United States District Court, S.D. California
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [Doc. Nos. 16, 17]
KAREN S. CRAWFORD, Magistrate Judge.
Pursuant to Title 42, United States Code, Section 405(g) of the Social Security Act ("SSA"), plaintiff Helmuts Skuja ("plaintiff") filed a Complaint on March 27, 2013 to obtain judicial review of a final decision by the Commissioner of Social Security ("defendant") denying his claim for supplemental security income ("SSI"). [Doc. No. 1] On March 28, 2013, this case was referred to the undersigned Magistrate Judge for a Report and Recommendation as to all matters associated with this action. [Doc. No. 4; See 28 U.S.C. § 636(b)(1)(B)] Presently before the Court are: (1) plaintiff's Motion for Summary Judgment [Doc. No. 16]; (2) defendant's Cross-Motion for Summary Judgment [Doc. No. 17]; (3) defendant's Memorandum in Support of its Cross-Motion and in Opposition to plaintiff's Motion [Doc. No. 18]; and, (4) the Administrative Record ("AR") [Doc. Nos. 13, 14].
After considering the moving and opposing papers [Doc. Nos. 16, 17, 18], the Administrative Record [Doc. Nos. 13, 14], and the applicable law, the Court RECOMMENDS that plaintiff's Motion for Summary Judgment [Doc. No. 16] be DENIED, and that defendant's Cross-Motion for Summary Judgment [Doc. No. 17] be GRANTED.
I. PROCEDURAL HISTORY
Plaintiff filed applications for SSI on December 10, 2008 and May 6, 2010, alleging disability beginning on September 23, 1999. [AR 176-86] After defendant denied plaintiff's applications at both the initial and reconsideration levels [AR at 90-93, 114-19], plaintiff filed a written request for a hearing and appeared before Administrative Law Judge ("ALJ") Edward Steinman on November 2, 2011 in San Diego, California. [AR at 41-87] ALJ Steinman heard testimony from plaintiff and vocational expert Mary Jesko. Id. Although advised of his right to representation, plaintiff chose to appear and testify without the assistance of counsel or other representative. [AR at 11, 43] Based on the testimony and the documentary evidence, on November 10, 2011, the ALJ issued his written decision, finding that plaintiff was not disabled under the SSA. [AR at 11-25] The ALJ's finding that plaintiff was not disabled became defendant's final decision on January 30, 2013, when the Appeals Council declined plaintiff's request for review. [AR at 1-5]
II. RELEVANT FACTS
Plaintiff was born on May 5, 1966. [AR at 692] He completed his primary and secondary education in Latvia [AR at 259], attended three years of college [AR at 697] as well as three years of what he identifies as law school [AR at 700], and is able to communicate effectively in English [AR at 695]. Plaintiff's past work experience includes the occupations of commercial safety advisor, private investigator/analyst, security officer, and site supervisor/inspector. [AR at 697] Plaintiff complains of chronic pain in his spine, abdominal muscles, left ankle, liver, head, left shoulder, left arm, and left hip. [AR at 705]
Plaintiff attributes the pain in his spine to two gunshot wounds he sustained in 1999 in his capacity as an investigator for the Latvian State Revenue Service. As to the bullet wounds specifically, plaintiff believes he must restrict his movement because the bullets are still lodged in his body, and he fears that excessive movement will cause them to become dislodged and cause further harm. [AR at 706] Plaintiff claims that all of these problems collectively prevent him from working, that the pain has steadily increased in frequency and severity over time, and that he is limited in reaching, holding, manual dexterity, and walking due to the pain on his left side. [AR at 705] He contends that his pain makes it difficult to bathe, dress, walk for longer than 1.5 to 2 hours, sit or stand for longer than 1.5 to 2 hours, carry items, get in and out of vehicles, and sleep at night. [AR at 708] To treat this pain, plaintiff uses Aspirin, Echinacea, glucosamine supplements, hot patches, milk thistle, multivitamin supplements, and Salonpas - all over the counter products not requiring a prescription. [AR at 715]
B. Medical Evidence
1. Plaintiff's Omnibus Submission
In support of his claim for SSI, plaintiff submitted a cover letter along with various medical records, spanning from 1999 to 2007. [AR at 1433-60] Included in the voluminous submission were the following:
a. a letter to plaintiff from J. A. Peress, M.D., Chief of Urology at Parkway Hospital in Forest Hills, New York, dated October 18, 1999, in which Dr. Peress opines that "surgical removal of the bullets will give you very few to no benefits at all, [and that] we expect you to be able to live with these bullets inside your body at [their] current position harmoniously and without any increased discomfort" [AR at 1441];
b. an August 17, 2001 report from Riga Municipal Hospital No. 1, translated from Latvian, containing key recommendations and observations surrounding plaintiff's gunshot wounds, namely that the risks of surgical intervention outweigh the benefits, and that the risk of bullet migration is increased with heightened physical activity [AR at 1449-55];
c. a Physical Incapacity Certificate, dated December 4, 2002, issued by the Ministry of Welfare of the Republic of Latvia, recognizing plaintiff as "a physically incapable person of the 3rd (third) group" in Latvia [AR at 1440];
d. a May 27, 2003 extract from SIA Health and Medical Rehabilitation, translated from Latvian, recommending that plaintiff increase his physical activity carefully and under a neurologist's supervision, so as to help increase range of motion and limit the effects of scar tissue [AR at 1447];
e. an application completed by plaintiff for New Jersey Transit's Reduced Fare Program, wherein plaintiff claims disability since January 2004, indicating "spinal injury with limited mobility [and] danger of paralysis" [AR at 1442-43];
f. a May 11, 2006 report from AP Diagnostic Imaging in Roselle Park, New Jersey wherein CT Scans of plaintiff's lumbar and thoracic spine reveal at least two bullet fragments, but also show no significant nerve root compressions caused by the fragments and that the remainder of the soft tissue was normal [AR at 1444-45]; and,
g. a November 7, 2007 letter from Steven Parker, D.O. of Roselle Park, New Jersey, in which he opines that any surgical attempt to remove the bullet fragments could result in damage to the nerves, muscle tissue, and spine, and that a "life threatening situation could result as a ...