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Donald Schneider v. Michael J. Astrue

August 28, 2012

DONALD SCHNEIDER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Donald Schneider ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed for DIB on September 25, 2007. AR 136-40. He alleged disability since August 31, 2007, due to arm numbness, depression and anxiety. AR 155. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 82-85, 90-94, 96-97. On November 17, 2009, ALJ James P. Berry held a hearing. AR 27-65. ALJ Berry denied benefits on January 7, 2010. AR 12-22. On March 3, 2011, the Appeals Council denied review. AR 1-5.

Hearing Testimony

ALJ Berry held a hearing on November 17, 2009. Plaintiff appeared with his attorney, Jeff Milam. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 29.

Plaintiff's Testimony

Plaintiff was born in 1959. He is 5'1" and weighs approximately 190 pounds. He has a VA disability of 40 percent, which is service connected, as he broke his arm in Italy and has nerve damage in the right arm, along with tinnitus. AR 31-33.

Plaintiff completed the 12th grade and can read and write. After 12th grade, Plaintiff received a heavy equipment operator's license and was in the Marine Corps for six years. AR 33. Plaintiff did not believe that he could return to any of his past jobs on a full time basis. He last worked at the Internal Revenue Service ("IRS") as a mail clerk, but stopped working because of pain after a fall in December 2004. AR 35. Since that time, he has had problems with his back. AR 54-55. He tried to work as a janitor at the veteran's halfway house, but could not sweep and mop because his arm hurt. AR 39-41.

Plaintiff claimed he cannot work because of his back, right shoulder, left arm and depression. He receives treatment for these issues at the VA Medical Center in Fresno, California. AR 35-36.

Plaintiff has been seeing Dr. Howsepian since 2002 or 2003 for his depression. Plaintiff experiences anger, distrust of people and low energy. He sleeps an average of 10 hours a day, some of it during the daytime, and he wakes up between one and three o'clock in the afternoon. AR 39. He also uses a CPAP machine for apnea. AR 55.

Plaintiff explained that there is nothing they can do to treat his low back. He has tried physical therapy and occupational therapy, but nothing seems to work. He has constant, throbbing pain and cannot get comfortable. AR 42-44. Plaintiff also has hearing aids, which he wears all the time. If there is a lot of background noise, he has trouble hearing. AR 44.

Plaintiff estimated that he could probably lift five to ten pounds. On a good day, he can sit for half an hour and can stand or walk for 15 minutes. In an eight-hour day, he can lie down two or three hours, sit four hours and stand two hours. He has trouble reaching overhead with his left arm. In an eight-hour day, he can reach out and grab things for one or two hours because of his back, shoulders and wrist. He can wash dishes for 15 or 20 minutes. He can concentrate for 5 or 10 minutes. Due to his depression, he gets irritated very easily and the stress of getting to work on time and dealing with an eight-hour day would be a problem for him. AR 44-49.

Plaintiff has a history of substance abuse and last used alcohol or drugs about three and a half years before the hearing. He attended an outpatient Chemical Dependency Treatment Program, but has stopped attending AA meetings. AR 49-51.

On a normal day, Plaintiff can get himself something to eat, take care of his dressing and bathing, and watch TV or visit one of his friends. He sometimes reads, but not for very long. He also is involved with his synagogue. He takes care of and cleans his own apartment. AR 51-54. He has a driver's license and drives. He likes to golf and to watch T.V. and movies. He was restoring a 1948 Dodge truck, but had to sell it. AR 56-59.

Plaintiff clarified that he resigned from his job in 2007 because of pain. He also was having some issues at the IRS involving other people, which was one of the major reasons he stopped working. AR 56.

Vocational Expert's Testimony

The VE identified Plaintiff's past relevant work at the IRS as a clerk, which was light, SVP three, and semiskilled. AR 60.

For the first hypothetical, the ALJ asked the VE to assume an individual 50 years of age with a 12th grade education and Plaintiff's past relevant work experience. The ALJ asked the VE to assume that this individual could lift and carry 100 pounds occasionally, 50 pounds frequently, could stand, walk and sit six hours each, could perform simple repetitive tasks, could maintain attention, concentration, persistence and pace, could relate to and interact with others, could adapt to usual changes in work setting and could adhere to safety rules. However, this individual must avoid concentrated exposure to loud noise. Given these limitations, the VE testified that this individual could not perform Plaintiff's past work, but could perform other jobs in the national economy. AR 60-61.

For the second hypothetical, the ALJ asked the VE to assume an individual with the same vocational background who could lift and carry five to ten pounds, could stand two hours and sit four hours, would have difficulty maintaining attention, concentration and interaction with others, would need frequent rest breaks lasting approximately two hours, could not reach overhead with the left, non-dominant extremity, would have difficulty reaching more than one hour per day and would have difficulty using the dominant, right upper extremity more than 15 to 20 minutes at a time. Given these limitations, the VE testified that such an individual could not perform Plaintiff's past work or any other work in the national economy. AR 62-63.

Medical Record

Physical Impairments

On July 25, 2005, Plaintiff underwent a neurological evaluation by Dr. Arvind Mehta. Following an examination and review of nerve conduction studies, Dr. Mehta diagnosed Plaintiff with residual hephalgesia in an oval shaped area on the left forearm due to residual right radial nerve findings. Plaintiff also had mild left median carpal tunnel syndrome and borderline median carpal tunnel syndrome. Plaintiff also had chronic pain symptoms in the left upper extremity with spread of pain into the neck, left should blade area, upper back and in the bioccipital and bitemporal head regions. Dr. Mehta opined that Plaintiff's complaints of a right shoulder condition were totally subjective and were difficult to evaluate objectively because there were no physical findings. Plaintiff's reported headaches were not frustrating and he continued to function. AR 238-39.

In December 2005, Plaintiff underwent surgery for a right wrist fracture. AR 285-86.

On June 27, 2007, Plaintiff sought emergency treatment for upper back and shoulder pain radiating to his chest. On physical exam, Plaintiff's spine was tender at T8/9, but he had full range of motion in both shoulders with normal power and tone. He was diagnosed with a back sprain and chest wall pain. AR 273-79.

On July 9, 2007, Plaintiff was diagnosed with sleep apnea by history. AR 264-65.

On July 30, 2007, Plaintiff complained of pain in his neck and shoulders. On exam, Plaintiff's neck and shoulders were tight, consistent with a diagnosis of fibromyalgia made worse by stress at work and the repetitive motion and lifting involved in sorting and delivering mail at work. He also had hypertension and obesity. Plaintiff was considering disability. AR 257.

In October 2007, Plaintiff underwent reconstructive surgery of his jaw and chin related to obstructive sleep apnea. AR 296, 299-73.

On November 12, 2007, Dr. Judith Miller completed a consultative internal medicine evaluation. Plaintiff primarily complained of left arm numbness, chronic depression and anxiety. He reported his activities of daily living to include light house work, such as vacuuming and mopping, and light yard work. As a hobby, he was restoring a 1948 Dodge Truck. There were no abnormal findings on physical examination. Dr. Miller opined that Plaintiff was able to demonstrate heavy activity with standing and/or walking and no restrictions with sitting, lifting and carrying. He had no postural, manipulative, communicative or environmental difficulties. AR 374-78.

A January 2008 sleep study showed mild sleep apnea. AR 465.

On February 11, 2008, Dr. Mehta performed a compensation and pension examination. Dr. Mehta diagnosed left arm numbness, which was stable and unchanged, moderate left-sided carpal tunnel syndrome not requiring surgery or brace, mild right sided carpal tunnel syndrome minimally symptomatic and not requiring any operation or treatment, and muscle tension headaches induced by physical exertion in the upper extremity muscles. AR 457-60.

On February 25, 2008, Plaintiff complained of left neck and shoulder pain. On exam, he was tender in muscles around the shoulder. AR 455. The next day, Plaintiff was issued a left wrist splint for carpal tunnel syndrome. AR 554.

On March 21, 2008, Plaintiff was approved for chiropractic treatment and physiotherapy for 12 visits. AR 551. On April 16, 2008, Plaintiff reported that the chiropractic regimen had been helpful, but as soon as he started using his left hand, his shoulder became painful. AR 776.

On May 2, 2008, Plaintiff sought emergency room treatment for left side shoulder and neck pain. Plaintiff had run out of Vicodin. On examination, Plaintiff was tender to the left very superior aspect of trapezius with no direct left shoulder tenderness. His range of motion was intact, but with discomfort. Plaintiff received a Toradol injection. AR 762-66.

On May 27, 2008, Plaintiff sought treatment from Dr. Vishal Pall for consideration of a left shoulder steroid injection. Plaintiff reported progressive pain in the left shoulder, with associated neck pain, scapular pain and numbness. On examination, Plaintiff had pain limited neck range of motion and pain limited left shoulder abduction. Dr. Pall assessed left shoulder impingement, subacromial bursitis, cervical spine degenerative disc disease and rule out cervical spine stenosis. Plaintiff was given a steroid injection. AR 753-54.

On June 16, 2008, Plaintiff sought treatment for pain to his left shoulder. AR 744.

On July 3, 2008, a left shoulder x-ray showed no fracture, dislocation or osseous abnormality. AR 515. On the same day, Dr. John Kwock completed an orthopedic surgery consult for left shoulder impingement. Plaintiff was prescribed a trial of NSAIDS. AR 546-47.

On July 5, 2008, Plaintiff sought emergency room treatment after he fell and bruised the left side of his body, low back and hips. X-rays of Plaintiff's hips and ribs showed no ...


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