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Patrick Walsh v. Michael J. Astrue

August 15, 2011

PATRICK WALSH,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Patrick Walsh ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for disability insurance benefits in December 2006, alleging disability beginning July 29, 2006. AR 88-90. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 53-66. ALJ Sandra K. Rogers held a hearing on April 22, 2008, and issued an order denying benefits on September 4, 2008, finding Plaintiff was not disabled. AR 13-19. On April 6, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Rogers held a hearing on April 22, 2008, in Stockton, California. Plaintiff appeared and testified; he was assisted by attorney Sengthiene Bosavanh. Vocational Expert ("VE") Stephen B. Schmidt also testified. AR 20-40.

Plaintiff was fifty-three years old at the time of the hearing. AR 22. He is married and lives with his wife. AR 23. Plaintiff is six feet, one inch tall, and weighs about 195 pounds. AR 23. When asked whether he drives, Plaintiff indicated that he seldom does so. On the occasion when he does drive, Plaintiff travels about five to ten miles to the grocery store. AR 23. Additionally, Plaintiff indicated he can only drive when he does not take his medication because its side effects cause him to become lightheaded and dizzy. AR 25-26.

Following graduation from high school, Plaintiff received additional training for positions as an emergency medical technician and a cable television lineman. He does not have a college degree. AR 24. Plaintiff last worked as a copier and printer repair person, but he can no longer do that work because it involves "too much lifting . . . and fine finger work." AR 24. More specifically, he has a tendency to drop things and he fears dropping something inside a printer he is called upon to repair. AR 25.

When he was asked whether he could return to work on a full time basis, Plaintiff indicated he could not because "[i]t's just hard." AR 25. He can no longer lift or use a computer; he cannot sit or walk for "for any period of time," and he is "in pain all the time." AR 25.

Plaintiff suffers from severe pain in his right knee and left ankle, pain in his left knee, and numbness in both arms and hands. Additionally, there is "some ringing" in his ears and he finds it hard to concentrate. AR 26. He also has pain in his lower spine and neck. AR 26. With regard to the pain in his neck, it is always present and restricts his mobility - he cannot turn his head left and right quickly without spasms. AR 26-27. His shoulders "just hurt." AR 27. Further, his feet swell and become numb if he sits for fifteen to twenty minutes, and when he walks his left ankle pain increases. AR 27.

With specific regard to his knees, Plaintiff has been told by his doctors that a knee replacement surgery was an option, however, he has spoken with others about the procedure and believes he is too young. AR 27. He has had "ACL reconstruction," but the doctors are now recommending a complete knee replacement involving removal of bone. AR 28. Another reason he has not agreed to the replacement surgery involves his understanding that "it doesn't last longer than more than 10 to 15 years." AR 28.

Plaintiff can sit for a maximum of fifteen minutes before he suffers "total numbness" in his feet and feels "contractions" in his right leg. AR 28. He lies down and elevates his legs throughout the day. Plaintiff will do chores around the house for ten to twenty minutes at a time, but then he must take a break. AR 31.

When he feels pain in his back, after about half an hour or forty-five minutes of sitting, Plaintiff has to get up and exercise. AR 28. His back condition is the result of a spinal birth defect. He receives complete adjustments from a chiropractor; there are no recent x-rays or MRIs of his back. He has not been given a back brace or a referral to physical therapy. AR 34. Plaintiff can stand or walk for fifteen to twenty minutes, but not without pain. He cannot walk or stand for any period of time without pain. AR 29. Plaintiff estimated he could walk about one-eighth of a mile before needing to stop; he does walk that distance every two to three days because he fears gaining weight. AR 29. It takes him about thirty to forty minutes to walk one-eighth of a mile. AR 29.

The heaviest weight Plaintiff can lift and carry is "[p]robably five pounds." AR 29. He can no longer use his hands to grab or manipulate items due to the numbness in his hands and a tendency to drop things. AR 30. When he was asked whether it became harder to use his hands as the day progressed, Plaintiff indicated that it would. He also indicated that if he took a half-hour or forty-five minute break, he could probably continue using his hands for another five to ten minutes before the numbness returned. AR 30. He has difficulty pouring from a gallon jug. AR 30. Plaintiff understands the diagnosis regarding his hands is "stenosis" and he believes it is the result of a car accident in the 1980s. He has not undergone surgery for this condition in his hands, nor has he been referred for physical therapy or been given hand splints. AR 33-34.

The medications he has been prescribed cause Plaintiff to suffer from side effects. Plaintiff feels "fuzzy" and his ears ring for about fifteen minutes at a time, six or seven times a day. AR 31. He has difficulty sleeping because his arms and shoulders become numb, then he gets "pins and needles," and as a result he wakes about six times a night. While Plaintiff is in bed for nine hours, he only gets about six and a half hours of sleep. He does not feel rested in the morning. AR 32.

Plaintiff can no longer enjoy skiing, biking, hiking, and walking like he used to. He also used to enjoy his work. AR 32.

VE Steve Schmidt characterized Plaintiff past work as an office machine servicer, DOT*fn2 633.281-018, light and medium as performed, with an SVP*fn3 of 7. Plaintiff also has past work as a sign erector, DOT 869.381-026, medium and heavy as performed, with an SVP of 7. AR 33.

Next, the VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who could lift twenty pounds occasionally and ten pounds frequently, could stand or sit for six hours in an eight-hour work day, but whom could only occasionally perform bilateral lower extremity pushing or pulling, and crouching or crawling. AR 34. The VE indicated such an individual could not perform Plaintiff's past relevant work. AR 34. Some light assembly work from his past relevant work may be transferable. AR 35. For instance, the electronics associated with office machine repair may transfer to a position such as: electrical equipment tester, DOT 729.381-010, light and SVP of 6; and assembler, DOT 729.384-010, light and SVP of 3, semi-skilled. AR 35-36.

Plaintiff's counsel asked the VE whether such a hypothetical worker could perform the work identified above were he able to "do less than occasional fine finger manipulation," or required an at will sit/stand option, or the ability to elevate one leg at least two hours a day. The VE indicated such a worker would be precluded from those jobs. AR 36. The VE was also asked to consider a hypothetical worker with the following limitations: ability to handle for four hours in an eight-hour day, feel and/or grasp for two hours in an eight-hour day, and whom could push or pull less than twenty-five pounds for four hours in an eight-hour day. AR 36-37. VE Schmidt indicated that such limitations would preclude the jobs previously identified. AR 37. Finally, Plaintiff's counsel also asked the VE to consider a worker who could handle, feel and/or grasp for one hour at a time, and push or pull less than twenty-five pounds for no more than two hours. The VE indicated such an individual would be precluded from all work. AR 37-39.

Medical Record

The entire medical record was reviewed by the Court. AR 175-244. The medical evidence will be referenced below as necessary to this Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 13-19.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 29, 2006. AR 15. Further, the ALJ identified bilateral osteoarthritis in the knees with a history of ACL repair in the right knee as a severe impairment. AR 15. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairment did not meet or exceed any of the listed impairments. AR 15-16.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to lift twenty pounds occasionally and ten pounds frequently, can sit, stand and walk for six hours in an eight-hour day, and can occasionally push or pull with the bilateral lower extremity, and occasionally crouch or crawl. AR 16-17.

Next, the ALJ determined that Plaintiff could not perform his past relevant work. AR 17-18. Nevertheless, based upon Plaintiff's age, education, work experience and RFC, the ALJ determined there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Specifically, the ALJ found ...


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