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Sarkovitz v. Colvin

United States District Court, D. Arizona

January 31, 2014

Richard P. Sarkovitz, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

Plaintiff, Richard P. Sarkovitz, filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73, having received the written consent of both parties.

I. PROCEDURAL HISTORY

Plaintiff filed an application for Disability Insurance Benefits ("DIB") on January 29, 2008 alleging an onset of disability beginning August 9, 2006 due to back pain, high blood pressure, tailbone, shoulder and neck pain, and spine and lower back problems. Transcript/Administrative Record ("Tr.") 154-157, 190. The application was denied initially and on reconsideration. Tr. 86-89, 91-93. A hearing before an Administrative Law Judge ("ALJ") was held on October 28, 2009. Tr. 46-69. The ALJ issued a decision on April 1, 2010, finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 31-42. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 6-8.

Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1) After considering the record before the Court and the parties' briefing of the issues, the Court affirms Defendant's decision.

II. THE RECORD ON APPEAL

A. Plaintiff's Background and Statements in the Record

Plaintiff was sixty (60) years old at the time of the ALJ's decision with a high school degree and past relevant work as a streetcar driver and as a long-haul driver. Tr. 51, 54, 173, 177-180, 196.

Plaintiff testified at his hearing before the ALJ on October 28, 2009, that he left his job as a streetcar driver because "I couldn't stay on my feet for 12 hours a day." Tr. 54. He states he is unable to work because of his heart condition and arthritis. Tr. 54. His rheumatologist informed him that the only thing he could do to control the pain caused by the condition was to take medications, and "meds just screwed up my system. I couldn't take them." Tr. 55. The arthritis affects his tailbone and "pretty much eliminates sitting." Tr. 57. Plaintiff also testified that he had heart surgery a couple of weeks before the hearing. Tr. 55. His heart condition caused dizziness, blackout spells and passing out. Tr. 56-57.

Plaintiff stated he could only sit for about an hour, and stand for 45 minutes to an hour, and gets winded and has to sit down when he walks for three blocks. Tr. 57-58. Pain in his shoulder prevents him from lifting even a gallon jug out of the refrigerator. Tr. 58.

Plaintiff testified that he takes Flexeril for pain, Plavix, a blood thinner, for his heart condition, Coreg, enalapril maleate, and Xanax for anxiety. Tr. 59-60. Although prescribed, Plaintiff doesn't take Indorin because it upsets his stomach and causes constipation. Tr. 60.

In a typical day, Plaintiff takes 15 minutes to get out of bed, goes shopping with his mother once a week though "[l]ots of times I'll have to stay in the vehicle because I can't walk around." Tr. 61 On days that he doesn't shop, he lays down in bed or in a recliner instead. Tr. 64-65. After shopping, he takes a nap from lunchtime to 4:00 in the afternoon, then wakes up to have dinner, watches television until 10:00 p.m., then sleeps. Tr. 61. He does some housework, but his mother stops him when she sees that he is in pain. Tr. 61.

A vocational expert ("VE") testified that his past relevant work as a forklift operator was medium exertion work, and very low semiskilled - unskilled; as a long-haul truck driver was medium exertion level and semiskilled; and as a street car operator was light exertion, very low semiskilled - unskilled. The VE testified that if Plaintiff was restricted to medium work with occasional bending and stooping, avoiding repetitive overhead work with the right arm, he could still perform all of his past relevant work. Tr. 67. If Plaintiff were restricted to light work, he would still be able to perform the work of a streetcar operator, but not as a truck driver or forklift ...


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