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Carter v. Astrue

August 28, 2008

MILDRED CARTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RE: PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOCS. 1, 24)

Plaintiff is represented by counsel and is proceeding in forma pauperis with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for a period of disability, disability insurance benefits (DIB), and supplemental security income (SSI) benefits under Titles II and XVI of the Social Security Act (Act). The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 72-302(c)(15). The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument to the Honorable Sandra M. Snyder, United States Magistrate Judge.

I. Procedural History

Plaintiff, who was born in August 1967 and who was thirty-eight years old on the date of the decision in question, previously received DIB and SSI benefits, but it was determined that her entitlement to DIB and eligibility for SSI ended on July 31, 2002, the end of the second calendar month after the month in which disability ceased. (A.R. 27, 29.)*fn1

On December 3, 2003, Plaintiff filed applications for DIB and SSI, alleging disability as of September 5, 2003, due to pain in the hips, legs, and back, and later due to diabetes and depression. (A.R. 83-85, 392-95, 28.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff requested, and appeared at, a hearing before the Honorable William C. Thompson, Jr., Administrative Law Judge (ALJ) of the Social Security Administration (SSA), on February 14, 2006. Plaintiff appeared with an attorney and testified. (A.R. 27.) On June 13, 2006, the ALJ denied Plaintiff's application for benefits. (Id. at 27-38.) Plaintiff appealed the ALJ's decision to the Appeals Council. After the Appeals Council denied Plaintiff's request for review on November 3, 2006, Plaintiff filed the complaint in this action on January 6, 2007. (Id. at 6-8.) Briefing commenced on December 17, 2007, and was completed with the filing on January 28, 2008, of Plaintiff's reply to Defendant's opposition.

II. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence.

See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Disability

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn2 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).

With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.

Here, the ALJ found that Plaintiff had severe impairments of status post-pin placement in the hips and obesity. (Tr. 37.) She did not have an impairment or combination of impairments that met or equaled the criteria in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Medical Listings). (Tr. 37.) She retained the ability to perform a wide range of light work. Specifically, the ALJ found that she had the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently, stand and walk for six hours in an eight hour workday, but could not climb ladders, ropes, or scaffolds, could not operate foot controls, and must avoid heights and dangerous moving machinery. (Tr. 37.) Using Rules 202.21 and 202.22 as a framework for decision, the ALJ found that she was capable of performing other work within the national economy, namely, cashier, assembler, and laundry worker, and thus was not disabled. (Tr. 37, 23.)

IV. Summary of Medical Records

In October 2002, Dr. Joy Farley of the Health Services Agency examined Plaintiff and diagnosed morbid obesity; she recommended weight loss and that Plaintiff look into the YMCA for aqua aerobics. (A.R. 236.) In December 2002, Dr. Farley continued medications and recommended an exercise program, keeping a food diary, and physical and occupational therapy. (A.R. 234.)

In March 2003, Plaintiff experienced pain from her hip condition, and physical therapy had exacerbated it. Treating orthopedist Dr. Pistel examined Plaintiff as well as x-rays that revealed pins in place from a previous surgery with heterotopic bone over the proximal femur on the lateral side covering the pins completely, without any pin protrusion or evidence of chondrolysis, flattening of the head, or destructive arthritis. (A.R. 319.) At age eleven, Plaintiff had been diagnosed with a slipped capital femoral epiphysis, which was treated with pinning in both hips in 1976; in 1996, an attempt to retrieve the pins was made, but it was unsuccessful and brought no relief. Plaintiff had pain to palpation in the lumbosacral region, point-tenderness at the sacroiliac joint, and limited spinal motion, side bending, and rotation because of pain. She had very limited range of motion in the hip. There was no examination of the sciatic nerve because it was not tolerated; she did not have groin pain with full range of motion, and there was no crepitus. (A.R. 319.) He informed Plaintiff that the potential causes of her low back and hip pain were the previous hip surgery, which could have changed her joint mechanics, and her abdominal girth, which was causing the spine to go into lordosis and a pain pattern; he recommended epidural anesthesia to start with followed by a careful diet and physical therapy program, including aqua therapy. He stated that he had made it very clear to her that he thought that a very important aspect of her treatment would be weight loss in order to improve her symptoms for both her low back but also for prevention of total hip arthroplasty in both hips. His impression was status post SCIFE with mechanical low back pain and facet arthritis (A.R. 319.)

In May 2003, Dr. Pistel examined Plaintiff, who reported that when she was in hydrotherapy, her symptoms abated; Dr. Pistel concluded that this showed that the vast majority of her problems were low back-related, and he recommended back strengthening, fitness program, continued medication, and exercise. (A.R. 318.) Plaintiff reported to Dr. Farley in May 2003 that she had started pool therapy after having seen Dr. Pistel, and she felt better; Plaintiff had obtained a TENS unit three months earlier. (A.R. 217.)

Plaintiff reported increasing hip pain and continued back pain in July 2003, and Dr. Pistel directed Plaintiff to continue with physical therapy to improve the back, and to avoid hip replacement as long as possible. (A.R. 317)

On September 22, 2003, Dr. Pistel saw Plaintiff again after an epidural injection had only provided Plaintiff with short, minimal relief. Dr. Pistel reported:

I feel that her body habitues and size will continue to contribute to chronic low back and hip pain, although her degenerative hip problem as a young woman will continue to bother her.

I have thusly recommended that prior to any consideration for a total hip replacement at her young age and size, that we get a second opinion. I will ask Dr. Rajagopalan to see her to give her his opinion regarding the time frame of hip replacement. I suggested to the patient that over the long-term, her success diminishing symptoms will lye (sic) in weight reduction and management of this as well as conditioning. She does seem to get good relief when she does aqua therapy and that should continue also. (A.R. 316.)

In October 2003, Dr. Bal M. Rajagopalan reviewed Plaintiff in clinic and opined that she had hip pain bilaterally with mild degenerative changes, subsequent to her size and inflammation from her load of her hip; because the hips were a very concentric joint, a little bit of changes with increased load would cause significant symptoms. Plaintiff would be a candidate for a hip replacement, but at the time of the clinic, treatment by injections would be therapeutic and diagnostic. (A.R. 315.)

Dr. Farley discussed a food and exercise diary with Plaintiff in October 2003. (A.R. 213.) In December 2003, Dr. Farley noted that Plaintiff's disability was pending appeal; the doctor encouraged weight loss and continuing pool therapy three time a week; she noted that obesity was contributing to Plaintiff's back pain and arthritis, and that Plaintiff had lost weight (twenty pounds) for the first visit, and she was encouraged to continue. (A.R. 212.)

On November 7, 2003, Dr. Pistel wrote to the Stanislaus Orthopaedic and Sports Medicine Clinic regarding Plaintiff. He wrote that she had "significant arthritic change coccymagna" as a result of slipped capital epiphysis; she would need a total joint replacement but should wait as long as possible because of her young age (thirty-six); he opined that due to her medical condition, any type of activity or work would be impossible for her. (A.R. 311.)

In January 2004, Dr. Pistel noted that Plaintiff had not gotten much relief from the injection of her hip. He encouraged Plaintiff to continue her exercises to delay a total hip arthroplasty as long as possible. (A.R. 309). Plaintiff continued to try to lose weight in April 2004. (A.R. 308.)

In April 2004, Dr. Farley recommended enrolling Plaintiff again in the obesity class at Paradise and continuing pool exercises. (A.R. 207.) Dr. Pistel noted that Plaintiff continued to try to lose weight. (A.R. 308.) In May 2004, Dr. Pistel noted there was no bone-on-bone arthritis of the hip; prior to total hip replacement, Dr. Pistel recommended surgery to attempt to remove the hardware. (A.R. 307.)

Plaintiff, who was taking medication and was prescribed physical therapy, was referred to the pain clinic and was examined in June 2004. An x-ray revealed normal hip joint space, bone spurs over pins on the left side with a protruding pin and the appearance of some broken pieces. Plaintiff reported doing water therapy since 1997 about three times a week, which she reported was somewhat helpful. (A.R. 349.) The diagnosis was chronic hip pain likely worsened secondary to bone spurs from protruding pins. (A.R. 350.) Medications and physical therapy were to continue, and surgery was scheduled. (A.R. 349-50.)

In December 2004, Dr. Pistel reported that surgery had shown that Plaintiff's three pins were deeply embedded in the bone. The portion of the pins that protruded from the bone was removed; the remainder of the pins had broken deep inside the bone, and bone spurs that were present were smoothed. Dr. Pistel prescribed physical therapy. (A.R. 348, 371.)

In February 2005, Dr. Pistel noted Plaintiff's continuing complaints of pain; he recommended continuing exercise and lifestyle change in order to lose weight, and weaning her off narcotics and muscle relaxants during the day and pain medication at night over the next several months. He did not feel that she would need hip replacement surgery. (A.R. 347.) During Plaintiff's February 2005 visit to the pain clinic, she reported that she had been doing pool therapy as physical therapy, but she had stopped in October 2004. (A.R. 345.) She complained of constant low back pain that radiated down both legs. (Id.) The doctors recommended continuing pool therapy and working out in the gym, stretches, aerobic exercise, increasing activity, and losing weight. (A.R. 346.)

In March 2005, Dr. Pistel recommended continuing her exercise program and talking with another doctor about gastric bypass as a way to help. (A.R. 340.) Notes from Plaintiff's visit to the pain clinic that month reflect that Plaintiff complained of worsening pain but reported an increased level of activity or exercise consisting of one half hour of exercise two or three times a week in an arthritis water class, with one-half hour of floating. Her exercise was walking, squats, and abductions in the water, and floating in the water; she did no exercise in the gym or with equipment. Her compliance was rated as fair and average; she was instructed as to motivation and given a home program in which she was to perform step-up's, increased land exercise, and stretching. (A.R. 344.)

In April 2005, EMG studies of both Plaintiff's lower extremities, performed to evaluate possible peripheral neuropathy or lumbosacral radiculopathy, were normal. (A.R. 341-43.) Plaintiff reported that the EMG had revealed spinal stenosis; Dr. Pistel opined that Plaintiff presented a clinical picture that was consistent, so Plaintiff was referred to Dr. Gadgil, and Dr. Pistel ordered an MRI and a neurosurgery referral. (A.R. 339.)

In May 2005 Dr. Pistel recommended continuing to exercise and lose weight, and injections to delineate the pain. (A.R. 335.) He treated her with a forearm strap, physical therapy, and rest for pain at the medial epicondyle. (A.R. 338.) He recommended that she progress out of the water exercises, and the plan was to taper her slowly off her Elavil and possibly increase Flexeril; the plan also included continuing a weight loss diet (Plaintiff weighed 330 pounds). (A.R. 337.)

At the pain clinic in May 2005, Plaintiff reported that her pain had increased and her activity and exercise level were worse; she was doing water exercise; unspecified "P.T." that she did at home did not help. A physical exam revealed tenderness over the trochanter and reduced movement of the back with possible poor effort. The summary "REPORT CARD" stated that Plaintiff was difficult to motivate, dependent, had a passive attitude, was on several pain medications, and made poor progress. (A.R. 337.)

In July 2005, Dr. Pistel advised diagnostic and therapeutic injections under fluoroscopy to help delineate Plaintiff's hip pain, as well as continuing trying to exercise and lose weight, which would also help delineate whether the pain was coming from the low back or from the hip. Dr. Pistel also injected both hips and the greater trochanteric region and right elbow, and the plan was to continue physical therapy. (A.R. 335.) He recommended an intra-articular hip injection bilaterally. (A.R. 334.) He injected Marcaine and Depo-Medrol into both hips on August 4, 2005. (A.R. 377.) His postoperative diagnosis was bilateral hip pain with possible degenerative joint disease. (A.R. 375.) Plaintiff was discharged with instructions to return to previous activities gradually. (A.R. 373.)

A note reflects studies taken during surgery on August 4, 2005, including a study of one view of the right hip, reflected retained hardware, with a needle overlying the left femoral head, and multiple pieces of hardware. The impression was postoperative changes, and needle over the femoral head. (A.R. 380.) A study of the left hip showed retained hardware in surgery and a needle and multiple pins in place; there was no change from the prior exam of December 2004. (A.R. 379.)

On August 11, 2005, Plaintiff reported to the pain clinic that her pain was constant and was worse, and her exercise or activity level was also worse, with one block of walking causing bilateral pain; she stretched five to ten times a day, but it hurt worse; she stopped physical therapy and swimming three weeks earlier; she had been going three times a week to physical therapy, but it brought no relief. There was tenderness over the lower back, worse on the left, right and left buttocks were painful when palpated, hip flexion was thirty degrees left and forty-five degrees right. The plan was to resume swimming and walking and stretching at home with gradual increase in intensity and frequency. (A.R. 333.)

An MRI taken August 11, 2005, revealed a small central bulge at the level of L5-S1 that caused mild compression of the thecal sac without evidence of nerve root compression, and with associated mild facet joint arthropathy (A.R. 333, 387.)

In August 2005, Plaintiff's physical therapist reported that with respect to Plaintiff's prescription from Dr. Pistel for therapy for back and bilateral hip pain, Plaintiff had only attended twice (two consecutive appointments in July 2005), and she stated that she was waiting to see what her doctor would tell her to do in response to therapy. (A.R. 336.)

On September 27, 2005, Plaintiff was evaluated at the Neurosurgical Clinic of the Stanislaus County Health Services Agency by Dr. Dikran Bairamian. (A.R. 328-39.) Dr. Bairamian found unlimited straight leg raising, tenderness of the lower lumbar region, hip rotation uncomfortable on the left, and 5/5 motor exam with normal sensory exam. X-rays showed minimal degenerative changes at L5-S1; he saw no cauda equina or root compression. His impression was back/bilateral lower extremity pain. He told Plaintiff that surgical intervention on the spine was not indicated. She was referred for a course in physical therapy in addition to an epidural block; she was advised to lose weight and to follow up with her primary care physician. (A.R. 329.)

At the pain clinic in October 2005, Plaintiff reported worse pain and activity level; she was not doing the home exercise program, anticipated restarting, and was scared about restarting because of prior episodes and pins extruding after physical therapy. She took Methadone, Elavil, Flexeril, Vasotec, Paxintine, and Glucophage. The physical exam revealed reduced range of motion at the waist, tenderness to palpation diffusely throughout back, arms, and legs, slow gait but no limp, a minimal squat, twenty degrees flexion, ten degrees lateral bending, and five degrees extension. The TENS unit helped somewhat with pain in the back, buttocks, and the inside of the legs. Plaintiff's sleep was poor despite her dose of 120-150 milligrams of Elavil. Plaintiff was difficult to motivate. Physical therapy (pool exercises/therapy three times a week) was scheduled, and Plaintiff was advised to attend, but it was not clear that she would go. She was encouraged to continue to try to reduce her dose of Elavil and to attend weight loss class. (A.R. 327.)

In December, Dr. Pistel saw Plaintiff, who complained of continued hip pain; Dr. Pistel planned that before considering hip replacement surgery, a second trial injection should be given. He would discuss a new hip in the following year. (A.R. 325.)

Plaintiff visited the emergency department of Doctor's Medical Center on December 22, 2005, for bilateral hip pain. (A.R. 365-66.) Dr. Robert E. Wolfensperger examined Plaintiff and found full range of motion at both hips, well-healed bilateral lateral scars, and no evidence of thrombophlebitis, cellulitis, or abscess formations. He noted that the x-rays showed multiple pins at both hips with normal bony prominences; one of the four pins at the left hip was bent at the tip and the other had several small chips out of it, but there was no foreign material in the wound or any free-floating metallic foreign bodies. The impression was bilateral hip pain with multiple pins, and medication. (Id.) Dr. Matthew Lynn reported that a study of Plaintiff's left hip and pelvis showed multiple pins fixing bilateral femoral neck fractures; no acute fractures were seen; there was some minimal osteoarthritic change in the hips, but no lytic or destructive lesions were seen. (A.R. 367.)

In January 2006, Plaintiff weighed 315 pounds. (A.R. 324.) Dr. Pistel stated that Plaintiff had bilateral hip arthritis as a result of her Legg-Calve-Perthes,*fn3 and she would have a bilateral hip injection under fluoroscopy. (A.R. 323.) The injection was performed on January 26, 2006. (A.R. 358-59.) Dr. Pistel noted that three to six months before, Plaintiff had had a positive response to injection of the hips and was there for a repeat injection. (A.R. 356.) Plaintiff exhibited pain with range of motion and in the groin. (Id.)

Two weeks after the hearing, on February 20, 2006, Dr. Pistel opined*fn4 that due to multiple musculoskeletal problems, continued pain in both legs and low back, with significant arthritic change "coccymagna" resulting after slipped capital epiphysis, Plaintiff was precluded from performing any full-time work at any exertional level, including sedentary work; she could sit about an hour and stand and/or walk thirty minutes total. He opined that she was really disabled. (A.R. 390.)

Also after the hearing, on February 23, 2006, Dr. Gadgil, Plaintiff's primary physician, opined that since September 2004, Plaintiff was precluded from performing any full-time work at any exertional level, including sedentary work, due to hip pain and lower back pain that radiated bilaterally to the lower extremities due to slipped capital femoral epiphysis, along with a small disc bulge at L5-S1 as reflected by the August 2005 MRI; she could sit thirty minutes to an hour, and stand or walk fifteen to twenty minutes; periodically she needed to elevate her legs and lie down to help with her back pain for two hours; she was also unable to squat, lift her arms above her head, and constantly needed to change position. (A.R. 391.)

Exhibits presented to the Appeals Council reflect later treatment of Plaintiff.

A partial copy of a letter to Plaintiff's doctor from UCSF Medical Center dated March 29, 2006, and a copy of a letter from May 2006 from Dr. Vedat Deviren, referred to examination of Plaintiff, who weighed 310 pounds and reported that her three injections into the hips had no particular benefit; she had tried physical therapy and other treatment but believed her condition to be worsening. She experienced severe pain (ten on a scale of one to ten) in the hips, the groin, and over the side that was present with all activities and positions. She could walk only from her bed to her chair without pain. She experienced stiffness, numbness, swelling, and weakness, and she had a moderate limp. She was morbidly obese. She took Methadone for pain control. Physical examination revealed normal limb alignment between hip and ankle, normal neurovascular status in both extremities distally when sitting; painful straight leg raising in the supine position; and limited range of motion of the hips with pain. The knees were in apparent valgus. Examination of the right hip showed flexion to ninety degrees, extension of zero degrees, and internal rotation of zero degrees causing significant pain; external rotation was to forty degrees, abduction thirty, and adduction of twenty; examination of the left hip showed eighty-five degrees of flexion, zero degrees of extension, zero degrees of internal rotation accompanied by significant pain, forty degrees of external rotation, twenty-five degrees of abduction, and fifteen degrees of adduction, all accompanied by pain. (A.R. 404-07.) X-rays taken of both hips demonstrated reasonably well preserved joint spaces bilaterally and residuals of mild slipped femoral capital epiphysis with retained pins; early signs of impingement and osteophytosis on the right, and a possible early osteophyte at the superior border of the acetabulum; lateral views of the hips showed the pins to be within the femoral neck and head, and the hip joint spaces were fairly well maintained bilaterally. X-rays of the lumbosacral spine showed some degeneration of the L5-S1 disc space but otherwise decent alignment; a previous nuclear bone scan demonstrated focal increase at her bilateral sacroiliac joints and on the left side at L5-S1. The diagnosis was bilateral coccydynia status post-pinning for slipped femoral capital epiphysis as a child. The impression was that it was not clear whether the pain was due to arthritis of the hip joints, was coming from her spine, or had some other origin. (A.R. 405.) Dr. Deviren concluded that surgery would not be beneficial at that time, but weight loss and walking more, along with pain management, would benefit her. (A.R. 407.)

A report of a bone scan, with intravenous administration of TC-99m MDP, of the pelvis taken April 17, 2006, revealed no abnormal radiotracer activity in the femoral heads or other portions of the hip joints to suggest osteomyelitis; there was a small focus of uptake in the lower lumbar spine on the left at L5-S1, and a slight amount of uptake in the bilateral sacroiliac joints, possibly relative to degenerative disease. (A.R. 409.)

Dr. John Chase, a clinical instructor in the division of arthroplasty at the department of orthopedic surgery at UCSF, wrote on April 19, 2006, that a technetium bone scan performed on April 17, 2006, revealed no abnormalities in the hip joints, there was increased radiotracer uptake at L5-S1 on the left and in both sacroiliac joints that was probably related to degenerative disease, and a subtle fossa of activity in the lower anterior chest wall possibly at the costochondral junctions. It did not appear that Plaintiff's complaints were referable to her hip joints; they were more likely emanating from her spine and/or sacroiliac joints. She was referred to Dr. Deviren in the Spine Clinic at UCSF for evaluation and treatment; Plaintiff was not a candidate for arthroplasty of either hip despite her history, and there was no significant degree of osteoarthritis of either hip to suggest a need for surgery in the foreseeable future. Weight loss would be of value in prolonging the life of Plaintiff's hip joints. (A.R. 408.)

V. Res Judicata

Plaintiff argues that the ALJ erred in applying res judicata to the previous finding of non-disability because Plaintiff was not represented by counsel in the earlier hearing. The ALJ should have evaluated all the evidence de novo instead of applying ...


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