is precluded from contact with the general public. The claimant is able to work in the presence of co-workers, but is precluded from being part of a work team or cooperative work process.

AR 55. The ALJ found that Plaintiff could not perform any past relevant work. AR 63. Nevertheless, the ALJ determined that Plaintiff had the RFC to perform other jobs that exist in ...

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