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L.A. Jefferson v. Michael J. Astrue

April 21, 2011

L.A. JEFFERSON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

The plaintiff, L.A. Jefferson, 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), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Jefferson asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY

Mr. Jefferson has applied for disability benefits at least three times. The first time was in 1994, but he abandoned his claim when it was finally denied in 1998. (Administrative Record ("R.") 111-13, 133). His two more recent applications are consolidated in this case. He applied for SSI in November 2003, alleging that he had become disabled on September 30, 2003, due to carpal tunnel syndrome, asthma, and difficulty with reading and math. (R. 87-89, 98). His application was denied initially and upon reconsideration. (R. 73-86). Mr. Jefferson filed a timely request for hearing but when he failed to appear, the administrative law judge ("ALJ") dismissed his claim. (R. 46-48). The Appeals Council remanded the case because it appeared that Mr. Jefferson had not received notice of the hearing, and the ALJ failed to contact him for an explanation of his failure to appear. (R. 43-44).

On remand, that claim was consolidated with subsequent claims for SSI and DIB that Mr. Jefferson filed in October 2006. (R. 25). An ALJ held a hearing on January 24, 2008, at which Mr. Jefferson, represented by counsel, appeared and testified. (R. 477-528). In addition, Ed Pagello testified as a vocational expert. (R. 520-27). On February 11, 2008, the ALJ issued a decision finding that Mr. Jefferson was not disabled because he retained the capacity to perform a limited range of light work, which allowed him to do jobs that exist in significant numbers in the national economy. (R. 25-36). This became the final decision of the Commissioner when the Appeals Council denied Mr. Jefferson' request for review of the decision on October 15, 2009. (R. 7-10). See 20 C.F.R. §§ 404.955; 404.981. Mr. Jefferson 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).

II.

EVIDENCE OF RECORD

A.

Vocational Evidence Mr. Jefferson was born on September 6, 1953, making him fifty-four years old at the time of the ALJ's decision. (R. 87). He made it through the ninth grade, and had to take special education courses. (R. 490-91). At the time of his hearing, he had been homeless, off and on, for a long time. (R. 493-94). He is 5'8" and 238 pounds. (R. 165). His work history consisted mostly of day labor through temp agencies. The longest position he held was as a meat deboner in a meat packing plant. (R. 493-94). He also worked as a fast food cook. His past work was light to medium work and unskilled -- with the exception of the cook job, which was semiskilled. (R. 520). He worked intermittently through 2006, and in 2005, earned enough to qualify as having performed substantial gainful activity. (R. 293-94, 303-04, 510).

B.

Medical Evidence Mr. Jefferson has a few different medical problems, including chronic obstructive pulmonary disease (COPD), obstructive sleep apnea (OSA), bilateral carpal tunnel syndrome (CTS), residual effects from an injury to his left knee, and psychological limitations. The record includes notes from Mr. Jefferson's visits to county hospital emergency rooms for treatment, mostly for his breathing problems. Many of the notes are illegible or fail to suggest how his ailments might affect his ability to work. But the record does include some more informative documentation.

Mr. Jefferson had a consultative mental status examination with Roland Manos, Ph.D., on December 3, 2003. Disabled or not, Mr. Jefferson probably wouldn't fare well at a job interview. During the evaluation, he chewed on a toothpick throughout the evaluation and spit pieces of it on the psychologist's carpet. (R. 158). He was irritable at times. His hygiene was substandard, although he was not homeless at the time -- he was staying with a friend of his brother. (R. 158, 160). His effort during testing was below average. His responses to questions were vague and contradictory at times. (R. 159). He didn't do too well recalling items, digits, or past presidents. He couldn't perform serial three subtractions from one hundred. He exhibited little ability to do any abstract thinking. (R. 160). Testing put Mr. Jefferson in the mild range of mental retardation. Results on the Wechsler Adult Intelligence Scale were 61 verbal IQ, 62 performance IQ, and 58 full scale IQ. (R. 161-62). On the verbal scale, all his abilities were significantly below average; they were below average on the performance scale. There was a significant impairment in his pychomotor speed, visual motor coordination, visual processing, and verbal reasoning. But, it was noted that these results were likely an under-representation of Mr. Jefferson's actual abilities. In any event, Dr. Manos thought his level of functioning and intelligence were in the borderline range. (R. 162). He assigned Mr. Jefferson a GAF score of 60.*fn1 He could understand and carry out simple instructions, and appeared to be capable of responding appropriately to supervisors and co-workers. (R. 163).

Mr. Jefferson had a consultative physical examination with Dr. Neil Johnson on January 10, 2004. (R. 164). Although he said he had asthma since childhood, he was a smoker for 25 years, and currently smoked five or six cigarettes daily. Breath sounds were reduced but there was no wheezing. (R. 166). There were multiple scars on his left knee -- he suffered a chainsaw injury -- and pain and crepitus on range of motion, which was significantly limited. Tinel's sign was strongly positive bilaterally for irritated nerves. He exhibited manipulation problems: he couldn't pick up a button or a coin, and had trouble zipping a zipper. (R. 165). According to a dynamometer measurment, pinch and grip strength was reduced. (R. 168). Dr. Johnson felt that Mr. Jefferson would be unable to stand or walk for long periods, and would have significant problems with his hands. (R. 166).

On February 20, 2004, Anthony Matkom, Ph.D., reviewed the record for the Agency. He said there was insufficient evidence to perform a psychiatric review. (R. 177-190). Someone else -- the name is illegible (R. 199) -- reviewed the file from a physical perspective on February 23, 2004. They thought Mr. Jefferson could lift 20 pounds, carry ten, and sit, stand, and walk for six hours out of every work day. (R. 192). There were no postural, manipulative, or environmental limitations. (R. 194-196).

The next day, another Agency psychologist, Michael Mandli, reviewed the file. Unlike his predecessor, he felt there was enough evidence to determine that, due to mental retardation (R. 217), Mr. Jefferson was moderately limited in the areas of understanding, remembering, and carrying out detailed instructions, accepting instruction and criticism, responding appropriately to changes in a work setting, and setting realistic goals and planning independently of others. (R. 232-33). He thought Mr. Jefferson was capable of performing routine, unskilled work. (R. 234).

On August 4, 2004, Dr. Dan Muceno reviewed the file for the Agency and reached nearly the same conclusions as his predecessor in terms of Mr. Jefferson's physical capacity. The only difference was that Dr. Muceno thought Mr. Jefferson was limited in his ability to handle and finger objects (R. 239), and should avoid concentrated exposure to fumes, odors, and dust. (R. 240).

On February 10, 2007, Mr. Jefferson had another consultative physical examination, this time with Dr. Afiz Taiwo. (R. 386). Mr. Jefferson's weight was 241 pounds and his blood pressure was 148/90. He was short of breath while talking and wheezed with exertion. (R. 388). There was a scar on each wrist from previous carpal tunnel surgery. Mr. Jefferson's grip strength was reduced to 3/5. His ability to grasp and manipulate objects was abnormal. His ability to make fists and oppose finger was "weak." Tinel's sign and Phalen sign were both positive for carpal tunnel syndrome. Gait was non-antalgic when Mr. Jefferson walked fifty feet, but he was unable to heel/toe walk. Range of motion in the knees was normal. Range of motion in the lumbar spine was limited to 90 degrees due to obesity. (R. 388). A pulmonary function test revealed moderate restrictions. (R. 389-392).

On February 28, 2007, Dr. Richard Bilinsky, a physician with the Agency, found that Mr. Jefferson could lift up to twenty pounds, and carry ten. He could stand, walk, or sit for six hours in a work day. ...


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