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Nissen v. Colvin

United States District Court, E.D. California

July 13, 2016

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



         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").


         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 ...

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