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Sorter v. Commissioner of Social Security

June 1, 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). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 22) and defendant's cross-motion for summary judgment (Doc. 23).


Plaintiff applied for social security benefits on March 18, 2005.*fn1 In the application, plaintiff claims that disability began on July 21, 2001. In his motion for summary judgment, plaintiff describes his impairments and limitations as follows:

Mr. Sorter suffers from severe impairments which give rise to debilitating symptoms including: difficulty reading and writing, difficulty dealing with the public, pain, postural limitations, and sit/stand limitations, which combine to preclude him from performing substantial gainful activity. His severe impairments include: borderline intellectual functioning, low IQ, degenerative disc disease, and a broad-based disc bulge with probable annular tear. . . .

Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on April 24, 2007, before Administrative Law Judge ("ALJ") L. Kalei Fong. In a September 21, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: cervical and lumbar strain, and borderline intellectual functioning;

2. The claimant has the residual functional capacity to perform light-medium unskilled work activity;

3. The claimant is unable to perform past relevant work; and

4. Considering the claimant's age, work experience, and residual functional capacity, the Medical-Vocational Guidelines indicate that there are jobs which exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on January 25, 2008, this appeal followed.


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

August 3, 2001 -- Physical therapy treatment notes reveal as follows: "He does well after his therapy but he has had to continue working carrying washers and dryers up and down stairs because he cannot afford to be out of work." (CAR 245).

August 24, 2001 -- Physical therapy treatment notes reveal that plaintiff "went back to work Wednesday." (CAR 205, 235).

October 3, 2001 -- Physical therapy treatment notes reflect that plaintiff had returned to work "approximately twice a week for 6 hours." (CAR 201, 220). As to this work, the notes indicate that plaintiff "does do some heavy work. . . ."

October 9, 2001 -- The record contains a report of an MRI performed on plaintiff's spine. (CAR 196-97). Findings were normal at L1-2, L2-3, and L3-4. However, at L4-5, the following was noted: "Disc space narrowing and desiccation is seen" and ". . .broad-based grade I central disc bulge with some high signal intensity noted along the posterior annulus compatible with annular tear." At L5-S1, the following was noted: "Mild degenerative disc changes are seen."

October 10, 2001 -- Physical therapy treatment notes indicate that plaintiff "did a lot of walking -- elk hunting" and "[p]atient did a lot of walking while he was hunting over the weekend, however he stated that sitting and riding in the car increased his pain." (CAR 201, 218).

November 2, 2001 -- Dr. Matthews prepared a discharge note. (CAR 210). The doctor stated:

Fred returns, he has some persistent low back pain, otherwise he is doing very well and doesn't feel like the therapy at this point has made any new progress. He is pleased with the improvement that he has had. We had done an MRI because of the persistent problem in his lumbar spine. The MRI indicated L4-5 disc space narrowing and a broad-base grade (I) central disc bulge. I think that with his disc is the problem and with him lifting refrigerators and washers, that it is going to be difficult to have much improvement. From a physical therapy standpoint he will be discharged. However, he does have residual low back discomfort with further therapy to be determined.

January 18, 2002 -- Dr. Mathews submitted a letter report regarding plaintiff. (CAR 186-87). The doctor provided the following background:

Fred is a 35-year-old man whom we saw in late July [2001] after he had been in an automobile accident on the 25th, just a few days prior to his initial visit. He was hit in a head-on fashion and then he ran over a telephone post after going through a chain link fence and so on. The injury was severe enough to tear the battery cables out of his car. He was not thrown from the car, but was wearing a lap seatbelt and he remembers that the impact tore the Levis on his right leg from the groin area down to his knees. He had x-rays and evaluation at Jordan Valley Hospital and then he was seen here where he underwent vigorous physical therapy for the period until October [2001].

As to plaintiff's treatment and prognosis, Dr. Mathews stated:

. . . Over a three-month period vigorous physical therapy seemed to decrease the dysfunction and pain in his neck and upper back, but he had radicular low back discomfort that did not seem to respond. Therefore, a MRI scan was ordered and he was found to have a broad-base grade 1 disc bulge at L4-5 with a probable annular tear of the ligament in addition to some mild degenerative changes of L5-S1. Despite continued therapy and medication such a Vioxx, he did not respond and unfortunately the type of work he does; he delivers heavy appliances like refrigerators and washers, he has to carry them up and down stairs and bend over to install them. I think from that type of work, he is probably permanently disabled with his annular tear and disc injury. Unfortunately, he is not trained and I am feeling that from a mental status he is not capable of extensive training in more sophisticated sedentary work such as computer work, and therefore, may be permanently disabled from the manual labor force, other than some light duty-type work that he may find later. Therefore, his disability rating would be 80% at least. I do not think he will have any improvement in his low back unless he should have surgery at some point in time. However, at this point, I am not quite convinced that surgery would be a great benefit to him, and I have not advised him to have it.

February 26, 2002 -- In a prior application for benefits, plaintiff stated that he became unable to work due to disability on July 21, 2001. (CAR 55).

February 26, 2002 -- In a disability adult report submitted with his prior application, plaintiff stated that he had not worked at any time after July 21, 2001. (CAR 76). Specifically, plaintiff stated: "Was off work immediately after accident & have been advised by doctor to go on disability."

March 22, 2002 -- The record contains a "Utah DDS Case Summary," apparently relating to plaintiff's prior application for benefits. (CAR 256). This document reflects that plaintiff was initially seen at Jordan Valley Hospital the day of his auto accident in 2001 and was cleared for modified work until August 1, 2001. As to plaintiff's credibility, the document indicated: "Only partially claimant does have MRI findings to support some back pain but not to the degree he alleges."

March 22, 2002 -- The record contains a residual physical functional capacity assessment submitted by an agency consultative doctor. (CAR 258-64). The doctor opined that plaintiff could occasionally lift up to 20 pounds and frequently lift up to ten pounds, sit/stand/ walk for up to six hours in an eight-hour day, and push/pull without limitation. The doctor also concluded that plaintiff could engage in postural activities (climbing, balancing, etc.) occasionally. No manipulative, visual, communicative, or environmental limitations were noted.

March 18, 2005 -- On the current application for benefits, plaintiff stated that he became unable to work on July 21, 2001. (CAR 58).

March 18, 2005 -- In a disability adult report submitted with the current application, plaintiff stated again that he had not worked at all since the July 21, 2001, accident. (CAR 124).

March 31, 2005 -- Plaintiff submitted an adult function report. (CAR 138-45). He stated that he had no problems with personal care. He also stated that he prepares meals for himself daily, consisting of "eggs, fish," and that he experienced no changes in his cooking habits since the onset date. As to house work and yard work, plaintiff stated that he mows the lawn once every two weeks and that he did not require help to complete this tasks. Plaintiff stated that he drives a car, goes outside every day, and goes shopping once a month. He stated that he is able to handle his personal finances. Plaintiff stated that he enjoys fishing and camping. As to how often he does these things, he stated "all varies" but that he "can't enjoy it as much because my back hurts." However, he later stated that he spends time with others fishing "every week."

July 13, 2005 -- Agency examining doctor Feng Bai, M.D., submitted a report following a complete orthopedic evaluation. (CAR 274-78). Dr. Bai reported the following history:

The claimant reported that on 07/24/2001, he had a motor vehicle accident. He had pain in the back and went to the ER and had x-ray. No fracture. He was discharged home. Later, he was treated with physical therapy and had a report of an MRI of the lumbar spine at end of 2001 and was told to have spinal fluid leakage. The claimant reported that they went to do the epidural injection but he refused. He did not have epidural injection. He did not have surgery. In the last three years, he did not have any treatment. Currently, he is not taking any medication. . . .

On physical examination, Dr. Bai noted that plaintiff was not in acute distress and that he ambulated with normal gait without assistive device. Plaintiff was able to tiptoe and heel walk without difficulty. Back and neck range of motion were normal. Dr. Bai reported:

There is a normal contour without evidence of scoliosis. There is no paraspinal muscle spasm. There is no tenderness to palpation over the spinous processes or paraspinal musculature. There are no scars. There is no pain with range of motion and no pain with axial rotation of the trunk. There is no pain with axial loading of the spine at the head.

Range of motion in the upper and lower extremities was also normal. Straight leg raising was negative bilaterally. Impingement sign and speed testing were negative bilaterally. Anterior and posterior Drawer sign was also negative bilaterally. Dr. Bai noted only very minimal tenderness in the lower lumbar paraspinal muscle area without spasm. Dr. Bai offered the following functional assessment:

Based on today's examination, it is my opinion he is able to lift and carry 100 pounds occasionally and 50 pounds frequently. He is able to stand and walk 6 hours in an 8-hour workday and sit 6 hours in an 8-hour workday. He has no limitation in bilateral upper extremities to reach all directions and doing gross or fine manipulation.

July 18, 2005 -- Agency examining psychologist Janice Nakagawa, Ph.D., submitted a report following a comprehensive psychological evaluation. (CAR 280-84). Plaintiff reported to Dr. Nakagawa that he did not graduate high school because he could not read. He also said that he began using marijuana in high school and last used it "a couple of days" prior to his evaluation. Dr. Nakagawa added: "Then he admitted that he might use it four or five times a week if available to him." As to daily ...

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