Bremer v. Comm'r Of Soc. Sec.

Decision Date27 January 2011
Docket NumberNo. CIV S-09-2890-CMK,CIV S-09-2890-CMK
CourtU.S. District Court — Eastern District of California

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 15) and defendant's cross-motion for summary judgment (Doc. 18).


Plaintiff applied for social security benefits on November 8, 2005. In the application, plaintiff claims that his disability began on September 25, 2004. Plaintiff claims that his disability is caused by a combination of ruptured tendon on right arm, arthritis in entire body, broken back, Hepatitis C, extreme pain in shoulders, and football size swelling in knees. (CAR 122). In his motion, plaintiff asserts a combination of conditions including chronic obstructive pulmonary disease (COPD), angioedema, pain in low back, knees, and hips, knee swelling, weakened strength in his right arm, and tendon injury in his right hand. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on March 10, 2008, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a May 27, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following findings:

1. The claimant met the insured status requirements of the Social Security Act though December 31, 2004.

2. The claimant has not engaged in substantial gainful activity since September 25, 2004, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 404.971 et seq.).

3. The claimant has the following impairments which are severe in combination: lumbar strain, history of right tendon injury, mild arthritis of the left shoulder, chronic obstructive pulmonary disease, and recurrent angioedema (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Medium work involves lifting no more than 50 pounds occasionally or 25 pounds frequently.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on September 28, 1951 is currently 56 years old, which is defined as an individual of advanced age (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a disability, as defined in the Social Security Act, from September 25, 2004 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

After the Appeals Council declined review on August 17, 2009, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized below:

A. Treating Records

The record contains treatment notes from 1996 through 2008. In January 1996, plaintiff was admitted to the hospital for an upper gastrointestinal bleed, secondary to aspirin use. It was noted that he had a history of hepatitis C.

In June 1997, plaintiff had a motor nerve conduction study by Dr. Friend, noting a history of chronic low back pain and numbness. The impression was: "The EMG for the right lower extremity was abnormal. Chronic neuropathy is noted distally of the motor units for the common peroneal nerve distribution for the distal calf and the dorsal foot.... The motor nerve conduction study for the right peroneal nerve when compared to the left does show a delay of the distal latency along with minor slowing of the calf conduction velocity.... The H reflexes for the S1 nerves are within normal limits." (CAR 275).

In August 2000, an x-ray of plaintiff's shoulder found mild arthritis in the neck.

Plaintiff was seen in the Placer County Medical Clinic in April 2003, with a request for state disability forms to be filled out. As plaintiff had not been seen there in five years, Dr. Ralli required him to schedule an appointment to be seen before the forms would be filled out. Dr. Ralli noted plaintiff was disheveled, with a belligerent affect, who had "no trouble getting up and down out of the chair nor any impairment in his gait." (CAR 272). He then had a follow upappointment for a sinus infection and difficulty sleeping. In May 2003, plaintiff was seen for back pain. It was noted he had decreased range of motion in his spine and some tenderness. Plaintiff had another follow up in June, with the notes indicating he was unsuccessful in obtaining disability so he was returning to work. His range of motion in his neck was noted as okay. Plaintiff was seen several more times in 2003 for sinus problems.

In January 2004, plaintiff was seen again for sinus congestion and arm injury. Examination of his arm revealed less muscle strength, noted at perhaps 4/5, especially with the flexion maneuver. The assessment was probable rupture of bicipital aponeurosis ligament. (CAR 263). Plaintiff was again seen several times in 2004 for sinus issues. In May (presumably of 2004) Dr. Allen authored an assessment relating to plaintiff's recovery from surgery to repair his tendon. Dr Allen stated:

Mr. Bremer underwent repair of a ruptured right biceps tendon 3/15/04. His original injury was Dec. 19, 2003. Because of the delay in treatment, he required a donor tendon for repair. He will need until approximately Jan. 15, 2005 for proper rehabilitation. I don't expect gainful employment as a laborer until after that time." (CAR 249).

In May 2006, plaintiff was seen in the emergency room twice for swelling of the face and voice change as well as swollen lip, thought to be an allergic reaction. It was noted that plaintiff takes no medication except Motrin/ibuprofen periodically. In October 2006, he was seen in the emergency room again for hand laceration following a fall. It was noted he had a tendon laceration and was referred to orthopedist. He then underwent surgery for repair of the right hand, with a diagnosis of flexor tendon laceration. Also in October, as part of the pre-op overview, a chest x-ray found plaintiff had chronic obstructive pulmonary disease. (CAR 217).

Plaintiff continued to be seen for sinus issues in 2007. In May 2007, plaintiff was seen for sinus issues and pain. It was noted he had a history of chronic back pain, DJD, hepatitis C, asthma and chronic sinusitis. Plaintiff reported headaches secondary to chronic sinusitis for which he requested pain medication. He also reported pain in his body, including his feet andhands, which he thought was caused by the hepatitis C. Upon examination, his range of motion in the lumbar spine was somewhat decreased with flexion and extension because of the pain, he had minimal tenderness in the upper and lower spinal region, his deep tendon reflexes were normal, he had no difficulty getting on or off the examination table, and his gait was normal. Plaintiff was offered a prescription for Vicodin, but he refused to sign a pain management contract and baseline urine drug test. He left the office without the prescription. (CAR 257). In June 2007, plaintiff had a sinus CT. In July, he was seen for inflamation in both legs. In October, he was seen for an allergic reaction. In November 2007, it was determined that his allergic reaction was recurring angioedema likely caused from nonsteroidal anti-inflammatory drugs which were discontinued. He was given a prescription for Tylenol and Vicodin. (CAR 254).

Plaintiff had a follow up visit in January 2008 for a refill on his Vicodin and intestinal pain.

B. Consultative Examination Records

Internal Medicine Evaluation (Dr. J. O'Brien)

Plaintiff submitted to a medical evaluation on February 7, 2006. Plaintiff reported his chief complaints included: 1) Low back pain; 2) Neck symptoms; 3) Bilateral shoulder problems; 4) Knee problem; and 5) Hepatitis C. His only medication at that time was ibuprofen. He reported constant pain in the lumbosacral area, which worsens with lifting and doing any work. As to his neck, he reported difficulty in looking up or down at times. He reported soreness in his shoulders, with a constant aching pain and decreased range of motion. This improves with ibuprofen. He reported that his knees will bother him if he has a job involving kneeling. Finally, he reported the hepatitis C makes him tired and weak, with occasional nausea, but he has not had any treatment for this. As for his daily activities, he reported an ability to work for only three to four hours per day, and decreased strength. He reported doing some cooking, housekeeping, and shopping, but that his mother does most of that. He stated he takes care of his mother's property and does repairs as needed.

Upon examination, the consultative examiner (CE) Dr. O'Brien noted plaintiff had no guarding with moving about, no difficulty walking, sitting, getting onto...

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