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SALINAS v. BARNHART

July 19, 2004.

ALFREDO J. SALINAS, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Alfredo Salinas seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1603, 1614(a)(30). This matter is before the court on the parties' cross-motions for summary judgment. Salinas asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision denying Salinas's application.

PROCEDURAL HISTORY

  Salinas filed an application for SSI on July 12, 2001, alleging that he had been disabled since May 1, 1999, due to pain in his back and legs, and blackouts. (Administrative Record ("R.") at 98-100, 112). The Agency denied his application at the initial levels of administrative review (R. 60-63, 65-68), and he requested an administrative hearing. (R. 39-40). On November 20, 2002, an administrative law judge ("ALJ") conducted a hearing at which Salinas, represented by counsel, appeared and testified. (R. 21-57). In addition, Linda Gels testified as a vocational expert. (R. 52-56). In a decision dated November 29, 2002, the ALJ found that Salinas was not disabled because he retained the ability to perform a significant number of jobs in the national economy. (R. 13-20). This became the final decision of the Commissioner when the Appeals Council denied Salinas's request for review of the decision on January 17, 2003. (R. 7-8). See 20 C.F.R. § 416.1455; 416.1481. Salinas has appealed that decision to the federal district court, where the parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).

  FACTUAL BACKGROUND

  Salinas was born on April 15, 1949, making him fifty-three years old at the time of the ALJ's decision. (R. 98). He has a high school equivalency degree. (R. 39). He served with the Marines in Viet Nam, and was honorably discharged in 1969. (R. 39, 105-106). The bulk of Salinas's work experience has been as a truck driver (R. 113, 121, 135), although he has little work history over the last fifteen years. (R. 104, 113, 121). In the 1990s, he worked briefly as a day laborer stocking shelves, and as decorator setting up trade show displays. (R. 121-24). He lost the trade show job when he was incarcerated for stabbing his brother in an altercation. (R. 28, 38-39). He has lived with another brother since his release. (R. 38). A. Medical Evidence

  The relevant medical evidence in this case dates from July 12, 2001, the day Salinas applied for SSI and shortly after his release from prison. (R. 155). At that time, he sought treatment at the West Side Veteran's Administration ("WSVA"), reporting that he had experienced two syncopal episodes while incarcerated. (Id.). When he returned the next day with his medical records from the prison, the attending physician at WSVA noted that there was no mention of any syncopal episodes. (Id.). The physician also noted that Salinas had a history of chronic low back pain, and hypertension. (R. 155-56). Because Salinas's blood pressure was elevated at the time, the physician prescribed Lisinopril, in addition to the Atenolol Salinas was already taking. (R. 156).

  On July 27, 2001, Salinas returned to WSVA, complaining of fatigue and occasional dizziness. (Id.). He reported that he had a hard time walking a mile, but that he pushed himself to walk six miles, which "wipe[d] him out." (Id.). The attending physician noted that Salinas's blood pressure was under better control, and scheduled several tests in the hope of confirming Salinas's reports of seizures. (R. 157). Salinas underwent a CT scan of the brain on July 31, 2001, which was interpreted as normal. (R. 220).

  On August 6, 2001, Dr. Kenneth Nave examined Salinas at the request of the state disability agency. (R. 197-203). Salinas reported that he had been suffering low back pain over the preceding seventeen years, and that it had worsened recently. (R. 197). Salinas related that he had been told he had a herniated disc. (Id.). He also complained of a sharp, intermittent, cramping and pulling sensation in his legs. (Id.). Salinas claimed to have experienced blackouts twice a month for the preceding two years. (Id.). Dr. Nave noted that Salinas had a history of hypertension, and that his blood pressure was under fair control with medication. (R. 198, 201). Physical examination was essentially normal, with the exception of Salinas's knees and lower back. (R.198-200). Dr. Nave found moderate degenerative joint disease in Salinas's knees, but no swelling, tenderness, or redness. (R. 199). Salinas's range of motion in his lumbar spine was limited to 80 out of 90 degrees on flexion; there were no other range of motion limitations. (R. 200). His grip strength was 5/5 bilaterally. (Id.). Mental status was normal. (Id.). Dr. Nave diagnosed chronic low back pain, and suggested radiological testing to confirm the origin. (Id.). The doctor also indicated that the pulling and cramping in Salinas's legs might be secondary to his back problem. (R. 201). He thought Salinas's blackouts might be consistent with angina. (Id.).

  On August 15, 2001, Salinas underwent an EEG at WSVA. (R. 157). There was no evidence of any abnormality, and no epileptic discharges were seen. (Id.). The results of a thallium stress test performed on September 17, 2001, were described as "probably normal." (R. 222). There was no evidence of ischemia or infarction. (Id.). When Salinas returned to WSVA on October 19, 2001, the attending physician acknowledged that all test results had been negative for any evidence of syncope or seizures. (R. 221). At that time, Salinas said he had not had an episode since his release from prison. (Id.). In connection with Salinas's application for SSI, a state disability agency physician reviewed the preceding medical records and, on December 4, 2001, found that Salinas could occasionally lift or carry up to fifty pounds, frequently lift or carry up to twenty-five pounds, stand or walk about six hours of an eight-hour workday, sit about six hours of an eight-hour workday, and push or pull hand or foot controls without limitation. (R. 204-211). On February 7, 2002, a second state disability agency physician conducted a similar review, and concurred in that assessment. (R. 210).

  On January 10, 2002, Salinas went to the WSVA, and reported suffering low back and leg pain every second or third night, with soreness lasting a few days. (R. 227). The "drawer test" was negative for torn ligaments in the knees. (Id.). The attending physician recommended aspirin and Tylenol for leg cramps at night. (R. 228).

  Salinas had a depression screening at the WSVA on January 17, 2002. (R. 228). He indicated that he had been experiencing symptoms of depression, including sadness and loss of interest in things he formerly cared about. (Id.). The attending physician encouraged Salinas to become more physically active. (Id.). That same day, the doctor noted that Salinas's leg cramping had responded well to night time medication. (R. 229). X-rays of Salinas's right knee, performed on February 4, 2002, were normal. (R. 232). On April 17, 2002, Salinas returned to WSVA with complaints of lower back pain. (R. 230). Neurological examination — assessing strength, reflexes, and sensation — was normal. (Id.). An x-ray of Salinas's lumbosacral spine demonstrated spurs at the L4-L5 level, and mild osteopenia.*fn1 (R. 230-31).

  During his April 17, 2002 visit to WSVA, Salinas reported that his lower back and knee pain were stable (R. 233). By May 6, 2002, however, he said that his right knee was locking all the time. (R. 234). Salinas underwent an MRI of his right knee on May 13, 2002, which was consistent with a tear of the posterior horn of the medial and lateral meniscus.*fn2 (R. 235). On June 6, 2002, Salinas underwent arthroscopic surgery on his right knee. (R.243-46). Surgeons were unable to find any tears in the meniscus, but noted chondromalacia*fn3 changes. (R. 245).

  Salinas developed some swelling in both feet, and a rash on his right ankle, and sought treatment at the WSVA on August 7, 2002. (R. 253-54). On August 12, he reported that the rash was recurring, and lasted for two to three days. (R. 255). Thereafter, a social worker discussed Salinas's unemployment with him, and noted that in the last year, Salinas had not checked with his physician to determine what type of work he was capable of performing. (R. 256). Salinas made various excuses about not being able to work, despite having gone a year without any income. ...


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