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Michael Nunez v. Commissioner of Socialsecurity

March 23, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 25) and defendant's cross-motion for summary judgment (Doc. 28).


Plaintiff applied for social security benefits on November 14, 2006. In the application, plaintiff claims that disability began on March 1, 2002. Plaintiff claims that disability is caused by a combination of "left upper extremity injury with a poorly healed left hand fracture, degenerative arthritis, obesity, peripheral neuropathy, depression, and Hepatitis C" which cause "debilitating symptoms including chronic pain, manipulative limitations, sit/stand/walk limitations, postural limitations, difficulty sleeping at night, the need for day time naps, and left hand neuropathy." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 23, 2008, before Administrative Law Judge ("ALJ") Peter F. Belli. In a February 4, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: status post right knee arthroscopy and meniscectomy, status post left wrist fractures, and obesity;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: claimant can perform light work except that he can lift, carry, push, and pull 10 pounds frequently and 20 pounds occasionally with the right hand, 10 pounds frequently and occasionally with the left hand, which can be used as a helper, sit for 8 hours with normal breaks, stand 8 hours with normal breaks, not work at unprotected heights or around dangerous machinery, and there are no limits on grasping and fingering with the right hand while occasional to frequent grasping and fingering can be done with the left; and

4. The claimant is capable of performing his past relevant work involving quality assurance and CAD (computer-aided design).

After the Appeals Council declined review on May 20, 2009, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

October 19, 1995 -- Records from Ventura County Medical Center indicate that plaintiff underwent a left knee arthroscopy with partial medial meniscectomy. The post-operative diagnosis was right knee medial meniscal tear and significant interarticular synovitis of the right knee.

April 16, 2002 -- Records from Plastic and Reconstructive Surgery Associates reveal that, on physical examination, the left hand and arm were moderately swollen. At the time, the hand was too swollen to allow palpation of any foreign bodies which may have been in the dorsum of the left hand. The doctor's plan was to refer plaintiff to an orthopedic surgeon for further evaluation.

April 22, 2002 -- Plaintiff returned to Plastic and Reconstructive Surgery Associates after obtaining x-rays of the left hand and wrist. According to the doctor, the x-rays showed:

It shows what appears to be non displaced fracture of the base of the third, fourth, and fifth metacarpals, as well as a possible foreign body or bone fracture fragment over the dorsum of the hand. . . . He also has a non-displaced ulnar styloid fracture. . . .

The doctor explained the risks and benefits of surgery, which plaintiff wanted to pursue.

April 26, 2002 -- Records from San Jose Medical Center reflect that plaintiff underwent a procedure performed by Vincent D. Lepore, M.D., to explore the left dorsal hand and remove a fracture fragment. The post-operative diagnosis was left hand trauma with multiple metacarpal base fractures and fracture fragment and/or possible foreign body of dorsum of hand.

June 25, 2002 -- Records from Plastic and Reconstructive Surgery Associates reveal the following entry by Dr. Lepore:

His hand incision is healing well. His hand range of motion from his fracture has been gradually improving. . . . From my standpoint, the patient could return to regular duty work. . . .

July 22, 2002 -- Hand therapist Shari Prater prepared a progress report following nine therapy sessions with plaintiff. Subjectively, Ms. Prater noted that plaintiff's dorsal left wrist was painful and that plaintiff was unable to make a full fist with the left hand. He also had difficulty lifting items because he was unable to oppose the thumb to the small finger. Plaintiff's index finger was also painful with use. On objective testing of range of motion, Ms. Prater opined that plaintiff was not able to lift more than 10 pounds with the left hand.

February 7, 2005 -- Radiological testing of plaintiff's left wrist revealed no acute fracture or dislocation, no destructive lesions, and no acute abnormality.

February 17, 2005 -- Medical records indicate that plaintiff was receiving treatment for Hepatitis C. This record is notable for the following:


1. Hepatitis C, chronic. His genotype is 1B and viral load 224,000. I will work on getting him to stop drug use and then consider a referral to ...

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