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Edward Guevara v. Michael J. Astrue

November 2, 2011

EDWARD GUEVARA,
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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff EDWARD GUEVARA ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income pursuant to Title 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 Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his application on June 19, 2008, alleging disability since May 14, 2008, due to a brain tumor, diabetes, headaches, memory problems, right leg pain, left lower jaw problems and high blood pressure. AR 129-131, 137-143. After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 59, 69, 102-103. ALJ James P. Berry held a hearing on March 9, 2010, and issued a decision denying benefits on April 23, 2010. AR 8-18, 20-58. The Appeals Council denied review on September 17, 2010. AR 1-5.

Hearing Testimony

ALJ Berry held a hearing on March 9, 2010, in Fresno, California. Plaintiff appeared with his attorney, Jeffrey Milam. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 20.

Plaintiff testified that he was 56 years old at the time of the hearing. He completed the tenth grade and did not receive a GED. Plaintiff was in special classes while he was in school, but then dropped out because he was foolish. He did not attempt to get a GED because he didn't think about it at the time. AR 23-24. Plaintiff had trouble with reading, writing and math. Now, he can read words in the newspaper but cannot put words together to make sentences. AR 25.

Plaintiff had surgery for a brain tumor and his mental functioning worsened after the surgery. AR 26. Plaintiff has trouble with his memory and has always been a slow learner. AR 29. Plaintiff has talked to his doctor about the additional memory problems and was told that it was normal for the type of surgery he had. AR 33. Plaintiff also gets very dizzy and wakes up confused in the middle of the night. AR 34. He gets headaches three or four times a week, for about 15 minutes each time, and takes Ibuprofen. AR 35. When he gets a headache, he cannot concentrate and has to lie down. AR 36.

Plaintiff was not married and lived with his parents because they take care of him. His parents watch for seizures and cook for him. Plaintiff can cook simple things, although his parents tell him not to cook because he has burned things. AR 26-28. He does not have a driver's license currently because his doctors reported his seizures to the DMV. AR 29.

Plaintiff was 5 feet, 7 inches tall and weighed 195 pounds. He receives $272 a month in General Relief. AR 29. He last worked two or three years ago sanding cars and doing body work. AR 30. Plaintiff did not think he could return to this job because he still has a seven millimeter tumor in his head. AR 32. Doctors want to perform laser surgery and told him that there's a risk of stroke with the procedure. AR 32.

Plaintiff testified that his seizures are not controlled by medication and that he has had five or six since November, at a rate of one or more per month. AR 36. He passes out after a seizure and the longest was five minutes long. His parents have seen his seizures but he has not had one in front of a doctor. AR 37.

Plaintiff also has pain his knee, right toes and mid-back that radiates to his neck. X-rays have shown that he has arthritis in his neck. AR 37. Plaintiff thought that his surgery caused the problems with his right leg. AR 50. His right shoulder hurts all the time and he cannot reach in any direction with the right arm. AR 40.

Plaintiff has diabetes, also, and takes insulin and pills. AR 38. He tests himself five or six times a day and has to take down throughout the day, for about an hour a time, because of fatigue. AR 38-39. Plaintiff thought that the tiredness began after his surgery. AR 39. He testified that he takes all of his medications as directed. AR 48.

Since the operation, Plaintiff has been scared to be alone. AR 41. During the day, he might clean up his room, take a shower and walk to his cousin's house and spend a few hours there. AR 41. It takes him about 15 minutes to walk to his cousin's house and it makes him tired and bothers his back. AR 42. He also has a "lady friend" that he visits quite a bit. She cooks for him and does his laundry. AR 43. Plaintiff also watches television, but does not read or listen to music. AR 42. He does not do laundry because his mother won't let him. AR 43.

Plaintiff also testified that he is depressed, though he hasn't seen any mental health doctors because of transportation issues. AR 44. He doesn't know why he's depressed and he sometimes just sits in the room and thinks. AR 44. Plaintiff was going to church often before his surgery but now goes about every other Sunday. AR 45.

Plaintiff told the ALJ that he could lift and carry about 20 pounds and could be on his feet for about 20 minutes at a time, for about two hours total out of an eight hour day. AR 47-48. He could walk for 15 minutes and sit for about 20 minutes. AR 48. He thought that he laid down for about two hours out of an eight hour day. AR 49.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person can lift and carry 100 pounds occasionally, 50 pounds frequently, and stand, walk and sit for six hours each. This person must avoid exposure to dangerous moving machinery, unprotected heights and the operation of motorized vehicles. The VE testified that this person could not perform Plaintiff's past relevant work as a sander but could perform the medium positions of cleaner, counter supply worker and linen room attendant. AR 53-52.

For the second hypothetical, the ALJ asked the VE to assume a person who could lift 20 to 30 pounds and carry 20 pounds. This person could stand and sit for two hours total and walk for 15 minutes. This person would have difficulty remembering tasks and processes and difficulty concentrating. This person must occasionally lie down and rest for 15 minutes approximately two times per day. This person would have difficulty reaching in all directions with the dominant right upper extremity. The VE testified that this person could not perform Plaintiff's past relevant or any other work in the national economy. AR 54.

Medical Record

Plaintiff was admitted to Community Regional Medical Center on May 10, 2008, after being assaulted. He underwent trauma surgery for a left mandible fracture. AR 244.

A CT scan of Plaintiff's cervical spine performed on May 10, 2008, revealed degenerative changes but no cervical spine fracture or dislocation. AR 237.

A CT scan of Plaintiff's head performed on May 10, 2008, revealed a mass-like density in the left frontal region with prominent surrounding edema. AR 238. An MRI of his head performed the same day showed a large para falcine/anterior interhemispheric fissure mass. AR 242.

He was discharged on May 14, 2008, with diagnoses of status post assault, closed head injury, brain tumor and left mandible fracture. AR 244. Plaintiff was to be followed on an outpatient basis for his closed head injury and brain tumor. AR 244-245.

On June 4, 2008, Plaintiff saw Mark Levy, M.D., for discussion of his brain tumor. He denied dizziness, headaches or blurred vision and believed that he was in very good health. His physical examination was normal and he denied depression or anxiety. Dr. Levy noted that the MRI showed an intracerebral mass, suspicious for meningioma. Plaintiff was to be scheduled for a craniotomy with tumor resection. AR 224-226.

On June 17, 2008, Plaintiff was seen for high blood sugar and surgery clearance. He was diagnosed with uncontrolled diabetes, hypertension and an asymptomatic mass on his lung. AR 222-223, 231.

Plaintiff was admitted to Community Regional Medical Center on August 11, 2008, after his mother witnessed a five minute seizure. During his hospitalization, he was treated with IV antibiotics and Dilantin, and did not exhibit any seizure activity. Treatment notes indicate that a craniotomy was scheduled in June but was cancelled for an unknown reason. Plaintiff reported smoking one pack of cigarettes per day since age 17. He also reported a history of cocaine abuse but denied IV drug use. An August 22, 2008, chest x-ray revealed a right basal mass of uncertain significance. AR 403. Plaintiff was discharged on August 24, 2008, with diagnoses of (1) left frontal lobe mass most likely meningioma; (2) left elbow cellulitis secondary to MSRA; (3) generalized tonic-clonic seizures secondary to left frontal lobe mass, stable on Dilantin; (4) candida balanitis; and (5) steroid induced hyperglycemia. He was discharged in stable condition. AR 330-331, 334-343.

A head MRI performed on August 12, 2008, revealed a medial left frontal lobe mass, most compatible with meningioma. AR 329.

On September 4, 2008, Plaintiff saw Richard Engeln, Ph.D., for a psychological evaluation. Plaintiff reported that he stopped working in June 1984, after he was laid off, though he also stated that he last worked two years ago. He revealed his brain tumor and explained that his sugars were too high to have surgery. Plaintiff also described an assault two years ago that resulted in a broken jaw and lost teeth. He believed that the assault caused a lot of problems, ...


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