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Chris Phillips v. Commissioner of Social Security

July 14, 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. 21) and defendant's cross-motion for summary judgment (Doc. 22).


Plaintiff applied for social security benefits on May 14, 2008. In the application, plaintiff claims that disability began on October 1, 2004. Plaintiff claims that disability is caused by a combination of HIV/AIDS, depression, and anxiety. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 26, 2010, before Administrative Law Judge ("ALJ") William C. Thompson, Jr. In a March 4, 2010, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: HIV; anxiety; and obesity;

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

3. After careful consideration of the entire record, the claimant has the following residual functional capacity: lift/carry 50 pounds occasionally and 25 pounds frequently; sit/stand/walk 6 hours in an 8-hour day; the claimant must avoid climbing ropes, ladders, and scaffolding as well as work at heights or around hazardous machinery; claimant is limited to jobs involving simple instructions and restricted public contact;

4. The claimant is unable to perform past relevant work; and 5. Considering the claimant's age, education, work experience, residual functional capacity, and testimony from a vocational expert, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on May 20, 2010, this appeal followed.


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

April 12, 2002 -- Records from Saint Mary's Regional Medical Center indicate that plaintiff was diagnosed with tendonitis.

January 21, 2004 -- Records from Saint Mary's Regional Medical Center indicate that plaintiff was diagnosed with Bell's palsy, which is described as "a weakness or paralysis of the facial muscles due to an inflammation of the seventh cranial nerve -- the facial nerve." The document states that, while the cause of the disorder is unknown, it does not progress and recovery is usually complete within several weeks or months.

May 18, 2004 -- Records from Northern Nevada H.O.P.E.S. reflect a follow-up related to HIV infection. At the time, plaintiff was asymptomatic and physical examination was unremarkable.

June 24, 2004 -- Records from Northern Nevada H.O.P.E.S. reflect a follow-up related to HIV infection. At the time, plaintiff continued to be asymptomatic.

July 21, 2005 -- The medical director of Northern Nevada H.O.P.E.S., Steven C. Zell, M.D., prepared a chart note indicating the following history:

This is a 39-year-old gentleman who probably acquired HIV infection some time around 2004 due to the fact that he has been asymptomatic and has not had significant escalation of his viremia or a substantial drop in his absolute CD4 cell count. We hade deferred initiation of antiretroviral therapy. He is here for routine follow up to look at his most recent immune profile and make certain he is not harboring any opportunistic infections related to HIV disease. Since his last visit with us at Northern Nevada H.O.P.E.S., he continues to do quite well and has not had any HIV related intercurrent illness to speak of.

A review of symptoms was "entirely negative today. . . ." The note also indicates that, at the time, he was not taking any medication related to HIV infection.

July 16, 2008 -- Ng Spadone, M.D., submitted a medical source statement. Dr. Spadone states that his impressions are based on one office visit. The doctor states that he saw plaintiff once in June 2007 incident to his main complaint of depression from having recently been in prison. Without identifying any supporting objective findings, Dr. Spadone opined that plaintiff could occasionally lift/carry up to 20 pounds and frequently lift/carry up to 10 pounds. He also opined that plaintiff could sit/stand/walk for six hours in an eight-hour day. Again without noting any objective findings, Dr. Spadone concluded that plaintiff has a mental impairment resulting in low affect and decreased motivation.

August 18, 2008 -- Agency examining psychiatrist Patrick Wong, M.D., conducted a mental status examination. Plaintiff told the doctor: "I was diagnosed with agoraphobia." Dr. Wong reported on the following history as conveyed by plaintiff:

This is a man who reports he had a source of panic attack in 2000. "It was after an incident." He states that he pissed off some guys who were with the "wrong crowd" and they started harassing him. They would follow him in their Harleys. They would leave notes in his lunch box. They would leave notes in his workplace. Since then, he has been very anxious. At one point, he thought they were going to kill him. He no longer thinks that they are going to approach him, but the fear is still in the back of his mind. The actual onset of the alleged terrorism began back in 1997. The claimant has panic attacks where he has anxiety, tremulousness, tachycardia, extreme fear, and clamminess. They tend to come on more in public. He avoids the public quite a bit. He does not have any nightmares or flashbacks. He has no neurovegetative changes that would suggest a mood disorder. Mr. Phillips reports no history of hallucinosis, bizarre beliefs, suspicions, or special powers. Claimant has no history of life threatening psychological trauma and has no post traumatic symptoms. Claimant denies any anxiety panic attacks or avoidance. There are no obsessions or compulsions. Bipolarity to mood is not suggested by the provided history. Labile irritability and bouts of hyperactivity associated with impulsiveness, racing thoughts, and a decreased need for sleep are denied as well.

Plaintiff reported that he had been arrested in 2004 and served several years in prison. He also told the doctor that he last worked in 2004 "but was released after about a year of work due to too many absences." Based on a mental status examination, Dr. Wong diagnosed anxiety disorder not otherwise specified secondary to alcohol abuse and assigned a Global Assessment of Functioning ("GAF") score of 60-70 on a 100-point scale. Dr. Wong provided the following functional assessment:

This is a man who has some anxiety symptoms due to alleged harassment in his distant past. He claims to have significant agoraphobia and anxiety attacks as a result. At this time, he globally is estimated to have a mild to moderate amount of impairment as a result of this. His ability to carry out simple instructions is generally intact. His ability to carry out complex instructions is generally intact. His ability to relate to co-workers and the public is perhaps moderately impaired due to this anxiety pattern. His ability to maintain an adequate pace and level of endurance is only affected by the anxiety that is provoked by his mild anxiety symptoms in public. His ability to take direction from a supervisor is generally intact. The probability of functional deterioration due to typical stressors is elevated due to this anxiety and his ability to adapt to changes in a workplace is mildly impaired as well. Claimant at this time is capable of staying consistently aware of safety issues in the workplace.

August 20, 2008 -- Agency examining doctor Joseph Garfinkel, M.D., reported on a complete internal medicine examination. Plaintiff's principal physical complaints at the time were back pain and bad headaches. Plaintiff reported the following history:

The claimant states that he has chronic, severe headaches secondary to a 2004 self-inflicted gunshot wound in a suicide attempt. The bullet remains in his head.

He has chronic back pain, upper and lower. This started in 2004. It was not work related. It does not radiate. It is worse with sitting up and standing. It is better with medications. He does not use assistive devices to ambulate. He is not ...

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