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Alexander Fricke v. Commissioner of Social For the Commissioner Security

April 18, 2012

ALEXANDER FRICKE,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL FOR THE COMMISSIONER SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT AFFIRM THE AGENCY'S DENIAL OF BENEFITS AND ORDER JUDGMENT

Plaintiff Alexander Fricke, by his attorneys, Milam Law Office, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following review of the record as a whole and applicable law, the undersigned recommends that the Court affirm the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2006. On April 25, 2002, Plaintiff filed an application for disability insurance benefits, alleging disability beginning September 19, 2000. That claim was initially denied on September 18, 2002, and upon reconsideration, on December 19, 2002. Plaintiff appeared and testified at a hearing on September 18, 2003. On November 10, 2003, Administrative Law Judge Richard P. Laverdure found that Plaintiff could perform his prior work as credit manager and denied Plaintiff's application for benefits. On February 22, 2006, this Court affirmed.

On April 24, 2006, Plaintiff filed the application for disability insurance benefits that is the subject of this appeal. He alleged disability beginning November 11, 2003. His claim was initially denied on August 23, 2006, and upon reconsideration on March 2, 2007. Plaintiff appeared and testified at a hearing on July 23, 2008. On October 20, 2008, Administrative Law Judge James P. Berry denied Plaintiff's application. The Appeals Council denied review on April 19, 2010. Plaintiff filed a complaint in this Court on June 8, 2010.

B. Agency Record

Plaintiff (born March 10, 1946) lives alone in his own home. He completed three years of college but did not receive a degree. He is able to drive with no difficulties. He has become forgetful, forgetting to pay his bills and to take his medicine. In his adult function report, Plaintiff said he could pay attention for about 20 minutes.

Plaintiff worked for an aluminum and steel service center for thirty years. In his last position as a credit supervisor, Plaintiff approved credit and lines of credit for his employer's customers, released orders, went to the bank, made bank deposits, and entered orders. He was required to carry office supplies, including heavy boxes of paper for the copier. He did not supervise others or hire or fire anyone. According to his mental health record, Plaintiff's employer demoted him to a position of assistant credit manager following a period of frequent absences related to his illnesses. In his application for disability benefits, Plaintiff reported that he left his job because he was no longer able to do the work.

Plaintiff testified that he could no longer do his prior job because lower back pain and the pain of his diabetic neuropathy reduced his concentration. When he was awake, he experienced pain in his hands about 80 per cent of the time. Using his hands increased the pain. According to Plaintiff's testimony, diabetic neuropathy felt like "numbness and needles sticking in my feet."

AR 33. His back pain was "constant like a spasm type of pain in the back." AR 34. Laying down and medication were both effective in relieving his pain. Plaintiff took one pain pill daily.

Plaintiff testified that he could sit for an hour and a half at a time for a total of two and a half hours a day. He required a cane but could stand about a half an hour at a time for a total of two hours a day. He lay down about twice a day to relieve the pain and pressure in his back. He could lift no more than eight pounds.

Plaintiff also testified that he had problems with depression and anxiety attacks. He participated in weekly mental health treatment until the county discontinued group therapy following budget cuts. Plaintiff had difficulty sleeping and used a CPAP machine for sleep apnea.

Despite his limitations, Plaintiff testified that he was able to do "minor yard work," such as clipping bushes, although he made slow progress. For example, when clipping bushes, he worked for five or ten minutes, rested ten minutes, then worked for five minutes more. He cleaned his own home, dusting twice a week and vacuuming once a week. In his adult function report, Plaintiff noted that he mowed the lawn for 45 minutes weekly, did laundry for an hour weekly, and repaired sprinklers, as needed, for about one-half hour.

Plaintiff had a girlfriend, Leta Schantz, who had assisted in his living expenses by securing a loan against the equity in his home. He and his girlfriend went to the movies, although Plaintiff had difficulty sitting through the whole show. Plaintiff also liked to go to the mall, sit down, and watch people.

On an ordinary day, Plaintiff cooked his own meals, generally using a microwave, watched television, laid down, and talked to friends. He generally used disposable plates. Plaintiff cared for his pet bird, a parrot named "Polly." He reported some difficulty dressing himself and holding onto the soap when he showered.

Third-party function report. Ms. Schantz reported that Plaintiff had sleep apnea and constant pain in his legs and feet. He needed reminders to take his insulin injections.

Pain and loss of strength in his hands impaired his ability to use buttons. Because depression and pain reduced his energy level, Plaintiff need encouragement and motivation to perform his house and yard work. According to Schantz, Plaintiff did his own laundry, sprinkler repair, cleaning, and lawn mowing "out of necessity." AR 162. He prepared his own sandwiches, salads, and frozen dinners. Plaintiff could handle his own financial affairs in all respects.

Plaintiff went outside about twice a day. Although pain and diabetic neuropathy limited his mobility, Plaintiff was able to drive. He shopped for groceries and clothes. He and Schantz went out for four to five hours at a time to "eat out" or see a show.

According to Schantz, Plaintiff could lift five to ten pounds, stand ten to fifteen minutes, sit about 30 minutes, walk about 200 feet, and climb about five stairs. He had limited bending and loss of strength in his hands. His vertigo limited his concentration. Plaintiff used a cane but it was not prescribed by a doctor.

Kaiser Permanente. The administrative record includes medical records of Plaintiff's treatment at Kaiser Permanente from November 1, 2003 to June 1, 2006. He received treatment for diabetes without retinopathy, high cholestrol, a single episode of depression, and chronic pain, as well as acute symptoms unrelated to his disability claim. Plaintiff declined psychotherapy, claiming inability to pay the co-pay. The record does not include an opinion from any Kaiser physician regarding Plaintiff's residual functional capacity.

Dr. Garnica. William Garnica, M.D., treated Plaintiff from December 23, 2005 to May 31, 2005. These medical records are handwritten and largely illegible. Plaintiff declined lab tests, claiming inability to pay. Dr. Garnica diagnosed and treated anxiety, depression, diabetes, gum disease, hypertension, neuralgia, and diabetic neuropathy. Garnica did not offer an opinion on Plaintiff's residual functional capacity.

Dr. Klein. Internist Adi Klein, M.D., examined Plaintiff and offered his opinion as a consultant for the agency. Klein reviewed no medical records and depended on Plaintiff's account of his medical history. Plaintiff reported diabetes with numbness in his feet but no laser eye treatment or emergency room visits in the past year. He had long-term back pain with x-rays showing disk disease. Plaintiff had sleep apnea and used CPAP. Plaintiff's severe vertigo had continued since it was diagnosed in December 2005. He used a cane for the vertigo. Medications included NovoLog, Lyrica, Cymbalta, Nasonex, Vitoran, and Actos.

Other than reduced back flexion (45/90), a ganglion cyst on his right wrist and mildly reduced right-hand grip (4/5), Klein reported that Plaintiff's physical examination was normal. The sensory test revealed decreased sensation in Plaintiff's feet, likely due to his diabetes.

Plaintiff's gait was slow and steady. Plaintiff was able to cross the room without assistance, and get on and off the examining table without difficulty. Squatting and rising was within normal limits. Klein's reports of Plaintiff's ability to walk heel-to-toe were contradictory. Klein opined:

At this time, due to obesity, vertigo, neuropathy and back pain, the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. He can walk and stand two hours in a six-hour workday, with appropriate breaks. He can sit six hours in an eight-hour workday. There are no postural, manipulative, visual, or communicative limitations. No provision for height, age, or gender has been made. Special limitations: No heights or machinery.

AR 228.

Agency physician. Applying Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), agency physician D.D. Sharbaugh adopted the Judge Laverdure's 2002 decision. Accordingly, he opined that Plaintiff could lift ten pounds occasionally and frequently; stand or walk at least two hours in an eight-hour work day; and sit about six hours in an eight-hour work day. In addition, Plaintiff's fine manipulation ability was limited.

Dr. Engeln. Psychologist Richard Engeln, Ph.D., prepared a psychological evaluation as a consultant to the agency. After interviewing Plaintiff and administering intelligence and other psychological tests, Engeln opined, "On the present interview [Plaintiff] presented with no evidence of any mental or emotional illness." AR 238. He added:

Verbally, cognitively, and socially [Plaintiff] is capable of job adjustment in a context where instructions are multidimensional and independence is demanded. Restrictions to job ...


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