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Lane v. Commissioner of Social Security

February 6, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 17). With her motion for summary judgment, plaintiff has submitted recent medical records which were not before the agency. Plaintiff also filed supplemental briefs and additional new evidence (Docs. 18 and 20). Defendant opposes the consideration of any evidence not originally before the agency.


Plaintiff applied for social security benefits on June 18, 2003. In the application, plaintiff claims that disability began on February 2, 2001. In her motion for summary judgment, plaintiff claims that disability is caused by a combination of: ". . . osteoarthritis knees and hands, left shoulder strain, left supraspinatus tendon tear, left rotator cuff tear, bilateral carpal tunnel syndrome, bilateral shoulder impingement, fibrositis, fibromyalgia, gastroesophageal reflux disease ("GERD"), sinusitis, allergic rhinitis, asthma, anxiety, depression, and anxiety related disorders." She claims these impairments prevent her from performing sustained work at any level of exertion. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 16, 2004, before Administrative Law Judge ("ALJ") Theodore T.N. Slocum. In an April 5, 2005, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant's status post bilateral rotator cuff repair, fibromyalgia, mild osteoarthritis of her knees, carpal tunnel syndrome versus cubital tunnel syndrome with negative findings on testing, and obesity, are considered "severe" . . .;

2. These medically determinable impairments do not meet or medically equal one of the listed impairments . . .;

3. The claimant's allegations regarding her limitations are not totally credible. . .;

4. The claimant has the following residual functional capacity: lift/carry 20 pounds occasionally and ten pounds frequently; sit, stand, or walk about six out of eight hours; occasionally climb, stoop, kneel, crouch, and crawl; never climb ropes or scaffolds; and occasionally reach overhead;

5. The claimant is unable to perform past relevant work;

6. The claimant is a "younger individual" and has "more than a high school . . . education";

7. Plaintiff's residual functional capacity is not eroded by any non-exertional limitations;

8. The claimant has the residual functional capacity to perform the full range of light work;*fn1 and

9. Based on application of the Grids, claimant is not disabled.

On December 19, 2005, the Appeals Council permitted plaintiff to submit new evidence. The Appeals Council subsequently acknowledged receipt of Exhibits AC-1 through AC-5. After the Appeals Council declined review on May 31, 2007, this appeal followed.


A. Evidence Before the Agency

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:*fn2

July 5, 2000 -- Plaintiff was examined by Dale Smith, M.D., in relation to possible kidney stones. See CAR 541-42. Dr. Smith found normal function on the right side, but "high grade obstructive process" on the left. Dr. Smith's plan was to perform an endoscopic stone removal that evening or the next day.

November 14, 2000 -- Plaintiff sustained a work-related injury to her shoulders. November 21, 2000-- Plaintiff was evaluated by physical therapist Piotr Serek for treatment following her shoulder injury. See CAR 358. The therapist noted a severe decreased range of motion and decreased strength.

January 31, 2001 -- Plaintiff was evaluated by rheumatologist Diana Lau, M.D., incident to "generalized arthralgias." See CAR 514-15. Dr. Lau's notes indicate that plaintiff "is currently working in the warehouse." On physical examination, the doctor noted full cervical range of motion, but decreased range of motion in the shoulders. Plaintiff's elbows were intact and no acute effusion or erythema was noted in the knees.

February 2, 2001 -- Plaintiff claims she became unable to work.

May 8, 2001 -- Plaintiff underwent a left shoulder arthroscopy, left subacromial decompression, and mini-open rotator cuff repair procedure, performed by Michael Petersen, M.D., of Woodland Healthcare. See CAR 354.

December 5, 2001 -- Plaintiff underwent a right shoulder arthroscopy, right subacromial decompression, and min-open rotator cuff repair procedure, performed by Dr. Petersen. See CAR 337-38. Dr. Petersen's operative notes indicate that plaintiff "has done well" since prior procedures on plaintiff's left side.

June 4, 2002 -- Dr. Lau reported on a follow-up rheumatology consultation. See CAR 447-48. The doctor reported:

Patient has a history of persistent arthralgias on her hands. . . . Overall, she is doing much better. At the present time she has very minimal discomfort. She had successful surgery on her shoulders. Her knees also have improved. She no longer has significant pain. She is currently taking ibuprofen as needed for symptomatic relief. She also was found to have slight[] depression and was started on some antidepressant. That has been quite helpful to the patient. She is quite happy with her current clinical improvement.

July 12, 2002 -- Dr. Petersen reported in a worker's compensation report that plaintiff ". . . has full motion of her left shoulder with excellent strength and no weakness . . ." and that, on the right, ". . .she also has near full motion except for a slight decrease in internal rotation." See CAR 444-45. Dr. Petersen noted some pain when plaintiff rotated her neck.

August 23, 2002 -- Dr. Petersen prepared a worker's compensation report. See CAR 438-39. He stated that plaintiff's range of motion was full in the left shoulder without pain, and "near full" on the right. As to her functional capacity, the doctor opined that plaintiff could not lift, push, or pull more than 20 pounds with the right arm and should avoid repetitive reaching above shoulder level on the right. He stated: "I reviewed the job description for general office clerk and approved that."

September 9, 2002 -- Donald W. Seymour, M.D., performed a medical examination of plaintiff as part of a disability evaluation arising from the work injury in November 2000. See CAR 207-32. Plaintiff was ". . . evaluated with regard to problems she is having in her neck, upper back, and both shoulders." According to Dr. Seymour, at the time of the work injury, plaintiff had been working as a "Night Repack-Order Filler." Dr. Seymour reported that, about a week before her work injury, plaintiff noted the "gradual onset of aching pain in both shoulders, that arose in association with reaching and throwing items into a trash compactor at work." On the day of the injury, she was lifting a 45-pound "tote" onto a pallet and ". . . experienced an abrupt increase in bilateral shoulder pain." By February 2001, plaintiff was experiencing pain in the lateral right side of the neck.

As of the date of Dr. Seymour's examination, plaintiff was complaining of "sharp pain in the posterior right neck and interscapular area, as well as bilateral shoulder pain." Plaintiff reported that her pain occurs throughout the day and wakes her at night. As to limitations imposed by her pain, Dr. Seymour noted:

The patient states that she is unable to throw. She states that she has difficulty with driving, walking, climbing or descending stairs, lifting, bending at the neck, pulling, pushing, reaching overhead, turning her head, combing her hair, getting up to walk, carrying groceries, opening doors or jars, and performing vigorous activities. She has no problem with squatting, sneezing/coughing, vacuuming, grasping, brushing her teeth, washing her face, bathing, putting on socks, writing, or keyboarding.

Plaintiff told Dr. Seymour that lying down and medication provide pain relief. Plaintiff estimated that she could lift 20 pounds, sit for one to two hours, stand for one to two hours, but walk only "for minutes." Plaintiff's treating physician at the time was Dr. Petersen. Plaintiff's treatment consisted of medication only. She was not receiving chiropractic treatment or physical therapy. Her last visit with Dr. Petersen prior to Dr. Seymour's examination was July 2002.

Dr. Seymour's impressions were as follows:

1. Status post-operative shoulder arthroscopy, with complete bursectomy, subacromial decompression and min-open rotator cuff repair. . . May 8, 2001;

2. Status post-operative right shoulder arthroscopy, with intraarticular debridement of rotator cuff tear, bursectomy, subacromial decompression and min-open rotator cuff repair . . . December 5, 2001;

3. Post-operative adhesive capsulitis and chronic tendinitis, both shoulders;

4. Multilevel cervical degenerative disc disease, by x-ray, July 22, 2002; and

5. Chronic interscapular stain and sprain.

Dr. Seymour concluded that plaintiff's shoulder, neck, and interscapular conditions were permanent and stationary. He stated that plaintiff would be precluded from overhead reaching and forceful repetitive pushing or pulling with either upper extremity.

September 26, 2002 -- Dr. Petersen prepared a final worker's compensation report. See CAR 435-36. He stated that he agreed with Dr. Seymour's conclusions. The doctor stated that plaintiff continued to report pain on the right but that her left shoulder is "doing pretty well." As to plaintiff's functional capabilities, Dr. Petersen stated:

. . . She should not do repetitive work above shoulder height on the right. I think she can lift up to 20 lbs. below shoulder height level.

February 7, 2003 -- Treatment notes from Marcia Gollober, M.D., indicate that, on physical examination, there was adenopathy of the neck, no spinal tenderness, no palpable edema of the extremities, and that plaintiff was a "cooperative woman in no pain." See CAR 426.

March 14, 2003 -- Plaintiff was treated by Dr. Gollober for complaints of neck and spine pain. See CAR 423. On physical examination, the doctor noted full range of motion and normal motor strength. Plaintiff's neck was without palpable tenderness.

March 14, 2003 -- A vocational rehabilitation progress report indicates that plaintiff "successfully completed her school training rehabilitation program. . . ." and registered with various employment agencies. See CAR 167.

April 10, 2003 -- Phillip B. Schmidt, D.C., reported on his chiropractic treatment of plaintiff. See CAR 233-34. Plaintiff was being treated for ". . . multiple complaints including neck pain, right trap/shoulder/arm pain, upper back pain, low back pain, chest pain, B/L fifth finger N/T, and insomnia." Dr. Schmidt diagnosed plaintiff with "status post . . . rotator cuff surgeries (May and December 2001" and "chronic myofascial pain." Dr. Schmidt did not offer any assessment of plaintiff's residual functional capacity.

July 8, 2003 -- Records from Woodland Healthcare reveal that plaintiff underwent an endoscopy incident to a pre-operative diagnosis of chronic GERD. See CAR 312-13.

August 8, 2003 -- Treatment notes from Dr. Gollober indicate that plaintiff complained of neck pain and was currently taking Darvocet and Celebrex. See CAR 398. Dr. Gollober stated: "[S]he is pressuring me at this time to add another medication," which the doctor did, prescribing Neurontin.

August 28, 2003 -- Charles Miller, M.D., reported on a complete orthopedic evaluation of plaintiff. See CAR 235-41. Plaintiff's complaints included pain in the upper and lower back, neck, hands, feet chest, and right upper extremity. Based on his physical examination, Dr. Miller concluded that "the patient is within normal limits except limited reaching with right shoulder; all others within normal limits."

June 30, 2003 -- Plaintiff completed an "Exertional Daily Activities Questionnaire" form. See CAR 123-26. Plaintiff stated that she could not stand for long periods of time and, therefore, could not cook other than items that can be prepared in a microwave oven. She stated that pain causes nausea and headaches, and that she experiences swelling which requires her to use a TENS unit and ice packs. When she does walk it is only out of necessity to go grocery shopping or keep appointments. She stated that, when she walks she develops pain in her neck and back requiring her to rest for a few hours. She stated that she can only carry her purse. When she goes grocery shopping, her daughter assists her. Plaintiff stated that she needs to sit down every two hours for half-hour breaks. Generally, she requires up to three-hour breaks laying down two to three times a day.

July 8, 2003 -- According to statements made by plaintiff's counsel at the administrative hearing, plaintiff underwent an esophageal gastroduodenoscopy with biopsy and dilation on this date. See CAR 985.

September 26, 2003 -- Agency consultative doctor Shepard Fountaine, M.D., completed a physical residual functional capacity assessment based on a review of the medical records. See CAR 543-52. The doctor concluded that plaintiff could lift 20 pounds occasionally and 10 pounds frequently and sit/stand/walk for six hours in an eight-hour day. The doctor also concluded that plaintiff was limited in her ability to push/pull/reach with the right upper extremity. No postural limitations were noted other than a preclusion to climbing ropes, scaffolds, and ladders. Other than the limitation as to the right upper extremity, no manipulative limitations were noted. No visual, communicative, or environmental limitations were noted.

October 2, 2003 -- Treatment notes from Dr. Gollober indicate that plaintiff reported that she ". . . has developed migratory pain starting in the left shoulder and now it is involved in the right shoulder." See CAR 391. Plaintiff reported that it hurt to wear a bra or even to sit up straight. Plaintiff also reported that Darvocet was no longer working to control her pain. On physical examination, Dr. Gollober noted three positive trigger points and injected each with lidocaine. The doctor assessed "fibrositis flare" and prescribed Vicodin.

October 6, 2003 -- Medical records from Woodland Memorial Hospital reveal that plaintiff underwent an operative procedure (Nissen fundoplication) incident to "failed medical therapy for gastroesophageal reflux disease."*fn3 See CAR 249-51. According to the reporting surgeon, plaintiff had a "long-standing gastroesophageal reflux disease for approximately 10 years." The doctor reported that, within the previous six months, plaintiff had been experiencing "dyspepsia, dysphagia, and anorexia."

October 17, 2003 -- Plaintiff reported to Dr. Gollober that ". . . Vicodin works for her chronic pain in her neck, back, and shoulders. . . ." See CAR 390.

November 6, 2003 -- Treatment notes from Dr. Gollober indicate that plaintiff was continuing to complain of pain in the scapular region. See CAR 387-88. Dr. Gollober's notes reflect that an MRI of plaintiff's neck was "perfectly normal." The doctor's treatment plan was to slowly increase plaintiff's medication and re-evaluate in two months.

December 16, 2003 -- Plaintiff underwent a nerve conduction study. See CAR 376-80. The reporting doctor noted the following impression:

The only abnormality is relative prolongation at the right median orthodromic sensory when compared to the ulnar, although in and of itself was at the upper limit of normal. There was no evidence or even subtle abnormality for the ulnar conduction velocity motor ...

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