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Perl v. Commissioner of Social Security

United States District Court, E.D. California

March 21, 2017

ANTHONY W. PERL, Plaintiff,




         Plaintiff Anthony Perl (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         Plaintiff suffers from ulcerative colitis and deep vein thrombosis (“DVT”). For the reasons set forth below, Plaintiff's Social Security appeal and motion for summary judgment shall be granted in part and Defendant's motion to remand shall be granted.



         Plaintiff protectively filed an application for disability benefits dated December 17, 2012, alleging disability beginning on October 19, 2012. (AR 158-59.) Plaintiff's applications were initially denied on August 26, 2013, and denied upon reconsideration on October 16, 2013. (AR 93-97, 100-04.) Plaintiff requested and received a hearing before Administrative Law Judge G. Ross Wheatley (“the ALJ”). Plaintiff appeared for a hearing on January 27, 2015. (AR 26-61.) On February 5, 2015, the ALJ found that Plaintiff was not disabled. (AR 10-20.) The Appeals Council denied Plaintiff's request for review on December 9, 2015. (AR 1-5.)

         A. Hearing Testimony

         Plaintiff testified at the January 27, 2015 hearing and was represented by counsel. He was 60 years old at the time of the hearing. (AR 30.) He graduated from high school and attended junior college for a semester and San Jose State for a semester. (AR 30-31.) However, he did not get any college degrees. (AR 31.) He can read and write and do math up to algebra. (AR 32.) He worked primarily as a stationary engineer, which is operating and maintaining buildings. (AR 31.) He also worked as a real estate agent, which required him to take a test and obtain a license. (AR 31.) However, his real estate agent license is expired. (AR 32.)

         He stated he last worked in October 2012, but he indicated that he may have worked through December 2012. (AR 32-33.) He has an open workers' compensation claim. (AR 33.) When the ALJ referenced allegations in Plaintiff's complaint of ulcerative colitis, deep vein thrombosis (“DVT”) in the left leg, and a mention of something involving the right elbow, Plaintiff indicated that he was not familiar with the elbow issue. (AR 33.) However, after the ALJ indicated that there was a passing comment about possible tendonitis, Plaintiff stated that he gets tendonitis from the Prednisone that he has been taking. (AR 33.)

         Plaintiff stated that the ulcerative colitis causes Plaintiff the most problems in his daily life. (AR 33-34.) At the time of the hearing, he had loose stools frequently throughout the day which caused him to need to go to the restroom approximately 4 to 6 times a day. (AR 34.) He feels that his need to go to the restroom is always urgent and he has trouble distinguishing whether he has to pass gas, urinate, or do a bowel movement because the pressures all feel the same. (AR 34.)

         He sees Dr. Kenneth Kelsen for his colitis. (AR 34.) At his last appointment with Dr. Kelsen on January 20, 2015, the only change to Plaintiff's treatment regimen was the addition of a cholesterol treatment. (AR 34.) Plaintiff takes Lialda tablets and he has adjusted his diet so that he does not eat anything that aggravates his condition, such as fruits and vegetables. (AR 35.) Changing his diet has somewhat alleviated the issues. (AR 35.) The medications mitigate the colitis symptoms to a degree, but they are never controlled. (AR 35-36.) Plaintiff feels that the colitis is never controlled because prior to the disease he had one bowel movement a day and he has never gotten to that point since. (AR 35.) Plaintiff testified that when he has to use the Prednisone, he gets all of the steroid symptoms, such as back acne and anger issues. (AR 50.)

         Plaintiff's doctor wants Plaintiff to walk and get as much exercise as he can without fatiguing himself. (AR 36.) Plaintiff walks daily around the 25 acre property that he is living on and walks a mile or two in short periods. (AR 36.) He walks for approximately two to three hours before he is fatigued and needs to take a nap. (AR 45.) He can do about two hours of chores before he gets fatigued and has to sit down. (AR 50.) He can lift 45 to 50 lbs. (AR 45-46.) He installed a port-a-potty on his property near the outbuilding where he has a little hobby shop because he had an accident trying to make it from the outbuilding to the house. (AR 51.)

         Plaintiff had an IVC filter put in the venous cava for his DVT, which Plaintiff indicated is so that the large clots will not make it to his lungs and it gives the doctors a chance to treat him. (AR 37.) Plaintiff's last episode of DVT was in 2008 or 2009 when the IVC filter surgery happened. (AR 38.) He also takes eight milligrams of “an INR of two-and-a-half to three.” (AR 38.) Plaintiff's DVT is controlled. (AR 38-39.)

         The only other condition he is being treated for is his lower back injury, which he has worker's compensation for. (AR 39.) He sees a chiropractor biweekly which seems to help. (AR 39.) He has never seen a neurosurgeon, had injections, or had a recommendation for surgery. (AR 39.)

         He is able to take a shower and get dressed. (AR 39-40.) He lives with his mother and his wife. (AR 40.) He can cook anything he wants to and he likes to make a German goulash. (AR 40.) He uses the microwave just to warm things up. (AR 40.) He is able to make a sandwich. (AR 40.) He can pick things up around the house and make the bed. (AR 40.) He can put things in the dishwasher and he takes out the trash. (AR 41.) He does activities on the property, such as spending a couple of hours trimming brush to maintain it from getting too wild. (AR 41.) Plaintiff and his family are trying to put a garden in. (AR 41.)

         He likes to read and mostly reads science fiction. (AR 41-42.) He has a home computer, e-mail, Facebook, and a cell phone, which he texts on. (AR 42.) He usually watches TV after dinner until bedtime for a couple of hours. (AR 42-43.) He has a driver's license and does drive. (AR 43.) He drives to the downtown area, which is 15 minutes away from his house and he knows where all the restrooms are in all the stores. (AR 43.) Plaintiff stayed at a hotel the night before the hearing and drove the block from the hotel to the hearing. (AR 43.) It took Plaintiff a little over an hour to drive to the town the hearing was in from his home and he made it without stopping. (AR 43.) He socializes with family members and they spend the holidays together. (AR 44.) His two daughters both live in the same town that he does, and he has three grandchildren, who he sees as often as he can. (AR 44.) He helps watch his 6 month old grandchild 4 days a week for an hour-and-a-half, but he hands her off to her father as soon as he gets there. (AR 44.) He socializes with friends and went to dinner with friends three weeks before the hearing. (AR 44-45.)

         Plaintiff's most recent job as a chief engineer was in an office environment where IBM was the anchor tenant. (AR 46.) There were two towers of eight stories each that were half a million square feet. (AR 46.) He was responsible for operating the building, such as fire life safety and ventilation, except for renting and customer relations with the tenants. (AR 46-47.) His office was on the first floor of the garage and the bathroom that was available to him was on the fifth floor, so he would have to walk 600 feet across the garage and take an elevator to the fifth floor. (AR 46.) He did soil himself on quite a few occasions where he had to go home and clean up. (AR 47.)

         Plaintiff worked as a chief engineer at a frozen warehouse plant from 2002 through 2005. (AR 47.) He had one crew member who was responsible for maintaining all the forklifts and he would also assist Plaintiff with maintaining the ammonia refrigeration system. (AR 47.) Since it was an ammonia refrigeration system, his mental acuity had to be 100 perfect or he would put himself and others in danger. (AR 47.)

         Plaintiff's work as a real estate agent included going door-to-door leaving leaflets, knocking on doors, and trying to get business since he started with no clients. (AR 48.) After he stopped working, he attempted to help his son-in-law do some repairs on his home and he worked as hard as he would as if he went to work, but after 4 days, he was exhausted and was in bed for a week. (AR 48.)

         Plaintiff's colitis is cyclical where symptoms get better and get worse, but they never stop. (AR 48-49.) At the time of the hearing, he was in a good period, but he expected that in a month he would be in a bad period with more symptoms. (AR 48-49.) During the flare-ups, the bleeding increases, the stools get looser and looser, and he uses a Mesalamine enema which alleviates some symptoms and with time reverses it. (AR 49.)

         He spends between 10 to 20 minutes in the restroom, and during a flare-up, he is in the restroom probably 8 to 10 times a day. (AR 49.) He has to be careful with what he eats all the time so that he does not aggravate his condition. (AR 49.) The medications are the only things he does to alleviate the symptoms. (AR 49-50.) Plaintiff's concentration is affected by the colitis, such as he forgets why he went across a room to get something or what he wanted to go get. (AR 50.)

         Vocational Expert (“VE”) David Dettmer also testified at the hearing. The VE testified that his testimony would be consistent with the DOT, and that he would say if it was not. (AR 52.) He reviewed the exhibits in the file and familiarized himself with Plaintiff's vocational background. (AR 52.)

         Plaintiff's past work was as a building repairer, DOT code 899.381-010, medium, SVP 7; construction worker, DOT code 869.664-014, heavy, SVP 4; and real estate agent, DOT code ...

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