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November 18, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge

On July 10, 2000, Frances M. Waters (hereinafter "Plaintiff") applied for disability insurance benefits under Title II of the Social Security Act (hereinafter "the Act"). (Tr. 91.) The Commissioner denied the application both initially and upon reconsideration. (Tr. 68, 74.) On May 4, 2001, Plaintiff requested a hearing before an Administrative Law Judge (hereinafter "ALJ") where Plaintiff and a vocational expert were present and testified. (Tr. 79, 44-65.) On December 18, 2001, the ALJ denied Plaintiff's applications. (Tr. 20-40.) On July 30, 2004, the Appeals Council declined review of the matter. (Tr. 4-6.) On September 24, 2004, Plaintiff filed a complaint for Judicial Review and Remedy on Administrative Decision pursuant to 42 U.S.C. § 405 (g). On May 11, 2005, Plaintiff filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On June 6, 2005, Jo Anne B. Barnhart, Commissioner of the Social Security Administration (hereinafter "Defendant"), through the United States Attorney, filed a Cross-Motion for Summary Judgment. On May 17, 2005, the District Judge assigned to this case referred to the undersigned for Report and Recommendation all matters arising in this action. The motions are now before the Court.



  Plaintiff has not worked since May 28, 1995. On May 29, 1995. Plaintiff alleged that she was disabled. (Tr. 91.) Plaintiff was born on March 2, 1962 and was 33 years old when she applied for SSI benefits. (Tr. 91.) She is currently 43 years old. Plaintiff completed high school and has two years of college education. (Tr. 103.) Plaintiff also completed cosmetology school. (Tr. 103.) Her previous employment includes working as a hairstylist and as a waitress. (Tr. 98.) Plaintiff alleged that she was disabled due to fibromyalgia*fn1 and depression exacerbated by an automobile accident in 1995.*fn2

  Medical Evidence

  On May 28, 1995, Plaintiff was involved in a head-on motor vehicle accident and was admitted to the hospital. (Tr. 162.) The Plaintiff estimated her car was traveling 60 to 70 miles per hour, however there was no roll-over, she was not ejected, and she did not lose consciousness. (Tr. 162.) Plaintiff testified that because she was three and a half months pregnant at the time, she refused treatment. (Tr. 49.) Two x-rays were done, which did not reveal any definite fracture and only suggested an incomplete posterior C1 arch, which was probably a congenial defect.*fn3 (Tr. 165.) Plaintiff had significant musculoskeletal pain and spasm and was unable to ambulate well on the first day. (Tr. 162.) However, on the second day she was able to ambulate fairly well and was thought to be stable for discharge. (Tr. 162.) It was reported that she had no obvious bony injuries and that her pain was controlled well with oral pain medications. (Tr. 162.) On May 29, 1995, Plaintiff was diagnosed with an abdominal wall contusion and was discharged. (Tr. 168.)

  On October 16, 1996, x-rays of the Plaintiff's right wrist and hips were normal. (Tr. 236, 243.)*fn4 On October 21, 1996, an arthrogram of the Plaintiff's right wrist was taken, and showed that her wrist was normal. (Tr. 245.) On April 6, 1998, an x-ray of Plaintiff's feet showed both feet had hallux valgus of the metatarsophalangeal joint*fn5 and metatarsus primus adductus deformities.*fn6 (Tr. 238.) On April 29, 1998, a whole body bone scan was conducted. (Tr. 239.) The results of the scan were unremarkable except for very minimally increased activity in bilateral humeral heads, that might represent arthritic process or bursitis of the shoulders.*fn7 (Tr. 239.) On March 29, 1999, the Plaintiff went to the Sutter Amador Hospital complaining of chest pain. (Tr. 290-93.) Her chest x-ray, EKG, and blood pressure were normal, and she was discharged with a diagnosis of probable panic attack. (Tr. 290.)

  On December 17, 1999, the Plaintiff was treated by Dr. Dennis Del Paine, M.D. (Tr. 209-221.) Plaintiff's complaints included sinus infections, morning stiffness, swelling in her hands and feet, and chronic back ache. Dr. Del Paine found the Plaintiff to have swollen nasal muscosa, tenderness in both elbows, tenderness at the subtalar joint, tarsametatarsal junction, third and fourth metatarsophalangeal joints,*fn8 and tenderness at trigger points in a symmetric pattern. (Tr. 219.) Dr. Del Paine diagnosed the Plaintiff with chronic sinusitis, allergic rhinitis, fibromyalgia, and possible early development of inflammatory arthritis. (Tr. 219.) On December 20, 1999, an antinuclear antibody test, performed at the direction of Dr. Del Paine resulted in a normal finding virtually eliminating the possibility of active, untreated systemic lupus erythematosus and was also evidence against other connective tissue diseases. (Tr. 280.)

  On January 21, 2000, Plaintiff was examined by Dr. Thomas Bowhay, M.D. (Tr. 201-08.) He assessed Plaintiff with fibromyalgia and possible underlying arthritis. He recommended that Plaintiff seek another rheumatologic opinion because she then had an opposing opinion. (Tr.201-208.)

  On January 21, 2000, x-rays of the Plaintiff's hands revealed them to be normal. (Tr. 215.) X-rays of her sinuses showed chronic sinusitis. (Tr. 215.)

  On February 1, 2000, Plaintiff was admitted to Sutter Amador Hospital on a seventy-two hour hold after her husband reported to police that she had threatened suicide. (Tr. 192-99, 274-77.) She was assessed by Frank Whitman, LPT (Licensed Psychiatric Technician) with major depressive disorder, recurrent, severe, without psychotic features. (Tr. 194.) He also assigned her a current GAF score of 40 and a GAF score of 68 in the past year.*fn9 (Tr. 194.) On May 26, 2000, a pulmonary function test indicated only a mild obstructive pulmonary impairment. (Tr. 214.) On June 30, 2000, another pulmonary function test revealed Plaintiff had a forced vital capacity*fn10 of 4.27 liters; which is within 105% of the level predicted for the Plaintiff. (Tr. 213.) On that same date, Dr. Del Paine noted that Plaintiff's breathing was improved with medication, and that she had no problems with her medications. (Tr. 210.)

  On July 14, 2000, Plaintiff was examined by a rheumatologist, Dr. Albert Ferrari, M.D. (Tr. 229.) Dr. Ferrari reported that Plaintiff had tenderness in the anterior and posterior strap muscles of the neck, however he also found she had excellent range of motion. (Tr. 233.) He reported normal grade V strength in her extremities, and no swelling, inflamation, or limitation of motion of any joint. (Tr. 234.) He indicated there was tenderness over the MP joints of the feet and PIP joints of the toes, but that it was nonspecific with no objective findings. (Tr. 234.) He reported tenderness in the elbows, shoulders, hips, knees, and ankles, and tenderness in both sacroiliac areas radiating around the hips. (Tr. 234.) He reported that Plaintiff presented with widespread body tenderness, poor sleep habits, fatigue, irritable bowel syndrome, and chronic headaches, all consistent with fibromyalgia, however he did not give a tender point count.*fn11 (Tr. 234.) Dr. Ferrari diagnosed the Plaintiff with fibromyalgia and ruled out inflammatory arthritis. (Tr. 234.) He prescribed Soma, Celebrex, and Zoloft. (Tr. 234.) In his subsequent notes, it was reported that the Plaintiff called Dr. Ferrari and reported the medication was ineffective in treating her pain, and was making her tired and irritable. Dr. Ferrari changed the medication. (Tr. 231.)

  On July 18, 2000, a bilateral x-ray of Plaintiff's hips revealed normal findings, and x-rays of Plaintiff's knees showed minimal degenerative changes. (Tr. 270.)

  On September 14, 2000, Dr. Ferrari wrote a status letter for the Plaintiff indicating that he had treated her for fibromyalgia for two months. (Tr. 229.) He stated that the treatment for fibromyalgia included antidepressants, but that Plaintiff was unable to take any class of antidepressant because of side effects. (Tr. 229.) Dr. Ferrari stated that Plaintiff continued to have significant symptomatology from her fibromyalgia, and he opined that she was chronic and stationary and would be unable to work, even in part-time, light-work situations. (Tr. 229.)

  On September 19, 2000, Plaintiff underwent a psychiatric examination from consultive physician, Dr. Michael Joyce, M.D. (Tr. 222-26.) Plaintiff reported that she had been diagnosed with fibromyalgia at the age of 21, and that since the automobile accident in 1995, her pain had intensified. (Tr. 222.) Plaintiff stated that the pain caused her to be irritable and edgy. (Tr. 222.) Plaintiff reported that she believed her February 2000 suicide attempt was due to a medication side effect. (Tr. 223.) Dr. Joyce assessed the Plaintiff's mood as euthymic, her affect reactive, her intelligence average and her judgment grossly intact. (Tr. 222.) He also observed that Plaintiff had a normal gait, and that she did not exhibit any difficulty in sitting or arising from a chair. (Tr. 224.) Dr. Joyce found no Axis 1 condition at the time, and assigned Plaintiff a mild GAF score of 70. (Tr. 225.) He concluded that Plaintiff was able to maintain attendance and perform within a schedule, complete a workday and workweek without interruption from psychiatric symptoms, interact appropriately with others, identify hazards and take appropriate actions, and respond appropriately to supervision and co-workers. (Tr. 226.)

  On November 24, 2000, Plaintiff went to Sutter Amador Hospital with a complaint of shortness of breath, cough, and stress. (Tr. 269.) Plaintiff was diagnosed with acute bronchitis, asthma, and situational anxiety disorder. (Tr. 269.) She was treated and discharged that same day.

  On February 15, 2001, Plaintiff was examined by consultive internist, Dr. Bernard Michlin, M.D. (Tr. 295-98.) Plaintiff told Dr. Michlin that she had been diagnosed with fibromyalgia in her twenties, and that it had been exacerbated by the 1995 motor vehicle accident. (Tr. 297.) Dr. Michlin reported that Plaintiff had an absolutely normal musculoskeletal and orthopedic exam, and he found no evidence of mental impairment. (Tr. 297.) He found that Plaintiff was able to ambulate without any assistive devices, that she had full range of motion, and had normal 5/5 muscle strength in all muscle groups. (Tr. 297.) He also palpitated her over numerous spots and found no specific trigger points. (Tr. 297.) He noted that she did not appear to have a significant amount of fatigue, and that there was no significant limitations in her ability to sit, stand, walk, move about, ...

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