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Daniel J. Sullivan v. Michael J. Astrue

December 5, 2012


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Daniel J. Sullivan ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II 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 Dennis L. Beck, United States Magistrate Judge.


Plaintiff filed his application on July 14, 2004, alleging disability since April 27, 2003, due to lower back and shoulder problems, left arm pain, left hand numbness and left knee problems. AR 641-643, 672-680.*fn1 After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 580, 581, 596. ALJ Eve Godfrey held a hearing on March 1, 2007, and issued a decision denying benefits on April 27, 2007. AR 24-38, 1210-1248. On August 19, 2008, the Appeals Council denied review. AR 16-19.

Plaintiff subsequently filed an action in the United States District Court for the Central District of California. On March 2, 2010, the Court issued an order reversing the ALJ's decision and remanding the action for further consideration of the opinions of Dennis Ainbinder, M.D., and Laurence Meltzer, M.D. AR 1292-1299. The Appeals Council issued an order remanding pursuant to the Court's order on April 3, 2010. AR 1288-1299.

Pending administrative review of Plaintiff's 2004 application, Plaintiff filed a second application for disability insurance benefits on June 9, 2009, alleging disability since January 1, 2007. AR 1313. This application was consolidated with the 2004 application and a hearing was held on July 7, 2010. AR 1720-1747. On August 6, 2010, ALJ F. Keith Varney issued a decision denying benefits. AR 1262-1277. The Appeals Council denied review on September 9, 2011. AR 1256-1258.

Hearing Testimony March 2007 Hearing*fn2

ALJ Godfrey held a hearing on March 1, 2007, in San Bernadino, California. Plaintiff appeared with his attorney, Linh Vuong. Vocational Expert John Kilcher appeared and testified, as did Medical Expert Arthur Brovender, M.D. AR 1210.

Plaintiff testified that he lives in a house with his wife and three children. He was 49 years old at the time of the hearing and completed high school. AR 1215-1216. Plaintiff last worked in July 2001 and stopped because of injuries sustained at his job in the motion picture industry. AR 1217. Plaintiff stated he could no longer work because of concentration problems and an inability to focus. He also has pain in his back, knees, right shoulder and ankles. Plaintiff doesn't sleep well and has problems with his memory. AR 1217.

Plaintiff explained that he has withdrawn and doesn't deal with too many people anymore. He can sit for half an hour to an hour and thought he could stand for about two hours. Plaintiff thought that he could walk for a block or two and lift ten pounds. AR 1218. Plaintiff also has problems climbing stairs, bending and stooping. He has trouble lifting with his right arm. AR 1219. Plaintiff spends about six to eight hours a day resting, and spends the remaining time sitting outside or trying to exercise a little. AR 1220.

Plaintiff was currently taking pain, anxiety and sleeping medication. AR 1221.

Dr. Brovender reviewed the medical record and explained that Plaintiff's spine and knee examinations were within normal limits. He thought that Plaintiff could work a full day, with six to eight hours of sitting or standing, occasional bending and squatting, occasional lifting of 10 pounds and frequently lifting of 20 pounds. Based on Plaintiff's statement that he needed shoulder surgery, Dr. Brovender limited Plaintiff to occasional overhead reaching. AR 1227.

July 2010 Hearing

ALJ Varni held a hearing on July 7, 2010, in San Bernadino, California. Plaintiff appeared with his attorney, Lawrence Rohlfing. Vocational Expert Joseph Mooney also appeared and testified. AR 1720.

Plaintiff first explained that his Workers' Compensation case was still pending and that he was receiving $460 every two weeks in permanent disability advances. AR 1725. He was living with his wife, two children and his mother in Visalia, California. His wife was not currently employed and the family was receiving only the Workers' Compensation payments. AR 1737.

Since the prior hearing, Plaintiff believed that his condition has worsened. AR 1725.

He explained that the pain in his back has increased in frequency, and the pain is there all the time. Plaintiff gets shooting pains that go through his legs and cause numbness in his toes on the right side and sometimes on the left side. Plaintiff testified that he can't really do anything anymore because he has a hard time getting up, moving and bending. He is in so much pain that he doesn't function well at all. He thought that he could walk about a block and could stand for about fifteen to twenty minutes. He can sit for about twenty to thirty minutes before needing to get up and stretch. AR 1726-1727. He thought he could lift about ten pounds. AR 1737. During the day, Plaintiff is usually in bed or in his recliner because of the pain and depression. AR 1726-1727. He also goes to the doctor and walks to the mailbox with his wife. AR 1728. Plaintiff does not drive as much as he did in 2008. AR 1730.

Plaintiff also believes that his depression has worsened in the past year. AR 1732. He doesn't sleep well at night and never wakes up refreshed. As a result, he sleeps most of the day. AR 1793.

Plaintiff also has tingling and numbness in his fingers caused by the pain in his shoulder. AR 1735. He drops things and has trouble writing. AR 1736.

For the first hypothetical, the ALJ asked the VE to assume a person with Plaintiff's age, education and experience. This person could stand for about fifteen to twenty minutes, walk a half-block slowly, sit for about twenty to thirty minutes and lift about ten pounds. The VE testified that this person could not perform any work. AR 1739. If this person had to lie down all day, work would be precluded. AR 1739.

The ALJ also set forth the residual functional capacity ("RFC") found by the prior ALJ. He asked the VE to assume a person who could lift and carry fifty pounds occasionally, twenty pounds frequently and occasionally bend, squat and reach overhead. This person would also be limited to simple, unskilled tasks with minimal contact with the public. The VE testified that this person could perform the medium positions of cleaners, warehouse person and general helper. AR 1739-1741.

For the second hypothetical, the ALJ asked the VE to assume the RFC found in the prior decision granting Plaintiff a closed period of disability.*fn3 This person could lift and carry twenty pounds occasionally, ten pounds frequently, stand and walk for six hours each, sit for six hours and occasionally climb, balance, stoop, kneel, bend, crouch and crawl. This person would also be limited to simple, routine, repetitive, non-public tasks. The VE testified that this person could perform the light positions of assembler, hand packager, table worker and machine packager. AR 1741-1742.

Plaintiff's attorney asked the VE to assume a person capable of the full range of medium exertion. This person's ability to maintain an appropriate work pace would be reduced by twenty percent. The VE believed that the twenty percent reduction would preclude employment. AR 1742-1743.

If this person had a fifteen percent reduction in the capacity to perform simple and repetitive tasks, the VE testified that this person likely could not work. AR 1743-1744.

Plaintiff's attorney also asked the VE to assume a person capable of lifting and carrying ten pounds frequently, standing and walking for two hours and sitting for four hours. This person could never climb, stoop, kneel, crouch or crawl. The VE indicated that this person could not work. AR 1744-1745.

Medical Record

On September 26, 2000, Plaintiff sustained an avulsion fracture of the right distal fibia after a hand truck loaded with film ran over his right foot at work. His ankle was placed in a splint and he was given crutches and medication. AR 168-169. He also underwent physical therapy. AR 169, 216.

Plaintiff underwent left knee surgery in October 2001 to repair torn ligaments. AR 231-233.

A report dated July 5, 2002, indicated that Plaintiff's left knee had residual symptomology. The fracture in his right ankle was healed, but had residual symptomology. AR 392.

On October 25, 2002, Plaintiff began seeing orthopedist Dennis Ainbinder, M.D., for his left knee, right ankle and back. AR 546. On April 23, 2003, Plaintiff's treatment transitioned from physical therapy and chiropractic care to gym exercises. At that time, he had a normal gait, with normal motor strength and intact sensation. Range of motion was normal except for pain upon bending at the waist. Plaintiff also had pain when standing on the toes on the right. AR 513-519.

On August 13, 2003, Plaintiff saw psychiatrist Noel Lustig, M.D., upon referral from Dr. Ainbinder and in connection with his Workers' Compensation claim. Plaintiff complained of sleeping problems, weight gain, hopelessness, memory and concentration problems and sadness. Plaintiff denied any prior psychiatric treatment. On mental status examination, Plaintiff demonstrated difficulty in focusing and understanding that it was a forensic evaluation. His facial expression suggested moderate anxiety and fear with slight hostility. Plaintiff's affect was appropriate, but he demonstrated anger to a slight degree. Plaintiff showed slight impairment in attention span and abstract thinking, but he was oriented to person, place and time. Judgment was slightly impaired for managing daily living activities and making reasonable life decisions. Plaintiff did not demonstrate impairment in immediate recall, recent memory or remote memory. Psychological testing indicated moderate to severe depression, severe anxiety and intelligence in the low-average range. AR 811-820.

Dr. Lustig diagnosed major depression, and noted that Plaintiff's anxiety was a function of his depression. Dr. Lustig opined that Plaintiff's depression was caused by his work-related injury, and he was currently temporarily totally disabled on a psychiatric basis. His degree of disability is moderate to severe. Plaintiff has difficulty focusing and performing his regular activities of daily living, difficulty socializing with others, is irritable and is unable to carry out instructions and perform his work tasks. Plaintiff also has difficulty with cognition and would therefore require supervision. Plaintiff was not permanent and stationary, as he just started treatment and his depression has been escalating. Dr. Lustig started Plaintiff on Effexor and Remeron for his sleep disturbance. Plaintiff was also referred for cognitive and supportive psychotherapy. AR 820-823.

From October 2003 through August 2004, Dr. Ainbinder prescribed physical therapy for Plaintiff's right shoulder. AR 787-797, 865.

On February 10, 2004, Plaintiff was evaluated by Darrell J. Burstein, M.D., for chest pain. Plaintiff's physical examination was normal, though pulmonary function tests revealed a slight restriction. Resting electrocardiogram revealed evidence of a left atrial enlargement. A chest x-ray was normal. Dr. Burnstein diagnosed probable hypertension and atypical chest pain. Dr. Burnstein believed that Plaintiff developed an emotional response to his physical injury, which aggravated and accelerated his atypical chest pain and hypertension. Plaintiff's pain, medication and weight gain also exacerbated the hypertension. AR 880-885.

Plaintiff returned to Dr. Burstein on May 6, 2004, and continued to complain of nearly constant chest pain. Plaintiff's physical examination and tests were normal. Dr. Burstein diagnosed mild labile hypertension and noncardiac chest pain. He did not believe that Plaintiff needed medication and he encouraged Plaintiff to continue exercising and watch his salt and fat intake. AR 895-897.

In September 2004, Plaintiff was diagnosed with a right inguinal hernia and umbilical hernia. They were surgically repaired in early 2006 and healed with no evidence of infection. AR 900-904, 1043, 1046-1057.

On October 8, 2004, Dr. Ainbinder completed a Medical Source Statement and opined that Plaintiff could carry less than ten pounds occasionally and frequently, stand and/or walk for at least two hours and sit for about four hours. Plaintiff would need to alternate sitting and standing every hour. Plaintiff could frequently balance, but could never climb, stoop, kneel, crouch or crawl. He could occasionally reach and frequently handle, finger and feel. Dr. Ainbinder stated that "objective and subjective factors" supported his assessment. AR 906-907.

Plaintiff saw Laurence Meltzer, M.D., on October 25, 2004, for a consultive orthopedic evaluation. Plaintiff reported that his right shoulder pain was his main problem, and that although he had low back pain, it was not particularly limiting. On examination, Plaintiff had no tenderness or spasm in his cervical spine and range of motion was normal. Plaintiff did not have pain or spasm in his thoracic spine, though range of motion was slightly limited. Straight leg raising was negative bilaterally, both in the sitting and supine positions. Plaintiff walked with a normal heel-toe gait and was able to stand on his heels and toes without difficulty. Plaintiff could perform a full deep knee bend without difficulty. Plaintiff had tenderness in the subacromial region and over the rotator cuff of the right shoulder, with marked pain with abduction and scapular fixation. Range of motion was limited in the right shoulder. The remainder of his examination was normal. Dr. Meltzer diagnosed impingement syndrome, right shoulder, with questionable rotator cuff tear and mild, chronic low back strain. Plaintiff had recovered from the right ankle fracture and knee surgery. Dr. Meltzer believed that Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, and sit, stand and walk for unlimited periods. Plaintiff would need breaks to alternate sitting and standing because of his mild back problem. He could walk on uneven terrain and frequently climb, stoop, kneel and crouch. Plaintiff could not reach above shoulder level with the right arm and could only work at table top level with the right arm. AR 918-923.

On October 24, 2004, Plaintiff was seen by Linda M. Smith, M.D. for a consultive psychiatric evaluation. Plaintiff reported feeling sad, irritable, tired and withdrawn. Plaintiff admitted not taking his prescribed medication, stating that he would rather "go natural." On mental status examination, there appeared to be some mild psychomotor retardation. Plaintiff appeared mostly truthful, though there was an obvious attempt to indicate that he was taking his medication. Plaintiff described his mood as depressed and irritated. His affect appeared solemn or dysphoric, though he was not tearful. Plaintiff was alert and oriented and appeared to be of at least average intelligence. Memory was intact, and insight and judgment were fair. Dr. Smith diagnosed major depression because he "apparently has enough symptoms to warrant the diagnosis" despite his questionable reliability. He did appear to be depressed and did fair in the mental status examination. Dr. Smith did not believe that his depression was serious, however, and noted that Plaintiff would likely improve if he took his medication. Plaintiff was mildly to moderately impaired in mental functioning. Specifically, he was mildly impaired in his ability to understand, remember and carry out simple instructions, and was mildly to moderately impaired in his ability to understand, remember and carry out detailed instructions, to interact appropriately with co-workers and the public, to comply with job rules and attendance, to respond to changes in the work setting, and to maintain persistence and pace. AR 911-916.

On October 27, 2004, a State Agency physician completed a Physical Residual Functional Capacity Assessment and opined that Plaintiff could lift twenty pounds occasionally, ten pounds frequently, stand and/or walk for six hours, sit for six hours and occasionally climb, balance, stoop, kneel, crouch and crawl. AR 926-935.

On November 2, 2004, Plaintiff saw Agreed Medical Examiner Thomas E. Preston, M.D.

He reported "a lot" of anxiety, depression and irritability. Plaintiff reported taking all of his medications. On mental status examination, he appeared to sit without any pain behaviors during the interview, though he did favor his right arm. During the first part of the day, he appeared slightly slowed down, but otherwise alert and focused. In the afternoon, he became fatigued and had difficulty focusing and concentrating. His affect was muted and unavailable to him, and his mood was depressed. Thought content was sparse with a sense of frustration at his pain and inability to work, as well as preoccupation with his chest pain and anxiety. His judgment was impaired by his anxiety and depression, and his insight was poor. Psychological testing revealed significant depression and anxiety, poor concentration and an inability to make decisions. AR 936-946.

Dr. Preston diagnosed anxiety disorder, not otherwise specified, with panic attacks, and depressive disorder, not otherwise specified. Dr. Preston believed that Plaintiff's Effexor should be changed because of its impact on blood pressure. Plaintiff would have slight to moderate impairments in all mental work functions. He did not believe that Plaintiff was permanent and stationary because he remained anxious, fearful, withdrawn, irritable and unable to cope. Plaintiff was temporarily disabled on a combined orthopedic and psychiatric basis. AR 946-951.

Plaintiff returned to Dr. Lustig on November 17, 2004. He noted that Dr. Preston disagreed with the low dose of Effexor. Plaintiff was angry because he felt like he had been mistreated. Plaintiff appeared less depressed, but more irritable. On mental status examination, his facial expression suggested anxiety, sadness and hostility. His affect was appropriate and attention and abstract thinking were impaired. Plaintiff was oriented to person, place and time and he had no impairment in immediate recall, recent memory or remote memory. Psychological testing revealed severe depression and severe anxiety. Dr. Lustig diagnosed major depression in partial remission, and some narcissistic traits. He noted that he did not agree with the suggestion that Effexor was inappropriate, though as a "courtesy," he changed Plaintiff's medication. Plaintiff continued to be temporarily totally disabled. AR 841-844.

On November 24, 2004, State Agency physician K.J. Loomis completed a Mental Functional Capacity Assessment. Dr. Loomis opined that Plaintiff was moderately limited in his ability to understand, remember and carry out detailed instructions. He could follow basic instructions, sustain concentration and persistence for basic tasks, interact appropriately with others and adapt to work settings. Because Plaintiff had some difficulty interacting with others, Dr. Loomis believed that Plaintiff could perform non-public simple, repetitive tasks. AR 952-954. This opinion was affirmed in March 2005. AR 994.

In January 2005, Dr. Ainbinder examined Plaintiff and found tenderness in the right shoulder and pain on reduced range of motion. Plaintiff also had tenderness to the midline of the lumbosacral spine, and reduced range of motion. Plaintiff had pain on terminal flexion of his knees bilaterally. He diagnosed MRI evidence of acromioclavicular arthrosis of the right shoulder, a resolved right ankle sprain, lumbar myofascial sprain with disc protrusion at L2-3, L3-4 and L5-S1, status post left knee surgery, psychiatric diagnoses per Dr. Lustig, resolved contusion of the right knee and probable hypertension and atypical chest pain per Dr. Burstein. Dr. Ainbinder ...

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