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Anthony M. Soriano v. Michael J. Astrue

August 7, 2012


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge


Plaintiff Anthony M. Soriano, by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income under Title XVI 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 Barbara A. McAuliffe, United States Magistrate Judge. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through June 30, 2005. On July 31, 2006, Plaintiff filed for disability insurance benefits, alleging disability beginning November 30, 2000. His claim was initially denied on February 5, 2007, and upon reconsideration on July 6, 2007. Plaintiff appeared and testified at a hearing on September 18, 2008.

At the hearing, Plaintiff's attorney conceded that no medical records established that Plaintiff was disabled prior to his last insured date since Plaintiff's residual functional capacity allowed him to do at least sedentary work. AR 96. If that were the case, stated the attorney, Plaintiff would not be disabled until September 26, 2007, when he would be deemed disabled under the medical vocational guidelines. AR 96. Accordingly, Plaintiff sought to withdraw and dismiss his disability insurance claims and proceed with a supplemental security income (SSI) claim under Title XVI. AR 96. Administrative Law Judge Christopher Larsen granted Plaintiff's motion and ordered the case to proceed under Title XVI. AR 96.

On January 7, 2009, Judge Larsen denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which remanded the case to the ALJ on June 30, 2009. The Council directed the ALJ to (1) properly resolve Plaintiff's Title II claim; (2) consider further Plaintiff's severe impairments and provide rationale in accordance with 20 C.F.R. § 416.921 and Social Security Ruling 96-3p; (3) further consider treating and nontreating source opinions pursuant to 20 C.F.R. §§ 404.1527 and 416.927, and Social Security Rulings 96-2p and 96-6p, and to explain the weight given to the opinion evidence; (4) further evaluate Plaintiff's subjective complaints and provide rationale in accordance with regulations applicable to symptom evaluation (20 C.F.R. §§ 404.1529 and 416.929) and Social Security Ruling 96-7p; (5) further consider Plaintiff's maximum residual functional capacity, providing appropriate rationale with references to the record in accordance with 20 C.F.R. §§ 404.1545 and 416.945, and Social Security Ruling 96-8p;

(6) determine the specific work activity requirements of Plaintiff's past work as a sexton; and (7) obtain additional evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base, reflecting the specific capacity and limitations established by the record as a whole. AR 126-27.

The remand hearing took place on January 26, 2010. Plaintiff pursued claims both for disability insurance benefits under Title II and Supplemental Security Income under Title XVI. On February 29, 2010, Judge Larsen again denied Plaintiff's application for disability benefits.

On July 28, 2010, the Appeals Council denied review. Plaintiff filed a complaint with this Court on October 18, 2010.

B. Agency Record

Plaintiff's testimony. Plaintiff (born September 26, 1957) completed the twelfth grade but received neither a diploma nor a GED. He completed a year and a half of community college studies in criminal justice but left to pursue employment.

Plaintiff last worked for two weeks in 2000, picking up litter at the Fresno Fair. Because Plaintiff was diabetic, his employer permitted him to rest for ten minutes every half hour. Before that he worked for a caterer that prepared meals for forestry fire fighters. In 1998, he worked as sexton at St. Columba Church, performing general maintenance work such as lighting, electrical, plumbing, roofing, and painting. He never worked as a construction worker.

Plaintiff complained of daily continuous pain in his left knee, which was relieved by Hydrocortisone.*fn1 Heating pads and liniment also helped. His knee pain was aggravated by bending, squatting, and excessive walking. Plaintiff's left knee did not swell, but it "popped," preventing Plaintiff from rising from the floor without assistance. Twice a day, Plaintiff's right knee was also painful until he "warmed it up." AR 32.

Plaintiff also experienced continuous pain across his back at the waistline, which was aggravated by lying down too long, bending, stooping, and walking. Medication and stretching exercises relieved his back pain. He lay down to relieve his back for fifteen minutes to an hour at least once a day, and sometimes as many as five times a day.

His medication made him drowsy. He had little energy and felt tired after 45 minutes to an hour of activity. He suffered from dizziness if he got up too quickly.

Plaintiff also complained of numbness between the ring and middle finger of his right hand that caused discomfort and difficulty gripping things about four or five times monthly. Plaintiff assumed that it was arthritis that would be relieved with Vicodin.

Plaintiff estimated that he could walk two to three blocks, could stand about an hour, and could sit about an hour. He had difficulty concentrating and could focus about 45 minutes before getting drowsy.

Plaintiff also testified that he saw "spiders" in his right eye, but his doctor did not treat them, telling Plaintiff that they were typical at his age. He had received shots to treat his hepatitis.

Plaintiff lived with his older brother and sister-in-law in their home. He cooked, did laundry, made his bed, swept the driveway, shopped, and mowed the lawn using a self-propelled mower. To relieve his diabetes, Plaintiff exercised by walking, riding a bike, and stretching.

Community Medical Center. On or about November 15, 2000, Plaintiff fell from a tractor. On November 17, 2000, he was first seen in the emergency room at Community Medical Center, complaining of mild to moderate abdominal pain. Plaintiff had abrasions, bruises, four broken ribs, and pneumothorax. He was treated and admitted for observation.

On August 18, 2003, Plaintiff presented in the emergency room seeking a prescription for his diabetes medication, which he had not taken since he was released from jail on July 4, 2003. His blood sugar was 416. From 2003 to 2006, Plaintiff received treatment for diabetes mellitus, Hepatitis C, hypertension, hyperlipedemia, and lower back pain through a clinic at University Medical Center.

Plaintiff's lower back pain was first noted on July 28, 2004, when it was attributed to Plaintiff's performing cement work a month before. The pain was sharp, radiating into his legs. Notes from Plaintiff's examination on February 28, 2005, reported that Plaintiff was working construction with a friend and helping to care for his father. He reported drinking two beers daily.

On April 18, 2005, Dr. Huang noted that Plaintiff continued to drink beer and that a liver biopsy could not be scheduled until Plaintiff abstained from alcohol consumption. Plaintiff denied fatigue or weakness, stating that he continued to ride his bike. On July 18, 2005, Dr. Rillo reported that because of his Hepatitis C, Plaintiff needed to refrain from consuming alcohol but that Plaintiff reported that he continued to smoke and drank a glass of wine daily. Although medical professionals encouraged Plaintiff to stop drinking alcohol so that he could receive treatment, Plaintiff did not "want to stop just yet." AR 305. On March 13, 2006, Dr. Patrus noted that Plaintiff had back pain, which was controlled with ...

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