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Henry v. Colvin

United States District Court, E.D. California

June 27, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SANDRA M. SNYDER, Magistrate Judge.

Plaintiff Thomas Russell Henry, by his attorney, Ann M. Cerney, 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 (42 U.S.C. ยง 301 et seq. ) (the "Act"). Having reviewed the record as a whole in light of applicable law, the Court finds that the hearing decision was supported by substantial evidence. Accordingly, the Court affirms the denial of disability benefits.

I. Procedural History

On April 2, 2010, Plaintiff applied for disability insurance benefits, alleging disability beginning May 9, 2003. The Commissioner initially denied the claim on October 22, 2010, and upon reconsideration, on December 29, 2010. On January 5, 2010, Plaintiff filed a timely request for a hearing.

Plaintiff appeared and testified at a hearing on August 15, 2011, at which time he amended his alleged onset date to August 5, 2008. On September 9, 2011, Administrative Law Judge Daniel G. Heely denied Plaintiff's application. The Appeals Council denied review on April 4, 2013. Plaintiff filed the complaint in this action on May 30, 2013.

II. Administrative Record

Plaintiff's testimony. Plaintiff (born October 9, 1949) completed high school and three or four junior college classes. Except for three years in which he served as an Army medic, he worked as a self-employed roofing contractor until he was injured on the job on May 1, 2003. From October 2007 to May 2009, he was employed as a roofing inspector and a metallurgical technician.

Plaintiff lives with his wife, who has epilepsy and does not work outside their home. They have no children.

Plaintiff described himself as "not real hardcore of a house cleaner." AR 33. He sweeps a little, cleans up after the dogs, and occasionally gives them food or water.

Plaintiff drives wherever he or his wife need to go. Until they sold their San Francisco home in 2010, Plaintiff drove down monthly to visit family, pick up mail, and attend to things. He generally stopped for breaks twice when driving from Copperopolis to San Francisco.

Plaintiff's arthritis made it difficult for him to sit in a chair for very long. Conforming his spine to the chair was difficult and painful. Recently, he has begun sitting on the ground, which is more comfortable.

Plaintiff enjoyed walking but finds it becoming difficult as his arthritis worsens and he begins to "lock up." AR 34. On good days, he could still walk for 20 to 25 minutes without rest; on bad days, he could barely walk a block.

Plaintiff enjoyed shooting rifles on a range, fishing, and boating. Plaintiff had to switch to a smaller rifle (22's) as shooting big rifles (30-6 and 30-30) became painful. He corrected the consulting physician's report, explaining that he had never snowboarded. Although he lives next to Lake Tulloch, he had only taken his boat out three times in the past year to entertain houseguests.

Plaintiff's former employer initially hired him to work as a roofing inspector on large jobs, an occupation he loved. When no inspection jobs were available, his employer assigned him to work in a metallurgy lab, even though he was not certified. From January 1 through August 5, 2008, Plaintiff worked performing metallurgical testing. The job required him to lift large objects weighing over 100 pounds. He earned $27.50 per hour. He was not trained as a metallurgist, but simply performed tests according to instructions and recorded the results.

On August 5, 2008, Plaintiff suffered a heart attack. As a result, he underwent a five-way heart bypass.

Plaintiff returned to work on or about November 17, 2008. His employer, who was a friend, attempted to provide easy work performing micro hardness testing on bolts used on various construction projects. Testing bolts required Plaintiff to lift only ten-to-twenty-pound containers of bolts. His employer also provided accommodations such as allowing Plaintiff to stop work as needed. Although Plaintiff hoped to work 40 hours weekly, he was not always able to do that. In addition, as his employer completed its pending hospital construction jobs, the amount of available work testing lightweight objects diminished. Plaintiff was laid off for several weeks in March 2009 and then laid off permanently in May 2009. Plaintiff believed he would have been let go earlier but for his friendship with his employer.

Thereafter, Plaintiff received unemployment benefits and attempted to secure another job through CalWorks. He received no job offers.

Plaintiff stopped using cigarettes and alcohol in 1975. He used medical marijuana with the approval of his primary care physician. He took his prescriptions as prescribed, although he used the prescribed Vicodin and cyclobenzaprine (a relaxant for muscle spasms and associated pain) as little as possible to avoid side effects, such as grogginess and constipation. When he did not take those painkillers, he experienced pain. He did not take aspirin for pain relief since he took low-dose aspirin as part of the treatment for his cardiac conditions. He had applied for, but had not yet received, a disability rating from the Veterans Administration.

Exertion Questionnaire. In an exertion questionnaire dated June 17, 2010, Plaintiff explained that upon heavy exertion, his spine stiffened, and he experienced excruciating pain. Although he could manage lifting and carrying up to fifteen pounds, lifting more than twenty-five pounds more than a few times resulted in deep aching. His medications included Carvedilol (heart), Simvastin (heart), Slo Niacin (heart), low-dose aspirin, hydrocodone-acetaminophen, and cyclobenzaprine.

Plaintiff attempted to walk a mile daily following his heart bypass surgery. His hip and shoulder pain increased as the day progressed so that by the end of the day, he could no longer straighten up, but leaned forward. He also tried to climb stairs but was easily winded and his hips "locked up." AR 220.

Plaintiff shopped as requested by his wife. He helped her carry heavy purchases. He cleaned floors, vacuumed, washed windows, trimmed trees, cleaned the yard, and maintained the house. "I can do most of those things if I am careful not to strain myself and move slowly, " he said. AR 220.

Plaintiff was also able to do basic maintenance on his car and replace small parts but could not lift larger parts. He could garden and could trim trees and weeds. He could no longer use a post hole digger or rototiller. He remained cautious of overexertion following his heart surgery.

In summary, Plaintiff explained that he had severe back, neck, shoulder, and hip pain, and often could not stand up on the first try. His condition affected every activity, requiring him to move slowly and carefully to avoid strain. Although he pushed himself to work through his pain, he had to stop working completely if he strained his back.

Plaintiff could drive ten to twenty miles without problem. At longer distances, 50 to 125 miles, he had difficulty getting out of the car. Although he would regain the ability to move about later, pain in the small of his back would remain.

Disability report (November 16, 2010). Plaintiff reported that his arthritis had worsened, and he could no longer move his hips to walk. He was experiencing painful chest pains more regularly. In October 2010, Plaintiff transferred his care from Kaiser Permanente to the Veterans' Administration. His medications included Carvedilol, Flexeral, Niacin, Nitroglycerine, Simvastin, and Vicodin.

Disability report (January 5, 2011). Plaintiff reported increased arthritis pain, chest pain, and fatigue.

Medical Records. Plaintiff reported few health problems until January 2004 when he received multiple electric shocks to his left chest and shoulder while roofing. Doctors ruled ...

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