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Orr v. Astrue

October 18, 2010


The opinion of the court was delivered by: Magistrate Judge Cole


The plaintiff, Thomas Orr, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2). Mr. Orr asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

Mr. Orr applied for DIB on November 27, 2006, alleging that he had been disabled since May 29, 2005, as a result of pulmonary embolism and depression. (Administrative Record ("R.") 120-21, 146). His claim was denied initially and upon reconsideration, and Mr. Orr continued pursuit of his claim by filing a timely request for hearing on May 15, 2007. (R. 81). An administrative law judge ("ALJ") convened a hearing on January 30, 2008. (R. 10-48). Mr. Orr, represented by counsel, appeared and testified. (R. 10). Frank Meldrick testified as a vocational expert. (R. 42-47). On March 24, 2008, the ALJ issued a decision denying Mr. Orr's application because she found Mr. Orr would be able to perform his past light work as a stocker, machine operator, and book seller/cashier. (R. 55-64). This became the final decision of the Commissioner when the Appeals Council denied Mr. Orr's request for review of the decision on December 23, 2008. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Mr. Orr has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).


A. Vocational Evidence

Mr. Orr was born on January 19, 1963, making him forty-five years old at the time of the ALJ's decision. (R. 120). He quit high school in the 11th grade, and says he took special education classes while in school. (R. 151). He recently got his GED. (R. 15). He last worked in the stock room of a department store, which involved frequent lifting of 10 pounds; the heaviest weight he lifted was 20 pounds. (R. 148, 156). That job ended when he was laid off during a reduction in force. (R. 146). Before that he had a three-month stint running a packing machine on an assembly line. (R. 158). He stood and operated a machine all day; the heaviest weight he lifted there was ten pounds. (R. 157).

B. Medical Evidence

The medical record in this case is some 400 pages long.*fn1 It demonstrates that Mr. Orr suffers from achalasia, which is a rare disease of the muscle of the esophagus which results in difficulty swallowing food and passing it into the stomach. Mr. Orr's difficulties evidently date back to 1997, when he was diagnosed with an underdeveloped esophagus. (R. 254). Over the years, he has lost a fair amount of weight. Mr. Orr, who is 5'61/2 " tall, claims that at one time he weighed 140 pounds. (R. 40). More recently, however, between January 2006 and December 2007, his weight has fluctuated between a high of 121 pounds on November 28, 2006 (R. 218) to a low of 110 pounds on December 6, 2007. (R. 590, see also R. 217, 220, 221, 474, 592, 595, 597, 598, 600).

From October 16 to October 26, 2006, Mr. Orr was hospitalized for massive pulmonary emboli and deep venous thrombosis ("DVT") of the left leg. (R. 254). He was treated with Heparin, an anticoagulant, intravenously, and Coumadin, another anticoagulant, orally. (R. 255). When he was discharged, he began follow-up treatment at the Vista clinic with Dr. Yolanda Escalona. (R. 255). He saw her regularly through at least December 2007. According to treatment notes, Mr. Orr seemed to respond well to treatment following his hospitalization, with no recurrent pulmonary emboli or DVT (R. 286, 590-602), and either no swelling (R. 590, 592-96, 598-600), or minimal swelling (R. 597, 602) in Mr. Orr's left leg. Mr. Orr generally had no complaints. (R. 590-91, 593, 595-98). On two occasions, however, in November 2006 and December 2007, Dr. Escalona filled out disability questionnaires indicating she felt Mr. Orr would be unable to perform any work. See, infra, at XX.

The Agency arranged for Mr. Orr to have a consultative psychological evaluation on January 30, 2007. (R. 534). Psychologist Randy Kettering noted that Mr. Orr was mildly depressed with a slightly constricted affect. (R. 536). His memory and general knowledge were essentially intact. (R. 536). He could not perform serial sevens perfectly; he made one error. (R. 536). His thinking was generally concrete, and his judgment was fair. (R. 537). Dr. Kettering made no diagnosis of depression or affective disorder. (R. 537). Later, Agency psychologist Carl Hermsmeyer reviewed the record and found Mr. Orr to have a mild restriction of daily activities, mild difficulties with social functioning, and mild difficulties in concentration. (R. 556).

C. Administrative Hearing Testimony

1. Plaintiff's Testimony

At his hearing, Mr. Orr testified that he was homeless, and that he slept at a shelter or his friend's car. (R. 14-15). He explained that had the department store he was working at in 2005 not gone through a staff reduction, he would have continued working there. (R. 17). He was able to work there despite his achalasia, although he had to limit his eating during the day because of his difficulty swallowing. (R. 36-37). But once he suffered his pulmonary embolism in October 2006, his doctor told him he shouldn't go back to work. (R. 18). Mr. Orr explained that if he stood or sat for too long, he might develop blood clots. (R. 18). He wasn't sure whether he could handle a job that allowed him to alternate between sitting and standing. (R. 18). He wears special socks to control his condition. (R. 32).

Mr. Orr testified he has had no signs of any pulmonary embolism or DVTs since his hospitalization, and that he was still taking Coumadin. (R. 19). His doctor thought he might have to take it. (R. 19). He said he always he gets a numbness or a tingling in his left leg that comes and goes. (R. 25-26). It feels like a balloon inflating. (R. 25). Sitting makes it worse. (R. 26). He has some pain in his back muscles about once a month, but not as bad as his leg. (R. 27). Even so, he said the pain might last for two days and he took codeine for it. (R. 39). Mr. Orr said it came from his achalasia and was brought on by what he ate. (R. 27). He also gets a dull pain in his throat and chest when he eats. (R. 28). Mr. Orr said he has suicidal thoughts every day but would never act on them. (R. 29).

Mr. Orr said he could probably walk one or two blocks before he had to sit down. (R. 29). He thought he could sit for an hour, but didn't think he could stand for that long -- he hadn't tried. (R. 30). He said he might be able to lift twenty pounds if he used both hands. (R. 30). He explained that he had no muscles in his arms. (R. 30).

On a typical day he would go to a mall or the library. (R. 31). At the library, he would use the internet for forty-five minutes to an hour and then get up and walk around. (R. 31). Due to his achalasia and taking Coumadin, he had a very limited diet. (R. 31). Due to his achalasia, he had to swallow repeatedly just to get his food down. (R. 37). It could take a few minutes or up to an hour. (R. 37). He doesn't do any household chores. (R. 32). He doesn't bathe or shower often, only once every one or two weeks. (R. 32). Mr. Orr explained that it was too much trouble to take the therapeutic sock off and on. (R. 32).

2. Vocational Expert's Testimony

Mr. Meldrick, the vocational expert ("VE"), testified that Mr. Orr's past stock work at the department store was semi-skilled and light. (R. 43). His machine operator job and his bookstore cashier job were light, but unskilled. (R. 43). The ALJ asked the VE whether a person with Mr. Orr's vocational background, who could sit for six to eight hours a day, stand and walk six to eight hours a day, and lift and carry up to ten pounds frequently could perform these jobs; the VE said they could. (R. 43). If the person had to change from sitting to standing every forty-five minutes, the VE said they could perform the machine operator job and perhaps some bookstore cashier jobs. (R. 43-44). Such a person could also do general assembly work, packaging work, or inspection work. (R. 44). In the local economy, there were 5000 assembly jobs, 6000 packaging jobs, and 2000 simple ...

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