Galligan v. Barnhart
REPORT AND RECOMMENDATION re 14 MOTION for Summary Judgment, 20 MOTION for Summary Judgment : Recommending that granting 14, denying 20; written objections due w/in 10 days, using 06cv657-TUC-FRZ. Signed by Magistrate Judge Hector C Estrada on 5/29/09. (KMF, )
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Isabel S. Galligan, Plaintiff, vs. Michael J. Astrue, Commissioner of Social Security, Defendant.
) No. CV 06-657-TUC-FRZ (HCE) ) ) REPORT & RECOMMENDATION ) ) ) ) ) ) ) ) )
Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). This matter was referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to the Rules of Practice of this Court. On July 18, 2007, Plaintiff filed a Motion for Summary Judgment (Doc. No. 14) (hereinafter "Plaintiff's MSJ"). Thereafter, Defendant filed a Cross-Motion for Summary Judgment (Doc. No. 20) (hereinafter "Defendant's XMSJ"). For the following reasons, the Magistrate Judge recommends that the District Court grant in part Plaintiff's MSJ and deny Defendant's XMSJ. I. PROCEDURAL HISTORY On June 16, 2004, Plaintiff submitted to the Social Security Administration (hereinafter "SSA") an application for disability insurance benefits under Title II and Title
XVIII of the Social Security Act alleging inability to work since December 23, 2001 due to "problems with knees, lower back and hands; blind in right eye; high blood pressure; arthritis; depression." (TR. 80-82, 127). Plaintiff's application was denied initially and on reconsideration. (TR. 54-57, 59, 62-65). Plaintiff then requested a hearing before an administrative law judge and the matter was heard on November 8, 2005 by ALJ Frederick J. Graf (hereinafter "the ALJ"). (TR. 53, 523). Plaintiff, represented by counsel, testified before the ALJ.1 (TR. 523-531). On January 25, 2006, the ALJ denied Plaintiff's claim. (TR. 22-35). On October 27, 2006, the Appeals Council denied Plaintiff's request for review thereby rendering the ALJ's January 25, 2006 decision the final decision of the Commissioner. (TR.5-8, 16). Plaintiff then initiated the instant action. II. THE RECORD ON APPEAL A. Plaintiff's general background and Plaintiff's statements in the record
Plaintiff was born on December 10, 1953 and was 51 years old on the date the ALJ issued his decision. (TR.80). Plaintiff is divorced and, at the time of the hearing, lived with her mother who was then 91 years of age. (TR. 80, 527). Plaintiff has three children who, at the time of the hearing, were ages 30, 28, and 26. (TR. 527). Plaintiff completed high school. (TR. 133). She has had no vocational training and did not attend college. (Id.). Plaintiff's work history includes employment as: a cashier in the retail field from September 2001 through December 2001; a "floor person to [assistant] manager" in the retail field from September 1999 through August 2000; and an "assembler/supervisor/production manager" for a medical products company from March 1983 through March 1999. (TR. 106, 109, 128). In 2001, when Plaintiff worked as a cashier, she worked 2 to 4 hours per day, 3 days per week. (TR. 109). She was required to
The hearing lasted nine minutes. (TR. 525-530). Plaintiff's counsel declined the opportunity to question Plaintiff. (TR. 530). -2-
walk and/or stand 2 hours each day and she was not required to lift. (Id.). When Plaintiff worked in the retail field from 1999 to 2000, she worked 10 hours per day 5 days per week. (TR. 106, 108). She supervised others and unloaded merchandise. (TR. 108). She was required to walk and/or stand 8 hours each work day, she frequently lifted up to 25 pounds and the heaviest weight she lifted was 50 pounds. (Id.). She was required to kneel, crouch, handle, grab, grasp, reach, write, type and handle small objects. (Id.). As an
"assembler/supervisor/production manager", Plaintiff's responsibilities included supervising and training others, setting up inventory, and weighing products. (TR. 107, 128). She worked 8 hours per day 5 days per week and was required to walk 8 or 10 hours and/or stand 7 hours. (Id.). She frequently lifted up to 50 pounds and the heaviest weight lifted was 100 pounds or more. (Id.) She was required to routinely crouch, handle, grab, grasp, reach, write, type and handle small objects. (Id.). Plaintiff testified that she stopped working in 2001 due to "an injury at work, a herniated disc." (TR. 529). When asked by the ALJ why she believed she could not "do any type of work at the present time," Plaintiff responded: "Because I have trouble with my neck, my knees, my back. I have a lot of trouble sleeping, so I sleep a lot during the day and then with the medications that I take." (TR. 529-530). Plaintiff testified that she was five feet three inches tall and weighed approximately 265 pounds. (TR. 528). She smokes about five cigarettes a day. (Id.) Plaintiff experiences "a lot of pain..." in her left knee, lower back, and left foot. (TR. 83). She has muscle spasms in her lower back and up and down her legs. (Id.). Her right knee also hurts but does not hurt as badly as her left knee. (Id.). She has pain in her arms and hands "all the time...", her "eyes are also getting worse" and her left eye hurts and becomes fatigued. (Id.). Her pain feels "[l]ike burning in my bones like if they would be tearing all my ligaments [and] nerves in my legs [and] knees, my hands hurt allot [sic]...I can't use them to[o] much." (Id.). Her left foot swells after fifteen minutes to half an hour
of Plaintiff "getting up and moving around." (Id.). The only time she is not in pain is when she lays down or arises in the morning. (Id.). Plaintiff has taken the following medications: Amitriptyline, Elavil, and Neurontin for fibromyalgia and to help her sleep; Celebrex for back pain; Cyclobenzaprine as a muscle relaxer; Arthrotec for arthritis and inflammation; Prilosec and Protonix for her stomach; Triameter for high blood pressure; Elavil, Celexa and/or Wellbutrin for depression; calcium for osteoarthritis; and Hydrocodone/Apap for pain. (TR. 84, 132, 324, 330, 377). Plaintiff's medications cause "clumsiness, headaches, spasms, cramps, tiredness, fatigue" (TR. 84) and dry mouth. (TR. 132). On a typical day, Plaintiff arises, makes coffee and breakfast, and watches the morning news. (TR. 85; see also TR. 120 (Plaintiff will make breakfast if she feels well enough to do so)). Her pain prevents her from doing chores including laundry. (TR. 85). She will water the indoor plants if she feels "okay..." (Id.). Plaintiff also stated that she is able to do "some cleaning inside but I have to sit down a lot." (TR. 87). She vacuums every other day if she feels good, it takes her 3 to 4 days to clean house and 2 days to do laundry, and she does no yard work. (TR. 122). Everything takes her longer to do. (TR. 87). She is unable to put her tennis shoes on, must sit while in the shower, and had to cut her hair short. (TR. 86). Plaintiff is able to drive, but has not been driving since she had surgery on her right eye four weeks before the hearing. (TR. 88, 528-529). She is unable to drive long distances because her eyes become tired. (TR. 90) She goes grocery shopping once a week. (TR. 88; see also TR. 123 (she goes grocery shopping once every 2 weeks for about one hour or one and one-half hours)). Plaintiff's sister pays all the bills and takes care of handling Plaintiff's savings account and checkbook. (TR. 88, 123 ("I'm not working so I don't..." pay bills, handle savings or checking account or count change)). Plaintiff's hobbies include watching television, playing cards, and sitting outside to watch her grandchildren play. (TR. 89). She can walk up to 10 feet before needing to stop and rest due to leg pain and swollen feet. (TR. 90). She cannot pay attention for long periods and must "write everything in my -4-
appointment book or calendar." (TR. 89; see also TR. 91). Her conditions renders her unable to lift, squat, bend, stand, reach, walk, kneel, stair climb, see, remember, complete tasks, concentrate, understand and use her hands. (TR. 90). In her 2004 Function Report, Plaintiff stated that she uses a brace, splint and reading glasses that were prescribed by a doctor. (TR. 91). She also uses a "cane all the time well [sic] when I walk. Splint at night." (Id.). B. Medical Evidence Before the ALJ 1. Plaintiff's Treating Physicians a. Back, Knee, Foot, and Upper Extremities
The record reflects Plaintiff's statement to health care providers that in 1999, she injured her back, suffering a herniated disc. (TR. 188). On December 13, 2001, Plaintiff saw Mauricio Valencia, M.D., on follow-up for complaints of back pain. (TR. 377). Plaintiff reported that her "back pain is doing a lot better and allergies have been much better controlled." (Id.). At that time, Plaintiff weighed 251 pounds. (Id.). A December 13, 2001 x-ray of Plaintiff's left foot showed plantar fasciitis. (TR. 378). Dr. Valencia's assessment was allergic rhinitis for which he prescribed Zyrtec; "[d]egenerative joint disease, back pain..." for which he continued Plaintiff on Celebrex; "[q]uestionable perimenopause..." for which he scheduled tests and prescribed Premarin and calcium carbonate; gastroesophageal reflux (hereinafter "GERD") for which he continued Plaintiff on Prevacid; and "[h]istory of left plantar fasciitis" for which he referred Plaintiff to a podiatrist. (TR. 377). On January 16, 2002, Plaintiff saw podiatrist Richard Quint, M.D., who assessed left heel spur syndrome. (TR. 149). He noted that Plaintiff had the condition for one year and that Dr. Valencia administered three injections during that time. (Id.). Dr. Quint prescribed oral Indocin therapy, physical therapy, and a "thick, foam, medical grade heel pad. May benefit by use of crutches, night splint...." (Id.).
On January 24, 2002, Plaintiff saw Dr. Valencia for complaints of right knee pain. (TR. 373). A February 13, 2002 x-ray of Plaintiff's right knee showed minor degenerative changes. (TR. 372). A March 4, 2002 Physical Therapy Initial Evaluation completed by Pamela Kane, PT, reflected that injections to Plaintiff's left heel resulted in decreased pain for one month with the return of pain thereafter. (TR. 198). Plaintiff was unable to climb stairs, squat or kneel secondary to knee pain. (Id.). "She is significantly limited in walking 15 minutes. She is mildly limited in standing 30 minutes, cooking, cleaning, and sleeping." (Id.). Although Plaintiff had help with housework, she "does most of the housework and care needed in the home." (Id.). Plaintiff also reported having a herniated disc in the past and that she still experienced pain radiating into her left leg. (TR. 199). PT Kane's assessment was:
weakness in left lower leg secondary to prior disc problem; severe pain rated at 7 to 8 out of 10 consistently in the left medial heel, decreased ability to stand and walk secondary to pain. (Id.). On March 11, 2002, after four of six authorized visits, Plaintiff was discharged from physical therapy. (TR. 196). Upon discharge, Plaintiff's weakness in the left lower leg secondary to a prior disc problem and her decreased ability to stand and walk secondary to pain remained unchanged. (Id.). Plaintiff's left heel pain decreased to 0 to 1 out of 10 with use of a TENS unit; however, the pain remained rated at 7 to 8 when the TENS unit was not in use. (Id.). She remained "limited in walking 15 minutes." (Id.). On March 14, 2002, Plaintiff saw James Levi, M.D., for complaints of bilateral knee pain. (TR. 422). On physical examination, Plaintiff's patella was stable, there was some mild crepitus in terminal extension and "[m]ild discomfort to palpation along the joint line, both medially and laterally." (Id.). Otherwise, the examination was normal. (Id.). X-rays of Plaintiff's knees were normal. (Id.). Dr. Levi assessed bilateral knee pain. (Id.). He suspected "very early mild D[egenerative] J[oint] D[isease] although her x-rays do not show it nor does her physical examination." (Id.). Dr. Levi pointed out that Plaintiff, who weighed 250 pounds, was over 100 pounds overweight and he explained the impact of excess pressure -6-
on her knee joints with "every step she takes" and told her that she needed to lose 100 pounds. (Id.). On March 15, 2002, Plaintiff presented to Dr. Valencia for a preoperative physical for clearance for foot surgery by Dr. Quint. (TR. 368). Dr. Valencia noted Plaintiff's past medical history of chronic back pain syndrome, "herniated thoracic disk requiring hospitalization in August of 2000...", hypothyroidism, and hyperlipidemia. (Id.). Dr.
Valencia cleared Plaintiff for surgery provided that her laboratory results were normal. (TR. 369). He noted that Plaintiff's history of degenerative joint disease was stable and directed Plaintiff to continue on a diet and exercise program for obesity. (Id.). On March 22, 2002, Dr. Quint performed a left medial band plantar fasciotomy and medial calcaneal neurotomy. (TR. 175). Thereafter, Plaintiff was referred to physical therapy where she reported that prior to developing the condition, she had been without limitations with standing and walking. (TR. 146, 193). In July 2002, Plaintiff complained to Dr. Quint of tenderness in the heel and medial leg area. (TR. 145). Dr. Quint directed her to discontinue Naprosyn, prescribed oral Indocin therapy, and dispensed heel pads. (Id.). He indicated that if Plaintiff did not improve, he would consider referral to a pain management specialist. (Id.). On August 1, 2002, Plaintiff reported to Dr. Valencia that she had developed low back pain shooting down to her left leg. (TR. 363). On examination, Dr. Valencia noted sacral tenderness, tenderness over the sciatic notch, and a positive straight leg test. (Id.). He assessed low back pain with some sciatica. (Id.). He wrote: "Given patient's obesity and prior history of degenerative joint disease, [her complaints were] most probably about a possible herniated disc impingement-type syndrome." (Id.). On August 13, 2002, Plaintiff saw Jon Ostrowski, M.D., regarding left low back pain and numbness in the left lower extremity with pain in that area as well. (TR. 150). Dr. Ostrowski noted that Plaintiff walked with a mild left antalgic gait. (Id.). On physical examination, Dr. Ostrowski found that Plaintiff's muscle strength was 5/5 in the bilateral -7-
lower extremities; she had generalized tenderness to palpation of the left greater than right lumbosacral paraspinal musculature; her lumbar spine range of motion was "pain inhibited in all directions"; and she had no muscle spasm. (Id.). Sensory examination showed " a circumferential mild diminishment of pinprick sensation involving the left lower extremity. The diminishment of sensation does not follow any particular nerve root or peripheral nerve pattern." (Id.). Dr. Ostrowski's impression was: (1) lumbosacral strain injury superimposed on lumbar degenerative arthritis; and (2) left lower extremity numbness. (TR. 150-151). He noted that Plaintiff had complained of numbness in her left leg "since her industrial injury. There was no abnormality seen on the lumbar MRI scan that correlated with this symptom." (Id.). He recommended a nerve conduction study and re-examination in a few months. (Id.). Also on August 13, 2002, Plaintiff was discharged from physical therapy for her left foot after having presented for all authorized visits. (TR. 191-192). Plaintiff had "not report[ed] improvement in symptoms...." (TR. 192). Plaintiff could not tolerate standing or walking for 30 minutes, she had not increased strength of the left ankle musculature to greater than or equal to 4+/5, and she had not increased range of motion of the right ankle with regard to dorsiflexion. (Id.). She had increased range of motion of the right ankle with regard to eversion. (Id.). On August 16, 2002, Plaintiff saw neurologist Robert Foote, M.D., regarding pain in her left buttock area going down her left leg into her calf and Achilles' tendon, and numbness and tingling in that area. (TR. 165). On physical examination, Plaintiff did "not have any definite weakness. Deep tendon reflexes are somewhat hypoactive but symmetrical." (Id.). Sensory examination showed Plaintiff had "mild decreased sensation to pinprick over..." her left foot, vibratory sense and joint position were intact, and straight leg raising caused pain down the back of her leg. (TR. 166). Plaintiff was able to walk on her toes and heels but was unable to flex her spine. (Id.). To rule out lumbar radiculopathy on the left, Dr. Foote ordered a nerve conduction study. (Id.). Such study was normal. (TR. 158; see also TR. 159-164). Dr. Foote also noted that a previous MRI also normal. (TR. 158). Because "there -8-
is no evidence that she has a lumbar radiculopathy", he opined that "this boils down to a pain problem..." and returned her to Dr. Valencia's care. (Id.). On September 30, 2002, Plaintiff reported to Dr. Valencia that her back pain "has improved somewhat..." and she was beginning to walk more. (TR. 358). Dr. Valencia's assessment included morbid obesity and that Plaintiff's chronic back pain and GERD were stable. (Id.). One month later, Plaintiff complained to Dr. Valencia about back pain, especially in the thoracic spine area, resulting from "some lifting...." (TR. 353). On examination of Plaintiff's back, Dr. Valencia noted that Plaintiff had decreased flexion with diffuse spasm, post cervical tenderness in the thoracic spine and some tenderness in the perivertebral musculature with spasm. (Id.). His assessment was chronically elevated liver function test, GERD, back strain for which he prescribed Flexeril and physical therapy, morbid obesity for which Plaintiff was to continue on current diet and exercise, and depression "[s]eemingly improved on Celexa." (TR. 353-354). In November 2002, Plaintiff began physical therapy for back pain. (TR. 188) During the intake evaluation she reported that she had recently received new orthotics which helped her foot and leg pain and she was walking much better. (Id.). Upon discharge in December 2002, Plaintiff reported she was "feeling much better with decreased pain. She is able to sleep, and do laundry with decreased pain. Patient is able to do all of her functional activities with about 3-4/10 intermittent pain symptoms." (TR. 186). Plaintiff also increased range of motion. (Id.). On December 20, 2002, Plaintiff complained of painful joints relating to her hands. (TR. 349). On examination, both wrists were tender and small nodules were present. (TR. 350). Diagnosis included morbid obesity and questioned whether rheumatoid arthritis was at issue. (Id.). A March 28, 2003 x-ray of Plaintiff hands and wrists showed minor degenerative findings. (TR. 348).
On April 8, 2003, Plaintiff complained to Lisa Soltani, M.D., of pain in her knees, ankles, elbows, wrists, clavicles, numbness in her first and third fingers, and night pain.2 (TR. 344) Dr. Soltani assessed chronic pain and questioned whether Plaintiff suffered from degenerative joint disease or fibromyalgia. (TR. 345). Wrist splints were prescribed. (Id.). On May 22, 2003, Plaintiff complained to Dr. Soltani3 of pain and numbness in her hands and diffuse pain. (TR. 341). Plaintiff said that splints helped relieve some of the symptoms in her hands but that the symptoms still persisted. (Id.). She was taking Naprosyn. (Id.). Dr. Soltani's assessment was: (1) probable carpel tunnel syndrome for which she should continue with splints and Naprosyn; and (2) "probable fibromyalgia" for which Elavil was prescribed. (TR. 342). Dr. Soltani also discussed with Plaintiff a fibromyalgia support group and pain control modalities. (Id.). On July 23, 2003, Plaintiff saw Dr. Foote for complaints of pain and paresthesias in her upper extremities. (TR. 156) On examination, Dr. Foote found Plaintiff had dysesthesias to pinprck over digits 3 through 5 of her left hand, positive Tinel's sign at the left elbow, normal strength in both upper extremities. (Id.) On September 3, 2003, Plaintiff complained to Dr. Soltani of chronic pain in her neck, shoulders, hands, occipital and lower back; depression about money, caring for Plaintiff's mother, Plaintiff's weight and that she "can't exercise"'; and dyspepsia. (TR. 337). Dr. Soltani noted that Plaintiff's upper-extremity EMG and nerve conduction studies were negative. (Id.). Dr. Soltani assessed depression, chronic pain, and suspected fibromyalgia. (TR. 338). She prescribed Naprosyn, Zoloft, weight loss and low-impact aerobics. (Id.).
One word is omitted from Plaintiff's complaints because it is illegible.
Defendant attributes to Dr. Soltani this record as well as other records wherein "Ei" is identified as the provider. (Defendant's Statement of Facts, ¶¶ 20-23). The signature on the records wherein Ei is identified as the provider is similar to Dr. Soltani's signature as it appears on other records and Plaintiff has not disputed that Dr. Soltani was the provider. (Compare TR. 341-342 to TR. 345; see also TR. 329-330, 334-335, 337-338). Hence, the Court accepts Defendant's attribution. - 10 -
Plaintiff returned to Dr. Soltani on October 8, 2003 with continued complaints of diffuse pain and depression. (TR. 334). Dr. Soltani injected Plaintiff with a Lidocaine solution, prescribed Elavil and continued physical therapy, exercise and weight loss for fibromyalgia and Celexa for depression. (TR. 335). In October 2003, Plaintiff began physical therapy regarding tenderness throughout her upper body, elbows and hands. (TR. 182). By her November 7, 2003 discharge, Plaintiff's condition was unchanged. (Id.) Physical Therapist Matthew Wilkinson noted that Plaintiff "has also injured her lower back...The back and neck have become integrated and because of her fibromyalgia it is felt that her best method of treatment would be aquatic therapy." (Id.). PT Wilkinson planned to address Plaintiff's "entire spine" with additional therapy if such was approved. (Id.). On November 14, 2003, Plaintiff returned to Dr. Soltani with complaints of diffuse pain in her lower back, elbows, knees and neck. (TR. 329). Plaintiff was frustrated by Dr. Soltani's focus on Plaintiff's weight. (Id.). Plaintiff did not benefit from physical therapy for her neck. (Id.). Plaintiff was continued on Elavil for fibromyalgia and pool therapy was prescribed. (TR. 330). On December 10, 2003, Plaintiff began physical therapy consisting of aquatic therapy for her back. (TR. 179-181, 183185). Plaintiff was discharged from physical therapy in March 2004. (TR. 177-178). Plaintiff had achieved increased flexibility and decreased pain with overall functional activities. (TR. 177). On December 31, 2003, Plaintiff reported to Dr. Soltani that she still felt pain in her elbows, knees, arms, and ribs during the pool physical therapy but she felt better immediately afterwards. (TR. 325). Elavil did not significantly decrease her pain. (Id.). Plaintiff denied
Plaintiff reported injuring her lower back while "transferring her mother to clean and bathe her." (TR. 183; see also TR. 332 (Plaintiff's October 2003 report of back pain and Dr. Soltani's assessment of "acute on chronic..." low back pain)). - 11 -
depression. (Id.). Dr. Soltani assessed "chronic pain/fibromyalgia", ordered a bone scan, and discussed use of Neurontin in place of Elavil. (TR. 326). On February 2, 2004, Dr. Soltani noted Plaintiff's continued complaints of diffuse pain primarily in her right elbow, right forearm, right wrist, bilateral hands, bilateral knees, and low back. (TR. 323). Dr. Soltani opined that Plaintiff suffered from "[p]ain syndrome, possible fibromyalgia and degenerative joint disease." (Id.). She noted that laboratory evaluations, x-rays, a bone scan, and an EMG of Plaintiff's upper and lower extremities were "unrevealing with the exception of some mild arthritis in her knees." (Id.; see also TR. 324 (noting "negative ANA, rheumatoid factor and sedimentation rate as well.")). Plaintiff had decreased her weight from 269 to 256. (TR. 323). Dr. Soltani also noted that Plaintiff was taking Celexa as well as Elavil for depression "and she tells me she is not currently suffering any symptoms of depression." (Id.). On examination, Plaintiff's knees had full range of motion although there was some tenderness at the lateral right knee joint line. (Id.). Dr. Soltani "believe[d] that a large component of [Plaintiff's] pain symptom is related to fibromyalgia." (TR. 324). She prescribed Neurontin and advised Plaintiff to continue taking Arthrotec as needed for pain and to continue with physical therapy. (Id.). Dr. Soltani also continued Plaintiff on Celexa and Elavil for depression. (Id.). She advised Plaintiff to continue losing weight. (Id.). A February 6, 2004 x-ray of Plaintiff's knees showed minor degenerative findings and slight progression of degenerative changes in the right knee when compared to a 2002 study. (TR. 322). A February 6, 2004 x-ray of Plaintiff's elbow was normal. (Id.). On March 2, 2004, two years afer her last appointment with Dr. Levi, Plaintiff returned with complaints of pain and swelling in both knees. (TR. 421). Physical examination showed "an effusion in both knees, right greater than left. She has a lot of pain along the joint line and in the patellofemoral articulation." (Id.) Plaintiff's x-rays "look[ed] pretty good." (Id.). Dr. Levi noted that Plaintiff "really hasn't lost any weight..." since her last visit and questioned whether Plaintiff suffered from degenerative joint disease, meniscal - 12 -
tears, or whether her weight was "just finally honing in on her." (Id.). He ordered an MRI. (Id.). On April 14, 2004, Plaintiff underwent arthroscopic surgery on her left knee, performed by Dr. Levi, for torn medial meniscus repair. (TR. 202-203, 417). In May 2004, Dr. Soltani noted Plaintiff's continued complaints of pain in her elbows, wrists, ankles, knees and lower back. (TR. 318). Dr. Soltani's assessment included fibromyalgia and depression. (TR. 319). Plaintiff was continued on Neurontin, Elavil, Arthrotec. (Id.). On May 25, 2004, Kevin Bowers, M.D., on referral from Dr. Soltani, examined Plaintiff for complaints of bilateral elbow pain and tingling in the index finger of her right hand. (TR. 419-420). Physical examination was unremarkable except for tenderness "to palpation along the area of the common flexor origin about the medial elbow bilaterally." (TR. 419). Tinel's testing of the elbow and wrist was "fairly unremarkable." (Id.). Dr. Bowers assessed "[b]ilateral medial epicondylitis with some right sided lateral epicondylitis" and recommended bilateral tennis elbow supports, icing and continuation of antiinflammatory medication. (TR. 419-420). Dr. Bowers noted that if conservative treatment did not help, injections should be considered. (TR. 420). In June 2004, Dr. Soltani noted Plaintiff's complaints of continued pain and continued Plaintiff on her current medication. (TR. 316-317). She also noted Plaintiff's flat affect and normal gait. (TR. 317). On June 11, 2004, Plaintiff presented to Dr. Levi because she had tripped and fallen a few days earlier. (TR. 418) Physical examination revealed a small effusion, otherwise, she was "doing okay.'" (Id.). On July 23, 2004, Plaintiff saw Dr. Levi on follow up for her arthroscopic surgery to her left knee. (TR. 417). When Plaintiff reported "that her knee continues to be somewhat problematic", Dr. Levi noted that such situation was "not terribly surprising because of the degenerative stuff that is going on in her knee. A lot of this is patellar. It produces debris - 13 -
and that is probably what is going on...Unfortunately at 246 pounds and 5 feet, 3 inches she can do more for her knee right now than I can and we talked about this. She needs to get serious about losing weight." (Id.). In July 2004, Dr. Soltani continued Plaintiff on Neurontin, NASIDS, and SSRIs. (TR. 311-312). She also referred Plaintiff to a fibromyalgia support group. (TR. 312). On August 30, 2004, Plaintiff presented to the hospital emergency room complaining of left knee swelling and pain that worsened with weight bearing. (TR. 218-219). Plaintiff rated her pain at ten out of ten. (TR. 218). Physical examination revealed that Plaintiff's left thigh was swollen, tenderness in the posterior calf, a small effusion with well-healed surgical scars, and a positive Homans sign. (Id.). Plaintiff was administered intra-venous Demerol and Phenergan. (TR. 219). A left leg venous duplex ultrasound showed no evidence of left leg deep vein thrombosis. (TR. 220, 308). Plaintiff was released with a knee immobilizer, a prescription for Percocet, and instructions to use a walker because "[s]he cannot use crutches...." (TR. 219). An August 2004, an x-ray of Plaintiff's left foot showed a plantar spur which was slightly increased in size compared to the December 13, 2001 x-ray. (TR. 309). On September 7, 2004, Plaintiff saw Dr. Levi on follow-up for her knee. (TR. 416). She was wearing the knee immobilizer she had received from the hospital in August. (Id.). She complained of pain in both knees but more so on the left than the right. (Id.). Plaintiff had good range of motion in her left knee, a "tiny bit of pseudolaxity" and discomfort to palpation over the patellar tendon area. (Id.). X-rays showed "some subtle increase in joint space narrowing in the medial compartment of her left knee." (Id.). Dr. Levi concluded that Plaintiff "has had some progression of her..." degenerative joint disease. (Id.). He discussed the influence of Plaintiff's weight on her condition and injected her knee with a mixture of Lidocaine, Marcaine, and Aristospan. (Id.). On September 30, 2004, Dr. Levi noted that the injection administered earlier that month had not helped Plaintiff and that she had gained
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weight since that last visit as well. (TR. 415). He recommended Visco supplementation and if that did not work, then surgery. (Id.). On October 12, 19, and 26, 2004, Dr. Levi injected Hyalgan for Plaintiff's knee pain. (TR. 412-414). By November 4, 2004, Dr. Levi concluded that the Hyalgan injections were not helping Plaintiff. (TR. 411) He suspected that Plaintiff's pain could be coming from her back. (Id.). "I don't know that I have much to offer her as far as her knee is concerned considering the fact that at arthroscopy her knee didn't really look all that bad and I have done all the conservative things I know how to do." (Id.). Also in November 2004, Plaintiff saw Eugene Mar, M.D., regarding back pain. (TR. 407-410). She reported that her pain began sometime in March 2004 and that she had an "onset of some back pain" in 2000 or 2001. (TR. 407). On physical examination Dr. Mar noted no muscular spasm, sensation was within normal limits, and lower extremity strength was within normal limits. (TR. 408). On flexion, Plaintiff experienced 75% loss of motion with back pain, extension was full but with back pain. (Id.). She felt pain in her left buttock when extending with rotation and with lateral side bending, although she was able to perform such movement fully. (Id.). Straight leg raising while seated was 90 degrees on the right with posterior thigh pain, left was 70 degrees with leg pain. (TR. 408-409). With straight leg raising lying on the right, range of motion was to 30 degrees with groin pain and was 20 degrees on the left with leg pain. (TR. 409). X-rays of Plaintiff's hip joints, pelvic ring, sacroiliac joints and lumbar spine were within normal limits. (Id.). Dr. Mar assessed lumbar spine pain and bilateral leg pain. (Id.) He recommended physical therapy. (Id.). On December 1, 2004, Plaintiff presented to Dr. Soltani at El Rio Health Center complaining of pain in her low back, left leg, foot, and both knees. (TR. 302) She reported that injections had not been helpful. (Id.) Plaintiff returned to El Rio Health Center on December 16, 2004 complaining of burning pain in her left scalp, neck, shoulder and elbow. (TR. 301). She was seen by Mark Vietti, M.D., who assessed left "C6-7 cervical
radiculopathy vs. flare her [sic] fibromyalgia." (Id.; see also TR. 206)) Plaintiff was directed - 15 -
to use heat, stretching and massage. (TR. 301). A January 4, 2005 x-ray showed that "[t]he alignment of the vertebral bodies is satisfactory. Slight narrowing is noted at C5-6, most consistent with discogenic degenerative change." (TR. 300). On December 22, 2004, Plaintiff returned to Dr. Mar with complaints of pain in the back, left leg, and neck into her left arm. (TR. 405). Plaintiff had normal motor strength and sensation in her lower extremities. (Id.). She walked with some flexion of her toes in her left foot. (Id.). Dr. Mar noted that he had approval to see Plaintiff for her back only and not for neck and arm pain. (Id.) He assessed lumbar spine pain and bilateral leg pain. (Id.) Dr. Mar ordered an MRI which showed "[n]o disk herniations. Some facet degenerative joint disease at L5-S1 and to a lesser extent L4-5. T11-T12 some mild degenerative disk disease changes with no canal or foraminal stenosis." (TR. 403). In January 2005, in light of the MRI, Dr. Mar assessed L4-L5 and L5-S1 facet arthritis and indicated that injections should be considered. (TR. 403-404). He recommended physical therapy and that Plaintiff lose weight to "help some of her peripheral joint difficulties." (TR. 404). On October 24, 2005, Plaintiff underwent a functional capacity evaluation by physical therapist Karen McLearran. (TR. 71-75). PT McLearran found that Plaintiff could sit for seven minutes at a time with decreased tolerance as time progressed; Plaintiff could not stand in one place for more than two minutes; and Plaintiff could not walk for more than 20 feet at a time before needing to rest. (TR. 72). PT McLearran concluded that Plaintiff was unable to work for prolonged periods even at a sedentary level. (Id.). b. GERD
In December 2001, Dr. Valencia noted that Plaintiff was being treated for GERD. (TR. 377). A June 17, 2002 abdominal sonogram was normal. (TR. 366). In July 2002, Plaintiff complained about episodes of heart burn with some epigastric discomfort. (TR. 364). On examination, Plaintiff exhibited epigastric tenderness. (Id.) The assessment was GERD,
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depression, plantar fasciitis, and high lipids. (TR. 365). In September 2002, Dr. Valencia noted that Plaintiff's GERD was stable and he prescribed diet pills. (TR. 358). On November 1, 2002, Gastroenterologist Scott Blinkoff, M.D., performed an endoscopy of Plaintiff's upper GI tract and assessed Barrett's esophagus and gastritis. (TR. 173 see also TR. 152). Plaintiff was prescribed Prevacid. (Id.). At a December 4, 2002 follow-up appointment, Dr. Valencia noted that Plaintiff's GERD was stable. (TR. 351). He assessed chronic elevated liver function tests; history of GERD which continued to improve with present therapy; depression which was stable; back strain which was doing well with Flexeril; and morbid obesity which was doing well with Xenical. (Id.). On December 19, 2002, Dr. Blinkoff saw Plaintiff for elevated liver tests and reflux. (TR. 153). Dr. Blinkoff opined that Plaintiff's transaminase elevation was most likely from fatty steatosis and he changed her medication for mild epigastric discomfort to Nexium. (Id.). On February 4, 2003, after conducting a colonoscopy, Dr. Blinkoff diagnosed hemorrhoids and pan diverticulosis. (TR. 172). He recommended a high fiber diet. (Id.). On April 4, 2003, Dr. Blinkoff noted an unremarkable physical examination and that Plaintiff did better on Nexium than Protonix. (TR. 152). He ordered a sonogram which showed an abnormal gallbladder wall. (Id.; TR. 171). On June 3, 2003, Plaintiff saw Steven Vaughan, M.D., upon referral from Dr. Blinkoff regarding symptomatic cholelithiasis. (TR. 155) Plaintiff told Dr. Vaughan about her "long history of postprandial bloating and belching with pain and occasional nausea and vomiting particularly with greasy foods." (Id.). Her physical examination was "pretty unremarkable without evidence of cholecystitis at [that] time." (Id.). He scheduled an outpatient laparoscopic cholecystectomy. (Id.). Plaintiff underwent the procedure on June 10, 2003. (TR. 168-169). By June 30, 2003, Dr. Vaughan reported that Plaintiff was doing well and discharged her from his care. (TR. 154).
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On June 30, 2004, Plaintiff presented to the emergency room complaining of right upper quadrant pain. (TR. 208). Chest x-rays were negative. (Id.; TR. 215). An ultrasound of Plaintiff's right upper quadrant showed fatty infiltration of the liver and was otherwise normal. (TR. 214). An ultrasound of Plaintiff's abdomen showed diffuse bowel gaseous distention consistent with diffuse bowel ileus. (TR. 207). Upon Plaintiff's July 1, 2004 discharge, Dr. Vietti, opined that Plaintiff's condition was "due to hypomotility of the smooth muscle of the GI tract and [he] urged that she consider discontinuing for now both the [A]mitriptyline and the Wellbutrin." (TR. 205) He also asked her to reduce and discontinue, if possible, her narcotic analgesics. (Id.). She was prescribed Reglan. (Id.). On December 14, 2004, Plaintiff presented to the emergency room complaining of chest pain. (TR. 291). X-rays showed no abnormality. (TR. 293). The pain was "diagnosed as coming from the chest wall. This is often caused by straining the muscles or joints in the chest during physical activity, direct trauma, coughing, or vigorous vomiting." (TR. 291). Plaintiff was instructed to rest. (Id.). c. Vision
In September 2004, Plaintiff presented with complaints of pain from her neck to her temple. (TR. 306). Assessment included chronic neck tension and eye strain. (TR. 307) On October 18, 2004, Plaintiff was examined by Jason Levine, M.D., who noted that Plaintiff had a history of trauma to her right eye due to an accident when she was six years of age. (TR. 244, 448). Dr. Levin's diagnosis was NSC/PSC right eye, old trauma to right eye with macular scarring, and hyperopia. (Id.). He concluded that Plaintiff could perceive light only peripherally with her right eye and that she was gradually becoming blind in that eye. (Id.) He assessed visual acuity of Plaintiff's left eye at "20/30-2." (Id.) He also noted that Plaintiff wears over-the-counter reading glasses. (Id.). On July 1, 2005, Plaintiff complained to Dr. Levine that light was "bothersome" to her left eye during the last one and one-half months. (TR. 447). Dr. Levine assessed visual acuity of Plaintiff''s left eye at 20/50. (Id.). His diagnosis was the same as on Plaintiff's previous visit except that he also included ocular - 18 -
hypertension greater in right eye than left. (Id.). On July 19, 2005, Plaintiff complained of eye redness. (TR. 446). Dr. Levine considered administering an alcohol or Thorazine injection. (Id.). Visual acuity of her left eye was assessed at 20/25. (Id.). On October 21, 2005, Plaintiff reported being unable to open her right eye. (TR. 445). Dr. Levine administered an injection of alcohol. (Id.). Visual acuity of Plaintiff's left eye was assessed at 20/25. (Id.). d. Mental
In May 2004, Plaintiff presented at La Frontera Center, Inc. (TR. 270-290). According to Andrea Carrizoza of La Frontera, Plaintiff "presented moderately depressed and feels a lack of support from family members." (TR. 270). Ms. Carrizoza assessed Plaintiff's Global Assessment of Functioning Score (hereinafter "GAF") at 60. (Id.). Plaintiff's diagnosis included depressive disorder not otherwise specified and alcohol dependence. (TR. 283). A May 27, 2004 record from La Frontera indicates as the "[r]eason for the [r]eferral/[c]urrent [i]ssues:" that Plaintiff "is taking care of her mother and has been." (TR. 274). Plaintiff also stated that she was seeking services for her depression. (TR. 268; see also TR. 269). In June 2004, Plaintiff began meeting with La Frontera Counselor Amy Shiner. (TR. 266). At their first meeting on June 10, 2004, Plaintiff reported feeling physical pain daily, that she had poor short-term and long-term memory, and that she cared for her 90-year old mother who had diabetes. (Id.). Counselor Shiner noted that Plaintiff "is in significant physical pain and is depressed." (Id.). On June 17, 2004, Justin John Egoville of La Frontera assessed Plaintiff's GAF score at 65. (TR. 264). On that same date, Ellen McVay, R.N., of La Frontera prescribed Wellbutrin. (TR. 265). On June 29, 2004, Plaintiff reported that she did not feel any positive effects from the Wellbutrin. (TR. 263).
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On July 2, 2004, Plaintiff reported by telephone to Counselor Shiner that she had gone to the hospital the day before "because she was suffering from extreme anxiety; `everything was going too fast;' client was terrified." (TR. 262). Hospital staff "suggested she was taking too many meds (Wellbutrin, hydrocodone, etc[.]) at once which caused negative interaction; client feels better today." (Id.). Counselor Shiner noted that Plaintiff was calm during the call. (Id.). Records through the end of July note Plaintiff's physical distress and that Plaintiff was making progress with her mental health goals. (TR. 259-260). By late August 2004, Nurse McVay noted that Plaintiff was "[f]eeling much better since Wellbutrin started. Continues to live at her mother's. Less tired. More energy. Sleeping well. 51 [year old] female [with] cane. Good ADL's. Euthymic [with] full range affect. Speech RRR. Good eye contact." (TR. 256). Nurse McVay decreased Plaintiff's dose of Wellbutrin due to Plaintiff's fibromyalgia. (Id.). On September 7, 2004, Counselor Shiner noted Plaintiff's complaints of severe pain in her knee, feelings of anger and sadness, and crying jags. (TR. 255). Counselor Shiner noted that Plaintiff was making progress toward her weight loss goal and she was "also making some progress toward goal of decreasing depressive symptoms but would like to experience further decrease." (Id.). On September 24, 2004, Plaintiff missed an
appointment because she was feeling depressed and her knees were hurting her. (TR. 254). In November 2004, Plaintiff reported to Nurse McVay that the Wellbutrin made her feel edgy. (TR. 251). Plaintiff also stated that she woke easily and became tired frequently. (Id.). Nurse McVay noted that Plaintiff was alert, oriented, "[g]ood ADL's. Euthymic [with] full range affect. Good eye contact. Speech RRR. T[hought] P[rocess]
linear...Insight/[judgment] o.k." (Id.). Nurse McVay lowered the Wellbutrin dosage and also prescribed Hydroxyzine for anxiety. (Id.). Later that month, Plaintiff reported to Counselor Shiner that she was feeling "emotionally better..." and that the anxiety medication was helping. (TR. 247). Counselor Shiner wrote that Plaintiff was "making progress evidenced by decrease in anxiety symptoms." (Id.). - 20 -
Examining State-Agency Source
On February 10, 2005, Eugene Campbell, Ph.D., performed a psychological examination of Plaintiff at Defendant's request. (TR. 386-391). Plaintiff reported trouble sleeping, fatigue, headaches, anxiety, crying easily, no enjoyment of life, difficulty concentrating, forgetfulness, and pain in her lower back and knees. (TR. 386-387). "When she feels good, she does the laundry and vacuums. Within a few hours, she starts hurting. It ends up taking her three days to do her laundry. She eats a lot, constantly." (TR. 386). Dr. Campbell also reported that [w]hen [Plaintiff] feels good, she cleans and does the laundry. She rests and then does the dishes. She sits and watches TV. She vacuums and sits down. When her headaches come, she lies down. She checks the mail. She feeds her birds. She goes to the grocery store. If she does not have to go out, she will not. When she feels bad, she does nothing until her headache goes away. Then, whatever she does, she does slowly. (TR. 389). Dr. Campbell noted that: Plaintiff carried a cane and walked slowly; her affect was appropriate; her mood was depressed; her thoughts were logical, clear and linear; her abstract thinking, judgment, and insight were adequate; and she was oriented to person, place, time and situation. (TR. 388). Although Plaintiff had no difficulty concentrating in conversation, "[s]he incorrectly spelled `world' backwards....In performing the serial sevens, she made several mistakes in spite of taking her time and counting on her fingers....She repeated a phrase incorrectly, substituting one word for another." (Id.) As to memory, Plaintiff could name the current and prior U.S. presidents and recall details about her life, she remembered three words immediately but did not remember three other words after a few minutes. (Id.). Dr. Campbell concluded that Plaintiff was "depressed, mostly as a result of other factors in her life, but also in response to her pain. Cognitive abilities are poor...." (TR. 389). He suspected that Plaintiff had borderline intelligence which would limit her ability to learn, remember, and understand. (Id.). He indicated that Plaintiff's memory was poor, her concentration was "sporadic and limited, but not precluded. She can concentrate for two - 21 -
hours at a time on simple tasks. She can refocus when interrupted." (Id.). Plaintiff did not handle stress adequately, she was not dependable and reliable, but she had adequate judgment and could make simple, work-related decisions. (Id.). Dr. Campbell diagnosed major
depressive disorder, recurrent, moderate; cognitive disorder not otherwise specified; and anxiety disorder not otherwise specified. (TR. 390). He opined that with continued
treatment, the prognosis was fair for a further reduction of depressive symptoms. (TR. 389). Dr. Campbell completed a Medical Source Statement of Ability To Do Work Related Activities (Mental) wherein he indicated that Plaintiff, due to depression, poor memory, low intelligence, low motivation, low interest, and low energy, was markedly limited (no useful ability) in her abilities to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; and to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (TR. 393-394). For these same reasons, Dr. Campbell found Plaintiff was moderately limited (fair/limited but not precluded): in her ability to perform activities within a schedule, maintain regular attendance, and be punctual. (TR. 394). He also indicated that Plaintiff, due to poor memory and low intelligence, was moderately limited (fair/limited but not precluded) in her abilities to: remember locations and work-like procedures. (TR. 392). Plaintiff was not significantly limited (good/mild limitations) in her abilities to: understand and remember very short and simple instructions; carry out very short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; interact appropriately with the general public; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel to unfamiliar places or - 22 -
use public transportation; and set realistic goals or make plans independently of others. (TR. 393-397). Dr. Campbell opined that Plaintiff was capable of managing benefit payments in her own interest. (TR. 397). 3. Non-examining State Agency Physicians a. Physical Impairments
In September 2004, Robert Estes, M.D., completed a Physical Residual Functional Capacity Assessment wherein he opined that Plaintiff: could lift up to 20 pounds occasionally and up to 10 pounds frequently; could stand and/or walk about 6 hours in an 8-hour work day; could sit about 6 hours in an 8-hour work day with normal breaks; and had no limitations with pushing and/or pulling using upper or lower extremities. (TR. 223). To support this conclusion, Dr. Estes stated: Morbid obesity with BMI 44. Bilateral knee pain with imaging confirmation of mild degenerative knee joint disease bilaterally with torn medial meniscus noted in repair 4/04. Chronically elevated liver function tests without evidence of systemic deficit. Chronic gastritis and gastroesophageal reflux with organisms resembling helicobater pylori. Decreased strength in left extensor hallicus longus and diminished sensation dorsum of medial aspectd [sic] of left foot. Gait normal until left heel syndrome in March `04 with durational problems of walking, stair climbing, squatting, or kneeling following treatment for same. Nerve conduction testing of left leg normal. (TR. 223-224). Dr. Estes further indicated that Plaintiff could occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl. (TR. 224). She should never climb ladders, ropes. or scaffolds. (Id.). She could balance frequently. (Id.). Dr. Estes also found that Plaintiff should avoid concentrated exposure to vibration and hazards such as machinery or heights. (TR. 226). Dr. Estes found no manipulative, visual or communicative limitations were established by the record. (TR. 225; see also TR. 229 ("Loss of vision in right eye not documented but visual loss in one eye is non-severe deficit."). In February 2005, R. Hirsch, M.D., completed a Physical Residual Functional Capacity Assessment wherein he opined that Plaintiff: could lift up to 20 pounds occasionally and up to 10 pounds frequently; could stand and/or walk about 6 hours in an 8-hour work - 23 -
day; and could sit about 6 hours in an 8-hour work day with normal breaks. (TR. 438) Dr. Hirsch made no finding with regard to limitations in pushing and/or pulling using upper or lower extremities. (Id.). Dr. Hirsch further found that Plaintiff could occasionally climb stairs, stoop, kneel, crouch, and crawl. (TR. 439). She should never climb ladders. (Id.). Dr. Hirsch opined that Plaintiff should avoid concentrated exposure to hazards such as machinery or heights. (TR.441). Dr. Hirsch further indicated that Plaintiff could frequently climb ramps and balance. (TR. 439). Dr. Hirsch found no manipulative, visual or
communicative limitations were established by the record. (TR. 440-441). b. Mental Impairments
In September 2004, psychologist Paul Tangeman, Ph.D., completed a Psychiatric Review Technique form wherein he indicated that Plaintiff's mental impairment, which he classified as affective disorder, depression not otherwise specified, was not severe. (TR. 230). He indicated that Plaintiff was mildly restricted with regard to activities of daily living; maintaining social functioning; and maintaining concentration, persistence or pace. (TR. 240). Dr. Tangeman noted that in February 2004, Plaintiff denied symptoms of depression. (TR. 242). "She has been seen for counseling [at La Frontera Clinic with] minimal depressive..." symptoms. (Id.). He found Plaintiff to be "partially credible." (Id.). In February 2005, Ronald G. Nathan, M.D., completed a Psychiatric Review Technique form wherein he indicated that Plaintiff was moderately limited in maintaining concentration, persistence, and pace. (TR. 433). He also indicated that Plaintiff was mildly restricted with regard to: activities of daily living and maintaining social functioning. (TR. 433). When noting Dr. Campbell's concern that Plaintiff had borderline intelligence, Dr. Nathan pointed out that Plaintiff completed high school with no learning problems and that she worked for 15 years in the manufacturing field until she was limited by pain. (TR. 435). He also noted that Plaintiff "completed ADL's on [her] own [with] adequate literacy" and that she was "[s]ocially adequate." (Id.). He stated that the medical evidence of record partially supported Plaintiff's allegations. (Id.). - 24 -
Dr. Nathan also completed a Residual Functional Capacity Assessment wherein he indicated that in the area of understanding and memory, Plaintiff was moderately limited in her ability to understand and remember detailed instructions; but, she had no significant limitation in her abilities to remember locations and work-like procedures and to understand and remember very short and simple instructions. (TR. 398). In the area of sustained concentration and persistence, Plaintiff was moderately limited in her abilities to carry out detailed instructions and to maintain attention and concentration for extended periods; but, she was not significantly limited in her abilities to carry out very short and simple instructions, to perform activities within a schedule or maintain regular attendance and be punctual, to sustain an ordinary routine without special supervision, to work in coordination with or proximity to others without being distracted by them, and to make simple workrelated decisions. (Id.). In the area of sustained concentration and persistence, Plaintiff was moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (TR. 399). Plaintiff was not limited in any of the five categories of social interaction. (Id.). In the area of adaptation, Plaintiff was moderately limited in her ability to respond appropriately to changes in the work setting; but, she was not significantly limited in her abilities to be aware of normal hazards and take appropriate precautions, to travel in unfamiliar places or use public transportation, and to set realistic goals or make plans independently of others. (Id.). Dr. Nathan further stated that Plaintiff could recall and "do simple tasks [with] adequate..." concentration, persistence and pace, she was socially appropriate, and she had a "[s]omewhat decreased stress tolerance." (TR. 400). C. Lay Statements
Plaintiff submitted a July 2004 statement from her sister, Alice Perez. (TR. 111-119). Ms. Perez indicated that Plaintiff does a little house work in the morning, "but mostly sits with feet elevated watching T.V." (TR. 111). Plaintiff's condition limits Plaintiff's ability - 25 -
to put on her socks and shoes. (TR. 112). Plaintiff must sit to bathe and cut her hair short in order to comb it. (Id.). Plaintiff is unable to stand long enough to prepare her meals. (TR. 113). Plaintiff and her mother work together to complete household chores. (Id.). Plaintiff is able to do some house work but no yard work. (TR. 114). Plaintiff is able to drive and goes grocery shopping once a week for about an hour. (Id.). Plaintiff is able to pay bills, handle a savings account, count change and use a checkbook. (Id.). Plaintiff's condition limits her ability to lift, squat, bend, stand, reach, walk, sit, kneel, see, remember, stair climb, complete tasks, use her hands, concentrate, and understand. (TR. 116). Although Plaintiff is able to follow spoken instructions, she does not respond well to written instructions. (Id.). Plaintiff does not handle stress well. (TR. 117). Ms. Perez also stated that Plaintiff uses a cane, walker, splints for her arms, and glasses/contacts. (Id.). According to Ms. Perez, housework takes Plaintiff up to two-days to complete when, prior to her disability, Plaintiff used to be very active cleaning house without stopping, cleaning the yard, pushing their mother in her wheelchair, and playing with grandchildren. (TR. 118). D. The ALJ's Findings 1. Claim Evaluation
SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step sequential process. 20 CFR §§404.1520, 416.920; Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 CFR §§ 404.1520(b), 416.920(b). If so, then the claimant is not disabled under the Act and benefits are denied. Id. If the claimant is not engaged in substantial gainful activity, the ALJ then proceeds to step two which requires a determination of whether the claimant has a medically severe impairment or combination of impairments. 20 CFR §§ 404.1520(c), 416.920(c). In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant's impairment more than minimally limited or restricted his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes that the impairment is not severe, the claim is denied. Id. If the ALJ makes a - 26 -
finding of severity, the ALJ proceeds to step three which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 CFR §§ 404.1520(d), 416.920(d); 20 CFR Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled and no further inquiry is necessary. If a decision cannot be made based on the claimant's then current work activity or on medical facts alone because the claimant's impairment does not meet or equal a listed impairment, then evaluation proceeds to the fourth step. The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity ("RFC")5 to perform past work. 20 CFR §§ 404.1520(e), 416.920(e). If the ALJ concludes that the claimant has RFC to perform past work, then the claim is denied. Id. However, if the claimant cannot perform any past work due to a severe impairment, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of claimant's age, education, and work experience. 20 CFR §§ 404.1520(f). 416.920(f). At step five, in determining whether the claimant retained the ability to perform other work, the ALJ may refer to Medical Vocational Guidelines ("grids") promulgated by the SSA. Desrosiers v. Secretary, 846 F.2d 573, 576-577 (9th Cir. 1988). The grids are a valid basis for denying claims where they accurately describe the claimant's abilities and limitations. Heckler v. Campbell, 461 U.S. 458, 462, n.5 (1983). However, because the grids are based on exertional or strength factors, where the claimant has significant nonexertional limitations, the grids do not apply. Penny v. Sullivan, 2 F.3d 953, 958-959 (9th Cir. 1993); Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998). Where the grids do not apply, the ALJ must use
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 CFR §§ 404.1545, 416.945. - 27 -
a vocational expert in making a determination at step five. Desrosiers, 846 F.2d at 580. 2. The ALJ's Decision
In his January 25, 2006 decision, the ALJ made the following findings: 1. 2. 3. The claimant is insured for benefits through June 30, 2006. The claimant has not engaged in disqualifying substantial gainful activity at any time material hereto. The medical evidence establishes that the claimant has medically determinable "severe" impairments as described in the body of this decision [which are, "in combination...": right eye blindness, degenerative changes of the lumbar and cervical spine, degenerative changes of the right knee, status post menisectomy and loose cartilage removal of the left knee, and obesity. (TR. 26)]. The claimant's impairments do not meet or equal the criteria of the impairments listed in Appendix 1, Subpart P, 20 CFR Part 404. The claimant retains the residual functional capacity delineated in the body of this decision [i.e., she is able to lift 20 pounds occasionally and ten pounds frequently; she is able to sit, stand and walk 6 hours per 8 hour workday; she is limited to occasional postural activity, except that she may frequently balance and use ramps but may never use ropes, ladders, and scaffolds; she must avoid concentrated exposure to hazards; and she is precluded from work that requires binocular vision.6 (TR. 29)]. The claimant is "approaching advanced [sic]," has a high school equivalent education, is functionally literate in English and has skilled and unskilled work experience. The claimant's residual functional capacity does not preclude her from working at her past relevant work as an assembler, medical products D.O.T. No. 712.687-010, classified as unskilled, light work, with an SVP of 2 and; as a sales clerk, retail trade, D.O.T. No. 290.477-014, classified as semiskilled, light work, with an SVP of 3, as these jobs are generally performed.
As discussed infra, the ALJ also noted "some limitations in terms of higher level mental functioning." (TR. 33). - 28 -
The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision (20 CFR 404.1520(f)). DECISION
It is my decision that, based on the application filed on June 16, 2004, that the claimant is not eligible for a Period of Disability or Disability Insurance Benefits under sections 216(i) and 223 respectively, of the Social Security Act, at any time through the date of this decision. (TR. 34-35). In reaching his decision, the ALJ determined that the following alleged impairments were not severe: GERD; plantar fasciitis; fibromyalgia; elbow, hand and wrist pain; mental symptoms; and substance abuse. (TR. 27-28). He did not attribute "significant weight" to Physical Therapist McLearran's report because "a physical therapist is not an acceptable source for purposes of offering an opinion regarding a claimant's functional capacity..." and he found her "testing and findings to be suspect." (TR. 31). He also concluded that
Plaintiff's credibility was undermined by the objective medical evidence and "[i]nconsistent statements and actions...." (TR. 32). Additionally, in determining Plaintiff's RFC, the ALJ accepted the assessments of the State Agency physicians and, "because records introduced at the hearing demonstrate that the claimant is blind in her right eye..., I included the additional vision restriction noted." (TR. 29). The ALJ also rejected Dr. Campbell's and Nathan's opinions that Plaintiff's mental impairment was severe. (TR. 27-28). Citing Plaintiff's treatment records, his own
observation of Plaintiff at the hearing, and the possibility that she may have exaggerated symptoms during Dr. Campbell's examination, the ALJ "consider[ed] her presentation during the consultative examination to be suspect and unreliable." (Id.). Instead, the ALJ accepted Dr. Tangeman's assessment that Plaintiff's "psychiatric symptoms are mild and do not rise to the level of `severe.'" (TR. 28). Although the ALJ found that Plaintiff's mental impairments are mild, and as such, do not meet the regulatory definition of `severe,' they are present and likely impose, in combination, with her psychogenic medications, some limitations in terms of higher level mental functioning. Affording the claimant the full benefit of the doubt, I conclude - 29 -
that she is no longer capable of performing her past managerial and supervisory work because of these limitations. However, a review of the D.O.T. reveals nothing in the job descriptions of retail clerk and assembler that remotely suggest that the claimant's residual functional capacity would preclude her from performing these jobs as they are generally performed in the economy. (TR. 33). The ALJ went on to find that Plaintiff, due to lifting restrictions, would not be able to work as an assembler or retail clerk as she "actually performed" such work in the past. (Id.). E. Proceedings Before the Appeals Council
On July 14, 2006, Plaintiff's counsel submitted a request for review of the ALJ's decision and additional evidence that had not been submitted to the ALJ. (TR. 450-522). 1. Additional Evidence Submitted to the Appeals Council
The records discussed below were submitted to the Appeals Council after issuance of the ALJ's decision. · March 18, 2004 results from an MRI of Plaintiff's right knee showing degenerative changes, small joint effusion, and an "irregularity along the junction of the posterior horn and body of the medial meniscus suspicious for meniscal tearing." (TR. 518). · A June 8, 2004 Physical Residual Physical Capacity Questionnaire wherein Dr. Soltani indicated diagnoses of fibromyalgia and depression. (TR. 487). To support her findings, Dr. Soltani stated that Plaintiff had "tender points on exam" and she also stated that laboratory results and x-rays were negative. (Id.). Dr. Soltani stated that Plaintiff was capable of working at low stress jobs; she could sit for up to 10 minutes at one time before needing to get up; she could stand for up to15 minutes at one time; she could sit and stand a less than 2 hours in an 8-hour workday; Plaintiff must walk up to 10 minutes every hour during the workday; Plaintiff must be able to shift positions at will from sitting to standing; Plaintiff must take 30 minute breaks every 3 hours; she should never lift 10 pounds or less; Plaintiff could occasionally twist and stoop; and she could never crouch or climb ladders and stairs. (TR.
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