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Jack F. Ott v. Michael J. Astrue

October 2, 2012


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Jack Ott, proceeding pro se and in forma pauperis, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II 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 was insured under the Act through December 31, 2009. On August 27, 2004, Plaintiff filed an application for disability insurance benefits and for supplemental security income, alleging disability beginning July 26, 2004. His claims were initially denied on November 5, 2004, and upon reconsideration on April 14, 2005. Plaintiff appeared and testified at a hearing on November 17, 2006. On March 9, 2007, Administrative Law Judge Stephen W. Webster denied Plaintiff's application. The appeals council denied review on October 23, 2007. Plaintiff appealed to this Court on January 30, 2008. On March 4, 2009, the Court affirmed the Commissioner's decision.

On June 11, 2007, Plaintiff again filed for disability insurance benefits, alleging disability beginning March 10, 2007. His claim was initially denied on November 16, 2007, and upon reconsideration on March 26, 2008. Plaintiff appeared and testified at a hearing on November 6, 2009. On December 7, 2009, Judge Thomas J. Gaye denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review on October 27, 2010. Plaintiff filed a complaint with this Court on November 17, 2010.

B. Agency Record

Plaintiff's testimony. Plaintiff (born December 8, 1963) lived with his disabled wife and four children. The family supported itself with Mrs. Ott's disability benefits ($1339.00 monthly) and food stamps. Plaintiff rented government subsidized housing.

MediCal paid for Plaintiff's treatment by Dr. Patel, who treated Plaintiff 25 or 30 times in 2009. Plaintiff had not had x-rays of his back since August 9, 2004. Although Plaintiff worked after those x-rays were taken, he pinched a nerve while playing ball with his son. Within a few days, Plaintiff was unable to get out of bed. Dr. Patel treated plaintiff with spinal injections. Plaintiff also saw Dr. Parmar, a pain management specialist, who provided methadone for Plaintiff's chronic pain.

Plaintiff began walking with a cane in 2008. Because he was heavily medicated, he had difficulty keeping his balance.

Plaintiff's financial problems and inability to work resulted in his depression. He constantly had migraine headaches and nausea. Plaintiff slept a lot and struggled to get out of bed. He occasionally helped his wife by folding laundry or shopping, but did not care for the children since that was too stressful. Plaintiff did not attend things such as his children's games and school meetings because he had no interest.

Plaintiff's health problems caused friction between Plaintiff and his wife. They fought frequently about caring for the children and their financial needs.

Plaintiff completed a GED. From 2001 to 2004, he did street maintenance work for the City of Delano, filling pot holes, painting signs and streets, shoveling coal mix, and similar tasks. He lifted fifty pounds on a daily basis. For eight years before that, Plaintiff worked for Heilig Meyers Furniture Company until it went out of business. From 1988 to 1992, Plaintiff worked at the recycling center.

Testimony of Plaintiff's wife. Plaintiff's wife, Karen Ott, testified that Plaintiff was in severe, constant pain in his back, lower leg, and hip. He experienced severe migraine headaches and nausea. He had difficulty getting up in the morning, sometimes beginning the day with dry heaves. Plaintiff had previously been a good provider who rarely took a sick day.

Plaintiff sometimes had to go to the emergency room for treatment of the spinal headaches caused by his back condition. The doctors there sometimes refused to treat him, erroneously thinking him to be a drug addict. When emergency room staff denied treatment, Plaintiff had to wait to see his primary care physician for a Toradol shot.*fn1

Plaintiff was very difficult to live with. He was frequently very angry ("aggressive") with his wife and children. He insisted that his children, the youngest of whom was eight, remain home as much as possible rather than participating in sports or other activities.

Mrs. Ott confirmed that she was receiving disability assistance after experiencing an emotional breakdown in 2005. Plaintiff was only able to provide help occasionally, popping something in the microwave or fixing a sandwich. He rarely drove. Mrs. Ott relied on her mother and aunt when she needed assistance.

Adult function report. On a typical day, Plaintiff rose, showered, and dressed. If he felt well, he took his children to school. He ate breakfast, took pain and depression medications, then napped until lunch time. If he felt well enough, he drove his children home from school in the afternoon. After supper and time with his family, Plaintiff went to bed hoping for a "good night's sleep."

Because of his pain, Plaintiff found it difficult to find a comfortable sleeping position. His pain made putting on pants, shoes, and socks difficult. Raising his arms to comb or dry his hair caused pain and tightening of his shoulders. Twisting while sitting caused back pain. Since his prior application, Plaintiff had begun to lose normal bowel and bladder control.

Although Plaintiff had previously cooked full meals for his family, he had become limited to microwaving prepared foods. He folded laundry if he felt up to it. Yard work was too strenuous. He shopped for groceries for thirty minutes or more whenever he needed to. Plaintiff reported difficulty saving and counting change, but reported that he was able to pay his bills. He had difficulty concentrating.

Because of depression and anxiety, Plaintiff had lost interest in television and hobbies. He could not play sports. He fell asleep watching television. Plaintiff went to church twice a week and went to watch his son play basketball.

According to Plaintiff, he had difficulty getting along with others due to pain, nervousness, mood changes, and bad temper. His condition affected every function listed on the report: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, stair-climbing, seeing, memory, completing tasks, concentration, understanding, following instructions, using hands, and getting along with others. Plaintiff summarized, "My whole life has been affected." AR 183.

Plaintiff did not know how far he could walk; he always needed rest. He could not pay attention nor finish conversations or movies. He became frustrated because he could not follow written or spoken instructions. Because of his short temper, he could not get along with authority figures and usually quit his jobs. He was afraid of people who abused or harassed him.

Third-party adult function report. Mrs. Ott's report was generally consistent with the one prepared by Plaintiff. She reported that Plaintiff had difficulty getting up, showering and dressing. He slept a lot during the day. He took the couple's four children to school, helped with household chores, such as ironing and laundry, and helped care for the children. He shopped for groceries and household necessities thirty to forty-five minutes once a month. Plaintiff became "stressed out" when he needed to handle financial matters.

Plaintiff's condition affected his sleep by causing constant jerking due to back spasms, and tossing and turning to find a comfortable position. He was unable to sleep through an entire night. When Plaintiff dressed, fixed his hair, and shaved, he forgot what he was doing and complained of pain. Mrs. Ott believed his bladder and stomach problems resulted from his back condition.

He complained that it was painful to sit and that he experienced stabbing pain in his groin or scrotum area. Plaintiff no longer helped with cooking except to make sandwiches or frozen meals.

Plaintiff did not like stress, conflict, and confrontation. He had difficulty getting along with other employees at his last job with the City of Delano. His condition strained his marriage and caused his wife and children to suffer.

Medical evidence.*fn2 On January 18, 2007, an unidentified doctor at San Joaquin Valley Pulmonary Medical Group treated Plaintiff for bronchitis. Plaintiff reported increased pain in his arthritic right knee, but an x-ray examination was negative. On April 20, 2007, Plaintiff reported no trouble with breathing. The unidentified doctor noted that Plaintiff was "doing OK," and that he had been seen by pain management to schedule epidural injections in his neck. AR 267. On July 9, 2007, Plaintiff's asthma was "doing pretty good." AR 266. Plaintiff had gone to the emergency room with a migraine after he ran out of Imitrex. Plaintiff's pain management doctor had increased his Vicodin and added Lyrica.

On February 26, 2007, Kevin Trinh, M.D., diagnosed gastritis and noted that Vicodin helped Plaintiff's neck and back pain. On March 20, 2007, Dr. Trinh administered a lumbar epidural steroid injection (LASI) at L5/S1. On April 20, 2007, Dr. Trinh noted that the injection had helped Plaintiff's lower back pain. He also noted that Plaintiff had visited the emergency room with a migraine headache and been treated with Dilaudid. At each exam, Dr. Trinh noted that Plaintiff's sleep was average.

On March 29, 2007, radiologist Donald Cornforth, M.D., evaluated a hepatobiliary scan with gallbladder ejection fraction and determined the examination to reveal a normal gall bladder and liver.

Plaintiff was treated for headache in the emergency room of Delano Regional Medical Center on July 4, 2007; November 2, 2007; November 25, 2007; February 22, 2009; May 7, 2009; December 11, 2007; July 6, 2009; August 5, 2009; and August 9, 2009. On April 7, and October 5, 2009, Plaintiff was treated in the emergency room for anxiety that made him unable to sleep.

Beginning July 31, 2007, Plaintiff began seeing physicians at Comprehensive Medical Group. Much of these records is illegible. On September 28, 2007, Dr. Bensal noted that Plaintiff's neck and lower back were tender. On multiple occasions, Plaintiff complained of mild headache. On December 21, 2007, Dr. Patel wrote:

Mr. Ott is a 44 year old Hispanic Male with the following medical problems: Chronic Severe Back pains requiring intraarticular injections by a pain specialist, Severe depression and anxiety requiring a psychiatrist case, abdominal pains and chronic migraines. I feel he is unable to work due to his medical and psychological illnesses.

His medications some of which are controlled would interfere with any type of work also.

AR 357.

On February 4, 2008, Plaintiff complained of abnormal bladder control for the past month. Dr. Patel diagnosed a urinary tract infection.

Internist Radhey S. Bansal of Comprehensive Medical Group examined Plaintiff as an agency consultant on September 11, 2007.*fn3 The physical examination was largely unremarkable except that examination of Plaintiff's cervical spine revealed tenderness and spasm with decreased sic] painful movements to about 40 degrees of flexion, 20 degrees of extension, 15 degrees of lateral bending, and 30 degrees of rotations. Examination of Plaintiff's lumbar spine revealed moderate tenderness and some spasms. Movement of the lumbosacral spine was 60 to 65 degrees flexion, 15 degrees extension and 15 degrees lateral bending. The straight leg raising test was slightly positive bilaterally at 35 to 40 degrees but without focal neurological deficits. Plaintiff walked slowly without a limp and demonstrated grip strength within normal limits. Dr. Bansal diagnosed:

1. Chronic moderately severe low back pain as well as neck pain secondary to disk disease and radiculopathy at both these areas, status post multiple epidural injections in both places with intermittent exacerbation of symptoms, but continuing chronic process.

2. Moderately severe depression and frustration as well as anxiety.

3. History of some abdominal pains, probably irritable bowel syndrome and also some chronic peptic disease for which he sees gastroenterologist off and on, but that is not really the reason for disability. He is taking some ...

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