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Lisle A. Wishart v. Michael J. Astrue

August 21, 2012


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Lisle A. Wishart Jr., moves for reversal of the Commissioner of Social Security's decision denying his application for disability insurance benefits under Title II of the Social Security Act (SSA) for the time period between May 30, 2006, and June 30, 2007. The Commissioner opposes this motion. The court affirms.


On November 24, 2006, Wishart filed a claim for Disability Insurance Benefits under Title II of the SSA, and alleged a disability onset date of May 30, 2006. AR 150.*fn1 The Social Security Administration initially denied this claim on February 14, 2007, and again upon reconsideration on May 7, 2007. AR 82, 87. On July 10, 2007, Wishart requested a hearing before an Administrative Law Judge (ALJ). AR 89. On September 25, 2008, the ALJ held a hearing on Wishart's claim. AR 366-411. On December 30, 2008, the ALJ determined that Wishart was not disabled at any time between May 30, 2006, and June 30, 2007 (the date last insured). AR 64-78.

On July 27, 2009, the Appeals Council reviewed the December 30, 2008, ALJ decision and remanded Wishart's claim back to the ALJ for further administrative proceedings. AR 79-81. The Appeals Council directed the ALJ to obtain further medical evidence, reconsider the treating physician's opinion, reevaluate Wishart's subjective complaints of pain, and consider consulting a vocational expert. AR 81. On December 17, 2009, the ALJ held another hearing. AR 34. Tom Audet, a vocational expert, testified at this hearing. AR

34. On January 20, 2010, the ALJ again found that Wishart was not disabled during the period of May 30, 2006, through June 30, 2007. AR 20.

On January 7, 2011, Wishart filed a timely request with the Appeals Council to review the ALJ's January 20, 2010, decision. AR 5. The Appeals Council denied this request on April 7, 2011. AR 1. Thus, the unfavorable January 20, 2010, decision became the Commissioner's final decision. AR 1. On June 6, 2011, Wishart filed a timely civil action in this court, alleging that the Appeals Council's decision was erroneous. Docket 2.


Born on December 12, 1952, in Los Angeles, California, Lisle Arthur Wishart Jr., was 53 on his alleged disability onset date and 54 on his date last insured. AR 5, 41. Wishart obtained approximately 13 years of education, and graduated from high school in 1972. AR 42, 200. Wishart did not attend special education classes. AR 200. Wishart went to a junior college and received a certificate in computer training in 1980. AR 293. Wishart subsequently attended a national training institute for computer networking. AR 293. At one point, Wishart also had a real estate license, although this license has not been maintained. AR 42.

Wishart's work history and longitudinal earnings record are varied. Between 1969 and 2006, Wishart worked as a telemarketer, hardware salesman, computer support analyst, computer technician, food delivery driver, newspaper delivery driver, and real estate agent. AR 203, 206, 263. Wishart earned no recorded income during six of these years and earned $7 in 1969. AR 160.

Wishart worked for Schwan's Home Services as a delivery driver from December 15, 2005, until May 30, 2006, his alleged onset date. AR 203. In an April 9, 2007, letter to the Social Security Administration, Wishart explained that during the last week of his employment with Schwan's "[his] pain had progressed to the point [he] was hobbling and stumbling as [he] attempted to walk from door to door doing [his] sales work." AR 232. Wishart stopped showing up for work in May 2006, and Schwan's terminated his employment. AR 386, 390-91.

I. Esophageal and Back Problems Wishart had an esophageal problem when he was a child. AR 294.

Wishart was hospitalized multiple times and underwent dilation procedures in an effort to combat this esophageal problem. AR 294, 307. Wishart has identified his esophageal problem as "achalasia."*fn2 AR 339. The relevant medical records suggest that Wishart's history of esophageal complications exposes him to a greater risk of esophageal cancer. AR 304. Aside from this, however, Wishart's achalasia does not bring forth any considerable difficulties or complications, except for "mild" dysphagia.*fn3 AR 307.

Wishart underwent a laminectomy*fn4 at L5-S1 due to a ruptured disc*fn5 when Wishart was 22 years old. AR 286. In 2003, Wishart reported that he occasionally has back pain and cannot do "stoop labor." AR 294.

II. Psychological Disorders

In 2003, Wishart's vocational rehabilitation counselor, Gail Nagelhout,

referred Wishart to Michael J. McGrath, Ph.D., a licensed psychologist. AR 291. After a psychological evaluation on June 14, 2003, Dr. McGrath opined that Wishart had a reading disorder,*fn6 a mathematics disorder, an expressive writing disorder, a depressive disorder,*fn7 avoidant personality features, and psychological and environmental stress. AR 298. Wishart's intellectual metrics, VIQ (119), PIQ (92), and FSIQ (108), suggested learning disabilities in the areas of reading, expressive writing, and mathematics. AR 296-97. Consistent with the avoidant personality features assessment, Wishart identified his wife as his only friend, but later indicated that he might have one friend from church. AR 293. Dr. McGrath concluded that Wishart should avoid work that requires one to be socially facile, possess social confidence, or interact with others. AR 298. Further, Dr. McGrath recommended that Wishart pursue work with "less physical requirements to it." AR 298.

In a February 13, 2007, Psychiatric Review Technique Form, Dr. Richard Gunn found that Wishart had medically determinable mathematics and reading disorders (organic mental disorders), as well as avoidant personality disorder. AR 265-72. Ultimately, Dr. Gunn found that these disorders were not severe.*fn8 AR 265; 277. Dr. Gunn opined that "[Wishart's] ability to perform normal job related tasks prior to his Date Last Insured, from a psychological standpoint, would not have been severely limited." AR 277. Dr. Doug Soule, Ph.D., D.D.S., certified these findings and conclusions.*fn9 AR 280.

III. Fibromyalgia with Chronic Fatigue Syndrome and Rib Tip Syndrome

Wishart was diagnosed with fibromyalgia*fn10 in his early thirties, after seeking medical attention for various aches and pains. AR 286. In February of 1998, Dr. Jarstad referred Wishart to L. Ray Bryant, M.D., a rheumatologist at the Great Plains Clinic. AR 286. Wishart first saw Dr. Bryant on February 12, 1998, and Dr. Bryant's impression was that Wishart was "[a] 45-year-old male with diffuse musculoskeletal pain, sleep disturbance, and multiple tender points on exam compatible with fibromyalgia." AR 286-87. More specifically, Dr. Bryant found that 16 out of 18 tender points were present on a tender point test.*fn11 AR 287. Wishart's then-prevailing medication regimen consisted of Darvocet-N 100*fn12 (3-4 times a day), ...

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