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Baumgartner v. Berryhill

United States District Court, D. Nevada

July 31, 2017

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.


          GEORGE FOLEY, JR. United States Magistrate Judge.

         This matter is before the Court on Plaintiff David Baumgartner's Complaint for Review of Final Decision of the Commissioner of Social Security (ECF No. 1), filed October 6, 2015. The Acting Commissioner filed her Answer (ECF No. 7) on January 11, 2016, as was a certified copy of the Administrative Record (the “A.R.”). (See ECF No. 8). Plaintiff filed his Motion for Reversal and/or Remand (ECF No. 15) on April 11, 2016. The Acting Commissioner filed her Cross-Motion to Affirm and Opposition to Plaintiff's Motion for Reversal and/or Remand (ECF No. 21) on June 30, 2016. Plaintiff filed a Reply (ECF No. 22) on July 20, 2016. Pursuant to the written consent of the parties, on July 7, 2017 this case was referred to the undersigned United States Magistrate Judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Reference Order (ECF No. 23).


         A. Procedural History.

         In January 2006, Plaintiff was found disabled as of September 16, 2005. AR 73, 84. On June 30, 2011, however, Plaintiff was found to be no longer disabled as of June 1, 2011. AR 75-76. Plaintiff appealed the Social Security Administration's (“SSA”) determination that he was no longer disabled on September 6, 2011. AR 77. On May 31, 2012, a Disability Hearing Officer denied Plaintiff's appeal finding that he was able to return to work and affirmed the June 2011 cessation of benefits. AR 78. Thereafter, Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”). AR 90. Plaintiff appeared and testified at a hearing on August 14, 2013. AR 42-62. Vocational expert Bernard Preston also testified at the hearing. The ALJ determined that Plaintiff was not disabled from the date of cessation of benefits-June 2011. AR 17-27. Plaintiff appealed the decision of the ALJ to the Appeals Council on April 9, 2014. AR 9-13. The Appeals Council denied Plaintiff's request for review on August 7, 2015. AR 3-8. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

         B. Factual Background.

         Plaintiff David Baumgartner was born on March 31, 1980. AR 183. He is 5'10" tall and weighed 165 pounds in July 2010. AR 167. Plaintiff obtained his GED when he was 16 and was three months away from obtaining his Associates Degree in Culinary Arts at the time of the May 2005 incident. AR 47. Plaintiff is married and has a daughter who was five years old at the time of the August 14, 2013 hearing. AR 47-48.

         1. Plaintiff's Disability/Work History Reports and Hearing Testimony

         Plaintiff submitted a continuing disability report on July 20, 2010. He listed the following as his disabling illnesses, injuries or conditions: left eye damage, light sensitivity, occipital neuralgia, spinal injury at ¶ 6-C7 that affects his ability to use his arms and stand for extended periods of time, a brain tumor (pituitary macroadenoma), and post traumatic stress disorder from an incident in May 2005. AR 168. Plaintiff claimed that his spinal injury had worsened since the date of his last medical disability decision and that he needed surgery. Plaintiff was seen by Drs. Garber and Kaplan for his spinal injury and brain tumor and took the following medication: fentanyl patch, provingil, roxicodene, fleceril, and compazine. AR 169, 172. Plaintiff stated that during a typical day he would wake up, take a shower, bathe and feed his daughter. If it was not too bright out and if he felt alright, he would take his daughter to the park for about an hour. AR 177. Plaintiff usually spent his days at home in pain due to his pounding headaches, constant nerve pain and nausea. Plaintiff reported difficulty dressing, bathing, caring for his hair, doing chores, driving, shopping, walking, standing, lifting objects, using his arms, sitting, seeing, concentrating, remembering and getting along with people. AR 178-179. He did not have difficulty understanding/following directions or completing tasks. AR 179.

         Plaintiff submitted a second disability report on September 6, 2011. Plaintiff reported that he had spinal surgery on April 1, 2010 that did not decrease his back pain. AR 187. He also stated that all of his other conditions had not improved, and he now had new injuries to report. AR 187-188. Since his last report, Plaintiff visited Dr. Lanskowski at Centennial Pain and Spine center for pain management and nerve blocks. AR 188. He also saw Dr. Kaplan at Western Regional Center to address his spinal injury and brain tumor. AR 189. Plaintiff was taking fentanyl, oxycodone, provingil, prochlorperazine and flexiril. AR 190. Due to his left eye sensitivity and the resulting nausea, Plaintiff could not eat during the day. AR 191. He could not concentrate or perform every day chores due to nerve pain. Plaintiff stated that his medications made him nauseous, constipated and miserable. AR 191. Since his last disability report, Plaintiff had trouble sleeping and waking, had trouble eating, and his severe headaches made it difficult to complete daily tasks. AR 192.

         Plaintiff completed a third disability report on July 9, 2012. An MRI taken after Plaintiff's last report showed an increased growth of his pituitary tumor. Plaintiff had increased irritability, increased panic attacks and decreased cognitive abilities. AR 202. Plaintiff reported that his spine was deteriorating due to pain injections following his April 2010 surgery. AR 203. He had seen Dr. Jeremy Lipshutz for monthly pain management as well as Dr. Jonathan McKinnon for nerve induction testing. AR 203-204. Plaintiff reported taking fentanyl, oxycodene, flexiril, provingil, ativan and compazine. AR 205. Plaintiff reiterated that he was light sensitive and could not eat because of nausea. AR 206. He also reported not being able to socialize or sleep and had panic attacks when in a group setting. He generally had difficulty with simple daily living tasks and would isolate himself. AR 206-207.

         In a fourth disability report dated August 1, 2012, Plaintiff reported that his conditions had not improved but had worsened. He still suffered from panic attacks as a result of post traumatic stress disorder, headaches, nausea, light sensitivity and a pituitary tumor. AR 210. He had seen Dr. Jeremy Lipschutz for pain management, headaches and nerve blocks and visited Western Regional Brain and Spine to address his spine pain and brain tumor. AR 211-212. Plaintiff reported taking fentanyl, roxicodene, provingil, compazine and flexiril. AR 213. Plaintiff could not eat due to nausea and could not sleep or concentrate. AR 214.

         Plaintiff testified at a hearing before the ALJ on August 14, 2013. AR 47-58. He stated that he obtained his GED when he was 16 and was three months away from obtaining his associates degree in culinary arts when the incident occurred in May 2005. AR 47. After the May 2005 incident, Plaintiff spent most of his time on the couch or in bed until the doctors found a medication to help him. In addition, Plaintiff's wife gave birth to his child, who was 5 years old at the time of the hearing. AR 47. Plaintiff testified that he had taken care of his daughter since she was born with the assistance of his wife and mother. AR 48. Plaintiff still had a driver's license but stated that he did not drive often because he became too nauseous from the medication and the light during the day was too bright for him. His wife usually drove. AR 48. Plaintiff testified that he did not do much cooking or cleaning. Nor did he often go to the grocery store. AR 49. He had difficulty lifting, moving and pushing a shopping cart. He could lift 20 pounds but not very often. He mainly just lifted the groceries from the car to the house to help his wife. AR 49. Plaintiff also testified that his medications caused a lot of side effects. His nausea was worse and it caused lower intestinal problems such as constipation and diarrhea. AR 49.

         Upon examination by his attorney, Plaintiff testified that he had trouble reading because of the incident where he was stabbed in the eye. Specifically, he could not track from sentence to sentence. AR 50. Plaintiff stated that the doctors in 2012 were unable to place a neural stimulator in his brain because of a pituitary tumor and the positioning of his nerves. AR 51. However, at the time of the hearing (August 2013), Plaintiff testified that the doctors believed they could place a neural stimulator because the FDA had approved a new type that would be compatible with Plaintiff's condition. Plaintiff suffered from continual headaches that originated in his occipital nerve, known as occipital neuralgia. AR 51. Plaintiff also testified that he suffered from panic attacks in his sleep because of the May 2005 incident. Plaintiff testified that all of his conditions had worsened from the last disability finding. AR 52.

         Plaintiff testified that his mother would come over to help take care of his daughter if there was an emergency or when he was unable to get out of bed. AR 52-53. Plaintiff's mother also cared for his daughter every Friday. AR 53. Plaintiff regularly napped when his wife returned home from work. He had difficultly taking a bath or shower, and his wife helped him trim his beard. AR 53-54. Plaintiff testified that his medication dosages increased due to an increase in pain and that he experienced panic attacks ranging from twice a month to once a week or more. AR 54. During a panic attack, Plaintiff would awake from sleep with a “burning feeling in [his] chest and acid into [his]lungs.” AR 55. He would then have a hard time breathing and would end up vomiting. This lasted anywhere between five to 10 minutes. AR 55. Plaintiff also testified that his medication helped him stay alert but he still had memory problems, especially with his short-term memory. His memory problems had also intensified over the prior two years. AR 56.

         2. Vocational Expert's Testimony

         Vocational Expert (“VE”) Bernard Preston testified at the August 14, 2013 hearing. After establishing Plaintiff's prior work history as a chef (medium work) and short order cook (light work), AR 59, the ALJ asked the VE the following hypothetical question:

[L]et's assume you had a hypothetical man who was a younger individual with a pituitary adenoma, decreased vision in the left eye, was post cervical spine laminectomy syndrome with a history of migraines, and cervical genic headaches. And if we were to assume these impairments would result in limiting that hypothetical man to light work as defined by the DOT and the Social Security regulations with climbing of stairs or ramps limited to frequent. No climbing of ladders, ropes, or scaffolds. Frequent balancing, stooping, kneeling, crouching, no crawling. Occasional overhead reaching and no exposure to hazards such as heights or dangerous moving machinery. Well, if those were the limitations would that hypothetical man be able to do any of Mr. Baumgartner's past work?

AR 59.

         The VE responded that the hypothetical man would be able to work as a short order cook, but the chef position would be eliminated. AR 59-60. The ALJ then asked if the hypothetical man would be able to perform any other jobs that exist in the national economy. The VE stated that the hypothetical man would be able to perform the following jobs: usher (light work, 86, 527 jobs nationally), locker room attendant (light work, 21, 347 jobs nationally), and furniture rental clerk (light work, 112, 759 jobs nationally). AR 60. The ALJ also asked if the ...

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