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Belke v. Colvin

United States District Court, D. Arizona

September 24, 2014

David Paul Belke, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Plaintiff's Opening Brief (Doc. 23). Defendant filed her response (Doc. 24), and Plaintiff replied (Doc. 25). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge has received the written consent of both parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure.


A. Procedural History

On August 5, 2010, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") alleging disability as of June 29, 2010 due to high blood pressure, atrial fibrillation, tachycardia, diabetes mellitus, colitis and hand tremors.[1] See Administrative Record ("AR") at 23, 55, 62-66, 72-75, 129, 136, 149, 172, 174, 177, 193, 199-201, 232-35. The Social Security Administration ("SSA") denied this application on January 10, 2011. Id. at 71, 79. On February 22, 2011, Plaintiff filed a request for reconsideration, and on May 23, 2011, SSA denied Plaintiff's request. Id. at 83-88. On July 14, 2011, Plaintiff filed his request for hearing. Id. at 89. On March 1, 2012, a hearing was held before Administrative Law Judge ("ALJ") Laura Speck Havens. Id. at 52. The ALJ issued an unfavorable decision on April 11, 2012. AR at 20-48. Plaintiff requested review of the ALJ's decision by the Appeals Council, and on March 18, 2013, review was denied. Id. at 1-6, 17-19. On May 16, 2013, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was sixty-one (61) years old at the time of the administrative hearing, and fifty-nine (59) at the time of the alleged onset of his disability. AR at 56, 23, 72, 129, 136, 149, 193, 232. Plaintiff possesses a Bachelor of Arts degree in chemistry from Monmouth College and a Bachelor of Science degree in medical technology. Id. at 56. Prior to his alleged disability, Plaintiff worked as a medical technologist. Id. at 56, 66, 154, 159-60. On May 29, 2010, Plaintiff retired at the age of fifty-nine and a half (59 ½) as an alleged result of his disability. Id. at 56-57.

At the administrative hearing, Plaintiff testified that he currently lives alone in a single family home. Id. at 58. Plaintiff further testified that he is able to do basic chores around the house and of daily living. AR at 58-60. Plaintiff testified that he does not garden or do yard work. Id. at 59. Plaintiff testified that his friend Leonard comes over once or twice a month to help him with tasks that Plaintiff cannot manage alone, including yard work or other activities that require significant physical effort. Id. at 59, 67. Plaintiff further testified that he reads and watches television, and does not exercise. Id. at 60. Plaintiff also testified that he although he has a driver's license, he cannot travel out of town. Id. at 60-61.

Plaintiff testified that he had lost approximately a hundred pounds in a little over a year due to poor appetite, but he has been able to gain five (5) to ten (10) pounds back. AR at 61. Plaintiff confirmed his medications including Digoxin for atrial fibrillation, Nadolol for tachycardia, Metformin for diabetes, Simvastatin for high cholesterol, and Omeprazole for Gastroesophageal Reflux Disease ("GERD"). Id. at 62. Plaintiff further testified that his blood sugar is currently controlled, but he does have occasional postural hypotension which can result in convulsions. Id. at 63. Plaintiff testified that he can walk for approximately fifteen (15) minutes while vacuuming and sit for about an hour. Id. Plaintiff further testified that he can lift a maximum of forty (40) pounds "because that's the weight of my dog's dog food and I have to bring that in so I do it in small increments." Id. Plaintiff explained that he moves it approximately ten (10) feet at a time and then rests. AR at 65. Plaintiff also testified that although his heart condition is controlled, if he has "either physical or psychological stress, [he] get[s] the arrhythmia back." Id. at 64. Plaintiff testified that he cannot take more medication because his blood pressure is already so low, so he has "to rest to bring the rhythm back to normal." Id. Plaintiff further testified that he stops, lays down and relaxes with deep breathing to control the arrhythmia. Id. at 66.

Plaintiff testified that the hand tremors are predominantly in his right hand. Id. Plaintiff further testified that the tremors were causing him increasing difficulty at work prior to retirement, because as a medical technologist fine manipulations were required. AR at 66. Plaintiff testified that his job required him to lift a twenty (20) liter box, which weighed approximately forty (40) pounds. Id. at 67. Plaintiff further testified that although he was able to perform this task some days, on others he would have coworkers do it for him, and on yet other days he would attempt to lift the box and become lightheaded and black out. Id. Plaintiff testified that he lays down and rests at least two or three times a day, and does not believe that he could work a forty (40) hour per week job at this point. Id. at 68.

Prior to the hearing, Plaintiff described his work as a medical technologist as analyzing "blood and other body fluids in a medical setting[.]" AR at 154, 160. Plaintiff further stated that this job involved the use of machines, tools or equipment; used technical knowledge or skills; and involved writing, completing reports or other similar duties. Id. at 154, 160. Plaintiff stated that the job entailed walking for two (2) hours, standing for three (3) hours, sitting for four (4) hours, stooping (bending down and forward at the waist) for one (1) hour, kneeling (bending legs to rest on knees) for one (1) hour, crouching (bending legs and back down and forward) for one (1) hour, handling large objects for one (1) hour, writing, typing or handling small objects for four (4) hours and reaching for four (4) hours. Id. at 155, 160. Plaintiff further indicated that the job did not entail any climbing or crawling. Id. at 155, 160. Plaintiff stated that he had to lift liquid containers. Id. at 155, 160. The heaviest weight lifted is noted as twenty (20) pounds, and that Plaintiff frequently lifted twenty-five (25) pounds.[2] Id. at 155, 160. Plaintiff described his position as a lead worker, but he did not supervise other people. Id. at 155, 160.

Ms. Ruth Van Vleet testified as the vocational expert at the administrative hearing. Id. at 68. Ms. Van Vleet testified that she classified Plaintiff's previous employment as light, skilled work, recognizing that Plaintiff reported that it was "somewhere between light to medium on occasion." AR at 68. Ms. Van Vleet further testified that "if [Plaintiff] used keyboard, computers[;] I'm sure he dealt with other people so that would lend itself to doing a sending [sic] semi-skilled job such as a customer service rep." Id. at 68-69. Ms. Van Vleet testified that the Dictionary of Occupational Titles (" DOT ") number for a customer service representative is 299.357-014.[3] Id. at 69. Ms. Van Vleet further testified that this job is sedentary, semi-skilled, with 348, 626 jobs nationally and 12, 836 in Arizona. Id. Ms. Van Vleet further testified "[t]hat's the only job I could think of that someone with that skill set could do." Id. Mes. Van Vleet also testified that the customer service representative position has a specific vocational preparation ("SVP") of three (3). AR at 69. When asked by the ALJ what skills are transferable "from the medical technician to this customer service rep[, ]" Ms. Van Vleet testified that "the only thing [she] could think of is that [Plaintiff's] got the basic computer skills." Id. Ms. Van Vleet further testified that Plaintiff "probably dealt with the public on occasion and other staff members. Typically when you see somebody who can't return to the type of job he did, you see them working into doing teaching at a tech school or junior college but those start out on a per diem basis." Id. Ms. Van Vleet also testified that a customer service representative position would not allow for breaks to lay down during the day. Id. at 69-70.

On May 27, 2009, Plaintiff was seen by Steven D. Vig, M.D. for a "fast irregular heart rate for two weeks." AR at 210. Plaintiff's heart rate was noted at 130 to 140 beats per minute, tachycardia, and atrial fibrillation present on the electrocardiogram ("EKG") performed. Id. at 210-11. Plaintiff was given Digoxin and Warfarin, as well as a prescription for the same, and referred to cardiology for a consult. Id.

On June 8, 2009, Plaintiff was seen by Lionel Faitelson, M.C., F.A.C.C. "for assessment of atrial fibrillation." AR at 215-16, 222-23. Dr. Faitelson's impression indicated paroxysmal atrial fibrillation, with a recent persistent atrial fibrillation that appeared to have resolved to normal. Id. at 215, 22. Dr. Faitelson confirmed Plaintiff was to continue his current management, and return for an "echocardiogram and IV adenosine thallium scan to exclude occult coronary disease." Id. Dr. Faitelson "would consider adding sotalol 80 mg p.o. b.i.d. for suppression of paroxysms of atrial fibrillation[.]" Id. On June 16, 2009, Plaintiff underwent a Regadenoson Spect Myocardial Perfusion Scan. Id. at 219. "Both the stress and rest images of the left ventricle myocardium show[ed] a normal pattern of radiotracer activity." AR at 219. Further, "[t]he left ventricle size [was] normal relative to patient stature although the walls appear somewhat thickened[, ] [r]egional wall motion [was] normal[, ] [and] [i]n the SPECT images of the chest, extracardiac tracer uptake appear[ed] normal." Id. On June 19, 2009, Plaintiff followed up with Dr. Faitelson. Id. at 217-18. Plaintiff's echocardiogram showed "preserved [left ventricular] ejection fraction with borderline [left ventricular] diastolic dysfunction[, ]" but was otherwise normal. AR at 217. Dr. Faitelson's impressions included paroxysmal atrial fibrillation, borderline systolic hypertension, borderline left ventricular diastolic dysfunction, and nonspecifically abnormal ST-T wave changed on EKG. Id. Dr. Faitelson recommended switching from Coumadin to aspirin, and continue Plaintiff's current regimen without further changes.

On February 9, 2010, Plaintiff was evaluated by David D. Neal, M.D., FA.C.S. for an infected sebaceous cyst on his right lower back. Id. at 214.

Pursuant to a request by the Commissioner, Brian Helmly, M.D. reviewed Plaintiff's medical records and examined Plaintiff on November 6, 2010. Id. at 225-31. Plaintiff "present[ed] with a history of atrial fibrillation complaining of fatigue." AR at 225. Plaintiff further reported "the fatigue began after being placed on medication for atrial fibrillation." Id. Plaintiff stated that his atrial fibrillation is well controlled with medication and that he performs activities of daily living, but experiences fatigue with strenuous activity. Id. Plaintiff reported being able to sit for one (1) hour and stand for twenty-five (25) minutes. Id. Dr. Helmly found Plaintiff has Paroxysmal Atrial Fibrillation, which is well controlled with medication; fatigue likely secondary to medication and recommended correlation with thyroid-stimulating hormone; and orthostatic hypotension intermittently, likely secondary to medication. AR at 227. Dr. Helmly noted a normal active range of motion in Plaintiff's neck, back, sitting and supine straight leg raising, shoulder, elbow and forearm, wrist, hip, knee, ankle and foot. Id. at 228-29. Dr. Helmly also noted normal active range of motion in Plaintiff's hands and fingers, with normal grip and pinch in both left and right hands. Id. at 229-30. Dr. Helmly noted normal strength ...

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