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Anthony John Bernal v. Michael Astrue

July 9, 2011

ANTHONY JOHN BERNAL,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Anthony John Bernal seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court affirms the Commissioner's determination.

I. Administrative Record

A. Procedural History

On May 21, 2007, Plaintiff filed an application under Title II for a period of disability and disability insurance benefits beginning April 13, 2007. The claims were initially denied on June 29, 2007, and upon reconsideration on November 9, 2007. Plaintiff requested a hearing on November 28, 2007.

Plaintiff appeared and testified at a hearing on May 21, 2008. In a decision dated September 17, 2008, Administrative Law Judge Laura Speck Havens denied Plaintiff's application. On July 31, 2009, the Appeals Council affirmed the ALJ's decision. On September 29, 2009, Plaintiff filed his complaint in this Court.

B. Factual Record

Plaintiff (born February 18, 1971) completed eleven years of school. From August 1992 to July 2001, he worked in a candy factory, driving a forklift, performing cleaning and maintenance, and running various production lines. Thereafter, he worked intermittently as a laborer and forklift driver, with periods of unemployment. He is right-arm dominant.

On April 13, 2007, the alleged date of onset, Plaintiff was seriously injured in an accident in which the pick-up truck in which he was riding left the road and struck a barbed wire fence. Plaintiff incurred injuries to his head and to his right arm, shoulder, and chest, including a concussion, lacerations to his right arm and head, a broken vertebra, multiple broken ribs, broken collarbone and scapula, and broken humerus (upper arm bone). Most severe was a brachial plexus injury which left Plaintiff's right arm paralyzed and with limited feeling. Nearly all of his medical records reflect his initial emergency treatment and resulting seven-day hospital stay. Plaintiff has not worked since the accident.

Plaintiff received follow-up treatment from doctors at the Stanislaus County Health Services Agency on seven occasions between May 1 and July 24, 2007.

On June 28, 2007, medical consultant J.V. Glaser completed a case analysis and physical residual functional capacity assessment for the agency. He opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently; could sit, stand, and walk for six hours in an eight-hour work day; had limited ability to push and pull in the upper extremities; should never balance; had limited manipulative ability in his right arm, but unlimited ability in his left arm; and had no visual, communicative or environmental limitations. Noting that Plaintiff was still recovering from his accident, Glaser projected that Plaintiff's residual functional capacity would be for sedentary work.

On August 1, 2007, Plaintiff went to Emmanuel Medical Center in Turlock, California, complaining of back and arm pain. Emergency room personnel treated him with Dilaudid and phenergen.

On August 24, 2007, Plaintiff went to the emergency room of Doctors Medical Center in Modesto, California, complaining of pain. He told emergency room personnel that he had been unable to see his physician to secure a refill of his Vicodin prescription. Hospital notes report that he was in no apparent distress and chatting with his girlfriend while waiting. Dr. Barandica prescribed twenty-five Vicodin, but advised Plaintiff that he would need to secure further prescriptions from his personal physician.

On September 11, 2007, Plaintiff was examined by neurologist Nicholas M. Barbaro, M.D., at the University of California San Francisco Medical Center. Barbaro referred Plaintiff for an orthopedic evaluation before he conducted further electrodiagnostic studies. He prescribed nortriptyline for Plaintiff's continuing severe pain.

On November 6, 2007, Ian Ocrant, M.D. performed a case analysis and physical residual functional capacity assessment for the agency. He opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently; could sit, stand, and walk for six hours in an eight-hour work day; had limited ability to push and pull in the upper extremities; should never balance or crawl; had no manipulative ability in his right arm, and limited ability in his left arm; and had no visual, communicative ...


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