Opinion
Case No. EDCV 09-1869 JC.
November 22, 2011.
APPEARANCES: Marcelino Gomez, Claimant Mr. Keenan, Attorney for Claimant Sandra Miranda, Interpreter Dr. Lowexl Sparks, Jr., Medical Expert Corinne Porter, Vocational Expert
MEMORANDUM OPINION
I. SUMMARY
On October 15, 2009, plaintiff Marcelino Gomez ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed.R.Civ.P. 78; L.R. 7-15; October 22, 2009, Case Management Order ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge are supported by substantial evidence and are free from material error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases).
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
DECISION A. Previously Adjudicated Applications
On December 20, 2001, plaintiff previously filed applications for Supplemental Security Income and Disability Insurance Benefits ("Prior Applications"). (Exhibit B at 1).
The facts and procedural history pertaining to administrative review of plaintiff's Prior Applications as set forth below are derived from the administrative record lodged in the Central District of California caseMarcelino Gomez v. Michael J. Astrue, No. EDCV 04-1427 of which this Court takes judicial notice. See Fed.R.Evid. 201; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (court may take judicial notice of its own records in other cases). In light of the age of such case, and as the records relating thereto were manually lodged and retrieved from archives, the Court attaches the following excerpts from the administrative record in such case to this Report and Recommendation as Exhibits A and B, respectively: (1) the transcript of the administrative hearing held on December 11, 2003; and (2) the administrative decision dated June 23, 2004. The Court refers to the internal page numbers for each such exhibit rather than the stamped page numbers from the administrative record.
An administrative law judge examined the medical record and heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter), Dr. Lowell Sparks, a medical expert ("Dr. Sparks"), and a vocational expert on December 11, 2003 ("2003 Hearing"). (Exhibit A at 1-26).
On June 23, 2004, such administrative law judge issued an unfavorable decision denying benefits based upon the conclusion that plaintiff was not disabled at any time through the date of the decision ("Prior Decision"). (Exhibit B at 1-7).
B. Application In Issue
On July 31, 2006, plaintiff filed an application for Supplemental Security Income benefits ("Application in Issue"). (Administrative Record ("AR") 68, 199). Plaintiff asserted that he became disabled on June 21, 2006, due to problems with his back, right arm and right hand. (AR 7, 68, 210). A different administrative law judge examined the medical record and heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter) on April 16, 2009 ("Pre-Remand Hearing"). (AR 68).
Additional applications for benefits that plaintiff filed in 2009 were consolidated for review with the Application in Issue. (AR 21-22).
On May 6, 2009, such administrative law judge determined that plaintiff was not disabled through the date of the decision ("Pre-Remand Decision"). (AR 68-75). The Appeals Council denied plaintiff's application for review of the PreRemand Decision. (AR 150).
As noted above, plaintiff filed the instant action on October 15, 2009. On December 17, 2009, pursuant to the parties' stipulation and for good cause shown, this Court remanded the case pursuant to sentence six of 42 U.S.C. § 405(g) for further administrative action; A transcript of the Pre-Remand Hearing could not be prepared because the tape recording of that hearing was entirely blank. (AR 153-55, 158). The Appeals Council, in turn, remanded the case to the current Administrative Law Judge ("ALJ") for a de novo hearing. (AR 156-58).
On August 20, 2010, the ALJ held a post-remand hearing ("Post-Remand Hearing") during which the ALJ heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter) and a vocational expert. (AR 19-49).
On October 19, 2010, the ALJ determined that plaintiff was not disabled through the date of the decision ("Post-Remand Decision"). (AR 7-13). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: obesity and degenerative disk disease of the lumbar and cervical spine (AR 10); (2) plaintiff suffered from the following non-severe impairments: hypertension and non-insulin dependent diabetes mellitus (AR 10); (3) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 10); (4) plaintiff retained the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c) (AR 10); (5) plaintiff could perform his past relevant work as an industrial cleaner and lockstitch machine operator (AR 13); and (6) plaintiff's allegations regarding his limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment. (AR 11).
On April 26, 2011, the Court ordered the instant action reopened in accordance with the parties' stipulation. (Docket Nos. 15-16; Plaintiff's Motion at 3).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that the claimant is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. § 404.1520, 416.920).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance.Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
1. Additional Pertinent Background
A. Plaintiff Is Not Entitled to a Remand on His Claim Relating to Dr. Sparks' 2003 Testimony
The Prior Decision stated the following with respect to Dr. Sparks' testimony at the 2003 Hearing:
Dr. Sparks ... opined [that plaintiff] can lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 2 hours out of an 8-hour workday, sit for 6 hours out of an 8-hour workday, must be able to change positions every hour, and his push/pull limitations are consistent with the lifting and carrying limitations. He is limited to occasional climbing of stairs, balancing, bending or stooping, kneeling, crouching, crawling, walking on uneven ground, walking no more than one block at a time, avoid extreme cold and working with vibrating equipment. As Dr. Spark's [sic] opinions appear well reasoned and consistent with objective medical records, they are considered highly probative and are given great weight.
(Exhibit B at 4) (citing Exhibit A at 23-25).
During the Post-Remand hearing, the following exchange took place between plaintiff's attorney and the ALJ regarding Dr. Sparks' testimony from the 2003 Hearing:
ATTY:. ... [L]ooking at the entire file, it appears as though [plaintiff] has consistently been found to be limited to anywhere from a light — a limited light to a limited medium range of work -
ALJ: Okay.
ATTY: — activity at all times herein. There's, there's one page that I have, and honestly, I don't know what decision it's from, I suspect it's from one of Judge Varni's decisions, where Dr. Sparks (Phonetic) testified, and I've only got the one page, and Dr. Sparks said basically, [plaintiff] was limited to 10 to 20 pounds, standing or walking only two hours out of an eight-hour day, and change positions every hour, gave a number of limitations [sic]. At any rate, if [plaintiff] were found to be limited to light work — and I, I believe now, since 2008, we've got pretty significant documentation of a cervical spinal degenerative disc disease problem [sic]. There's an MRI that shows at least moderate levels of, I think, stenosis and so forth in the cervical spine. And [plaintiff] ... has complained, Your Honor, of, of upper extremity problems, and shoulder problems, and so forth. Let me see if I can find that. It's May, May 15 of `08.
ALJ: The last Varni decision's not severe.
ATTY: Right, I understand. I, I don't know which, I don't know which decision this is from.
ALJ: Well, it's -
ATTY: Maybe it's even older than that.
ALJ: — it's got to be older than that, because the last one says it's not severe.
ATTY: Right. So, it's either `04 or — I don't know if that was even Judge Varni in 2004, but, but -
ALJ: Well, see, that one, that one would be moot, because there was no subsequent appeal from that, and -
ATTY: I, I, I understand, and -
ALJ: — and that one's done.
ATTY: — my only point is, is that, is that I — I mean, I know this has been found to be different with subsequent Judge's [sic] decisions, but, but my point -
ALJ: Well, the same Judge.
ATTY: — my point is, is that there was — there were significant findings to where at least an ME found at one point that [plaintiff] was limited to less than light work activity.
ALJ: I understand that, I understand that.
(AR 22-23).
The ALJ did not include the Prior Decision or the 2003 Hearing transcript as an exhibit in the instant record. Nor did the ALJ reference in the Post-Remand Decision either such document or, more specifically, Dr. Sparks' testimony.
2. Analysis
Plaintiff argues that he is entitled to a reversal or remand because the ALJ failed to consider the opinions expressed by Dr. Sparks at the 2003 Hearing. Implicit in plaintiff's argument, is that the ALJ was obligated to obtain a copy of the 2003 Hearing transcript and include it as an exhibit in the instant case. The Court disagrees with both propositions.
First, plaintiff cites no legal authority for his suggestion that the ALJ was required to obtain a transcript of Dr. Sparks' 2003 testimony, which, as the ALJ noted at the Post-Remand Hearing, concerned plaintiff's prior application for benefits that had been denied and had not been appealed. (AR 22-23).
The Social Security Administration's Hearing, Appeals, and Litigation and Law Manual ("HALLEX") provides that where records of a prior hearing and decision "are relevant to the current case or are mentioned at the current hearing ... [or are noted] in the current hearing decision," an ALJ should obtain the referenced records and add them to the exhibits in the current case unless the ALJ explains at the hearing and in the decision why such records were not admitted. (HALLEX I-2-6-58.A). Nonetheless, this HALLEX provision does not provide grounds for a remand here based on the ALJ's failure to obtain the transcript of the 2003 Hearing. First, plaintiff does not rely on HALLEX. Second, HALLEX is not binding on this Court. See Lowry v. Barnhart, 329 F.3d 1019, 1021, 1023 (9th Cir. 2003) (citing Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000) (finding HALLEX does not prescribe substantive rules because it is "strictly an internal guidance tool, providing policy and procedural guidelines to ALJ's and other staff members" and "therefore does not carry the force and effect of law."). The Ninth Circuit has noted that it will not review allegations of noncompliance with HALLEX. See Moore, 216 F.3d at 869 ("[W]e will not review allegations of noncompliance with the [HALLEX] manual.") (citing Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.) ("We will not review allegations of noncompliance with an agency statement that is not binding on the agency."), cert. denied, 519 U.S. 822 (1996)). Finally, even so, it appears that during the Post-Remand Hearing, the ALJ concluded that Dr. Sparks' testimony from the 2003 Hearing was not relevant. (AR 23).
Second, to the extent plaintiff argues that the ALJ was obligated to develop the record by obtaining a transcript of the 2003 Hearing, such an argument lacks merit. An ALJ has an affirmative duty to assist the claimant in developing the record at every step of the sequential evaluation process.Bustamante, 262 F.3d at 954; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty fully and fairly to develop record and to assure that claimant's interests are considered). The ALJ's duty is triggered only "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted). Here, the ALJ's duty to develop the record further was not triggered. Plaintiff does not argue that the evidence of plaintiff's impairments is ambiguous, or that the record as a whole was inadequate to allow for proper evaluation of the evidence. To the contrary, the record contains reports from two consultative examining physicians on which the ALJ relied to assess plaintiff's residual functional capacity and determine disability. (AR 11) (citing Exhibit 3F [AR 332-36]; Exhibit 16F [AR 437-42]).
Finally, even assuming that the ALJ erroneously failed to obtain and add Dr. Sparks' testimony to the current record of exhibits, any such error was harmless as the ALJ was permitted to disregard such testimony without explanation in the decision. An ALJ must provide an explanation only when he rejects "significant probative evidence." See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). Here, plaintiff does not demonstrate that the testimony of a medical expert who reviewed plaintiff's medical records in 2003 constitutes significant or probative evidence of plaintiff's limitations and/or medical condition beginning over two years later on June 21, 2006 ( i.e., the onset date relevant to the Application in Issue).
In light of the foregoing, a remand or reversal on this basis is not warranted.
B. The ALJ Properly Evaluated Plaintiff's Credibility
Plaintiff contends that the ALJ inadequately evaluated the credibility of his subjective complaints. (Plaintiff's Motion at 6-10). The Court disagrees.
1. Pertinent Law
Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).
To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony ( e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct ( e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.
2. Analysis
Separate and apart from the ALJ's discussion of plaintiff's English language abilities (which plaintiff contends did not provide a clear and convincing reason to discredit plaintiff's subjective complaints), the ALJ here cited several permissible reasons, supported by substantial evidence in the record, for rejecting plaintiff's complaints regarding the severity of his symptoms and limitations.
First, the ALJ properly discredited plaintiff's subjective complaints as inconsistent with plaintiff's daily activities. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant's testimony and the claimant's conduct supported rejection of the claimant's credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). For example, as the ALJ noted, contrary to plaintiff's allegations of alleged extreme pain, plaintiff testified at the post-remand hearing that he (1) did all household chores for his retired parents; (2) did some cooking; (3) had a current driver's license (although he did not drive); (4) did grocery shopping by walking two blocks to grocery stores with a wheeled basket; (5) did his own laundry; (5) attended church services on Saturdays and Sundays, sometimes two hours at a time; (6) attended bible reading classes on Mondays; and (7) would go door to door in his neighborhood as part of his church ministry, visiting ten to fourteen houses a day and spending up to an hour per visit. (AR 32-40).
Second, an ALJ may discredit a plaintiff's subjective symptom testimony in part based on conflicts with objective medical evidence. See Rollins, 261 F.3d at 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.") (citation omitted). Here, as the ALJ noted, consultative medical evaluations in both 2006 and 2009 reflected normal range of motion in plaintiff's neck without any complaint of pain, and although plaintiff had mild to moderate limitation in lumbar spine motion, plaintiff had negative straight leg raising tests (supine and sitting) and no neurological deficits in the extremities. (AR 332-36, 437-42). The ALJ reasonably concluded that such findings were inconsistent with an alleged inability to perform any work. (AR 11).
Accordingly, plaintiff is not entitled to a reversal or remand on this basis.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Exhibit A
INDEX OF TRANSCRIPTIn the Case of: Account Number Page Commencing
Marcelino Gomez 618-09-7740 Testimony of Marcelino Gomes 6 Testimony of Dr. Lowell Sparks, Jr. 18(The following is a transcript of the hearing held before John Belcher, Administrative Law Judge, Office of Hearings and Appeals, Social Security Administration, on December 11, 2003, in the case of Marcelino Gomes, Social Security number 618-09-7740. The Claimant, Marcelino Gomez, appeared in person and was represented by his attorney, Mr. Keenan. Also present were Sandra Miranda, Interpreter, Dr. Lowell Sparks, Jr., Medical Expert, and Corinne Porter, Vocational Expert.)
(The hearing commenced at 4:00 p.m., on December 11, 2003.)
OPENING STATEMENT BY ADMINISTRATIVE LAW JUDGE:
ALJ: This hearing is now open. It's 4:00 in the case of Marcelino Gomez, Social Security number 618-09-7740. Ms. Interpreter, could you please state your full name for the record?
INT: Sandra, last name is Miranda.
ALJ: And could you please tell me your address and telephone number?
INT: My address is 23396 Via Montego, V-i-a M-o-n-t-e-g-o, Marino Valley, California, 92557. Telephone number is 909-990-0075.
ALJ: And are you in any way related to Mr. Gomez?
INT: No.
ALJ: Okay. Mr. Gomez, you filed an application for disability insurance benefits and supplement security income benefits on December 20 of 2001 indicating you became unable to perform substantial work on March 5 of 2000. Your claim was denied by Social Security both initially and after a request for reconsideration, after which on November 12 of 2002 you requested a hearing. The general issues in this case are whether a period of disability may be established under the Social Security Act and whether you are entitled to any disability insurance benefits or supplemental security income as a disabled individual under the Act. Mr. Keenan, I have exhibits marked 1A through 10F, is that right? Yeah, 10F in the file. We have already added Exhibit HE at the last hearing, which was postponed in order for Mr. Gomez to have an opportunity to find an attorney. It's now in the file. Do you have any objections to any of the exhibits?
ATTY: None.
ALJ: Okay. Then I'm going to admit all the exhibits from 1A through 10F into the record or evidence into the record of evidence — into evidence.
(Exhibits 1A through 10F, previously identified, were received into evidence and made a part of the record thereof.)
ALJ: Mr. Gomez, could you please state your full name for the record?
CLMT: Marcelino Gomez.
ALJ: Okay. No middle name?
CLMT: Pesh.
ALJ: How do you spell that?
CLMT: P-e-s-h.
ALJ: Have you ever been known by any other names?
CLMT: No.
ALJ: No nicknames?
CLMT: No.
ALJ: And I have your birth date as April 26 of 1958, is that correct?
CLMT: Yes.
ALJ: Are you are presently 45 years old then?
CLMT: Yes.
ALJ: And in what country were you born in?
CLMT: Yucatan, Mexico.
ALJ: Okay. When did you come to the United States?
CLMT: Maybe — I was 17, maybe 1973.
ALJ: That would be about 15 years old. Did you come here when you were 19?
CLMT: I was 17 when I came into the country.
ALJ: And are you a resident, alien, or a citizen? CLMT: Resident, permanent resident.
ALJ: And are you left or right-handed?
CLMT: Right-handed.
ALJ: And do you know how tall you are?
CLMT: I believe it's 5'1".
ALJ: And do you know what your weight is?
CLMT: 180.
ALJ: Dr. Sparks, could you please state your full name for the record?
ME: Lowell Sparks.
ALJ: And does the curriculum vitae in the file accurately reflect your qualifications?
ME: Yes.
ALJ: Are there any objections to the doctor's qualifications?
ATTY: None.
ALJ: Doctor, have you ever personally examined the Claimant?
ME: No.
ALJ: Have you had an opportunity to review the evidence including the medical records in this matter?
ME: Yes.
ALJ: And do you have any questions that you would like to ) ask the Claimant?
ME: Yes.
ATTY: Do we need him to be sworn in first?
ALJ: Yeah. We probably should. There seems to be a problem today. Mr. Gomez, I've asked you a number of questions. Did you answer all of those questions honestly?
CLMT: Yes.
ALJ: Thank you. Dr. Sparks, I've asked you some questions did you answer all of those honestly?
ME: Yes.
ALJ: Okay. Go ahead and ask your questions.
(SANDRA MIRANDA was duly sworn to act as an interpreter.)
(The Claimant, MARCELINO GOMEZ, having been first duly sworn, testified as follows:)
EXAMINATION OF CLAIMANT BY ATTORNEY:
Q Mr. Gomez, you had the sleep apnea test last June.
A Yes.
Q Have long have you had trouble sleeping?
A Two years.
Q Two years. Two years before this summer?
A Two years prior to the examination.
ATTY: Okay. So, Your Honor, what period are we considering here?
ALJ: From March 5, 2000.
ATTY: 3/2000, okay.
BY ATTORNEY:
Q And they gave you an attachment for your nose and some oxygen.
A Yes.
Q And do you still use that at night?
A Yes, I'm still using that.
Q Does that help you?
A Very little.
Q Okay. Now, how many hours do you sleep at.night?
A There's nights that I sleep three hours.
Q I see.
A Prior to that I would sleep maybe two hours.
Q And are you sleeping during the day?
A No, I don't sleep. I have trouble sleeping at night, and I can't sleep during the day. I get sleepy sleeping, but I don't sleep.
Q So, he's sleepy during the day. Does he have trouble concentrating during the day?
A What I'm constantly thinking about is the pain that's within my back.
Q Okay. Now, what time do you go to bed normally ?
A 9:00.
Q And what time do you get up in the morning?
A I usually wake up at 10:00, because I'm very tired. I wake up very early, and I walk throughout the house.
Q Okay. So, he only sleeps two or three hours. Is he in bed all the time?
A Yes. I go buy something to eat. I get up. I take a shower.
Q Okay. Now, does he sleep in the bed or does he have to sit up in a chair?
A Well, right now he sleeps in the bed but prior to that I would sleep sitting up.
Q And does he have to prop himself up with several pillows?
A Before.
Q Yes. Now, his back has been a problem for how long?
A Its been, I believe, four years.
Q And did he have an injury or an accident?
A I got hurt in a work accident.
Q And when was that?
A That's what I don't remember at this time. I can't remember.
Q But it was about four years ago?
A Yes, more or less.
Q And what was he doing when he got injured?
A I was throwing away trash.
Q I see. Okay. And what does he do for his back pain now?
A The doctor recommended that I do some exercises. He sent me to therapy but the pain did not go away with the therapies.
Q And does he take any pain medicine or Motrin medicine?
A Yes. First I was given Motrin, now I'm drinking Tylenol. I'm sorry. Now I'm taking Tylenol.
Q Anything else?
A I'm also taking Celexa. I think it's for the pressure.
Q Depression.
A Depression, yes.
Q Is he still taking the Celexa?
A Yes.
Q Does that help?
A More or less, yes, it's helping.
Q And what is he depressed about?
A I think it's due to the pain that I'm feeling. I don't go out. Sometimes I just go 'out to buy and then I come back.
Q How far can he walk now?
A Well, the store that's by my home is probably three corners long.
ATTY: Is that three blocks?
INT: He said corners though.
CLMT: Blocks.
INT: He says corners.
ALJ: He walks three blocks?
INT: Right. Three blocks.
CLMT: But I think I probably can walk probably a mile, but I'll tell you my knee and my back starts hurting me.
ATTY: Okay. And can he drive a car?
CLMT: At this time, I'm not presently driving, because of the problems due that hardly I don't sleep, and I'm very nervous.
BY ADMINISTRATIVE LAW JUDGE:
Q Do you have a driver's license?
A Yes, I do.
Q And when was the last time you did drive?
A It's probably been three years I think.
Q And what exactly about the driving is he worried about?
A When I drive, well, before I wasn't as worried. The way I am now, because of the pain, I'm scared to crash. It's the nerves and back. And hardly, due to lack of sleep, I tend to get more nervous.
Q So, basically he's worried?
A I'm worried due to the pain that does not go away.
Q And worried about his ability to drive?
A Yes, yes.
Q Yes, okay.
A I get very nervous.
Q And can he sit for very long?
A I would think that I could sit probably for one hour and then it begins right here. This lower part seems to start hurting and that's why I get up and walk.
Q He gets up and walks around and then —
A Yes.
Q — and then can he sit down again?
A Yes. I'll sit down or I'll lay down.
Q And how many hours a day does he watch television?
A Probably two hours but then I get sleepy.
Q Does he ever fall asleep in the chair?
A No. I go to my bed. I'm not used to sleeping when I watch TV. I go to my bed.
Q So, watching TV makes him sleepy and then he goes to bed?
A Yes. And also when I'm reading I get sleepy.
Q Okay. What's the most he's ever weighed?
A My body? Maybe 190.
Q 190, yeah. We have a weight of 182.
A When I started working for the manufacturing company I lost a lot of weight and now I gained the weight back.
Q And has he tried to go on any diets? Tried to lose weight?
A Just this week the doctor told me I should eat a lot of fruits, but I don't have any money. I don't have any money to buy fruits. I eat whatever my parents buy me.
Q In 1991, he broke his elbow.
A Yes.
Q And does that bother him now?
A Yes, it does.
Q How?
A It hurts all up within this area and this region here.
ALJ: Let the record reflect that the Claimant is showing his entire lower including over the hand and under the hand, over the whole hand apparently.
ATTY: That's all, Your Honor.
ALJ: Counsel, do you have any questions for your client?
ATTY: Yes.
BY ATTORNEY:
Q The last time you worked that you were working emptying trash, cleaning things.
A Yes.
Q And how did that work come to an end?
A How did it finish? They fired me.
Q What was the reason?
A I think it was maybe due to the fact that I told them that I was ill. They didn't believe me. They said that my work wasn't producing like before. And I would tell them my back's hurting, my hands are hurting me, and they said it was just excuses I was using. They never believed me, and they fired me.
Q Did you ever try to get work after that?
A No, because I started feeling the pains, and I preferred — what I did is I found a doctor on my own. When I went to the doctor, my own account, when I'm fine I will pay them, and I will start working again.
Q At that time that you stopped working was it primarily the low back that was hurting you?
A Yes. Yes, it was the lower back. I don't understand why it hurts all the way up here.
Q Okay. You're indicating your neck.
A I don't know why it's hurting. What got injured was my lower back and the pain that I feel is again in the back of my neck.
Q Okay. So, you feel pain in your low back, and it goes up to your neck.
A Yes, on top. All this along here, all this.
Q All the way up?
A To the top.
Q Has that gotten better, worse, or has it stayed the same since March of 2000?
A Well, like I said, right now I can move my hands, but they become numb.
Q I'm referring onto his back pain.
A It's always hurting a lot.
Q So, its been pretty stable for the last few years?
A Yes, always. It's always constantly — there's times I don't even know what to do. They told me to bathe with warm or hot water. I tried doing that and no, it doesn't come out well.
Q Other than the pain in your back and also in your right elbow, do you have pain anywhere else?
A Yes, in the hips.
Q In your hips.
A Then again I didn't have that before. And now I have this.
Q When did that start?
A This pain in the pain, it's probably been six months. Six months ago.
Q Was that —
A And the pain in the legs has also been awhile too. It becomes numb.
INT: And he's referring to the right leg right now.
ATTY: Okay. How long have you had pain in your right leg?
CLMT: Almost the same as the back. I think when I injured my back, which was a year, year and a half ago, is when the pain in the leg started. I feel itching. The way it is right now it's numb. I feel like pinching it.
ATTY: Do you have numbness in your left side?
CLMT: Yes, at times. This just recently I felt this.
ALJ: What? Just — what just recently?
CLMT: My knee on this side.
ALJ: The left knee?
CLMT: Yes. I just realized it when they started sending me to physical therapy. The doctors found this out. I didn't even know.
BY ATTORNEY:
Q How long have you been in physical therapy?
A I think maybe two months or maybe a month and a half. Something like that.
Q Has it worked for you?
A No, it does not. I told them that it wasn't helping. And they told me they would send me to the chiropractor, but they haven't sent me and that's when they sent to the Sweet Clinic.
Q When you're at home do you do anything for yourself to ease the pain?
A Yes. What I do is a little bit of exercises. I do the exercises that the doctor says so I can recover. But it's very little I do.
Q So, you exercise?
A Movements more.
Q Stretching?
A Stretching, little by little. That's what I do.
Q Do you use heat?
A No. I used it on my back before but not anymore. Not anymore. Nothing helps anymore.
Q Okay. Where do you live right now?
A The same address. I forget the name. 7434 —
Q What city?
A In San Bernardino, apartment number nine.
Q Who do you live there with?
A With my parents, my mother and father.
Q So, the three of you live there?
A Yeah, three.
Q Do you have any work around the house that you do?
A No. If I had work I would I would do — I would buy all the things that the doctors have ask me to get. I don't have any work, because of my hands, my fingers.
Q Do you have pain in your hands and fingers too?
A Yes. When I grab constantly they hurt.
Q Are you right-handed or left-handed?
A This one here. I'm saying the right hand.
Q You said that you could sit for one hour.
A Yes.
Q How long can you stand?
A No, I haven't become aware of that. Sometimes when I'm standing I feel like I'm going to fall over, but I don't know the duration.
Q Is it easier to sit or stand?
A I'd say sit and lay down and walk. When I stand for periods of time I'm scared to fall down.
Q Do you think you'd be able to stand for an hour?
A I'd say so, yes, I think. But I do feel like I like see some friends, I'll stand up to converse with them and that's when I've noticed, and I want to double over. That's what I'm saying I don't know why. The doctor should tell me why this happens. Until now, he hasn't told me a thing.
Q Within a typical eight-hour period how much time do you lay down?
A In one day?
Q Eight-hour period.
A I haven't become aware. I don't know. I lay down. I stand up. I walk. I haven't become aware.
Q Do you think you'd be able to work full-time at any job?
A I'd say no, because when I'm at home there's two little rooms. I have a very small vacuum. I clean it and my back starts to hurt. And it's a small home.
ATTY: That's all I have, Your Honor.
ALJ: Okay. Thank you. Doctor, anything you might wish to ask?
ME: Yes. Do you have any difficulty remembering?
CLMT: Yes.
ME: You had some difficulty remembering your city, your town
CLMT: Yes.
ME: What else do you have trouble remembering?
CLMT: One time I went into the store I was going to buy some things, and I got lost. I couldn't find the exit.
ME: I see. And do you lose things easily like your keys or"
CLMT: No, I don't lose my keys, because I hang them right here on my pants where they don't get lost or else they would get lost.
ME: How about, like, his wallet or — that's all, Your Honor.
(The medical expert, Dr. LOWELL SPARKS, JR., having been duly sworn, testified as follows:)
EXAMINATION OF MEDICAL EXPERT BY ADMINISTRATIVE LAW JUDGE:
Q Okay. Doctor, what impairment or impairments does the — Claimant have and what is the basis for your opinion?
A Yes. He has obstructive sleep apnea, and he's being treated with nocturnal C-PAP. During his sleep apnea study, he had a period of 3 1/2 minutes with an oxygen saturation less than 85 percent. So, it's significant. He also is obese. His BMI is 33.5 and his neck size was measured at 18 H inches or 47 centimeters. Number three, he has mechanical back pain associated with degenerative changes in L4 and 5 and disk disease of the L4, 5 disk.
Q What was the first part of that?
A Mechanical back pain.
Q Mechanical back and then you said something else.
A Yeah. He's got degenerative changes in the vertebrae L4 and L5 and in addition he has a degenerative disk between L4 and 5.
Q So, he has osteo-arthritis in the —
A Yes.
Q — joint there?
A Yes.
Q Okay.
A He's status post continuity fracture of the right radial head in '91 with persistent elbow pain, and he has reactive depression. He's being treated with anti-depressants, Celexa. In addition, I think he has some cognitive difficulty, but it's hard for me to evaluate. He's a pretty stoic individual, I think. But I think the listing for sleep apnea really hangs on the degree of cognitive dysfunction an individual has.
Q Okay. Tell me what — if you have it there before you, what the actual requirements are of the listing as per sleep apnea for one thing. And —
A Yeah. 3.10.
ALJ: Is it 3.10?
ATTY: It references 12.02 and 3.09.
BY ADMINISTRATIVE LAW JUDGE:
Q I think the cognitive difficulty would be 12.02. 3.09 is heart dysfunction as I recall.
A Yeah, on page 53 of my book, although many individuals with one of these will respond to prescribed treatment and some the disturbed sleep pattern and associated chronic nocturnal hypoxcemia [phonetic] causes daytime sleepiness with chronic pulmonary hypertension and/or disturbances in cognitive function. Because this can affect memory or annotation of personality a longitudinal treatment record maybe needed to evaluate mental function.
Q Um-hum.
A Not all individuals with sleep apnea develop a functional impairment that affects work ability. When any gainful work is precluded the physiological base maybe a chronic core point malady. Daytime somnolence [phonetic] maybe associated with disturbances in cognitive vigilance. Impairment of cognitive function maybe evaluated under organic mental disorders, 12.02.
Q That's only 112 of my book —
A I don't feel competent to do that.
Q — and I've got those in front of me, and I've been reading them.
A Yeah.
Q One of the things we don't have, I think, is a documented persistence of at least one of the following, because that's what is reguired medically documented persistence of disorientation to time or place —
A Yeah, that's right. Exactly.
Q — or memory impairment or perceptual or thinking disturbances or change in personality or disturbance in mood. We do have some documentation of depression.
A Yes.
Q Emotional inability.
A He described the incident with his daughter where he got lost, didn't know where he was.
Q Right. You were lost. Measured intellectual ability, and we have to then meet the criteria being which are marked resulting in at least two of the following marked restrictions, daily activities of activities of daily living, marked difficulties in maintaining social functioning's, marked difficulties in maintaining concentration, persistence or pace or repeated episodes of decompensation of each of extended duration or we have to do a number C, which is also three different requirements. And those really require a psychological eval. Now, Mr. Keenan, do you want me to send your client out for a psychological evaluation to see if he might meet the requirements of 3.10 under the requirements of 12.02?
ATTY: Yes, Your Honor.
ALJ: Okay. I'm going to go ahead and finish up with the doctor's testimony at this time and in the absence of meeting a or equaling a listing. Doctor, based upon your knowledge, education — well, first of all before I get into that I'm assuming based upon what I've heard about the sleep apnea is severe. What about the obesity?
ME: Yes.
BY ADMINISTRATIVE LAW JUDGE:
Q The degenerative disk disease and the arthritis in the back?
A Yes.
Q And the fractured elbow with residual pain?
A Yes.
Q And I'm going to hold off on characterizing the reactive depression until such time as I can —
A Okay, sure.
Q — get a medical expert to testify on that — or a psychological expert. Based upon your education, knowledge, and experience in review of the record, were these impairments in existence as March 5 of 2000?
A Yes.
Q Do they continue to exist to the present time?
A Yes.
Q And depending upon the psychological eval you think he might meet 3.10?
A Yes.
ALJ: Sleep apnea. Do we have the sleep apnea results in the — we do.
ATTY: Yeah.
ALJ: Yeah, I remember. Okay. I reviewed them. I should know that. Wasn't there an indication in those records though that his daytime sleepiness was considered mild? I thought I remembered that. Where was the study? Do you have —
ATTY: 8F1, I think.
ALJ: And, you know, I easily get these cases turned around sometimes.
ATTY: Yeah, I know.
ALJ: But —
ME: Well, he described his sleep apnea as severe.
ALJ: Um-hum.
ME: And they say he has very poor sleep efficiency.
ALJ: Yeah.
ME: Mr. Gomez's comprehensive sleep disorder questionnaire shows complaints of frequent snoring, excessive daytime sleepiness, and difficulty getting to and staying asleep. The F4 sleepiness scale he scored 9 out of 24, which is in the range of mild daytime sleepiness —
ALJ: Yeah, that's what I'm remembering.
ME: Yeah, that's what you were talking about. I really don't have any experience with that test so I can't really comment. This was done seven months ago.
BY ADMINISTRATIVE LAW JUDGE:
Q Right. I thought I remembered that on the test. Okay. Would the Claimant's medical impairments be expected to result in any limitation or visibility of the function in the work setting?
A Yes.
Q What would those function limitations be?
A Mr. Gomez can lift 20 pounds frequently, ten pounds occasionally. He can stand or walk two hours out of an eight-hour day with an ability to change position. He can sit —
Q How often?
A Hourly. He can sit six hours out of an eight-hour day with hourly position change. Postural abilities he should only occasionally be required to climb stairs. He should not be using ladders, scaffolding, ropes. The rest of the postural are all occasional. Environmental he should not be exposed to dangerous, fast moving machinery. Should not be exposed to extreme cold temperature nor use vibrating tools, which vibrate his back.
Q That was no extreme cold?
A Yes.
Q Did the functional limitations exist as of March 5 of 2000?
A Yes.
ALJ: Okay, counsel, do you have any questions for the doctor.
ATTY: Just a couple.
EXAMINATION OF MEDICAL EXPERT BY ATTORNEY:
Q Doctor, the Claimant has complained today of pain in his right knee and there were some references to it in the file. Any diagnosis there?
A Not that I'm aware of. I don't know that he's had any x-rays. Can you verify where it was mentioned?
Q No. In addition to his testimony it was mentioned in 10F11 —
A Okay.
Q — and I'm wondering if it maybe a mild arthritic-type condition with his knee.
A With his work history and changes in his back I wouldn't be surprised if he had some mild arthritic changes. He — but we don't have any objective findings.
ALJ: 10F11 I'm looking at like the second line —
ATTY: Yeah.
ALJ: — and it says right knee pain is resolved. ATTY: Right. Apparently on this visit it's resolved.
ALJ: Oh, okay.
ATTY: But apparently it's a complaint he has occasionally.
ME: At this point, without any x-rays or any kind of — we're just speculating.
ATTY: Would he have any limitation in terms of surfaces he could walk on?
ME: Well, I think short distances would be all right. I don't he'd have to you know, he's limited to two hours of walking a day, but I would say he would be limited to a block or less irregular surface.
ALJ: Pardon me. What was that?
ME: I don't —
ALJ: You faded off there at the end. I didn't —
ME: Oh. A block — he should be only doing a block or less of having to walk on uneven —
ALJ: Oh, okay.
ME: Yeah.
ATTY: So, one block or less on uneven surfaces?
ME: Right.
ATTY: That's all I have, Your Honor.
ALJ: In what kind of a period? I mean, are we just talking about at a time and if you walked —
ME: Yeah.
ALJ: — on a level surface he could walk another —
ME: Yes.
ALJ: — block.
ME: Yes.
ALJ: Okay. All right, counsel, anything else you want to offer to me at this time before I adjourn and have some additional development?
ATTY: No.
ALJ: Okay. Then I will be setting the psychological eval for cognitive testing primarily and then we'll reconvene, and I may very well a ME at that time too.'
ATTY: Okay.
ALJ: To help me out with the MS, MMS — Medical Source Statement, MSS. There we go. Thank you very much. Hearing is adjourned.
(The hearing closed at 3:3 5 p.m. on December 11, 2003. )
CERTIFICATION
I have read the foregoing and hereby certify that it is a true and complete transcription of the testimony recorded at the hearing in the above case, before Administrative Law Judge John Belcher.
Vicki L. Bailey, Transcriber York Stenographic Services, Inc.
Bob 0'Boyle, Proofreader York Stenographic Services, Inc.
Exhibit B
On December 20, 2001 the claimant filed applications for Disability Insurance Benefits and Supplemental Security Income payments. The claim was denied initially and on reconsideration, and a request for hearing was timely filed. The claimant appeared and testified at a hearing held on December 11, 2003, and at a supplemental hearing held on May 19, 2004 in San Bernardino, California. Also appearing and testifying at the December 11, 2003 hearing was Lowell Sparks, Jr., M.D., a medical expert; and at the May 19, 2004 hearing was Joseph Malancharuvil, Ph.D., a medical expert; and Sandra Fioretti, a vocational expert. At both hearings, a Spanish interpreter was provided. Dan Keenan, an attorney, represents the claimant in this matter.
The general issue is whether the claimant is entitled to a period of disability, Disability Insurance Benefits, and eligible for Supplemental Security Income payments under Sections 216(i), 223, and 1614(a)(3)(A), respectively, of the Social Security Act. The specific issue is whether he is under a disability, which is the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.
Upon reviewing all of the evidence of record, the undersigned Administrative Law Judge concludes the claimant is not disabled within the meaning of the Social Security Act.
EVALUATION OF THE EVIDENCE
The claimant is a 44 year-old individual who is illiterate and unable to communicate in English. His past work experience includes employment as an industrial cleaner/maintenance worker, and as a sewing machine operator. He alleges he became disabled on March 5, 2000 due to back, neck, shoulder, leg and right hand problems.
With regard to the claim for a period of disability and Disability Insurance Benefits, the claimant meets the nondisability requirements set forth in Section 216(i) of the Social Security Act and is insured for disability benefits through the date of this decision.
The Social Security Regulations provide steps that must be followed in determining whether an individual is disabled. These steps have been termed the sequential evaluation process.
The first step asks whether the claimant is engaging in substantial gainful activity. It is determined that the claimant is not engaging in substantial gainful activity and has not done so since the alleged onset date of disability. Such a conclusion is substantiated by wage record information as well as by the claimant's statements of record.
The next step of the sequential evaluation requires consideration of the severity of the individual's impairment(s). The claimant has degenerative disc disease, obesity, fractured elbow with residual pain, sleep apnea, and depression, and drug and alcohol abuse in remission which more than minimally restrict the ability to perform basic work related activity. As a result, the claimant must be found to have a "severe" impairment within the meaning of the Social Security Act, as amended. However, there is no indication as of this time that the claimant's impairment(s), taken either singly or in combination, have produced symptomatology or objective findings which would meet or equal any impairment found in the Listing of Impairments. 20 CFR Pt. 404, Subpt. P, App. 1. The claimant simply does not have any of the requisite clinical findings required by the Listings.
Next, the sequential evaluation asks whether, despite the claimant's impairments, he retains the functional capacity to return to the kind of work he performed in the past. In order to answer this question, it is necessary to evaluate and assess his residual functional capacity.
After careful consideration of the entire record, it is determined that the claimant has the residual functional capacity for a significant range of light work activity. Specifically, he is able to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 2 hours out of an 8-hour workday, sit for 6 hours out of an 8-hour workday, must be able to change positions ... " %. every hour, push/pull limitations are consistent with the lifting and carrying limitations. The claimant is illiterate and unable to communicate in English. He is limited to occasional climbing of stairs, balancing, bending or stooping, kneeling, crouching, crawling, walking on uneven ground, and walking no more than one block at a time. He must avoid extreme cold and working with vibrating equipment. Mentally, he can perform simple repetitive tasks, follow three to four step instructions, and work in a habituated and object oriented work setting.
A more restrictive functional capacity is not warranted in this case. An orthopedic examination performed on September 15, 2000 by Fountain Valley Orthopedics, reflects the claimant presented with complaints of constant dull aching pain in his lower back and right hip, a burning sensation on the right side of his hip and into the thigh. He reported he took medication which made the pain better but movement made the pain worse. He reported he was being treated by Dr. de Leon in the form of medication. The claimant was reported as weighing 156 pounds at 5'2" in height. X-rays of the lumbar spine revealed spur formation at L4-L5 and diffuse calcification of the anterior longitudinal ligament at the upper lumbar. Based on examination findings, the orthopedist diagnosed degenerative joint disease of the lumbar spine, and bulging lumbar disc (Exhibit IF). An orthopedic examination performed on July 3, 2001 revealed the claimant went to County Hospital on several occasions for low back pain. He was given medications which provided relief of his symptoms. The orthopedic reported the claimant had mechanical back pain secondary to degenerative disc disease. X-rays of the lumbar spine revealed questionable spondylosis at L5 and facet arthrosis (Exhibit 2F). At the request of the State Agency, the claimant underwent an orthopedic examination on March 14, 2002. The claimant expressed complaints of pain in his back, neck, and shoulders. He reported that he had some physical therapy about a year ago which did not help. He did not use a cane, crutches, or a walker, or take any medication. His reported weight was 182 pounds at 60" without shoes. Examination resulted in essentially normal findings. The orthopedist reported he found no evidence of an orthopedic problem and the claimant had no functional restrictions (Exhibit 3F).
Treatment records from Arrowhead Regional Medical Center from September 1991 to September 2003 show the claimant was treated for multiple problems. In September 1991 the claimant fell and injured his right elbow. X ray of the elbow showed comminuted fracture fragment rising from the radial head region, and degenerative changes in the elbow region. He was also treated with medication for low back pain in July 2000, and with physical therapy in January 2003. In November 2002, he was prescribed Celexa for depression. In January 2003, treatment notes reflect that the claimant's right knee pain was resolved, he had continued complaints of back pain, and he stopped taking medication for depression and was going to church and coping (Exhibit 10F). In May 2003, he underwent flow sleep apnea testing which was positive, and he tolerated continuous positive airway pressure (CPAP) (Exhibit 8F), and was prescribed a C-PAP in June 2003 (Exhibit 9F). In September 2003, treating notes showed the claimant was being treated with Tylenol for his back but he reported it did not help and caused poor sleep, he was prescribed Zantac for GERD, he has suffered from fatigue for two years, and he was back on Celexa for depression (Exhibit 1 OF). X-rays from Arrowhead Regional Medical Center at Exhibit 5F showed of the low back, minimal degenerative changes manifested by minimal hypertrophic spurring anteriorly; of the thoracic spine, negative; of the right hip, negative; of the lumbosacral spine, mild degenerative disc disease at L4-5; of the pelvis, negative; and of the right shoulder, slight widening of the right acromioclavicular joint. In August 2001, the treating physician reported the claimant was treated with Vioxx and Vicodin for pain, and instructed to continue stretching and strengthening exercises. The physician stated the claimant had made good progress with improved activity and the pain was now aggravated only when doing heavy lifting, squatting or bending. In May 2002, the claimant reported his depression and sleep had improved as a result of prescribed medication. X-rays dated April 2003 at Exhibit 7F revealed of the low back, mild degenerative changes at L4 and L5; of the sacrum and coccyx, negative.
At the request of the State Agency, the claimant underwent a psychological evaluation performed on January 21, 2004. The claimant reported depression, trouble socializing, was always angry, cognitive difficulties including confusion and loss of concentration, and a long history of alcohol and drug abuse. The claimant reported he was not taking psychotropic medications, had not participated in psychiatric treatment, and had never been hospitalized in a psychiatric unit. The claimant reported he did not smoke cigarettes, stopped using methamphetamine four years ago, and recently stopped using alcohol. He stated he lived with his parents, stayed at home most of the day, cleaned his room, sat around, watched television, listened to music, and slept during the day. He walked around the house, watered the yard, and helped out with household chores. He did not have activities or friends. He was able to dress and bathe himself, had never driven an automobile, was able to do shopping, fix very simple meals for himself, and could manage his own funds. The psychologist diagnosed alcohol dependence in early partial remission, methamphetamine in remission, and depressive disorder not otherwise specified. His global assessment of functioning (GAF) score was 55. He was administered the Rey 15 Item Memory Test-II, the Bender Visual Motor Gestalt Test-Second Edition, and the Trail Making Test Forms A and B: Adult Version. The MMPI-2 was not given because the claimant did not speak English. The psychologist reported the claimant's performance on the Rey 15 Item Memory mi F Test-II suggested an attempt to "fake bad" or dissimulate a cognitive impairment. Based on his evaluation and testing results, the psychologist concluded the claimant did not meet the criteria for mental retardation because his work history suggested cognitive functioning above the level of retarded. The claimant's ability to understand, remember, and carry out job instructions appeared only mildly impaired; he could complete simple tasks; he demonstrated moderate impairment on multi-faceted tasks involving sustained concentration; his ability to maintain attention, concentration, persistence and pace was moderately impaired; his ability to relate and interact with supervisors, coworkers and the public was only mildly impaired; and his ability to adapt to day-to-day work activities appeared only slightly below normal. He understood the value of money and could manage his own funds (Exhibit 1 IF).
Lowell Sparks, Jr., M.D., an internist, appeared as a medical expert, and reviewed the medical evidence of record. Dr. Sparks summarized the medical evidence and testified that the claimant suffers from severe impairments of sleep apnea, obesity, degenerative disc disease, and fractured elbow with residual pain. Dr. Sparks also testified the claimant's impairments do not meet or equal any Listing level severity. He opined the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 2 hours out of an 8-hour workday, sit for 6 hours out of an 8-hour workday, must be able to change positions every hour, and his push/pull limitations are consistent with the lifting and carrying limitations. He is limited to occasional climbing of stairs, balancing, bending or stooping, kneeling, crouching, crawling, walking on uneven ground, walking no more than one block at a time, avoid extreme cold and working with vibrating equipment. As Dr. Spark's opinions appear well reasoned and consistent with objective medical records, they are considered highly probative and are given great weight.
Joseph Malancharuvil, Ph.D., a licensed clinical psychologist, appeared as a medical expert, and reviewed the medical evidence of record. Dr. Malancharuvil summarized the medical evidence and concluded the claimant suffered from depressive disorder, not otherwise specified, mild; and alcohol and drug abuse in early partial remission. Dr. Malancharuvil testified the records at Exhibit 1 IF reported the claimant attempted to "fake bad" on tests, and the test scores showed a lack of adequate effort to a great degree. He testified that the claimant's mental impairments do not meet or equal a Listing. Dr. Malancharuvil opined the claimant was functionally illiterate but could perform simple repetitive tasks, follow four step instructions, and could work in a habituated and object oriented job setting. Dr. Malancharuvil further opined the claimant had no restriction of activities of daily living; mild difficulty in social functioning; mild to moderate difficulty in maintaining concentration, persistence, and pace; and no reported episodes of decompensation. As Dr. Malancharuvil's opinions appear well reasoned and consistent with objective medical records, they are considered highly probative and are given great weight.
In all, the claimant's medical condition is stable and manageable based on objective evidence. The claimant complains of back, neck, shoulder, leg and right hand problems but remains able to ambulate without an assistive device. Objective medical evidence and diagnostic testing as noted above reflects that although the claimant has severe impairments, they are not of such severity as to prevent the performance of work activity as delineated herein. Further, although the claimant asserts depression, it is noted at Exhibit 1 IF that he does not take psychotropic medication, has not engaged in psychiatric treatment, and has never been hospitalized for any psychiatric problem. The claimant's condition results in no restriction of activities of daily living; mild difficulty in social functioning; mild to moderate difficulty in maintaining concentration, persistence, and pace; and no reported episodes of decompensation. Although the functional capacity adopted herein is more restrictive than determined by the State Agency review physicians, it takes full account of the mild objective findings, is compatible with the opinions of the consultative examiners, and accords the claimant every reasonable benefit of the doubt.
Apart from objective evidence, there are substantial subjective reasons pursuant to the guidelines of Social Security Ruling 96-7p to conclude that the claimant's symptoms do not preclude the performance of a significant range of light work activities. As noted above, even though the claimant suffers from multiple severe impairments, they do not preclude the claimant from performing daily living activities. His medical treatment has been routine, conservative and sporadic. The use of prescribed medications has admittedly provided at least partial symptomatic relief. At Exhibit 1 IF, the claimant asserts depression but stated he does not take any psychotropic medication and is not participating in any psychiatric treatment. The claimant is able to clean his room, watch television, listen to music, walk around the house, water the yard, and help out with household chores. He is able to dress and bathe himself, is able to do shopping, fix very simple meals, and manage his own funds. At Exhibit 4E, and during the hearing, he stated he has trouble sleeping and the C-PAP helps a little. He is sleepy during the day but doesn't sleep. He thinks about the pain in his back. He stated he takes Tylenol for pain. He also stated he takes Celexa for depression (this contradicts his statement at Exhibit 1 IF). He testified he can walk three blocks, maybe one mile before his gets sore in his knee and back. He testified he can sit one hour, then gets up and walks around. He watches television for two hours then gets sleepy. He sleeps in his bed using several pillows. He testified he has pain in the right leg and numbness in the left knee, and has pain in his fingers when he grabs things. He testified he doesn't do any work around the house, that he has a driver's license but has not driven in three years (this contradicts his statements at Exhibit 11F). The claimant asserts several complaints in areas where there are no medically determinable conditions. Further, there are no demonstrable problems of grip, only subjective complaints. All of the aforementioned factors indicate the claimant does not suffer from an incapacitating or debilitating medical condition and is capable of more than he is currently willing to admit.
The record reflects a prior history of drug and alcohol abuse. However, the claimant's use of drugs has been in remission for three years, and his use of alcohol has been in early partial remission during the relevant period. Consequently, substance abuse is not material to the finding of disability.
Sandra Fioretti, the vocational expert present at the hearing, reviewed the vocational evidence of record prior to the hearing, and was present for the testimony of the claimant as to his employment history. When asked to consider the residual functional capacity assessed herein, the vocational expert concluded a person with a residual functional capacity identical to that of the claimant could not return to any past relevant work and had no transferable skills to perform other work with the residual functional capacity delineated herein. Based on the vocational expert testimony, the claimant cannot return to past relevant work and has no transferable skills.
As the claimant has established he can no longer perform his past relevant work because of his impairments, the burden shifts to the Commissioner to show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with his medically determinable impairments, functional limitations, age, education, and work experience. Section 200.00 of Appendix 2 provides where the findings of fact coincide with all of the criteria of a particular rule, that rule directs a conclusion as to whether an individual is or is not disabled. Where findings of fact include nonexertional impairments, which must be considered, the rules do not direct a conclusion but used for guidance in reaching a conclusion.
Relevant vocational considerations in the instant case include the fact the claimant is 44 years old, which is defined as a "younger individual" ( 20 CFR 404.1563 and 416.963); is illiterate and unable to communicate in English ( 20 CFR 404.1564 and 416.964); and has past relevant work consistent with unskilled and semi-skilled employment ( 20 CFR 404.1568 and 416.968). Given the claimant's vocational profile and residual functional capacity, Medical-Vocational Rule 202.16, used as a framework provides guidance in finding a decision of "not disabled."
The vocational expert cited the following unskilled occupations which could be performed with the delineated functional limitations: bench assembler, DOT 706.684-042 (light exertional level with 75% erosion), which exists in the regional economy in numbers of 750, and in the national economy at 6500; small products II, DOT 739,687-030 (light exertional level with 75% erosion), which exists in the regional economy in numbers of 2400, and in the national economy at 20,000; and assembler, buttons and notions, DOT 734.687-018 (sedentary exertional level), which exists in the regional economy in numbers of 1200, and in the national economy at 16,000. The vocational expert stated her testimony was consistent with the Dictionary of Occupational Titles, Fourth Edition, Revised (1991) (DOT).
Based on the testimony of the vocational expert, it is concluded there are a significant number of jobs which the claimant can perform.
The guidance of Rule 202.16 is reasonable to the extent a person with the claimant's vocational profile and residual functional capacity who can perform the alternate substantial gainful activity HF identified by the vocational expert, which exists in significant numbers in the economy is not disabled. Thus, the claimant is not disabled pursuant to 20 CFR 404.1520(f) and 416.920(f).
FINDINGS
After careful consideration of the entire record, the following findings are made:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits, and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset date.
3. The claimant has impairments which are considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(c) and 416.920(b). However, the impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpt. P, Reg. No. 4.
4. The claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.
5. The claimant has the residual functional capacity to perform a significant range of light work.
6. The claimant, born on April 26, 1958, is considered a "younger individual," is illiterate and unable to communicate in English.
7. The claimant is unable to perform any of his past relevant work and has no transferable skills to perform other work within his residual functional capacity as delineated herein.
8. Using Medical-Vocational Rule 202.16 as a framework for decision-making, there are a significant number of jobs in the national economy he could perform.
9. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 CFR § 404.1520(g) and 416.920(g)).
DECISION
It is the decision of the Administrative Law Judge, based on the applications filed on December 20, 2001, the claimant is not entitled to a period of disability, Disability Insurance Benefits, and not eligible for Supplemental Security Income payments under Sections 216(i), 223, 1602, and 1614(a)(3)(A) respectively, of the Social Security Act.
John W. Belcher, Administrative Law Judge