United States District Court, E.D. California
ORDER AFFIRMING AGENCY'S DENIAL OF
BENEFITS
SANDRA
M. SNYDER, UNITED STATES MAGISTRATE JUDGE
Plaintiff
Peter Nissen seeks review of a final decision of the
Commissioner of Social Security ("Commissioner")
denying his application for disability insurance benefits
("DIB") under Title II of the Social Security Act
(42 U.S.C. § 301 et seq.) ("the
Act"). The matter is before the Court on the
parties' cross-briefs, which were submitted without oral
argument. For the reasons discussed below, the Court affirms
the decision of the Administrative Law Judge
("ALJ").
I.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
A.
Procedural History
Plaintiff
applied for DIB on October 19, 2011, alleging disability
beginning on March 20, 2005. AR 57, 147.[1] The Commissioner
denied the claim on January 20, 2012, and upon
reconsideration, on September 6, 2012. AR 91, 97. Plaintiff
then timely requested a hearing before an ALJ. AR 102.
Plaintiff
appeared and testified before an ALJ, Serena S. Hong, on
September 11, 2013. Also at the hearing were Plaintiff's
counsel and an impartial vocational expert ("VE").
AR 28. In a written decision dated November 1, 2013, the ALJ
found Plaintiff was not disabled under the Act from March 20,
2005 through December 41, 2010, his last date insured. AR 23.
On April 8, 2015, the Appeals Council denied review of the
ALJ's decision, which thus became the Commissioner's
final decision, and from which Plaintiff filed a timely
complaint. AR1; Doc. 1. B. Factual Background The
Court will not recount in detail all the facts of this case,
discussing only what is relevant to this appeal.
1.
Plaintiff's Work History
Plaintiff's
Work History Report indicates he had worked as a truck driver
for a feed company for about fourteen years, from April 1991
to February 2005. Plaintiff performed the job twelve hours
per day, six days a week. The job required walking, standing,
sitting, climbing, stooping, reaching, and
writing/typing/handling small objects. He frequently lifted
50 pounds, the heaviest being 100 pounds. AR 174-175.
2.
Medical Evidence
Records
show that from June 2005 to June 2011, Plaintiff sought
treatment from Dr. Robert Tanaka and others with the Sutter
Goud Medical Foundation for various conditions. These
included low back pain, hypertension, recurrent hernia, nail
fungal infection, skin lesions, increased blood pressure,
gastritis, dermatitis, obesity, sinus problems, upper
respiratory infection, foot pain, and gout. AR 264-343.
Plaintiff
underwent a number of successful procedures: (1) low back
surgery by Dr. Alexander Davis in May 2006, (2) hernia
surgery by Dr. Rodolfo Agbunag in August 2007, and (3)
cataract extraction of both eyes by Dr. John Latham in
December 2008 and March 2009. AR 234-237, 246-247, 251-253,
256.
At
Plaintiff's first post-surgical follow up with Dr. Davis
in mid-May 2006, he reported tolerable low back pain and some
numbness in the right shin and tips of the toes. The pain in
his buttocks and thighs when walking was gone. He, was,
however, taking pain medication. Dr. Davis told Plaintiff he
could walk and lift 10 pounds but not engage in heavy work on
the farm. AR 392. At the second follow up, Plaintiff reported
his pain had diminished significantly, with no pain down the
legs, and he could walk farther. There was, however, some
numbness in his feet. Dr. Davis advised Plaintiff about
driving and bending down. AR 402. At the third follow up in
June 2006, Plaintiff reported being able to walk a mile and a
half, being more active around his farm, a little ache in the
back, and no longer taking medication. Dr. Davis observed
Plaintiff's back was benign, with the wound healing
normally, and advised Plaintiff he could drive and lift 25
pounds. AR 391. At the fourth post-surgical follow in July
2006, Plaintiff reported he no longer felt pain down his
legs, tightness in the low back had improved, and he had
stopped taking medications. He could work on his farm without
much difficulty, except for a slight tingling at the bottom
of his left foot. Dr. Davis found the wound was well healed
and advised Plaintiff not to lift more than 40 pounds. AR
390. At the fifth follow up in November 2006, Plaintiff
reported occasional low back pain after working, though the
pain did not last. He was able to "walk all over [the]
farm and has no leg pain" and did not require
medication. Dr. Davis noted the surgery wound had healed well
and advised Plaintiff to engage in activities as he could
tolerate, with no specific restrictions. AR 389.
Then,
in September, November, and December 2011, Plaintiff
complained to Dr. Gray of ongoing low back pain. AR 407, 409,
411. Also in December 2011, Dr. Davis examined and discussed
with Plaintiff his imaging studies, and explained that spinal
surgery was advisable. AR 387. Plaintiff was advised to
engage in conservative treatments such as epidural steroid
injection, physical therapy, and weight loss. He agreed that
if his symptoms do not improve, surgical evaluation would be
appropriate. AR 387-388.
A few
months before the hearing, in August 2013, Dr. Gray completed
a physical assessment of Plaintiff's ability to perform
work-related activities. In a check the box form, Dr. Gray
indicated Plaintiff could frequently lift or carry up to 10
pounds, occasionally lift 11-20 pounds, but never lift 20-100
pounds. He could sit for two hours with a break every hour
and walk for one hour with a break every 20 minutes. He could
never perform any postural activities. He could occasionally
reach, frequently handle, feel, push/pull, and continuously
hear and speak. He needed to avoid exposure to heights. AR
429. On the mental side, Plaintiff had no limits to
occupational, performance, and personal/social adjustments.
AR 428-430.
3.
Plaintiff's ...