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Steven L. Maxwell v. Michael J. Astrue

September 11, 2012

STEVEN L. MAXWELL
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 REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Steven L. Maxwell*fn1 ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability insurance and supplemental security income benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn2

FACTS AND PRIOR PROCEEDINGS*fn3

In August 2007, Plaintiff filed applications for benefits, alleging disability beginning June 4, 2007. See AR 147-156. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 89-100, 103-104. ALJ Christopher Larsen held a hearing and issued an order denying benefits on December 10, 2009, finding Plaintiff was not disabled. AR 22-27. Thereafter, on July 8, 2011, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Larsen held a hearing on October 29, 2009, in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Michael Goldberg, on behalf of attorney Ronald D. Miller. Vocational Expert ("VE") Jose Chaparro also testified. AR 39-59.

Plaintiff was thirty-four years old on the date of the hearing. AR 43. He completed high school and last worked at a car wash before becoming ill. AR 43.

Between 1997 and 2007, Plaintiff worked at various car wash businesses. AR 43-44. In addition to washing cars, he also performed sales and detailing, "pretty much everything that goes with the car wash." AR 46. Within the past fifteen years, Plaintiff has also worked as a weatherization specialist for Renaissance Construction. AR 44. More particularly, that job involved light construction work weatherproofing homes. He used small power tools and lifted about ten pounds regularly. Occasionally he lifted air conditioning units. AR 45; see also AR 56.

Plaintiff last worked on June 4, 2007. AR 43. He has been diagnosed with ulcerative colitis. The condition involves uncontrollable diarrhea. He has ten to fifteen bowel movements a day, and about twice a week, on average, he does not make it to the bathroom in time. AR 47; see also AR 53-54. Plaintiff wears a diaper if he is leaving the house. AR 47-48. He experiences severe abdominal pain upon waking, after he eats and in the evening. The cramping episodes occur three to four times per day and last from thirty minutes to two hours. AR 48-49.

He experiences the severe abdominal cramping every day. AR 53. Even when he is not suffering from an abdominal cramping episode, Plaintiff is fatigued and thus lies down about twenty-two hours a day. AR 49-50, 53 ("pretty much bedridden all the time"). Additionally, when he has "a really bad attack" of abdominal cramping, he also feels joint pain in his knees and it is difficult to walk. AR 52.

Medications prescribed include Prednisone (anti-inflammatory), Flagyl (antibiotic), Vicodin (pain), Levaquin (high cholesterol), Xanax (anxiety), Asacol (ulcerative colitis), and iron sulfate tablets (anemia). AR 49. Currently Plaintiff takes two Vicodin a day to treat his pain. AR 49-50. He feels the pain in his lower abdomen. AR 50. Plaintiff also takes two Xanax per day to treat his anxiety. AR 51.

When asked why he had not had the surgery recommended by his doctors, Plaintiff indicated that he hoped "they will come up with something without having to remove my entire colon," that he understands the surgery is "a pretty serious surgery" and he did not wish to risk his life. AR 50. When asked by the ALJ whether one of his doctors had advised him the surgery was life threatening, Plaintiff replied that the doctors "made is sound pretty drastic and dangerous," that it would involve "blood everywhere" and that he would have to use "some type of pouch . . .." AR 54-55. Additionally, the surgery may require blood transfusions about which he is "really nervous" because he does not "want to have somebody else's blood" in him. AR 55. The surgery is "risky" and he is "really scared of the operation." AR 55.

VE Chaparro identified Plaintiff's past relevant work to include: an energy conservation representative, medium and semi-skilled; car wash attendant, light and unskilled; and cashier, light and unskilled. AR 55-58.

Medical Record

The entire medical record was reviewed by the Court. AR 233-459. The medical evidence will be referenced below as necessary to this Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 22-27.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 4, 2007. AR 24. Further, the ALJ identified ulcerative colitis as a severe impairment. AR 24-25. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairment did not meet or exceed any of the listed impairments. AR 25.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently, and can walk, stand and sit for six hours in an eight-hour workday. AR 25-26.

Next, the ALJ determined that Plaintiff was capable of performing his past relevant work as a car wash attendant. Further, the ALJ determined that Plaintiff's past work did not require the performance of work related activities precluded by the RFC. AR 26-27. Therefore, the ALJ found Plaintiff was not disabled. AR 27.

SCOPE OF REVIEW

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

REVIEW

In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

DISCUSSION

The ALJ's Finding Regarding Plaintiff's Refusal to Undergo Surgical Intervention

Plaintiff claims the ALJ erred in determining his credibility because the ALJ improperly faulted Plaintiff for choosing not to undergo a colectomy*fn4 procedure. More particularly, Plaintiff contends the colectomy was only recommended rather than prescribed, as required. Additionally, Plaintiff argues that his reasons for declining surgery were sufficient. As a result, Plaintiff contends he is entitled to an award of benefits. (Doc. 13 at 5-13.) The Commissioner contends the ALJ did not err. More specifically, the Commissioner asserts the surgery was prescribed rather than recommended, ...


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