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Terry Duncan v. Michael J. Astrue

September 21, 2012


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



Plaintiff Terry L. Duncan ("Plaintiff"), who is proceeding pro se, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his applications for disability 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 Barbara A. McAuliffe, United States Magistrate Judge.


In December 2007, Plaintiff filed applications for disability and supplemental security income benefits, alleging disability beginning May 17, 2002. See AR 87-93, 94-96. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Sandra K. Rogers held a hearing and issued an order denying benefits on September 24, 2009, finding Plaintiff was not disabled. AR 12-19. Thereafter, on September 9, 2010, the Appeals Council denied review. AR 1-5. This appeal followed.

Hearing Testimony

ALJ Rogers held a hearing on April 13, 2009, in Modesto, California. Plaintiff appeared and testified. At the time, he was represented by attorney Gary C. Nelson. Vocational Expert ("VE") George C. Meyers also testified. AR 21-44.

Plaintiff was fifty-one years old at the time of the hearing. AR 37. He currently has no source of income, but receives food stamps from Stanislaus County. AR 37. Plaintiff testified he was homeless until his ex-wife allowed him to stay in the trailer behind her house. AR 38. Immediately prior to the hearing, Plaintiff's ex-wife told him that he needed to move out of the trailer because she was selling her home. Plaintiff indicated that he had nowhere else to go and expected to be homeless again after moving from the trailer. AR 39

When asked about his previous employment, Plaintiff testified that he worked for a communications company installing cables for over 10 years. Since being laid off, he has attempted to find work, but has been unable to do so due to his impairments. AR 24.

When asked about his physical impairments, Plaintiff testified to experiencing pain in his lower back, neck, and shoulder. AR 24. Plaintiff stated that although his pain began around 2002, he did not start seeing a doctor until 2007. Plaintiff delayed treatment because he forgot he had access to veterans insurance. AR 24. Plaintiff testified that the doctors at the Veterans Administration ("VA") hospital stated that they could not find anything physically wrong with him based on his x-rays, and that he has requested an MRI. AR 26. Plaintiff currently takes morphine for pain (AR 27, 28), and due to his pain he can no longer walk much or ride a bicycle. AR 28. He stated that he might be able to walk a block, then would have to stop to lay down. AR 29. Plaintiff also uses a cane that was not prescribed by his doctor. He also claimed that he could only sleep for two hours at a time. AR 32.

When asked about his mental impairments, Plaintiff testified that he had been diagnosed with borderline personality disorder that began after his wife left him. AR 24-25. Plaintiff also stated that a doctor at the VA diagnosed him with adjustment disorder with depressed mood. AR 31. He saw a psychiatric nurse, but has not received any other counseling or mental health treatment. AR 31.

On a daily basis, Plaintiff indicated that he has trouble sleeping through the night, getting up about five or six times. AR 34. He does not do his own laundry or yard work, but he does attend to his own personal grooming like bathing and dressing. While Plaintiff does have a driver's license, he claims he does not drive because it causes him pain. AR 35. He has a female friend who does the grocery shopping. AR 35.

Thereafter, the ALJ elicited testimony from VE George Meyers. AR 40. In a hypothetical question to the VE, VE Meyers was asked to assume a hypothetical person of the same age, education and work experience as Plaintiff, who was limited to light work, but could only do simple repetitive tasks as opposed to skilled work. VE Meyers indicated such an individual could perform work as a cashier, hand packer, and assembler of small products. AR 41.

Summary of the Medical Record

The entire medical record was reviewed by the Court. AR 175-295. The record is summarized in chronological order as follows. Plaintiff commenced his care with the Veteran's Administration in Modesto in June 2007. He was examined on June 28, 2007. AR 208-14. He complained of shoulder, lower back, and neck pain. He denied any past medical issues other than his back. AR 208. Examination of Plaintiff's cervical spine revealed that "vertebral bodies are normal" that the "pedicles [were] intact," and that the "interspaces [did] not appear narrowed." The result of the examination was that of a "normal cervical spine." AR 211-12, 262-63, 271-72. An examination of Plaintiff's lumbar spine showed "minimal scoliosis" of the upper lumbar region. AR 211, 262, 271. A urinalysis was positive for amphetamines and marijuana. AR 214.

On July 11, 2007, Plaintiff tested positive on a depression screening. AR 205, 265. Further, Calvin Reckord, M.D., noted that Plaintiff's x-rays showed "minimal DJD" (degenerative joint disease), and wrote a prescription for vicodin and flexeril. Dr. Reckord also noted that Plaintiff reported occasional methamphetamine use. AR 263. Otherwise, Plaintiff presented in "no acute distress." AR 261. Plaintiff was taking 400 mg of ibuprofen, three times per day, for pain. AR 261. On August 15, 2007, the VA conducted a "Multidisciplinary Assessment and Treatment Plan" regarding Plaintiff's mental status. AR 188-97, 247-256. Plaintiff stated that he had never attempted suicide, but thought about it once, and last used marijuana "a few months ago" and that he was currently doing a drug diversion program. AR 190, 194, 249-50. After the mental status examination, Plaintiff was diagnosed with borderline personality disorder with depressive symptoms. AR 195, 254.

On October 15, 2007, Plaintiff went to physical therapy at the VA for his low back pain. AR 179-181, 239-241. Kevin Ochs, a physical therapist, noted that Plaintiff was in no apparent distress, and that Plaintiff stated that he biked approximately four times a week for one to two miles. AR 180. On January16, 2008, Plaintiff's psychiatric functioning was evaluated by Kevin Gregg, M.D, a State agency psychiatrist. AR 217-227. Dr. Gregg based his evaluation on his review of Plaintiff's medical records. Applying the social security disability definitions, Dr. Gregg opined that Plaintiff's personality disorder was not severe. AR 217. Dr. Gregg concluded that Plaintiff would have no restriction of activities of daily living, no difficulties in maintaining social functioning, no difficulties in maintaining concentration, persistence and pace, and had no episodes of decompensation. AR 225. On May 16, 2008, Dr. Gregg's opinion of non-severity was confirmed by a second reviewing psychiatrist, Archi R. Garcia, M.D. AR 276-77.

On January 14, 2008, Plaintiff's physical functioning was evaluated by Ernest Wong, M.D., a State agency physician. AR 216. Dr. Wong, based his evaluation on his review of Plaintiff's medical records. Dr. Wong opined that Plaintiff had not established a severe physical impairment. AR 216.

On a January 31, 2008, at follow-up appointment with Dr. Reckord, a chest x-ray of Plaintiff's lungs was normal. AR 236. Dr. Reckord again noted Plaintiff's back pain due to his "minimal" degenerative disc disease (AR 238), but also noted that Plaintiff was "in no acute distress." AR 237. Dr. Reckord noted that Plaintiff's medications included one 600mg tablet of ibuprofen as needed for pain, and 1000mg ...

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