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Dwayne Collins v. Michael J. Astrue

September 14, 2011

DWAYNE COLLINS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Dwayne Collins ("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.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed an application for Social Security Disability Insurance Benefits on February 26, 2007, alleging disability beginning May 13, 2006. AR12. Plaintiff's applications were denied initially and on reconsideration. AR 44, 55-58. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 68. ALJ Stephen Webster held a hearing on April 28, 2009, and issued an order denying benefits on July 15, 2009. AR. 9-43. The Appeals Council issued a decision affirming the ALJ's order.*fn3 AR 1-3.

Hearing Testimony

ALJ held a hearing in Fresno, California, on April 28, 2009. Plaintiff personally appeared and was assisted by attorney Jeffrey Milam. AR 21-43. Vocational Expert ("VE") Shapiro also testified.*fn4

Plaintiff was forty seven years old at the time of the hearing. AR 21. He has three adult daughters.*fn5 AR 23, He is married and lives with his wife, step-father, and older brother. AR 23. Plaintiff completed the ninth grade but does not have a GED. AR 25. He does not know how to read or write. AR 30. Plaintiff has a driver's license, but his wife does most of the driving because it hurts his knee and back to do so. AR 23.

Plaintiff has been in jail in the past. The longest sentence he served was for thirteen months. AR 25. The last time he was in jail was approximately five years ago for driving while intoxicated. AR 25. Plaintiff still consumes alcohol but only drinks about one twelve pack of beer a week. AR 30. Plaintiff receives no other form of public assistance. AR 26.

In the past, Plaintiff worked as a janitor in a nursing home performing basic janitorial duties. AR 28. On occasion, he would change light bulbs but he can no longer do that because he is unable to climb a ladder. AR 28. Plaintiff also did cement work and was employed as a carpenter as well as a hospital cleaner. AR 34-35.

Plaintiff stopped working because he suffers fromback pain and pain in both of his knees. AR 26. In addition to the pain, his knees swell especially after walking or standing for long periods. AR 31-32. He sees his primary care physician who prescribes pain medication every three months which helps to relieve his symptoms. AR 26. The doctors have told him that a knee replacement may be an option in the future, however, he is too young for one right now. AR 32. Plaintiff uses a heating pad on his knee and back to relieve the pain. AR 33. However, he does not wear a brace or cane. AR 32-33. He has not tried epidural treatments and he does not do exercises. AR 32-33.

As a result of these symptoms, Plaintiff is able to stand for approximately forty-five minutes and he is only able to sit for about an hour or two. AR 27. He can lift ten to fifteen pounds. AR 27. He does not use any assistive devices. AR 27. However, he elevates his legs for two to three hours a day. AR 31.

Despite these limitations, Plaintiff is able to take a shower, shave, cook, do lawn work, and helps clean the house. AR 24. In his spare time, Plaintiff watches television for six or seven hours a day and goes to church. AR 25. He does not spend much time with friends or family. AR 24-25. However, he goes grocery shopping with his wife but goes to the car after about a half hour to rest. AR 27.

VE Shapiro testified at the hearing. The VE was asked to consider a hypothetical in which an individual could lift twenty pounds on occasion and ten pounds frequently, who could sit, stand and walk for six out of eight hours, who could occasionally climb, balance, stoop, kneel, crouch or crawl, and who could occasionally use foot pedals. AR 36. The VE indicated this person would be unable to perform Plaintiff's past work. AR 36. However, VE Shapiro indicated that this person would be able to perform other light work such as a cafeteria attendant, a can filling and closing machine tender, and a housekeeping cleaner of which there are 138,000, 24,900, and 244,000 jobs available nationally. AR 36-37.

The VE was asked to consider a second hypothetical in which the factors were the same as the first hypothetical but that this person would also be required to sit and stand at will. The VE indicated that this person would still be unable to perform Plaintiff's past work. However, there would be other jobs such as a ticket seller and a parking lot attendant of which there are 45,300 and 35,300 jobs available nationally. AR 37-38.

When asked to consider a third hypothetical in which the person would be required to elevate his leg every three to four hours for a couple of hours, the VE testified that there would be no jobs available. AR 39-40.

Medical Record

The entire medical record was reviewed by the Court (AR 145-191), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

Dr. Holm, M.D.

Plaintiff saw Dr. Holm for the first time on May 12, 2006 for high blood pressure, chronic knee pain, and "disability." AR 146. He told Dr. Holm that he had been on Tiazac for his high blood pressure for at least two years but often forgets to take his medications. AR 146. He also reported he had an arthroscopic procedure performed by his orthopedist, however Plaintiff was told that he was too young for a knee replacement. AR 146. Dr. Holm indicated he would get the MRI report, refill Plaintiff's pain medication (Norco), and that he planned on extending Plaintiff's disability for six months. AR 147. It was noted that Plaintiff did not have insurance and that he smoked one pack of cigarettes a day. AR 151.

Plaintiff returned to Dr. Holm on October 25, 2006 complaining of increased pain and swelling in his lower extremities. AR 149. Dr. Holm completed a disability form for Plaintiff extending Plaintiff's disability for six months again noting that Plaintiff did not have health insurance. AR 150.

Plaintiff saw Dr. Holm again on March 15, 2007, and reported swelling and pain in his legs. He also reported that he was unable to walk to the mailbox. AR 149. Plaintiff was prescribed Norco for pain with five refills. AR 149.

Dr. Holm examined Plaintiff again on August 13, 2007. Plaintiff had difficulty standing and was stiff. Dr. Holm noted that Plaintiff's disability application had been denied. AR 177. Plaintiff also reported running out of his medication early in June and July. Dr. Holm increased Plaintiff's Norco to five tablets per day and gave him a refill for three months. AR 177. Plaintiff was advised that he needed to stay within the limits of his prescription and the doctor would not be refilling his prescription early. AR 177.

Plaintiff returned to Dr. Holm on December 13, 2007, and reported numbness in his feet and hands. On examination, Plaintiff's "air was full of tobacco." AR 176. Plaintiff requested x-rays of his knee and back. AR 176. Dr. Holm noted that Plaintiff had been seeing a disability doctor who was taking care of the disability issues, however, Plaintiff advised him that the lawyer asked Plaintiff to get an x-ray of his knee and back. AR 176. Plaintiff reported taking some of his wife's Xanax which helped to relieve his anxiety. AR 176. Plaintiff was prescribed thirty pills of Xanax to take as needed. AR 176.

Plaintiff saw Dr. Holm again on January 26, 2008, after he fell down a flight of stairs and injured his ribs. AR 175. Dr. Holm indicated that Plaintiff smelled like smoke. AR 175. Dr. Holm noted that Plaintiff was taking eight Vicodin a day and advised him that was the maximum dosage per day that he should be taking. AR 175. Dr. Holm prescribed another 240 Vicodin pills which the doctor indicated was another one month supply. AR 175.

On March 26, 2008, Dr. Holm examined Plaintiff after he complained of chest pain. Dr. Holm diagnosed Plaintiff with chronic back pain due to osteoarthritis, chronic right knee pain, and neuropathy. AR 174. Dr. Holm prescribed three months of Norco and noted that Plaintiff requested additional Xanax. AR 174. Records also reflect that Plaintiff called Dr. Holm in July and September 2008, requesting additional Norco refills which were presecribed. AR 174.

On September 25, 2008, Dr. Holm noted that Plaintiff was waiting for a court date regarding his disability application. AR 173. Dr. Holm also opined and that Plaintiff probably needed a knee replacement given the MRI but that he would wait on referring him to an orthopedist because Plaintiff had no insurance. AR 173. Dr. Holm noted that Plaintiff had fluid on his right knee, effusion, and both lateral and medial tenderness. AR 173. The doctor prescribed Xanax and Norco with three refills. AR 173.

On December 12, 2008, Plaintiff presented to Dr. Holm with problems with his ears as well as knee pain. The doctor suggested that Plaintiff stop smoking and that he did not feel any pulse in his feet which is also evidence of peripheral artery disease. AR 172. Dr. Holm recommended an ultrasound of the arterial system in both legs and a work up for neuropathy. AR 171. Dr. Holm prescribed Norco with five refills and Xanax with three refills. AR 172.

On April 17, 2009, Dr. Holm completed a questionnaire in which he opined that Plaintiff could only sit and stand for one hour, that he could not bend, stoop or kneel. Dr. Holm indicated that he based the findings on x-rays taken on December 13, ...


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