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Jackson v. Commissioner of Social Security

September 25, 2009

SUSAN ELLA JACKSON, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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. 18) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on January 15, 2004. In the application, plaintiff claims that her disability began on January 1, 2001. Plaintiff claims that her disability is caused by a combination of herniated discs, degenerative disc disease, stroke, hypertension, and depression. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 17, 2006, before Administrative Law Judge ("ALJ") Peter F. Belli. In an April 28, 2006, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has not engaged in substantial gainful activity since January 1, 2001.

2. The medical evidence establishes that the claimant has severe cervical and lumbar disc disease, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The claimant's depression and cardiac disease are not severe impairments.

3. The claimant's testimony is not substantially credible for the reasons stated in the body of this decision.

4. The claimant has the residual functional capacity to perform work-related activities except for work involving frequently lifting more than 10 pounds, occasionally lifting more than 20 pounds, and performing repetitive postural tasks (20 CFR § 416.945).

5. The claimant's past relevant work as family advocate community service worker did not require the performance of the work-related activities precluded by the above limitation(s) (20 CFR § 416.965). The vocational expert's testimony that the claimant can perform her past relevant work is fully credited.

6. The claimant's impairments do not prevent the claimant from performing her past relevant work.

7. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 CFR § 416.920(e)).

After the Appeals Council declined review on July 12, 2006, this appeal followed.

II. SUMMARY OF THE EVIDENCE

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

March 11, 1999 -- Plaintiff was seen by Dr. Philip Bach, Sacramento Heart and Vascular Medical Association, for a cardiac consultation. Plaintiff had a hypertensive crisis, with a blood pressure of 210/128, and pulse of 107. She was admitted into the hospital and treated with Clonidine and Captopril, which reduced her blood pressure. Her CT scan and MRI of the head did not reveal any bleed or stroke. Dr. Bach recommended controlling her hypertension and checking to be sure there was no reversible cause for her hypertension. Plaintiff complained of chronic headaches, and reported she was diagnosed with chronic fatigue syndrome in the past. She also had a history of severe depression.

March 25, 1999 -- Follow up with Dr. Bach. She was started on Norvasc, and he reported she had been doing well and her blood pressure was under good control. Her vision had also improved slightly.

April 22, 1999 -- Follow up with Dr. Bach. He reported she was doing quite well, her blood pressure remained under excellent control. She had some mild peripheral edema, for which she was given a prescription of Lozal. Dr. Bach wanted to decrease her Capoten as tolerated.

August 5, 1999 -- Follow up with Dr. Bach. He notes no recurrence of hypertensive crisis, and her blood pressure has remained under good control with the Norvasc and without the Captopril. Her intermittent edema was controlled by the Lozal, but she reported mild leg cramps. Vision showed improvement, and she was able to drive and read again. Her medications were decreased again.

January 13, 2000 -- Follow up with Dr. Bach. Plaintiff reported she had had a foot injury and steroid injection. Her blood pressure had gone up, and she had to increase her Norvasc. However, it was drifting down slowly again. She was instructed to monitor her blood pressure, and reduce the medication as tolerated. However, she was expected to remain on a dosage of Norvasc chronically.

November 9, 2000 -- Follow up with Dr. Bach. Plaintiff's blood pressure remained stabled with Norvasc, but increased significantly when she stopped taking it. She reported no symptoms of angina or congestive heart failure, but remained chronically fatigued.

October 25, 2001 -- Follow up with Dr. Bach. Plaintiff had reportedly been doing well for over a year, but was having some palpitations. She had no symptoms of angina or congestive heart failure, and her blood pressure remained under good control. Dr. Bach's impression was that she had probable benign arrhythmia, and no treatment was warranted. A stress echocardiogram was ordered to check her heart.

December 10, 2001 -- The stress echocardiogram report. The conclusions were: negative maximal exercise tolerance testing; normal LV function; normal stress echo; normal blood pressure response to exercise; trivial mitral regurgitation; and mild tricuspid regurgitation.

February 20, 2002 -- Progress notes from Plaintiff's primary care physician, William Barley, indicating Plaintiff's back pain increased. She reported she had been doing well, but after caring for another person and moving her belongings, her pain had increased. Dr. Barley prescribed Naprosyn and Ultram, and suggested she might benefit from physical therapy.

March 8, 2002 -- Progress notes from Dr. Barley wherein Plaintiff reported the combination of Naprosyn and Ultram gave her 100 percent relief for five hours. She reported still having pain in right hip and buttock.

March 29, 2002 -- Progress notes from Dr. Barley indicating Plaintiff still reporting right hip and back pain when off the medication. Plaintiff was referred for x-ray and bone scan.

April 1, 2002 -- Lumbosacral spine x-ray report revealed "joint space narrowing at L5-S1. The vertebral bodies and interspaces are otherwise intact. The posterior elements are normal. The prevertebral and paraspinous soft tissues are normal." The impression from the xray was "[d]egenerative changes at the 5th lumbar disc. Otherwise, normal lumbosacral spine." Pelvis and right hip x-ray revealed "[t]he bones and articulations are intact. There are no fractures, dislocations, bone lesions, or periosteal reactions. The overlying soft tissues are normal." The impression was "[n]ormal pelvis and right hip." (CAR at 201).

April 19, 2002 -- Progress notes from Dr. Barley wherein Plaintiff reported continuing pain in hip and buttock. Plaintiff rated her pain as seven out of ten, but with Ultram, pain decreased to one out of ten.

May 21, 2002 -- Progress notes from Dr. Barley stating Plaintiff reported Naprosyn takes the edge off her pain and Ultram helps her sleep. She reported she goes to the gym three times a week. Dr. Barley assessed Plaintiff with HNP by MRI, DDD on x-ray. He found she requires regular Ultram, she failed on NSAIDs and physical therapy, cannot have an epidural, and cannot have steroids. Plaintiff indicated she wanted to retry physical therapy one more time.

July 8, 2002 -- Physical therapy evaluation, at NovaCare, indicates Plaintiff's primary complaint was low back pain. Her pain was reported at an 8. Her range of motion, bending forwarding, was within normal limits but with pain, bank bending was 50% of normal, and side bending was 80% of normal. Her strength was grossly 4-/5, she had diminished tolerance for sitting, standing, and sleeping. Plaintiff was assessed as an excellent candidate for physical therapy, and the plan included aquatic therapy for pain control combined with manual therapy techniques and therapeutic exercises.

July 15, 2002 -- Progress notes from Dr. Barley indicating Plaintiff was continuing with physical therapy and Ultram for her lower back pain. She reported she had moved furniture around at home, and was experiencing aches and spasms.

October 1, 2002 -- Progress notes from Dr. Barley in which Plaintiff was in for a follow up regarding increased back pain. Her pain increased with prolonged sitting and walking.

October 9, 2002 -- Daily treatment notes, twelfth physical therapy treatment. Has tolerated physical therapy well, but Plaintiff had indicated she was still pretty sore. Through the twelve visits, she ranged from doing better to very sore, depending on her activities. The plan was to continue physical therapy treatment.

November 5, 2002 -- Progress notes from Dr. Barley indicating an office visit for unrelated health issues.

January 3, 2003 -- Progress notes from Dr. Barley indicating an office visit for unrelated health issues. Lab results included, also relating to other health issues.

January 14, 2003 -- Imaging results regarding unrelated health issues.

January 21, 2003 -- Progress notes from Dr. Barley indicating Plaintiff is under a great deal of stress, he recommended counseling and prescribed Ambien. Plaintiff also requested a spinal evaluation. Dr. Barley ordered an MRI and back x-rays on January 30, 2003. He also referred Plaintiff for physical therapy on January 31, 2003.

February 4, 2003 -- Physical therapy evaluation indicates Plaintiff's pain level was at an eight, her range of motion was limited on forward bending to 40%, on back bending to 50%, and on side bending to 80% of normal. Her strength was not tested due to pain. She had a diminished tolerance for sitting and standing at fifteen minutes, diminished tolerance for dressing her lower body, and right innominate posterior rotation. The plan included two visits per week for three weeks, and was to include aquatic therapy, manual therapy techniques, therapeutic exercises and home exercises.

February 18, 2003 -- Cervical spine x-ray report indicates a "chronic disc space narrowing at C4-5. There is no subluxation. The posterior elements are intact. The odontoid is normal. The prevertebral soft tissues are within normal limits. The neural foramina are widely patent on oblique views." The impression was "[c]hronic degenerative disc disease at C4-5." (CAR at 187).

February 25, 2003 -- Progress notes from Dr. Barley indicating Plaintiff reported Ambien helpful and she was still seeing counselor. She also reported she saw Dr. Kindall, who felt her back pain was from degenerative disc which could not be helped surgically. She was prescribed Ultram, which helps her back, and was recommended she try an "orthotrac brace," and consider chiropractic treatment.

February 26, 2003 -- Daily treatment notes from physical therapy, after six additional visits, indicate she was tolerating the treatment fairly well and had a new prescription for additional visits.

March 7, 2003 -- Physical Therapy evaluation indicates Plaintiff's pain level was then at a five, she still had decreased range of motion, with rotation to the right at 80%, to the left at 60%, flexion was 90%, and extension was 25% of normal. Her cervical spine strength was grossly 4-/5. She continued to have diminished tolerance for sitting, within immediate pain, and difficulty with sleep, as she was unable to tolerate lying on her left side. Her C-2 was also noted as rotated to the right. The plan was two visits per week for six weeks, and was to include aquatic therapy, manual therapy techniques, therapeutic exercises, home exercises, and monitoring her daily activities.

March 10, 2003 -- Progress notes from Dr. Barley indicating Plaintiff was seen for unrelated health issues. In addition, he notes she is going to physical therapy for neck and back pain, with little help. She continues with her counseling, and reported the Ultram takes the edge off her pain.

April 9, 2003 -- Progress notes from Dr. Barley indicating a visit for blood pressure check. Plaintiff reported the Ambien helped, she was continuing to see a counselor, the Ultram was not helpful for her lower back pain, and a back brace had been refused by her insurance.

May 2, 2003 -- Daily treatment notes from physical therapy, after another twelve visits, indicate Plaintiff generally tolerated the treatment well, but continued to experience pain. The plan was to continue treatment.

June 20, 2003 -- Daily treatment notes from physical therapy, after another twelve visits, indicate Plaintiff generally tolerated the treatment well, but continued to experience pain. There was some indication she was able to be more active, including bike riding. There was also some indication that she was still having some spasms, she was stressed, and the pain was continuing. The plan was to continue treatment.

July 1, 2003 -- Follow up with Dr. Bach, first time since October 2001. Plaintiff reported a great deal of stress, severe headaches, and increased blood pressure, at 180/112. She had increased her Lozal and Norvasc, but continued to have an elevated blood pressure. She also reported increasing palpitations and mild chest discomfort. Dr. Bach reported an EKG showed sinus rhythm, LVH (left ventricular hypertrophy) with secondary ST&T wave changes. He recommended increasing her medications, and starting a beta blocker, monitoring of her blood pressure, recheck in two weeks, and once her blood pressure was controlled, an echocardiogram to evaluate the severity of her left ventricular hypertrophy, which was a new finding.

July 2, 2003 -- Progress notes from Dr. Barley indicating Plaintiff's blood pressure was 148/80. She reported other readings of 180/100 and 180/120. She was continuing her counseling ...


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