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Alejandro Juan Inez Martinez v. Michael J. Astrue

August 17, 2012

ALEJANDRO JUAN INEZ MARTINEZ,
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

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Alejandro Juan Inez Martinez, by his attorneys, Christenson Law Firm, 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 Sandra M. Snyder, 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 received supplemental security income benefits based on disability as a child. When Plaintiff reached the age of eighteen years, as required by law, the Commissioner reevaluated Plaintiff's impairments based on rules for determining disability in adults. On May 31, 2005, the Commissioner determined that Plaintiff was no longer disabled as of May 1, 2005. The state agency upheld this determination when Plaintiff did not appear for the rehearing scheduled for reconsideration. Although Plaintiff failed to appear for the next scheduled hearing on March 27, 2007, ALJ Michael J. Haubner took testimony from a vocational expert. After Plaintiff also failed to appear for hearings on June 19 and August 10, 2007, Judge Haubner declared him a non-essential witness and issued a hearing decision finding Plaintiff not to be disabled.

On August 7, 2008, Plaintiff again filed for supplemental security income, alleging disability beginning December 1, 2005.*fn1 His claim was initially denied on November 17, 2008, and upon reconsideration on April 20, 2009. Plaintiff appeared and testified at a hearing on February 24, 2010. On April 1, 2010, Administrative Law Judge James P. Berry denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review on June 28, 2011. Plaintiff filed a complaint with this Court on August 11, 2011.

B. Agency Record

Plaintiff's testimony. Plaintiff (born August 27, 1986) completed the twelfth grade and graduated from Grant Hills High School. Plaintiff testified that he did well in school, usually receiving Cs and Bs. In 2007, he worked for approximately three months for General Construction Company at a pistachio packing plant, performing repairs and maintenance during the pistachio harvest. Plaintiff did not drive.

Plaintiff testified that he was assaulted and robbed in front of the movie theater, stabbed six times in his abdomen, back, and armpit. As a result, he experienced difficulty keeping down food and needed to use the rest room frequently. He slept poorly, his sleep broken by trips to use the bathroom. Plaintiff testified that his trips to the bathroom often lasted ten to twenty minutes. He also experienced sharp shocking pains in his back and stomach, a feeling that his stomach inflated, and " a lot of hard pressure." AR 35. Nonetheless, he was no longer depressed and felt "pretty decent." AR 35.

Plaintiff testified that he took thirty units of insulin twice daily. His blood sugar was usually just a little higher than average. Diabetes made his vision blurry.

In response to his attorney's leading questions, Plaintiff confirmed that he was paranoid because his assailants had never been caught. He did not know what post traumatic stress disorder was.

Plaintiff lived with his girlfriend Angelica Prado and their two children, aged one and a half, and two and a half. While Ms. Prado worked, Plaintiff cared for the children, including dressing and feeding them. The family supported itself on Ms. Prado's income.

Plaintiff reported that he had difficulty paying attention. He estimated that he was able to concentrate for thirty minutes to an hour. As a result of back pain, he could walk about a block and stand about thirty minutes to an hour. The heaviest thing he could lift was his daughter, who weighed about thirty pounds. Two or three times monthly, Plaintiff had bad days on which he awoke with his back or body swollen. On those days, he remained in bed.

Disability Report. In his disability report, Plaintiff stated that, while he was employed at the pistachio plant, he frequently missed work due to back pain and headaches. He stopped working November 25, 2005, when his seasonal job ended.

Adult Function Reports. In an adult function report dated September 18, 2008, Plaintiff reported that he spent his days brushing his teeth, eating, playing with his children, showering, walking around, watching television, cleaning, using the restroom, and sleeping. He had memory problems and sometimes forget whether he had taken his medication. It was difficult to bend down to tie his shoes. He cooked about once a week; he was a poor cook because he forgot that the food was on the stove. He washed dishes, vacuumed, and took out the trash. He shopped for food. He was able to go out alone. He handled his own finances but had difficulty counting money. He spoke with others and watched television with them. He visited family members on a regular basis. He had no trouble with authority figures. He found changes in routine stressful and confusing.

Plaintiff's mother, Gloria Martinez, saw Plaintiff daily when he came to her home to watch television. She emphasized his stomach pain and swelling. Plaintiff performed personal care when pain did not interfere, but needed to be told when to bathe. He needed to be reminded to do chores and praised afterwards. He could pay his bills but had never had a bank account. He was unable to count money. Since being stabbed, he did not like to go out.

According to Ms. Martinez, Plaintiff's condition affected seventeen of the nineteen listed activities: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, stair climbing, seeing, memory, completing tasks, concentration, understanding, and following instructions. His attention span was short. He had respect for authority figures. Stress made Plaintiff nervous and sad.

Ms. Prado's report was substantially the same as the report prepared by Ms. Martinez. Medical records. Physicians and other medical professionals at Family Health Care Network provided Plaintiff's primary care, principally monitoring his diabetes. Plaintiff frequently failed to appear for his appointments. As of July 5, 2006, Plaintiff's diabetes was being treated with Metformin and insulin.

On April 3, 2007, Plaintiff was stabbed in three places: (1) the lateral right upper quadrant of his abdomen; (2) 4 cm. below and 4 cm. lateral to his left nipple; and (3) a predominantly left-sided slicing and penetrating wound to the back at approximately the level of his lumbar spine. At Sierra View District Hospital, physicians performed surgery to identify the extent of the wounds and to repair them. Plaintiff's liver, colon, diaphragm, and intercostal artery were perforated, and he suffered hemothorax. His pericardium was lacerated but the heart itself was not penetrated. Plaintiff recovered and was discharged after five days in the hospital.

During Plaintiff's hospitalization, Christopher Kolker, M.D., of Family Health Care treated Plaintiff's diabetes. On admission, Plaintiff's blood sugar was 424. On April 5, 2007, Plaintiff's blood sugar measured in the 160's. Once Plaintiff began receiving a full liquid diet, his blood sugars ranged from 205 to 317. Dr. Kolker began insulin treatment on April 9, 2007.

X-rays taken of Plaintiff's lumbar spine on May 21, 2007, were unremarkable.

On August 9, 2007, Plaintiff complained of suffering back pain. Physician's assistant Andrew Fairburn explained to Plaintiff that the pain was likely neuropathic pain following his stab wound and could continue for months or years. Plaintiff's diabetes was uncontrolled, with blood sugar at 333 and large amounts of glucose in his urine.

Lab results dated October 30, 2007, noted blood sugar at 407; hemoglobin blood alcohol at 13.6 % (nondiabetic blood alcohol would be less than 6 %); microalbumin in the urine at 178 mg/L; and an albumin/creatine ratio of 185.42 mg/g. (Microalbumin normally should measure less than 22 mg/L; a normal albumin/creatinine ratio is below 29.0 mg/g.) Plaintiff also had elevated cholestrol.

On November 19, 2007, Christopher Kolker, M.D., prescribed Ultram and Lantus for Plaintiff's diabetes. Although Plaintiff's straight-leg raising exam was equivocal,*fn2 a peripheral and neurological exam of his back was normal. Dr. Kolker referred Plaintiff for x-rays and physical therapy.

X-rays of Plaintiff's abdomen and pelvis taken at Sierra View District Hospital on December 11, 2007, revealed no reason for Plaintiff's complaint of right-sided abdominal pain. Plaintiff's blood glucose was 324.

On April 4, 2008, Plaintiff's lab tests again indicated elevated cholestrol, microalbumin, and albumin/creatine ratio. Blood sugar was 442; hemoglobin alcohol was 14.6. Physician's assistant Liberty Lomeli noted Plaintiff was noncompliant with his diabetes medication regimen and treatment.

On April 15, 2008, noting that Plaintiff's blood sugar was 367, Lomeli characterized Plaintiff's diabetes as "not improved, not controlled." AR 197. Plaintiff told Lomeli ...


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