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Belmont v. Astrue

August 20, 2009

JEAN M. BELMONT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Jean M. Belmont ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff applied for DIB and SSI on November 1, 2004, alleging disability since March 29, 2003, due to hepatitis C, rheumatoid arthritis and fibromyalgia. AR 67, 87, 93. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 62, 67, 72, 73-77, 79-83. On April 4, 2007, ALJ David E. Flierl held a hearing. AR 42-61. ALJ Flierl denied benefits on July 23, 2007. AR 14-25. On December 3, 2007, the Appeals Council denied review. AR 5-8.

Hearing Testimony

ALJ Fleirl held a hearing on April 4, 2007, in Fresno, California. AR 17, 42. Plaintiff appeared with her non-attorney representative, Richard Handel. AR 26, 44. Dr. Thomas Dachelet, vocational expert ("VE"), also appeared and testified. AR 44, 48.

Plaintiff was born in 1955. AR 45. She is 5'7" and weighs 180. AR 45. She is right-handed. AR 45. She has a California driver's license. AR 45. She graduated from high school. AR 46. She also completed an adult school secretarial course and two years at a city college, but did not receive a degree. AR 46. She now has problems reading, writing and seeing clearly. AR 46.

Plaintiff testified that her main occupation for the last 15 years was sales. AR 46. Basically, she contacted people to get them to either purchase a service or a product. AR 47. She sat most of the day and lifted 10 pounds or less. AR 47-48. The VE classified Plaintiff's telemarketing work as sedentary SVP per the DOT at semiskilled. AR 48. While in phone sales, Plaintiff tried to work around her illness and cut back hours. AR 48-49. She asked for a leave of absence to get treated. AR 49. Her fibromyalgia and depression interfered with her job. AR 49.

Plaintiff testified that she suffers from chronic pain and overwhelming fatigue from her fibromyalgia. AR 49. She will get disoriented and cannot remember anything. AR 49. She was diagnosed with fibromyalgia about three years before the hearing. AR 49. The pain management specialist, Dr. Kalamkarian, diagnosed her. AR 49-50. Without medication, her pain is 8 or 9 out of 10. AR 50. With medication, the pain can go up to a 7 or 8. AR 50. She tries to keep the pain at 4 or 5, where it is "bearable." AR 50. She takes 80 milligrams of Oxycodone three times a day. AR 50. In between, she takes another kind of Oxycodone if the pain returns. AR 50.

Plaintiff testified that she is always fatigued. AR 51. She rarely sleeps through the night. AR 51. She is generally in bed by 8:00 and wakes up at 8:00 in the morning. AR 51. In those 12 hours, she probably gets two to three straight hours of sleep. AR 51. She wakes up and then goes back to sleep for another two to three hours. AR 51-52. During the day, she is fatigued all the time. AR 52. Sometimes she cannot drive. AR 52. She cannot function and can only lie down. AR 52. At least 3 to 4 days a week, she lies down all day. AR 52.

Plaintiff testified that the pain due to fibromyalgia is like a "really, really bad abscess tooth." AR 52. She gets spots on her head that she cannot touch softly or spots in her legs. AR 52. It is "like... something hot is being shoved down from [her] butt into [her] legs." AR 52. It will go into her feet. AR 52. Her fatigue and pain affect her ability to concentrate. AR 53. She can read a newspaper and understand what it says. AR 53. She tries to read every week. AR 53. When she reads, she gets tired. AR 53. If she is really fatigued, she cannot tell what she read. AR 53. Her fibromyalgia might be aggravated because she has rheumatoid arthritis. AR 53. She also has Hepatitis C, which probably contributes to her fatigue. AR 53. She takes Remeron for depression. AR 53.

Plaintiff lives with her husband and son. AR 54. Her daughters come over and help with housework. AR 54. She can stand for 10 or 15 minutes. AR 54. She can walk about 15 or 20 minutes. AR 55. She can sit for 20 to 25 minutes. AR 55. She has to constantly shift. AR 55. When it gets uncomfortable, she lies down. AR 55.

Plaintiff also testified that she has degenerative disc disease of her lumbar spine. AR 55. She thinks that it might cause both shooting pains and her arm and hands to fall asleep. AR 55. An "orthopedic person" prescribed a neck brace and a wrist brace. AR 56. She has degenerative changes in her cervical spine and in her lower back. AR 56. She has pain in her lower back to her hips, shooting down in to her legs. AR 56. She did not want to risk paralysis by having surgery. AR 56. She tries to control it with pain medication. AR 56. Since her last job, her condition "seems to have gotten worse." AR 57.

Plaintiff testified that she smokes about a pack a day. AR 57. She used to drink warm brandy to relieve the pain. AR 58. She was having stomach problems from over-the-counter medication. AR 58. Since they found out she needed to be on a medicine that helped the problem, she has not had a drop of alcohol. AR 58.

Plaintiff testified that she worked in a bar for six months. AR 58-59. She worked six or seven hours. AR 59. They changed owners and let everybody go. AR 59.

Plaintiff also testified that she sleeps with 7 to 10 pillows because she can lie only on her back. AR 60. If she lies on her side, it causes her hips and her arms to be aggravated. AR 60. She has to prop her knees and arms up at a certain level or they go numb. AR 60. She will get a deep ache and take hot baths for momentary relief. AR 60.

Medical Record

In June 14, 1996, Plaintiff was assessed with depression/anxiety, headache and insomnia. AR 255.

On September 27, 1996, Plaintiff complained of severe indigestion. AR 241. The provider assessed her with a possible hiatal hernia with esophagitis, chronic, with exacerbation under stress. AR 241. She was prescribed Levsin, Prevacid, Xylocaine and Vicodin. AR 241. The provider noted "stay alert for drug seeking behavior." AR 241. Plaintiff reportedly called back 30 minutes later indicating that the Xylocaine did not help. AR 241. She requested a pain shot, but was told to give it more time and try Vicodin. AR 241. The provider noted "(suspect? drug seeking)." AR 241.

On October 3, 1996, Paul L. Hanchett, M.D., of the G.I. Medical Group of Fresno, Inc., conducted a gastroenterology consultation. AR 239-40. Plaintiff reported worsening intermittent epigastric pain. AR 239. She also reported frequent lower abdominal pain and rectal pain, with occasional vomiting, lots of bloating and gas, along with longstanding indigestion and heartburn. AR 239. Dr. Hanchett determined that Plaintiff had probable biliary colic, gastroesophageal reflux disease, and probable superimposed irritable bowel. AR 239. A subsequent ultrasound was negative for stones or thickened gallbladder. AR 238. Dr. Hanchett opined that Plaintiff's symptoms were probably irritable bowel and gastroesophageal reflux disease. AR 238. She was to continue Zantac and Bentyl. AR 238.

On November 11, 1996, Adriana Padilla, M.D., of Valley Prime Care, prepared a letter on behalf of Plaintiff. AR 234. Dr. Padilla indicated that Plaintiff suffered from irritable bowel, urinary stress incontinence, biliary colic and anxiety with depressive episodes. AR 234. Dr. Padilla reported that Plaintiff needed "to serve community service time with the courts as payback for fraud case she herself reported." AR 234. Dr. Padilla opined that Plaintiff medically required some restrictions in the format of her sentence, with frequent breaks and bathroom access because of her irritable bowel and urinary stress incontinence. AR 234. Dr. Padilla further indicated that Plaintiff "verbalized...that she is incapable of performing work that requires prolonged standing or lifting greater than 10 pounds for 8 hours a day for six month continuously." AR 234. Dr. Padilla believed that Plaintiff's stamina was short and she was barely able to hold a part-time job because of stress and anxiety. AR 234. Plaintiff was taking an antidepressant and would be starting therapy. AR 234. Dr. Padilla also believed that Plaintiff could "handle a light duty sentence (no prolonged standing and no heavy lifting greater than 10 pounds)" and hoped that Plaintiff's sentence would be reconsidered to accommodate her medical need. AR 234. A separate letter signed by Dr. Padilla, also dated November 11, 1996, indicated that Plaintiff was willing "to extend the months of hard labor if she [could] cut the hours to 4 hours per day." AR 235. Dr. Padilla believed that Plaintiff could handle this amount of time. AR 235.

On May 15, 1997, Plaintiff reported taking phen-phen for her diet. AR 230. She was assessed with chronic headaches of a vascular type. AR 230. Plaintiff felt she was experiencing an allergic reaction to Vicodin and was given a trial of Darvocet. AR 230. The provider noted that her anxiety and depression were stable. AR 230.

In June 1997, Plaintiff complained of pain on the top of her head down to her jaw for three days, along with photophobia, unilateral throbbing and tender spots on her scalp. AR 231. She was diagnosed with a headache. AR 231. No codeine was given due to a suspected rebound headache. AR 231.

On February 12, 1998, Plaintiff was diagnosed with chronic migraine, GERD and depression. AR 221A. In May 1998, Plaintiff requested something to calm her down. AR 222. She was prescribed Ativan, but it made her feel drowsy and agitated. AR 222. She later was prescribed a trial of Xanax. AR 222. In June 1998, Plaintiff complained of a bad headache and difficulty sleeping. AR 222. She had a court case the following day and indicated she was out of Vicodin ES. AR 22. She was given an "early fill" of Vicodin. AR 222. In August 1998, she had a migraine headache and was prescribed Demerol. AR 355.

On April 10, 1999, Plaintiff was assessed with chronic pain. AR 250.

On May 20, 1999, Plaintiff underwent a nerve conduction study, which revealed bilateral C5, C6, C8 and T1 root lesion and bilateral brachial plexopathy. AR 2-6-07.

On June 7, 1999, Plaintiff sought emergency room treatment at Saint Agnes Medical Center for complaints of numbness in her extremities and dizziness. AR 204. She also reported weakness and fatigue. AR 204. She was diagnosed with neurological symptoms and prescribed Phenergan with codeine. AR 204-05.

On July 23, 1999, Sadda V. Reddy, M.D., of Neurosurgical Associates Medical Group, Inc., completed a neurological consultation of Plaintiff. AR 197. On physical examination, Plaintiff was 5'7" and weighed 280 pounds. AR 199. Her strength was normal in all muscle groups in both upper and lower extremities. AR 200. A sensory exam revealed a patchy decrease in sensation in the outer aspect of the left forearm and in the outer aspect of both legs below the knees, but did not follow a typical dermatomal pattern. AR 200. Her cervical spine movements were normal, but somewhat uncomfortable. AR 200. She had some tenderness in the interscapular region bilaterally. AR 200. Dr. Reddy assessed Plaintiff with probable cervical radiculopathy, rule out herniated disc, and probable fibromyalgia. AR 201. Dr. Reddy indicated that the generalized aches and pains that Plaintiff had been having could not be explained on the basis of cervical radiculopathy. AR 201. Dr. Reddy wanted an MRI and x-ray of the cervical spine because of complaints of occipital headaches, neck pain and pain radiating along both upper extremities in a C6 dermatomal pattern. AR 201.

Cervical spine x-rays taken on August 5, 1999, revealed mild degenerative changes at C5-6. AR 194-95. An MRI of the cervical spine showed mild broad based posterior osteophyte/hard disc formation at C5-6, without evidence of focal posterior disc protrusion or cord compression. AR 196. There also appeared to be mild asymmetric narrowing of the left C5-6 neural foramen. AR 196.

On August 26, 1999, Dr. Reddy reported that Plaintiff's sedimentation rate was normal, her rheumatoid factor was negative, and her anti-nuclear antibody was negative, but cytoplasmic fluorescence was present, which was generally associated with mononucleosis, chronic active hepatitis and liver disease. AR 191. Dr. Reddy recommended referral to a rheumatologist. AR 191. An MRI scan of the cervical spine showed degenerated disc at the C5-6 level, consistent with clinical left C6 radiculopathy. AR 191. Dr. Reddy recommended a course of physical therapy and cervical traction. AR 192.

On September 1, 1999, H. John Kim, M.D., completed a comprehensive rheumatic evaluation of Plaintiff. AR 188-190. Dr. Kim noted that Plaintiff had chronic pain, tingling and numbness in her hands and arms since March 1999. AR 188. She also had chronic fatigue, migraines and total body pain for 10 years. AR 188. On physical examination, Plaintiff had no proximal muscle weakness or tenderness. AR 189. A peripheral joint examination revealed mild osteoarthritis and tenderness of right finger DIP joint. AR 189. Her hands, wrists, elbows, shoulders, hips, knees, ankles and feet were negative without localized tenderness, active synovitis, effusion or limitation of range of motion. AR 189. Her spine revealed mild bilateral SI joint tenderness. AR 189. Her cervical, dorsal and lumbar spine were negative. AR 189.

Dr. Kim assessed Plaintiff with chronic atypical fibromyalgia syndrome, chronic headache and chronic emotional disorder. AR 190. She also had chronic bilateral carpal and tarsal tunnel syndrome, a history of gastritis from nonsteroidal anti-inflammatory drugs, and multiple nail pittings without psoriasis or psoriatic arthritis. AR 190. Dr. Kim recommended weight reduction, soft neck collar and bilateral wrist braces at night, salsalate and Elavil. AR 190. Dr. Kim also indicated that Plaintiff needed comprehensive counseling and emotional support. AR 190.

On May 15, 2000, Plaintiff sought treatment from Dr. Padilla for skin tag removal. AR 187. She also was diagnosed with chronic upper back pain and insomnia. AR 187.

On March 2, 2001, Plaintiff was evaluated by Berj T. Kalamkarian, M.D., at the San Joaquin Center for Pain Management Consultation. AR 171-72. Plaintiff reported that her activities gradually were diminished and limited with increased fatigue and pain. AR 171. She described her pain as "aching, burning, cramping, stinging, stabbing, shooting, sharp, heavy, intense, constant, severe, unbearable and excruciating at times." AR 171. The pain was aggravated by "physical activity, movement, pressure, weather changes, sexual intercourse, sitting, standing, tension, bright lights, loud noises, fatigue, sneezing and coughing." AR 171. It was "relieved by liquor." AR 171. Plaintiff also reported smoking approximately five packs a day for more than 25 years and giving up drinking completely. AR 171. She indicated that she was a salesperson, but not able to work. AR 171.

On physical examination, Plaintiff was healthy-looking, in no acute distress, but in significant discomfort on examination. AR 171. She weighed 200 pounds. AR 171. Inspection of her neck, head and spine was unremarkable. AR 171. Her neck range of motion "was preserved to all directions with increased pain in the neck and shoulder area." AR 171-72. Range of motion in her lumbar spine was limited with pain due to muscle pulling sensation. AR 172. Palpation of the musculature and the classical fibromyalgia pain points in the neck, shoulder, intraclavicular area, in the lower back, elbows and knees were positive in 12-14 points. AR 172. She was neurologically intact. AR 172. Dr. Kalamkarian diagnosed Plaintiff with fibromyalgia, chronic total body ache and depression/anxiety. AR 172. He gave her samples of Remeron and Zanaflex. AR 172. He also prescribed 20mg of OxyContin to be taken every 12 hours. AR 172.

On March 15, 2001, Plaintiff reported to Dr. Kalamkarian that she was "feeling so much improved." AR 170. She was "delighted" and wanted to continue with her current medication of OxyContin twice a day, Remeron and Zanaflex. AR 170.

In April 2001, Plaintiff reported responding "very favorably to the treatment." AR 169. She started working part time, but noted significant breakthrough pain eight hours after taking her medication. AR 169. She wanted to take the medication every eight hours. AR 169. Dr. Kalamkarian prescribed OxyContin 40mg to be taken every eight hours. AR 169.

On June 14, 2001, Plaintiff reported taking more medication without authorization from Dr. Kalamkarian's office. AR 168. She wanted to start working and began taking two OxyContin in the morning with one every eight hours afterward. AR 168. Plaintiff indicated that her pain was still persisting but the OxyContin was helping her. AR 168. Dr. Kalamkarian issued a new ...


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