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Summers v. Commissioner of Social Security

July 9, 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. 20) and defendant's cross-motion for summary judgment (Doc. 23).


Plaintiff applied for social security benefits on September 20, 2005.*fn1 In the application, plaintiff claims that disability began on February 26, 2005. In her motion for summary judgment, plaintiff claims that disability is caused by a combination of: "osteoarthritis in the shoulder, lumbar spine, and knees; degenerative disc disease, left shoulder impingement; obesity; sleep apnea; adjustment disorder, depression; and hypertension." According to plaintiff:

Ms. Summers suffers from impairments which give rise to non-exertional symptoms, including pain, postural limitations, sit/stand/walk limitations lifting/reaching limitations, the need for daily naps, and need to avoid frequent contact with the public, which combine to preclude her from performing substantial gainful activity.

Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 18, 2007, before Administrative Law Judge ("ALJ") L. Kalei Fong. In a February 8, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: degenerative lumbar disc disease, left shoulder impingement, obesity, alcohol abuse, adjustment disorder, sleep apnea treated with CPAP, hypertension controlled on treatment, and GERD;

2. The claimant has the residual functional capacity to perform light work except she is limited to occasional stooping or crouching, no frequent forceful gripping/grasping or overhead reaching with the left upper extremity secondary to impingement, frequent handling is intact for light work, and no frequent public or co-worker contact;

3. The claimant is able to perform her past relevant work as a residential counselor; and

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

After the Appeals Council declined review on April 11, 2008, this appeal followed.


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

December 3, 2003 -- Records from Sacramento Family Medical Clinic reveal that plaintiff was diagnosed with sleep apnea. (CAR 303).

February 19, 2004 -- Agency doctor Satish Sharma, M.D., reported on a comprehensive internal medicine examination. (CAR 293-98). Plaintiff was evaluated incident to complaints relating to sleep apnea and musculoskeletal pain. As to the latter, the doctor reported on the following history provided by plaintiff:

The claimant also complains of low back pain for the past five years. She denies any history of trauma to the back. The back pain at times radiates to the lower extremities, right more than left. She also gives a history of intermittent numbness in the lower extremities. She says that anytime she stands, walks, lifts anything, bends, or sits in one position for a long period of time she has low back pain.

She also complains of bilateral knee pain, right more than left. She denies any history of trauma to the knees. The knee pain is worse on prolonged standing and walking. The knees have a tendency to give way and lock on her at times.

On physical examination, Dr. Sharma observed tenderness to palpation of the lumbar spine, but no paraspinous muscle spasm. Straight leg raising was negative bilaterally. He also observed that plaintiff's shoulder abduction was "180/180 degrees bilaterally." The doctor provided the following functional assessment:

Because of her history of chronic low back pain and intermittent radicular pain in the lower extremities as well as her bilateral knee pain and intermittent limp on the right lower extremity, the claimant should be limited in lifting to 10 pounds frequently, 20 pounds occasionally. Bending and stooping should be done occasionally. Standing and walking should be limited to 6 hours per day with normal breaks. There are no limitations in holding, fingering, or feeling objects. There are no limitations in speech, hearing, or vision. She has a history of sleep apnea syndrome and should not drive.

March 9, 2004 -- An agency non-examining doctor submitted a physical residual functional capacity assessment. (CAR 283-90). The doctor opined that plaintiff could lift/carry up to ten pounds occasionally and 20 pounds frequently, sit/stand/walk for six hours in an eight-hour day, and push/pull without limitation. The doctor also opined that plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. No manipulative, visual, or communicative limitations were established. As to environmental limitations, the doctor states that plaintiff should maintain "average cleanliness" with respect to exposure to fumes, odors, dusts, gases, etc.

May 20, 2004 -- Agency non-examining doctor Antoine Dipsia, M.D., submitted a physical residual functional capacity assessment. (CAR 274-81). Dr. Dipsia opined that plaintiff could lift/carry up to ten pounds occasionally and 20 pounds frequently, sit/stand/walk for six hours in an eight-hour day, and push/pull without limitation. The doctor also opined that plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. No manipulative, visual, or communicative limitations were established. Dr. Dipsia stated that plaintiff should avoid workplace exposure to fumes, odors, dusts, bases, etc., but otherwise did not assess any environmental limitations.

December 16, 2004 -- Progress notes from Sacramento Family Medical Clinic reflect that plaintiff was being treated for sleep apnea. (CAR 302).

January 18, 2005 -- Agency doctor Will Ellis, M.D., performed a comprehensive internal medicine examination and prepared a report. (CAR 268-73). At the time of the evaluation, plaintiff's chief complaints were: sleep apnea; pain in the hand, legs, and back; and hypertension. Regarding plaintiff's musculoskeletal complaints, Dr. Ellis reported the following history:

. . . The claimant reports that she has had pain for the last 3-4 years. Apparently she worked graveyard at a warehouse lifting boxes. She also did housekeeping at children's homes and occasionally had to restrain fighting children. She reports she developed a pinched nerve in her back with pain radiating to her leg about three years abo. She was prescribed analgesics. She did not have an MRI or a CAT scan, but she did have back and shoulder x-rays. She was prescribed Gabapentin, but did not receive any further relief. She developed peptic ulcer disease and antiinflammatories were discontinued and she has subsequently been on Tylenol. She also reports that she started Tramadol three months ago with partial relief. She has had no other treatment and reports no relief with heat or ice. Her last physical therapy was in 2002 without relief.

Her current pain is a band of pain around her low back at about the L3 level. It radiates down her right posterior leg to her ankle. She reports occasionally the posterior aspect of her calf and plantar aspect of her foot are numb. She has had incontinence for one year of an urge type. The right foot seems to be weaker and she questions whether or not she has a limp. She also reports for the last one year her left shoulder has ached after significant activity. This ache is centered right over the joint and she reports on a few occasions her left arm has been numb, although she is able to shake this out and she denied any focal weakness.

As to daily activities, plaintiff reported that she occasionally helps with making her bed and simple meal preparation. She also cares for her four-year-old grandson and 19-month-old granddaughter while her daughter is at work.

On physical examination, Dr. Ellis noted that plaintiff presented with a slight right-sided limp. Straight leg raising was negative bilaterally and fine finger motions were intact. Dr. Ellis observed normal motor strength on the right, but decreased on the left. He noted that plaintiff is right-handed. He observed "[s]ome atrophy" of the right leg. The doctor provided the following functional assessment:

The claimant appears to ambulate with some mild difficulty. The atrophy of her right leg appears to be significant. I believe that the claimant would be able to ambulate for two hours during the course of the day and provided breaks probably somewhat more than that, although I believe it would be challenging for her to achieve about six hours during the course of the day.

Provided she is able to shift her weight occasionally, I believe that the claimant would be able to sit for six hours during the course of the day.

Given the claimant's shoulder impingement, as well as her back pain, it seems reasonable to limit lifting or carrying to 10 pounds frequently and 20 pounds occasionally.

The claimant appears to have full range of motion, but some difficulty rising from a flexed spine position. I believe it appropriate to limit bending, stooping, or crouching to occasionally.

The claimant has some decreased grip strength on the left. She also has positive impingement in her left shoulder. I believe it would be appropriate to limit reaching with the left arm to occasionally and grasping objects with the left hand to occasionally.

There are no relevant visual, communicative, or workplace environmental limitations identified.

October 21, 2005 -- Treatment notes from Sacramento Primary Care reflect that plaintiff complained of low back pain. (CAR 240-41).

April 7, 2006 -- Agency non-examining doctor C.E. Lopez, M.D., submitted a physical residual functional capacity assessment. (CAR 260-67). The doctor opined that plaintiff could lift/carry up to 20 pounds occasionally and up to ten pounds frequently. Plaintiff could stand/walk/sit for six hours in an eight-hour day with no restrictions. Plaintiff's ability to push/pull was unlimited. The doctor concluded that plaintiff could perform all postural activities frequently, except that plaintiff could only kneel and crawl occasionally. Overhead reaching with the left upper extremity was limited, as was plaintiff's ability to engage in frequent forceful gripping/grasping. The doctor opined that frequent basic handling was intact for light work. No visual, communicative, or environmental limitations were assessed.

April 19, 2006 -- Plaintiff summarizes the treatment notes from Sacramento Primary Care at CAR 237-38 as follows:

April 19, 2006, medical records from Primary Care Center reflected that Ms. Summers had her medications refilled. The record also reflected that she was "In a lot of pain" located in her left shoulder which had been continuing for two years and was exacerbated by activity, knee pains and low back pain, all of which were ongoing. The record reflected that she had been using Tramadol for a few days and reported that she was very fatigued all the time and her sleep was non-restorative. Records of the same date reflected that she appeared depressed and was obese. The record also reflected that her depression was probably due to pain, and her shoulder and knee pain "may represent radiculopathy combined with rotator cuff syndrome." She also reported low back pain.

July 3, 2006 -- According to plaintiff, the treatment notes from Sacramento Primary Care at CAR 235-36 show that "[s]he reported not wanting to use heavy pain medication such as methadone because it caused constipation." Plaintiff also states that the notes reflect that Naprosyn helped with her shoulder pain, but not her knee and back pain. Plaintiff told the treating doctor that she was not taking prescribed Elavil for sleep "because it scared her." The doctor prescribed Norco and instructed plaintiff to continue with Elavil to help her sleep.

July 20, 2006 -- William Stansell, M.D., prepared a report entitled "SSI History and Physical Examination." (CAR 248-51). He described plaintiff's chief complaints as follows: "Painful joints -- 'I hurt' -- and depression." Dr. Stansell outlined the following history, as reported by plaintiff:

This 52-year-old African American female states she has pain in her lumbar spine plus her knees, right hip, and left shoulder for more than three years. No history of any significant injuries in the past. There was gradual onset of these symptoms. The lumbar pain is aggravated by prolonged walking and standing and by heavy lifting. She has pain in both knees, and the apartment she lives in involves going up and down stairs frequently. She has been able to walk and does so frequently, anywhere from two to three blocks in distance. The patient's weight, formerly 195, has decreased approximately ten pounds over the past several weeks, according to the patient. Overall, the patient states she "hurts."

The patient states she has been depressed over the past couple of years. This has caused her to lose interest in her surroundings, and for the past several months she has stayed inside a lot. She states she just does not have the energy to do anything. She admits to not feeling happy. She was married for seven years at one time, and has been separated for more than ten years. She has had suicidal ideation in the remote past, but denies any current thoughts. She was recently scheduled to see a psychiatrist at the Visions clinic in follow-up.

The patient was diagnosed with sleep apnea in the year 2003. She has been in a CPAP machine since then, but states she still has difficulties on occasion. She thinks she has had sleep apnea since at least 1999. In the morning she still feels fatigued. She does not seem to sleep well at night, even though she has been on medication for this.

The patient is followed at Primary Care Clinic and treated for her chronic pain by Dr. Davis. Currently she is on Norco and Neurontin, as well as Naprosyn. She feels her painful joints are not getting any better.

As to alcohol use, plaintiff reported the following to Dr. Stansell:

An occasional drink, beginning at age 18, progressing to one or two glasses of white wine a day. She does not drink every day. She has never been inebriated or had any withdrawal problems.

Plaintiff also reported that she helps with household chores.

On examination, Dr. Stansell reported that "[f]unduscopic examination was grossly within normal limits." Plaintiff had good range of motion on forward flexion of her back. There was limited range of motion of the left shoulder, but all other joints were within normal limits. Straight leg raise was 90 degrees bilaterally, and plaintiff was able to heel-walk without difficulty. Plaintiff's thought content was appropriate and there was no evidence of hallucinations, delusions, or active suicidal ideation. Dr. Stansell diagnosed "arthralgias" in the left shoulder, knees, and low back. He also noted plaintiff's obesity and chronic depression by her report.

Dr. Stansell's report was accompanied by an assessment of plaintiff's ability to do work-related activities. He opined that plaintiff's ability to relate to co-workers and the public, function independently, maintain attention and concentration, and understand and carry out complex job instructions was "fair." He concluded that plaintiff's ability to deal with work stressors was "poor." He opined that plaintiff would frequently lift/carry up to ten pounds and occasionally lift/carry up to 15 pounds. The doctor stated that plaintiff could stand/walk for up to four hours total for 15 minutes at a time without interruption. He did not feel that sitting was affected by plaintiff's impairments. Plaintiff's ability to do overheard reaching activities with the left shoulder was limited.

September 5, 2006 -- Treatment notes from Sacramento Primary Care show that plaintiff reported that "[t]oday is a better day for me" in terms of her pain. (CAR 233). Plaintiff was continued on Naprosyn, Norco, and Elavil.

October 3, 2006 -- Treatment notes from Sacramento Primary Care reflect that plaintiff's hip pain was improved with medication, though plaintiff still complained of impaired mobility. (CAR 232).

October 19/20, 2006 -- Plaintiff answered questions posed by a marriage and family therapist at Visions Unlimited incident to completion of an "Adult Comprehensive Assessment / Client Plan." (CAR 221-27). Plaintiff stated she had no problems in the following areas: managing day-to-day life; completing household chores/responsibilities; completing work-related tasks; and getting along with people outside the family. She did report "a lot" of problems with drinking alcohol, adjusting to stresses, relationships with family, apathy, depression, fear, anxiety, memory, sleeping, and temper. On mental status examination, plaintiff was cooperative, calm, and direct. Her sensorium was alert. Her mood was dysphoric though her affect was within normal limits. Plaintiff's perception was also within normal limits. Her thought form was logical and thought content was within normal limits. Plaintiff's speech was clear and she was attentive. Judgment and abstract thinking were adequate. The therapist assessed major depressive disorder and assigned a global assessment of functioning ("GAF") score of 55 on a 100-point scale.

February 10, 2007 -- Plaintiff submitted a "Function Report -- Adult." (CAR 110-17). Plaintiff described her typical day as follows: Go to the bathroom and stay in bed. Sometimes I sit up for a while then I'm back in bed. I drink a couple of cups of tea almost every morning, say my prayers, take all my morning pain medications, blood pressure pills, stomach pills, read the daily newspaper. 2 hours after I'm done with taking my morning meds I'm very sleepy and tired and however severe my pain is in my back and knees I'm lying down in bed.

She stated that she does not care for anyone else and that she does not care for any animals. She stated that she has problems sleeping and is in a "lot of pain." She added that pain medication "doesn't always help me sleep because the pain I experience is greater so I'm always restless and tired." As to personal care, plaintiff stated that she needs help getting in and out of the bathtub and cannot care for her hair. Plaintiff stated that she "sometimes" prepares meals consisting of sandwiches, soup, "or something I can cook quick in the microwave." She stated that she cannot stand for long periods of time and does not do any household chores because "I'm in too much pain; I'm suffering from severe depression." She stated that she does not go out alone or drive. She stated she tries to go to church at least once a month "if I'm feeling up to it."

As to her capabilities, plaintiff stated she has difficulty lifting, squatting, bending, standing, reaching, walking, kneeling, climbing, concentrating, remembering, understanding, following instructions, and getting along with others. She did not state that she had any problems with sitting. She stated that she cannot walk anywhere. She added that she has problems getting along with authority figures. She ...

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