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Jesse Sanchez Hernandez v. Michael J. Astrue

February 14, 2012

JESSE SANCHEZ HERNANDEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Docket No. 1)

BACKGROUND

Plaintiff Jesse Sanchez Hernandez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.

FACTUAL BACKGROUND

Plaintiff was born in 1948, completed the 12th grade, and worked from 1983 through 2006 as a maintenance worker, handling plumbing emergencies, gas leaks, electrical repair, cooler maintenance, lawn maintenance, drywall repair, sprinkler repair, and floor tile repair. (Administrative Record ("AR") 139, 151, 156.) On March 8, 2007, Plaintiff filed an application for DIB, alleging disability beginning on December 26, 2006, due to asthma, disc problems, enlarged heart, diabetes, sleep apnea, and arthritis. (AR 61, 70, 139, 150.)

A. Medical Evidence

Plaintiff was seen from March 2001 through July 2004 at Baz Allergy and Asthma Institute for treatment for allergies and asthma. (AR 304-37.)

Plaintiff had radiology procedures performed at Sierra-Kings District Hospital ("Sierra-Kings") between April 26, 2002, through May 7, 2003, including ultrasound of his right knee, a cervical spine x-ray, a lumbar spine x-ray, and two chest x-rays. (AR 361-68.) The knee ultrasound and the chest x-rays were normal, and the cervical spine and lumbar spine x-rays indicated degenerative disk disease and mild limitation of motion. (AR 361-38.)

On October 11, 2005, an x-ray of Plaintiff's left shoulder was taken at Sierra-Kings, which revealed "[m]ild degenerative changes of the left shoulder joint" and "[e]vidence of calcific tendinitis." (AR 359.)

On November 15, 2005, Plaintiff was seen by Michael W. Gen, M.D., for fatigue, although he had originally been referred to Dr. Gen for metabolic syndrome, diabetes mellitus, and abnormal electrocardiography ("ECG"). (AR 228.) Dr. Gen indicated that Plaintiff's assessment, diagnosis, and past medical history included atrial fibrillation, hypertension, Type II diabetes mellitus, obesity, and metabolic syndrome and that the current medical regime included the medications Diovan, Advair, Singulair, Allegra, Albuterol, aspirin, Flonase, Lotrel, and Crestor. (AR 228.) Dr. Gen noted that Plaintiff "was able to exercise up to 93% of predicted maximum heart rate with no evidence of ischemia by ECG" and that "[h]is blood pressure appears perfectly controlled." (AR 228; see also AR 230-31.)

On June 17, 2006, Plaintiff was seen at UCSF Fresno Division of Pulmonary Critical Care & Sleep Disorders Center ("UCSF Fresno") for evaluation for snoring and sleep apnea. (AR 197-98.) An overnight polysomnography was performed and showed that Plaintiff had "severe obstructive sleep apnea." (AR 196.) Plaintiff "elected to try [a] nasal CPAP" (continuous positive airway pressure) to treat his condition, as opposed to surgical intervention at that time. (AR 196.)

On October 6, 2006, a lumbosacral spinal x-ray was taken at Sierra-Kings. (AR 358.) The report indicated an impression of "multilevel degenerative changes" and "mild narrowing of the neural foramen bilaterally at multiple levels," but "no acute fracture of dislocation." (AR 358.)

On November 16, 2006, Plaintiff underwent a magnetic resonance imaging ("MRI") scan of his lumbar spine at Sierra-Kings. (AR 356-57.) The report indicated that there was "moderately severe degenerative changes of the lumbosacral spine," including "multilevel degenerative disk disease and facet arthropathy." (AR 357.) At the L4-L5 level, there was "mild to moderate posterior and posterolateral disk bulging," "slight ventral extradural contouring of the thecal sac," and "some facet arthropathy and ligamentous hypertrophy. This combination of changes [was] causing minimal spinal stenosis and some encroachment upon the lateral recesses most prominent on the left. There appear[ed] to be moderate to severe narrowing of the neural foramina at this level." (AR 356.) At the L5-S1 level there was "mild to moderate posterior and posterolateral disk bulging," and "some increase signal within the posterior aspect of the disk suggesting a tear of the annulus." (AR 357.) The findings indicated that "[t]here does not appear to be any significant overall spinal stenosis at this level" but there appeared to be "moderate to severe narrowing of the neural foramina" and "mild to moderate degenerative changes of the sacroiliac joint." (AR 357.)

On December 5, 2006, Dr. Gen indicated that the medications Singulair and Crestor had been discontinued and that an echocardiogram performed on Plaintiff "showed significant hypertrophy which was quite concerning, particularly in light of sleep apnea for which he is now using CPAP." (AR 229, see also AR 264.) Dr. Gen noted that Rokshana Zeheen, M.D., had reported an atrial fibrillation in his "office some time ago" which Dr. Gen had "never documented." (AR 229.) Dr. Gen indicated that Plaintiff should not be placed on a Coumadin anticoagulation "without clear recurrence of atrial fibrillation or further documentation," but instead placed Plaintiff on a "surveillance 24-hour Holter monitor" that, "if normal," would "preclude" Plaintiff from using Coumadin. (AR 229.)

On December 27, 2006, a computed tomography ("CT") scan of Plaintiff's abdomen and pelvis was performed at Sierra-Kings. (AR 354-55.)

On January 2, 2007, Plaintiff was seen by Irwin Barg, M.D., of Urology Associates of Central California Medical Group, and returned for a cystoscopy on January 9, 2007. (AR 251-57; see also AR 261.) Dr. Barg noted that Plaintiff's prostrate was "normal" upon examination but that he had "trilobar enlargement and partial bladder outlet obstruction." (AR 257.)

On April 9, 2007, an x-ray of Plaintiff's lumbosacral spine was taken at Sierra-Kings, which indicated that there were "multilevel degenerative changes" but "no acute fracture or dislocation" and "no abnormal subluxation on the flexion and extension views." (AR 353.)

On May 29, 2007, Plaintiff was referred to Samuel B. Rush, M.D., for a disability examination. (AR 258-60.) Dr. Rush indicated that Plaintiff "seemed to be a good historian" who stated that "he had back pain for about three or four years, worse with prolonged sitting, in his lower back." (AR 258.) Plaintiff also reported "some numbness of his lower extremities" and that "[h]e was told he had a disc out of place." (AR 258.) Plaintiff stated that he had diabetes mellitus that was "under very good control," high blood pressure, a history of asthma, and "recent" bronchitis. (AR 258.) Dr. Rush noted that Plaintiff "retired for health reasons," which "apparently were asthma and low back discomfort." (AR 259.) Dr. Rush conducted a physical examination, during which the orthopedic testing indicated the following:

Normal range of motion of the cervical spine, both shoulders, elbows, forearms, wrists, and hands. Excellent grip on both hands. Lumbar spine can be extended to 30 degrees and slowly flexed to 90 degrees. Both hips, knees, ankles and feet are normal. [Plaintiff] gets on and off the examination table by himself unassisted and seems to walk fairly normally. (AR 259.) Dr. Rush opined that Plaintiff had "subjective low back discomfort with normal range of motion" and that "[p]erhaps some physical therapy of his back would be helpful." (AR 259-60.)

On May 31, 2007, a chest x-ray was taken at Sierra-Kings, which was "normal." (AR 350.)

On June 14, 2007, Brian J. Ginsburg, M.D., performed a physical residual functional capacity ("RFC") assessment.*fn1 (AR 272-79.) Dr. Ginsburg opined that Plaintiff was limited to occasionally lifting 50 pounds and frequently lifting 25 pounds, could sit, stand and/or walk for about six hours in an eight-hour day, and had unlimited push/pull abilities. (AR 273.) Plaintiff was limited to occasionally kneeling and crawling but had no limitations as to climbing, balancing, stooping, or crouching, and no manipulative, visual, or communicative limitations. (AR 275-76.) Plaintiff's only environmental limitation was to "avoid concentrated exposure" to "fumes, odors, dusts, gases, poor ventilation, etc." (AR 276.) Dr. Ginsburg examined the "significant objective findings" in the record and determined that Plaintiff's "PSA levels are [within normal limits], cardio testing was normal, [Plaintiff] has normal [range of motion] of all joints, [diabetes mellitus] has caused some Diabetic neuropathy. Asthma has not caused any significant problems." (AR 278-79.) Dr. Ginsburg opined that Plaintiff would be capable of a "[m]edium RFC [with] postural limitations [and] environmental precautions." (AR 279.) The RFC finding was affirmed by Natalie G. Marroquin, M.D., on August 27, 2007. (AR 302-03.)

On August 14, 2007, Perminder Bhatia, M.D., provided an electromyography ("EMG") report indicating that Plaintiff had "electrical evidence of clinical diagnosis of possible axonal neuropathy" and "advised" a "clinical correlation." (AR 299.) However, Dr. Bhatia "did not find any evidence of radiculopathy." (AR 299.)

A chest x-ray was taken at Sierra-Kings on January 26, 2008, which was "normal." (AR 352.)

B. Administrative Hearings

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ").

(AR 78-81, 83-87, 88.) ALJ Michael J. Haubner held a hearing on May 27, 2009, at which Plaintiff and vocational expert ("VE") Cheryl Chandler testified. (AR 19-60.)

1. Plaintiff's Testimony

Plaintiff testified that he was born in 1948, completed the 12th grade, previously worked performing housing and grounds repair and maintenance, and became disabled as of December 26, 2006. (AR 26-27.) Plaintiff was married and lived with his wife. (AR 29.) Plaintiff stated that he had a driver's license and was able to drive daily. (AR 28-29.) Plaintiff had a pet dog that he walked two to three times a week, "around the bock or so." (AR 29-30.) Plaintiff indicated that he could care for his personal needs. (AR 30.) Although his wife prepared most of the meals, Plaintiff stated that he would cook twice a month and would also do simple meal preparation two to three times a week. (AR 30-31.) Plaintiff testified that he would perform household chores, including doing dishes twice a week, emptying the trash three times a week, performing yard work such as watering three times a week and mowing the lawn every two weeks, making the bed twice a week, and changing the sheets twice a month with assistance from his wife. (AR 31-33.) Plaintiff would also shop for groceries three times a month and would occasionally do other shopping. (AR 34.) Plaintiff attended church twice a week, would sit, kneel, and stand during the church service, and attended a Bible study group once a week for an hour at a time. (AR 34-36.) Plaintiff would visit with other people outside of his home, including neighbors, twice a week. (AR 37.)

Plaintiff indicated that he did not quit working because he was told to by a doctor, but stated that he "quit on [his] own" because he "thought [he] couldn't do it [the work] anymore." (AR 27.) He said that left his former position on "regular retirement." (AR 27.) Plaintiff asserted that he retired from his job because he felt "always fatigued," and was "having more asthma symptoms at work because of the triggers at work." (AR 41.) He indicated that he had been "taken by ambulance two times from work" because of an "asthma reaction," and he had "episodes" where he "just sat them out" and took medication at work. (AR 41.) As a result, he was unable to perform his "normal production at work." (AR 42.)

Plaintiff testified that he was on medication for diabetes and that he would test his blood sugar twice a week as opposed to daily, as he had been instructed, due to financial reasons because the testing strips were "too expensive to do it every day." (AR 37, 41.) He followed his treatment recommendations and took his medications "[a]bout 80 percent" of the time, because he did not have insurance; he also had to take "lesser quality medications" due to his lack of insurance. (AR 42.) Plaintiff had been told by his doctor to lose weight and stated that he was following his weight loss and diabetes diet "70 percent" of the time. (AR 38-39.) Plaintiff said that he was able to lift ten to fifteen pounds, could stand and/or sit for two hours, and could walk a city block. (AR 39.) Plaintiff needed to lie down and elevate his feet four times a day due to pain or fatigue. (AR 39-40.) Plaintiff stated that he could only concentrate for a "half an hour" on one thing and then would need to rest his mind for ten minutes before he could concentrate again. (AR 40.) Plaintiff indicated that he had arthritis in his hands, numbness in his legs, pain in his lower back that spread down his legs, and that he was allergic to "just about anything." (AR 45-46.)

2. VE Testimony

The VE testified that Plaintiff's former position as a building maintenance repairer was a medium, skilled job, but that Plaintiff performed it at the heavy level. (AR 50.) There was no transferability of skills to lighter level positions because his prior work was "medium across all levels." (AR 50.) The ALJ asked the VE whether a hypothetical person could perform Plaintiff's past relevant work if that person was someone with Plaintiff's age, education, language, and work background who was restricted to lifting and carrying 50 pounds occasionally and 25 pounds frequently, standing, walking, and sitting six hours out of eight, had unlimited push/pull ability, and could do occasional stooping and crouching, frequent climbing, balancing, kneeling and crawling, but was limited to avoiding concentrated exposure to fumes, odors, dust, gases, and poor ventilation. (AR 51.) The VE testified that a hypothetical person could not perform Plaintiff's past relevant work because stooping and crouching needed to be more than occasional, but that such a person could perform other work, including working in a construction-related capacity and working as an equipment operator, a construction laborer, and an electrician, all of which were light and semi-skilled. (AR 52-53.) The VE further testified that such a person could perform medium, unskilled jobs including production works, drivers, and hand packagers, with a reduction in the number of jobs available due to the restriction of occasional bending. (AR 54.)

The ALJ posed a second hypothetical to the VE based on Plaintiff's testimony that he can lift and carry 10 to 15 pounds, can sit for two hours, can walk one block at a time, needs to lie down or elevate his feet for four hours out of eight, and can only concentrate for 30 minutes before needing to mentally rest for 10 minutes. (AR 54-55.) The VE testified that such ...


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