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Juan G. Galvan v. Michael J. Astrue

October 9, 2012

JUAN G. GALVAN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

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

Plaintiff Juan G. Galvan, by his attorneys, Christenson Law Firm, 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 Barbara A. McAuliffe, 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, 2008. On August 20, 2007, Plaintiff filed for disability insurance benefits, alleging disability beginning November 10, 2005. His claim was initially denied on February 7, 2008, and upon reconsideration on August 8, 2008. Plaintiff appeared and testified at a hearing on January 13, 2010. On February 11, 2010, Administrative Law Judge Patricia Leary Flierl denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review on August 14, 2010. Plaintiff filed a complaint in this Court on October 1, 2010.

B. Agency Record

Plaintiff's testimony. Plaintiff (born November 23, 1958) worked as a live-in manager of a group home for disabled persons. His duties included preparing reports, preparing and serving meals, and transporting residents to the doctor. Plaintiff was laid off when he became depressed and found it difficult to leave his bed and perform his duties. Thereafter, he worked as a dishwasher for a month and a half until he was fired. Before 1995, Plaintiff worked as a laborer in a citrus packing plant.

Plaintiff testified that he used to love to care for his yard but now was reduced to tears by even a little time spent mowing the grass. He no longer worked because he no longer wanted to be around other people, who gave him anxiety attacks. He no longer accompanied his wife and daughter to social events, knowing that he would experience anxiety. He no longer saw his friends since they were "all druggies."

Plaintiff complained of anxiety, memory loss, and an inability to concentrate. He was being treated by Dr. Beber, a psychiatrist, who had diagnosed bipolar disorder. Plaintiff also had back problems that prevented him from lifting over fifty pounds as he had once been able to do.

On a typical day, Plaintiff awoke, cleaned the house, and woke his fifteen-year-old daughter, for whom he prepared breakfast. He was able to perform his own personal care, such as dressing, showering, and shaving. Plaintiff took his medication, which allowed him to function by relieving his anxiety. He could walk around the block but experienced sharp back pain if he sat more than fifteen minutes.

Plaintiff denied having had a significant history of illicit drug use, but acknowledged that he had used marijuana. He had tried methamphetamine about ten years prior but did not like the feeling. He also testified that he last used meth five or six years before. Confronted with the contradictory time periods, Plaintiff claimed that he could not figure out exactly when he stopped using meth. He explained that he had been arrested with a small quantity of meth and had run from the treatment program. Several years later, he voluntarily appeared before the judge to resolve his legal problems.

Plaintiff testified that he had used no illicit drugs for three years prior to the hearing, initially because of court-ordered drug testing. Expressing pride at being clean and sober, Plaintiff was attending meetings to remain clean.

Testimony of Plaintiff's wife. Rita Galvan had been married to Plaintiff for 26 years. For the past four years, he demonstrated memory problems and difficulty concentrating. His depression had grown since he had lost, first, his job at the group home, then a job washing dishes. According to Mrs. Galvan, Plaintiff had developed problems working at the group home because of his mental disability and his growing inability to function on the job.

To Mrs. Galvan's knowledge, Plaintiff was not currently using illegal drugs, although before working at the group home, Plaintiff had used marijuana, cocaine, and methamphetamine. She had never actually seen Plaintiff take any drugs. She had been required to participate in the rehabilitation program with Plaintiff.

Although Plaintiff's illness caused him to be angry and depressed, his current medications (Seroquel, Prozac, and Abilify) helped him control his emotions so he could be around his family. A prior medication had made Plaintiff suicidal. Plaintiff was forgetful and had difficulty concentrating. He had difficulty being around people.

Third Party Adult Function Report. In a report dated September 4, 2007, Mrs. Galvan reported that Plaintiff rose early to attend NA meetings and church. Sometimes he went to NA social events. Plaintiff had difficulty being around people and sometimes required accompaniment to go outside.

Plaintiff was sometimes motivated to perform simple household chores but often just sat and watched television. A great deal of encouragement was needed to get him to do yard work. He prepared simple meals but could no longer prepare full meals. Although Plaintiff had no problem with personal care, he sometimes lacked the motivation to bathe or shave. He had difficulty sleeping and had become less outgoing. Plaintiff worried about his inability to provide for his family. He could do the grocery shopping, but preferred not to shop for clothing. He could pay bills and count change, but had difficulty handling a savings or checking account.

Mrs. Galvan opined that Plaintiff's impairments affected his ability to lift, squat, bend, reach, kneel, talk, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. He had experienced problems arising from anger toward his supervisors. He had difficulty coping with stress and changes in routine.

By the time Mrs. Galvan filed a revised report on July 1, 2008, she no longer reported that Plaintiff was NA. He continued to attend morning church services, depending on his mood. Although he was still able to perform his own personal care, he no longer cared about how he looked, as evidenced by improper grooming and careless clothing selection.

Plaintiff lacked energy to perform yard work. He struggled to handle household chores and required great amounts of encouragement. He shopped only if he needed something and his wife could not go for it. His ability to concentrate on television was poor and he simply flipped the channels. Plaintiff was angry and difficult to get along with. Mrs. Galvan opined that Plaintiff's condition affected all of his abilities. His attention span was very short, and he feared forgetting instructions.

Plaintiff's Adult Function Report. Plaintiff's September 4, 2007 report was generally consistent with the first report prepared by his wife. He too reported that he began his day by attending an NA meeting, followed by church. His chores included laundry, cleaning, and mowing. Plaintiff complained of a lack of motivation. His condition affected his ability to speak, remember, complete tasks, concentrate, understand follow instructions, and get along with others.

Plaintiff's responses to his July 2, 2008 report were shorter and less detailed. He no longer reported attending NA or church. Although he once loved cooking, he now cooked only once a month. He felt depressed and had no energy. His wife handled his financial affairs. Plaintiff reported that he had become afraid of people and thought of taking his life since he felt hopeless.

Medical Records. Plaintiff's primary care physician was family practitioner Jasvir S. Sidhu, M.D., who had treated Plaintiff since at least 2000. Dr. Sidhu and physician assistant Cynthia Rowell treated Plaintiff for numerous conditions, such as shingles, prostate problems, and sinusitis, that are not relevant to Plaintiff's disability claim. Similarly, the administrative record includes other medical reports unrelated to Plaintiff's claimed impairments. Those medical records will not be discussed here.

On June 11, 2004, Plaintiff was treated in the emergency room of Sierra View District Hospital following a fall in the shower at home. Plaintiff complained of shoulder pain and numbness, but denied neck or back pain.

On July 31, 2004, Plaintiff was again treated in the emergency room of Sierra View District Hospital. Plaintiff, who was withdrawing from methamphetamine, requested sleeping medication and reported hallucinations.

On September 11, 2006, Rowell examined Plaintiff, who had been experiencing hip pain for three weeks. Rowell noted that Plaintiff, who had not been sleeping well, was experiencing sadness, anxiety, mood swings, and suicidal thoughts. Plaintiff's anxiety had increased by the September 22, 2006 appointment. Plaintiff reported that he had tested positive for Vicodin for three months and was to be put into PAR (apparently, a drug rehabilitation program).*fn1 Plaintiff reported that he had stopped taking methamphetamine but had also tested positive for marijuana. Rowell reassured Plaintiff and advised him to stop using illicit drugs.

On December 19, 2006, Rowell saw Plaintiff while he was on a pass from PARR. Plaintiff was doing well without suicidal or homicidal feelings, illicit drugs, or cravings. Rowell wished Plaintiff good luck at PARR and in his new job.

On February 6, 2007, radiologist Gregory W. Mellor, M.D., reviewed x-rays of Plaintiff's lumbosacral region. He identified an old anterior wedge compression fracture of vertebral body T12 with surrounding osteophytes, decreased intervertebral space at L5-S1, and osteoarthritic changes of the lumbosacral spine. On March 5, 2007, Rowell noted that Plaintiff had pain and tenderness in his rotator cuff and lumbosacral spine.

When Plaintiff saw Rowell on April 10, 2007, he was experiencing severe back pain and was not sleeping. Rowell noted that Plaintiff was limping. By April 30, 2007, Plaintiff's back pain was worse, and he reported that he was unable to go to work. Rowell prescribed Soma. On May 23, 2007, Plaintiff was still in pain but had discontinued Soma, saying it "wires me out." AR 419. Physical therapy was not helping. Plaintiff requested Tylenol with codeine.

On June 6, 2007, Plaintiff requested that Rowell provide a note since his back pain had caused him to miss two group meetings. He was unable to start his new job, which required physical labor. Plaintiff had not kept his appointment with the orthopedist but continued physical therapy twice weekly. On June 21, 2007, Rowell switched Plaintiff from Tylenol with codeine to Darvocet-N at bedtime due to his continued back pain. On July 12, 2007, Rowell noted that Plaintiff was seeing the orthopedist but had missed his meeting due to pain.

On July 25, 2007, Rowell noted that Plaintiff had seen the orthopedist for chronic back pain. His anxiety had increased. Plaintiff had twice missed counseling due to back pain.

On August 3, 2007, radiologist Thomas W. MacLennan, M.D., reviewed magnetic resonance imaging of Plaintiff's lumbar spine. He diagnosed degenerative disc disease at L5-S1, but observed no significant acquired spinal stenosis.

On September 4, 2007, Plaintiff told Rowell that Trazadone was helping him. Rowell noted that Plaintiff had missed a group session on August 29, 2007. On September 19, 2007, Rowell noted that Plaintiff's back pain was increasing and referred him to a pain specialist. On October 31, 2007, Plaintiff complained of continued back pain and reported that his legs moved while he was trying to sleep. On November 14, 2007, Plaintiff again complained of back pain and sleeping problems.

On January 2, 2008, Plaintiff reported continued sleep problems and requested an antidepressant. He was directed to do the back exercises prescribed by Dr. Von Kaenel, the pain specialist. On January 16, 2008, Plaintiff reported that he was still depressed and that he was arguing with his wife. He could not go to the pain specialist. He had taken methamphetamine a single time on Saturday night. Rowell told Plaintiff to stop using methamphetamine, to go to his support group, and to stay away from other meth users.

On February 19, 2008, Plaintiff told Rowell that things were looking up. Although the state had denied his disability application, Plaintiff had retained a lawyer. Plaintiff told Rowell that he could not work because he had back pain and was bipolar. Plaintiff was starting to exercise. He also told Rowell that he could not stand to be around people.

Following a fall on February 28, 2008, radiologist Edgard Couri, M.D., evaluated x-rays of Plaintiff's lumbar spine. Although the x-rays revealed mild multilevel spondylosis with anterior hypertrophic spurs, Couri saw no compression fracture.

On March 5, 2008, Rowell noted that Plaintiff reported that he had received a morphine shot in the emergency room the prior week after falling in the bath tub. Plaintiff had received a probation violation notice, apparently for missing a probation appointment while home on bed rest after the fall. On ...


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