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Jack R. Mccracken v. Michael J. Astrue

May 15, 2012

JACK R. MCCRACKEN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 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 FOR THE COMMISSIONER

Plaintiff Jack McCracken, by his attorneys, Milam Law, 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 District 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 October 8, 2002, Plaintiff filed for disability insurance benefits and supplemental security income, alleging disability beginning August 18, 2001. In a hearing decision dated April 14, 2004, Administrative Law Judge Daniel G. Heely found Plaintiff not disabled.

On August 9, 2004, Plaintiff filed for a period of disability, disability insurance benefits, and supplemental security income, alleging disability beginning September 18, 2001. His claim was denied initially and upon reconsideration. On August 23, 2006, applying Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), Judge Heely denied both Plaintiff's request to re-open the prior determination or decision, and the then-pending application.

On March 12, 2008, in the application that is the subject of this action, Plaintiff filed for disability insurance benefits, alleging disability beginning August 24, 2006. His claim was initially denied on June 2, 2008, and upon reconsideration on September 2, 2008. Plaintiff appeared and testified at a hearing on September 3, 2009. On January 19, 2010, Administrative Law Judge Laura Speck Havens denied both Plaintiff's request to re-open the prior determination or decision, and the then-pending application. Plaintiff appealed to the Administrative Council, which denied his request for review on July 29, 2010. On September 29, 2010, Plaintiff filed his District Court complaint.

As a result of a separate application, Plaintiff was found eligible for supplemental security income beginning July 1, 2008. Doc. 15 at 4.

B. Agency Record

1. 2002 Application

Plaintiff's prior jobs included truck driver, utility pole climber, a tree crew foreman, apprentice roofer, and scraper operator. Plaintiff reported that he performed yardwork for his wife's clients including cutting grass, pruning trees, and other activities requiring heavy exertion. Judge Heely observed that although the part-time nature of the work and insubstantial earnings did not render this work substantial gainful activity, it reflected Plaintiff's physical abilities.

Plaintiff reported back pain resulting from multiple employment injuries in the 1990's. Plaintiff submitted to a course of treatment with a chiropractor, who assured Plaintiff that after completion of the treatment, Plaintiff would be able to return to work. Although most of Plaintiff's chiropractic treatment occurred before he stopped working, on November 7, 2001, the chiropractor opined that Plaintiff could no longer work full time as a tree trimmer even though he could perform some of that job's duties. The chiropractor recommended vocational rehabilitation services and retraining for other work.

In June 2003, neurologist Erik Roberson performed a comprehensive orthopedic evaluation. Plaintiff demonstrated no difficulties walking, getting on and off the examining table, or removing his socks and shoes without assistance. He sat comfortably. Plaintiff had a full range of movement, and straight-leg raising and reflexes were normal. Plaintiff demonstrated no neurological defects. Roberson opined that claimant had no neurological deficits and could perform medium work so long as he avoided frequent bending or stooping.

Following her evaluation, agency consultant Dr. Ida Newton diagnosed back strain but opined that Plaintiff could perform medium work that did not require bending or stooping.

In reaching his conclusion that Plaintiff did not have a severe impairment of combination of impairments, Judge Heely summarized Plaintiff's testimony:

At the hearing the claimant alleged chronic back pain that radiates into his hips.

He did not allege any other medical impairment. He is not seeking regular medical treatment. He last saw a doctor approximately a year prior to the hearing. He does not take any prescribed medication due to financial hardship. He testified he could lift up to 50 pounds occasionally and up to 100 pounds on a one-time basis. He performs extensive home exercises. He drives his wife to work on a daily basis.

His daily activities also include strength training with free weights including doing arm curls and lifting weights of 35-40 pounds frequently. He does mule kicks in multiple sets. He described other exercises that involve using a rubber ball and doing about 25-30 pushups daily. He performs yard work at home and at his wife's clients' homes. He prunes fruit trees and operates a power mower. He does yard work for 1-2 hours per day. His wife's clients pay her an extra $10 to $15 per week for the yard work.

AR 43.

Judge Heely found Plaintiff's testimony that he was not able to work to be not credible. He summarized:

It is my conclusion the claimant has no severe impairment or combination of impairments. He alleged back pain with radiation into the hips, worse on the left side. However, there is no x-ray, MRI scan or physical evidence of a significant back impairment that would cause radiculopathy. There is no EMG study confirming radiculopathy. The orthopedic examinations were within normal limits. The claimant's treatment has been conservative. Surgery has not been advised. He has not undergone any treatment in the past year. He does not take prescription medication. He does not receive chiropractic manipulations or attend a pain management clinic. His physicians found him capable of performing medium to heavy work. At most his chiropractor precluded him from his past work, which was in the heavy range of exertional activity. The claimant described numerous daily activities that are consistent with an ability to perform medium or heavy work including lifting weights of up to 100 pounds and extensive home exercises. He also performs heavy yard work on a daily basis. He drives his wife to work daily and, until recently, attended a gym regularly. His allegation that he cannot afford medical treatment was not credible. The lack of medical treatment and his admissions regarding his daily activities severely undermined claimant's credibility. The claimant has no severe impairment or combination of impairments and he is not disabled.

AR 43-44.

2. 2004 ...


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