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Paul A. Diaz v. Michael J. Astrue

April 6, 2011

PAUL A. DIAZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Paul A. Diaz ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his applications on September 7, 2007, alleging disability since January 1, 2005, due to back and arm pain, diabetes, blurred vision, left shoulder problems, high blood pressure, depression and anxiety. AR 100-106, 107-110, 129-137. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 69, 70, 85. ALJ Robert Milton Erickson held a hearing on October 8, 2008, and issued a decision denying benefits on March 25, 2009. AR 9-17, 22-69. The Appeals Council denied review on September 19, 2009. AR 5-7.

Hearing Testimony

ALJ Erickson held a hearing on October 8, 2008, in San Francisco, California. Plaintiff appeared with his representative, Gioconda Egan. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 22.

Plaintiff testified that he was working as an electrician's assistant in 2000 when he was injured. AR 29. After he was injured, he tried to go to vocational school but did not have transportation. AR 30. Since January 2005, he has tried to do side jobs but was unable to work. AR 30.

Plaintiff completed the 10th grade. He dropped out of school because he had to start working. AR 51.

Plaintiff saw an eye doctor about three weeks ago and received new glasses. He was also told to see a specialist because of his diabetes. AR 32. Plaintiff also testified that he was told he had hepatitis C and was receiving shots to control it. AR 33.

Plaintiff lives with his father and they help take care of each other. Plaintiff sometimes helps his father with making lunch or dinner and sometimes helps him with his laundry. AR 35,

40. Plaintiff was doing the grocery shopping, but it is hard for him now because he doesn't have transportation. AR 36. Plaintiff's car was in an accident in September and he can no longer use it. For the last month, friends have been picking him up and taking him to the grocery store. AR

36. He would sometimes walk to the grocery store, which is half a block away, though it would take him "a little bit." AR 37. Plaintiff estimated that it took him about 30 minutes. AR 38.

Plaintiff has two children, ages 13 and 20, though he does not live with them. Plaintiff went to some of his son's high school soccer games, but he'd have to leave after 30 to 45 minutes because of sharp pain. AR 41. He was also unable to sit or stand for long during his daughter's eighth grade graduation. AR 43.

When questioned by his attorney, Plaintiff testified that he could not work because of strain in his neck, left shoulder and arm. His diabetes also makes him tired, even though he's trying to keep it under control. AR 45. Plaintiff also has problems with his back and goes to physical therapy for his "whole left side." AR 46, 48. He explained that therapy is soothing, but when he leaves, "it just acts up again." AR 46. He has been going twice a week for the past two months. AR 46.

On a scale of 1 to 10, his average daily pain is often at a 10 in the mornings. It takes at least 30 to 45 minutes for him to get up and move around. AR 48. Other times, the pain is at an 8 or 9. AR 48.

Plaintiff is able to lift his left hand, but not as high as in the past. AR 48. He thought that he could lift five or ten pounds. He sometimes drops things, like a grocery bag, because he'll get a sharp pain in his arm or cramps in his fingers. AR 48, 49. Plaintiff's pain travels all the way down into his fingers and he has to hold a gallon of milk with two hands. AR 49. He cannot do any type of repetitive activity and can't even throw a ball anymore because of sharp pain down his left side. AR 50.

Plaintiff currently takes Vicodin, but he doesn't like to take too much because it makes him tired. He also takes Neurontin and insulin. He gets very tired from the medications and just wants to sleep so that he can't feel any pain. The medication helps a little bit, but not as much as it used to. The pain interferes with his concentration and sleep. AR 50, 51.

Plaintiff explained that he also has trouble driving. Holding the steering wheel gives him pain in his shoulder and neck and it's difficult for him to turn and check his mirrors. AR 52.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience, who could lift 25 pounds occasionally, 10 pounds frequently, stand for six hours and sit for six hours. This person could not perform over-shoulder reaching with the left upper extremity. AR 60-61. This person could not perform Plaintiff's past work, but the VE testified that this person could perform sedentary unskilled work and 50 percent of the light unskilled positions in California. AR 61. At the sedentary level, possible positions included ampoule sealer, loader of semi-conductor dyes and stuffer. AR 62-63.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 20 pounds occasionally, 10 pounds frequently, stand for six hours and sit for six hours. This person could not perform over-shoulder reaching with the left upper extremity and could perform only occasional gross manipulation. This person could not perform Plaintiff's past relevant work and could not perform any other work because of the gross manipulation limitation. AR 64-65.

For the third hypothetical, the ALJ asked the VE to assume that this person could lift and carry 10 pounds occasionally, up to nine pounds frequently, stand for six hours, but with no standing or walking for more than 20 minutes at a time. This person could sit for six hours, but could not sit for more than 30 minutes at a time. This person could not perform over-shoulder reaching with the left upper extremity. This person could not perform Plaintiff's past relevant work and because of the sit/stand option, could perform one-third of the unskilled sedentary positions. AR 65-66.

If this person had to take a break for five minutes after sitting for 30 minutes, he could not perform any work. AR 67.

Medical Record

On January 9, 2003, Plaintiff saw Agreed Medical Examiner Steven D. Feinberg, M.D., after a work injury on October 24, 2000. Plaintiff was working as an electrician when he was on a ladder and "suddenly had 277 volts current going through his left arm." He fell off the ladder and passed out. Plaintiff received stitches at the emergency room and had six months of physical therapy. Plaintiff tried to return to light duty six or seven months after the injury but was unable to do so. He complained of sharp pain in his left shoulder which radiated down to his wrist, as well as numbness, swelling and weakness in his left hand and fingers. Plaintiff rated his pain at an 8-10 on a scale of 1-10. He can cook but needs frequent breaks and he does not do any housework. Plaintiff reported a history of diabetes, hepatitis and hypertension. AR 187-188.

On physical examination, Plaintiff was protective of his left upper extremity and showed various pain behaviors with moaning, groaning, grimacing and moving about slowly. There was no muscular atrophy and arm measurements were equal. Grip strength on the left was reduced. Cervical range of motion was limited to 75 percent of flexion and 50 percent of extension with discomfort with range. Left shoulder range was extremely difficult to assess as he voluntarily moved the shoulder only 50 percent of expected and would not extend much beyond 75 percent of expected. He also complained "bitterly" on left wrist flexion, though it was full. Plaintiff had diffuse tenderness in his left shoulder, upper back and upper arm areas. Sensation was difficult to assess on the left side but he did not have clear hypersensitivity. Reflexes were at the biceps, brachioradialist and triceps. Ulnar Tinel's was "very positive" on the left and the ulnar nerve was tender to palpation. Median Tinel's and Phalen's testing were negative bilaterally. AR 188-189.

Dr. Feinberg diagnosed status-post October 24, 2000, left upper extremity electrical injury, diabetes, hypertension, psychological factors affecting physical condition, left brachial plexus neuropathy and complex regional pain syndrome. He noted that Plaintiff's presentation was complicated by pain behavior and it was difficult to separate out what is physiologic and what is non-organic. Dr. Feinberg could not deem Plaintiff permanent and stationary and recommended that Plaintiff be treated by a pain specialist, undergo an MRI and EMG, and explore other treatments and medications. AR 189-194.

On December 22, 2003, Dr. Feinberg reexamined Plaintiff. He continued to have sharp pains in his left shoulder radiating all the way down to his wrist, along with numbness and swelling of the left hand and fingers. His symptoms worsen when he uses the left upper extremity. Plaintiff also has left mid-back pain and does not sleep well. On examination, there was no muscular atrophy and grip strength was decreased in the left. Cervical motion was full but left shoulder range was 75 percent of expected. Plaintiff had diffuse tenderness in his left shoulder, upper back and upper arm areas. Sensation was normal. Reflexes were at the biceps, brachioradials and triceps. Ulnar Tinel's was "very positive" on the left and the ulnar nerve was tender to palpation. Median Tinel's and Phalen's testing were negative bilaterally. AR 181-184.

Dr. Feinberg diagnosed status-post October 24, 2000, left upper extremity electrical injury, diabetes, hypertension, psychological factors affecting physical condition and left brachial plexus neuropathy versus ulnar serve lesion. He noted that his prior recommendations for evaluation and treatment were not "commenced." Unlike his prior examination, Plaintiff did not demonstrate any pain behavior and Dr. Feinberg believed he was permanent and stationary. Plaintiff could not return to his former occupation but was medically appropriate for vocational rehabilitation. Subjective factors of disability included constant slight to occasional moderate pain. Objectively, Plaintiff had a 50 percent left grip strength decrement. He lost half of his left upper extremity for lifting, carrying, pushing, pulling, grasping, gripping or fine manipulation. Plaintiff could not perform forceful repetitive activities. Future medical care should be left open on a precautionary basis because Plaintiff is still symptomatic. AR 184-185.

Plaintiff returned to Dr. Feinberg on September 27, 2005. Plaintiff reported that he had not had medical treatment for his injury in quite some time. His current symptoms were unchanged and included sharp pain in his left shoulder radiating down to his wrist, as well as numbness and swelling of the left hand and fingers. He also has left mid-back pain. Plaintiff's legs were also starting to cramp at night. AR 197-200.

On examination, Plaintiff again presented with mild pain behaviors with wincing and moaning and moving about slowly. There was no muscular atrophy. Grip strength was decreased in the left hand. Cervical motion was full and left shoulder range was 50 to 75 percent of expected. Plaintiff had diffuse tenderness in his left shoulder, upper back and upper arm areas. Sensation was normal. Reflexes were at the biceps, brachioradials and triceps. Ulnar Tinel's was "very positive" on the left and the ulnar nerve was tender to palpation. Median Tinel's was negative bilaterally and Phalen's testing was positive on the left.

Electrodiagnostic testing showed evidence of a differential bilateral carpal tunnel syndrome and underlying diabetic neuropathy. Plaintiff scored within the valid range on two of the three assessments in a pain assessment battery. Failure to score within the valid range on one assessment may show potential lack of effort, concentration, or investment in the testing process. The results suggest that psychological variables may be affecting his experience of pain and treatment response to a moderate degree. Dr. Feinberg was particularly concerned about his symptoms of depression, which may have influenced the testing outcome. The psychologist who reviewed the results felt that consultation with a mental health professional was strongly advised. From a psychological perspective, the probability of a successful outcome form medical treatment was 1.5 on a 5 point scale. Plaintiff was considered a below average to average candidate for traditional medical treatment of pain. AR 200-201.

Dr. Feinberg explained that his left shoulder MRI demonstrated revealed distal rotator cuff tendinopathy and moderate lateral acromial down slopping with narrowing of the lateral subacromial spaced suspicious for impingement. Dr. Feinberg also diagnosed status-post October 24, 2000, left upper extremity electrical injury, diabetes with probably neuropathy, hypertension, psychological factors affecting physical condition, left brachial plexus neuropathy versus ulnar nerve lesion, and chronic pain syndrome. Plaintiff remained permanent and stationary and was medically appropriate for vocational rehabilitation. Subjectively, Plaintiff complained of constant slight to occasional moderate pain becoming moderate with heavy use of the left upper extremity. Objectively, Plaintiff showed a 50 percent left grip strength decrement and left shoulder degenerative changes. Plaintiff also had a one-half loss of use of the left upper extremity and could not perform overhead work. Future medical care should be left open on a precautionary basis. Shoulder surgery may be a consideration but behavioral issues may cloud a good outcome. Dr. Feinberg also noted that psychological testing suggested that a psychiatric evaluation and treatment may be in order. AR 202-203.

Plaintiff was seen in the emergency room on November 2, 2005, for medication refills. Plaintiff complained of some right wrist discomfort, though he was able to rotate, bend and move the wrist without difficulty. There was some swelling and tenderness to the distal ulnar, though good rotation and grip strength. There was no parathesias, radiculopathy or traumatic injury to the extremities. Sensation and pulses were intact. AR 335-336. On November ...


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