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Napoleon Perea, Ii v. Commissioner of Social

March 29, 2012

NAPOLEON PEREA, II,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

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).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on October 4, 2007. In the application, plaintiff claims that disability began on January 1, 2007. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on April 15, 2009, before Administrative Law Judge ("ALJ") Sandra K. Rogers. In a September 24, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: status post gunshot wound to left shoulder and jaw, status post methamphetamine abuse, and borderline intellectual functioning;

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

3. The claimant has the residual functional capacity to perform medium work except for any climbing of ladders, ropes, or scaffolds, and more than occasional overhead reaching with his left upper extremity, and more than simple, repetitive tasks consistent with two-step directives necessary for unskilled work in a non-public work setting; and

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform [list of sample jobs omitted].

After the Appeals Council declined review on June 25, 2010, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following relevant evidence, summarized chronologically below:*fn1

October 17, 2007 -- Plaintiff's mother, Rosemary Perea, submitted a Function Report -- Adult -- Third Party. Ms. Perea reported that plaintiff does not care for any children, pets, or other adults. She stated that his condition affects his sleep because he "becomes stiff." Ms. Perea stated that plaintiff has no difficulty with personal care. She said he does ironing and mowing, and that he gets around "daily" by walking and using public transit. For hobbies and interests, Ms. Perea indicated "sport" and said he does these things "daily." She did not know whether plaintiff experienced any changes in these activities since the onset of his condition.

October 18, 2007 -- Plaintiff submitted a Function Report -- Adult. Plaintiff stated that, on a typical day, he will eat breakfast, wash himself, go to the park, sometimes play handball, eat lunch at the Mission Dining Hall, go home, watch television, then go to bed. He stated that he cares for children by taking them to the park. He stated that his impairments affect his ability to sleep due to "stiffness in left arm." He stated he has no problems with personal care. He reported no change in cooking habits since his condition began. As to chores, plaintiff stated that he cleans, does laundry, and irons. He stated that he sometimes needs encouragement to do these tasks. He stated that when he goes out he walks or takes public transit. When asked how long he can walk without needing to rest, how long he can pay attention, whether he'd ever been fired from a job because of problems getting along with others, how well he handles stress, whether he's noticed any unusual behavior, or how well he handles changes in routine, plaintiff responded "Don't know." He stated that he follows written and spoken instructions "ok."

December 3, 2007 -- Agency doctor Jenna Brimmer, M.D., performed an internal medicine examination. Dr. Brimmer described the following history:

The claimant says he has problems with his arm. He sustained a gunshot wound in 1992. It entered the back of his shoulder and exited the front. It injured his nerves and bones and he did undergo surgery. He had the nerves repaired and a bone graft from his hip to his arm, as well as hardware placed. He continues to have weakness in his left upper extremity and says it feels "awkward." When he does activities such as twisting with his arm or raising his arm above his shoulder, it causes stiffness. He did undergo postoperative physical therapy which improved range of motion and strength.

The doctor added: The claimant lives alone. He last worked in 1992 doing temporary labor work. He is not sure why he stopped working. At home the claimant can dress himself, perform his own hygiene. He is able to cook and wash his dishes. He can mop and vacuum the floor. He does not do his laundry. He says his mother does this. He has never done his laundry. He plays handball as his only hobby.

Dr. Brimmer also noted that plaintiff has a history of PCP and methamphetamine abuse until about one year prior to the examination. Based on result of a physical examination, Dr. Brimmer offered the following functional assessment:

The number of hours the claimant could be expected to stand, walk, and sit in an eight-hour workday would be without limitations.

No assistive devices are required.

The amount of weight the claimant could be expected to lift and carry would be an occasional 50 pounds and frequent 25 pounds. Limited by the claimant's mild left upper extremity weakness.

December 4, 2007 -- Agency psychologist James Wakefield, Jr., Ph.D., performed a psychological assessment. Dr. Wakefield noted that plaintiff had never received psychiatric intervention. As to current daily activities, Dr. Wakefield reported:

Napoleon stated that he is currently living by himself in a studio apartment. He stated that he received general relief and they require that he work. He indicated that he works 7 days per month raking leaves and doing clean-up work at parks. Napoleon stated that he will occasionally visit his parents, and when he travels he will typically go on the bus. He also stated that when there is a family function he will typically attend. Daily activities typically involve going to the park across the street and playing handball. Napoleon stated that he prepares his own meals.

Following psychological testing, Dr. Wakefield provided the following summary:

1. Napoleon achieved a Full-Scale IQ score of 79 on the Wechsler Adult Intelligence Scale III. This score fell more than one standard deviation below the mean, and placed his measured level of intellectual skills within the borderline range.

2. Napoleon's performance on the Bender Visual-Motor Gestalt Test II indicated that his ability to formulate visual-motor movements was in the borderline range for his chronological age group.

3. Napoleon had no difficulty completing Part A of the Trail Making Test, but was not able to successfully ...


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