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Benjamin Holden v. Michael Astrue

November 27, 2012


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


Plaintiff Benjamin Holden, proceeding pro se and in forma pauperis, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title XVI 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 a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards.

I. Administrative Record

A. Procedural History

On March 23, 2007, Plaintiff filed an application for supplemental security income, alleging disability beginning September 7, 2006. His claim was denied initially on June 8, 2007, and upon reconsideration on September 25, 2007. On November 21, 2007, Plaintiff filed a timely request for a hearing.

Plaintiff appeared and testified at the hearing on June 11, 2008. On December 9, 2008, Administrative Law Judge Laura Speck Havens denied Plaintiff's application. The Appeals Council denied review on December 13, 2010. On April 28, 2011, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born May 28, 1958), completed high school and one year of college. He worked in a series of jobs requiring manual labor, starting as a child assisting his father in the family's landscaping business. He was also a singer but had not earned money singing in the past fifteen years.

Plaintiff lived with Barbara McKinney, whom he described at various times as a friend, his girlfriend, and his fiancee, although on one occasion, he emphasized that they did not hold themselves out as husband and wife. Plaintiff testified that Ms. McKinney performed most of the household chores, although he mowed the lawn and helped out "as much as possible." AR 40.

Plaintiff walked two or three times weekly until "the pain kick[ed] in," about twenty minutes. AR 41. He played basketball for fifteen or twenty minutes until the pain became "excruciating." Plaintiff no longer had an appetite and was able to sleep only two hours at a time, for a total of four hours nightly. He watched television all day. In a questionnaire dated April 20, 2007, Plaintiff reported that he could walk one-half mile to the park, drove his own car, performed lawn work, and worked on his own car.

Plaintiff had a history of lower back injuries, including a 1978 motor vehicle accident and a work-related injury in 1995. In July 2006, Plaintiff was twice treated in the emergency room of Doctors Medical Center for lower back pain.

On September 7, 2006, while employed by a temporary staffing agency, Plaintiff was assigned to perform general labor at a winery. He was injured in an accident that he described in various ways during the pendency of his application for SSI benefits. Plaintiff later told Michael Kasman, M.D., who performed an agreed examination for workers' compensation purposes, that he left work on his own initiative about 35 minutes after the accident because he felt dizzy and weak. He did not complete a workers' compensation claim form. When he reached home, he took pain pills that had been prescribed for his girlfriend and went to sleep.

In the initial injury report for workers' compensation, dated September 13, 2006, Renee L. Marshall, M.D., reported that, six days earlier, Plaintiff had been hit in the face by wine under pressure when he opened a machine. Plaintiff was knocked backwards but experienced no loss of consciousness. He later experienced visual changes and dizziness, vomiting, and severe pain in his neck and left wrist. (Notably, Plaintiff did not then complain of lower back pain.) Plaintiff had not previously consulted a doctor. Following a comprehensive examination, Dr. Marshall diagnosed strains of the back and wrist and an unspecified head injury. She prescribed Soma and ibuprofen, instructed Plaintiff in the use of hot and cold packs, and directed Plaintiff to remain off work for two days. Dr. Marshall released Plaintiff to return to work on September 15, 2006.

On September 21, 2006, Plaintiff was transported to the emergency room of Doctors Medical Center after fainting at home. CT scans of Plaintiff's brain and cervical spine revealed no abnormalities. A urine test was positive for marijuana. On September 25, 2006, Plaintiff drove himself back to the emergency room, complaining of headache and dizziness. He told medical personnel that he had been "hit in the face by an exploding wine vat." AR 183.

On October 2, 2006, Plaintiff was back in the emergency room, complaining of neck and back pain. Plaintiff told emergency room personnel that he was out of the medications and could not sleep. Notes reported that Plaintiff had sustained a falling injury when a wine bottle that was about to be emptied flashed in Plaintiff's face, causing him to strike his head and neck on the ground. A physical examination revealed Plaintiff as "alert, awake, comfortable, lying on the bed, no guarding." AR 187. His spinal area was tender to palpation, with muscle tension and spasm. Robert Barandica, M.D., diagnosed muscle strain and administered Toradol and morphine for pain relief, as well as multiple trigger point injections of lidocaine and DepoMedrol. He prescribed Motrin, Soma, and Norco. At discharge, Plaintiff's pain was 1/10.

On October 9, 2006, Plaintiff again went to the emergency room, complaining of back pain and reporting that he had run out of pain medication two days earlier. Plaintiff told emergency room personnel that about one month prior, he had been hit in the face by wine under pressure and knocked 200 feet in the air. Noting that Plaintiff reported normal CT scans and x-rays, Jon Johnston, D.O., identified Plaintiff's problem as needing his prescriptions refilled and referred Plaintiff to the workers' compensation clinic.

On October 16, 2006, Plaintiff returned to the emergency room, complaining that his generalized pain was 10/10 and that he had run out of pain medication the day before. Plaintiff was ambulatory with a steady gait. Nurse practitioner Kellie Amador noted that Plaintiff had been to the emergency room five times in less than a month and had received multiple prescriptions for narcotic pain relievers and muscle relaxants. If Plaintiff were taking the medications as directed, he should have had a significant amount of medication. After Plaintiff was unable to provide a satisfactory explanation of his failure to follow up his emergency care with an occupational health provider, Ms. Amador advised him that he would not receive further prescriptions for narcotic pain relievers or muscle relaxants from the emergency department. Instead, Ms. Amador offered Plaintiff an injection of Toradol for his pain, which he declined, walking from the emergency room with a steady gait without waiting for his discharge instructions. Plaintiff's diagnosis was chronic pain syndrome.

On October 22, 2006, Plaintiff went to the emergency room complaining of lower back pain and reporting that he had run out of his pain medication the day before. He claimed that he had re-injured himself while sweeping. Emergency room notes reported that Plaintiff's current injury dated to September 17, 2006, and that Plaintiff had also been to the emergency room six times previously complaining of lower back pain. Radiologist Gordon Zink-Brody, M.D., evaluated three lumbar spine x-rays and three lumbo-sacral spine x-rays and found no acute injuries. Plaintiff was diagnosed with back soft tissue sprain.

Physiatrist Patrick Rhoades, M.D., initially examined Plaintiff on October 26, 2006. Plaintiff told Rhoades that he was on a 150-foot tower when he pulled the valve from a wine tank. The valve popped and hit him in the head, and he was bombarded with many gallons of wine. Plaintiff was unconscious but held on for three or four minutes until he was able to climb down. He was now experiencing constant burning, stabbing, throbbing, aching, electrical, pounding, and aggravating pain in his head, neck, and back. Medication and rest helped. Sitting, moving, or doing housework made the pain worse. He had been seen in the emergency room, where he was diagnosed with back strain and concussion, but no broken bones.

Rhoades' examination revealed diffuse pain in the cervical paraspinal, trapezius, thoracic paraspinal, and lumbar paraspinal muscles. Range of movement was limited in all respects. Plaintiff reported occasional urinary incontinence. Rhoades recommended physical therapy, diagnostic MRI, medication, and trial of an H-unit.

On November 9, 2006, Plaintiff reported neck and head pain, which he rated 10/10. Dr. Rhoades administered trigger injections and prescribed Cialis and OxyContin.*fn1

On November 16, 2006, Plaintiff reported that his medication did not help his pain (rated 8-10/10) and caused upset stomach and heartburn. Dr. Rhoades again administered trigger point injections and gave Plaintiff a sample package of Cialis.

On both November 21 and 27, 2006, Dr. Rhoades prescribed Norco/Hydrocodone (10/325 mg., 4 tablets six times a day: 200 tablets dispensed) and Soma/Carisprodol (350 mg., 1 tablet three times a day: 90 tablets dispensed).

On December 7, 2006, Plaintiff told Rhoades that workers' compensation had denied physical therapy and the MRI. He had lost his MS Contin, and workers' compensation would not authorize a refill until it was due. Dr. Rhoades re-prescribed OxyContin.

On December 20, 2006, Plaintiff complained of severe head and neck pain. Dr. Rhoades again prescribed Norco/Hydrocodone (10/325 mg., 4 tablets six times a day: 200 tablets dispensed) and Soma/Carisprodol (350 mg., 1 tablet three times a day: 90 tablets dispensed). Radiologist Mark R. Goldberg, M.D., reviewed an MRI scan of Plaintiff's lumbosacral spine. He identified mild degenerative changes, a central disc herniation at L 4-5, and a small annular tear at L5-S1.

On March 5, 2007, Plaintiff saw Delbert Morris, M.D., at Stanislaus County Health Services. Plaintiff told Dr. Morris that he had been injured the prior September when a wine tank exploded, incurring neck and back sprains and a concussion. He had last seen Dr. Rhoades in February 2007, and had been without Oxycontin for three weeks and without Soma and Norco for two weeks. He had begun taking ibuprofen. Plaintiff's drug screen was negative for amphetamine, barbiturate, benzodiazepines, cocaine, opiates, and PCP, but positive for THC.

On April 5, 2007, Dr. Delbert of Stanislaus County Health Services examined Plaintiff, who complained of headache, neck pain, and lower back pain. Plaintiff, who moved slowly, sought a prescription for ibuprofen. Dr. Delbert noted that Plaintiff smelled of cannabis.

On May 18, 2007, radiologist Ernest J. Madarang, M.D., reviewed MRI scans of Plaintiff's brain and cervical spine. He observed no acute intra cranial abnormalities, although he identified inflammatory changes to Plaintiff's sinuses. Dr. Madarang identified mild degenerative disc disease at C4-5 and C 5-6.

Agency medical consultant R.D. Fast prepared a physical residual functional capacity assessment on May 30, 2007. Dr. Fast opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently; could stand, walk, and sit about six hours in an eight-hour workday; and had unlimited ability to push and pull. Fast questioned the credibility of Plaintiff's claimed 10/10 pain but acknowledged that Plaintiff did exhibit degenerative changes of the cervical and lumbar spine.

On July 24, 2007, Michael A. Kasman, M.D., who is board certified in both psychiatry and neurology, conducted an agreed medical evaluation for workers' compensation purposes. Plaintiff, who arrived using a cane, explained to Dr. Kasman that the cane helped him balance and took "'the torquing off the back.'" AR 285. Dr. Kasman's ...

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