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Shelby v. Commissioner of Social Security

September 25, 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. 26) and defendant's cross-motion for summary judgment (Doc. 29).


Plaintiff applied for social security benefits on December 2, 2004. In the application, plaintiff claims that disability began on January 13, 2002. Plaintiff claims that disability is caused by a combination of: "cervical, thoracic, and lumbar degenerative disc disease; right shoulder impingement syndrome versus bicipital tendinitis; bilateral carpal tunnel; and depression." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on June 12, 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. Plaintiff has the following severe impairments: degenerative disc disease and osteoarthritis;

2. Plaintiff's severe impairments do not meet or medically equal an impairment listed in the regulations;

3. Plaintiff has the residual functional capacity for light-medium work; plaintiff can lift/carry 50 pounds occasionally and 20 pounds frequently and has no sitting/standing/walking, postural, or manipulative limitations;

4. Plaintiff is capable of performing his past relevant work as a cook, chef, and kitchen planner; and

5. Alternatively, considering plaintiff's age, education, work experience, and residual functional capacity, there are a significant number of jobs in the national economy which plaintiff can perform.

After the Appeals Council declined review on December 17, 2007, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:*fn1

June 4, 2002 -- Jonathan Francis, M.D., reported to a claims examiner for State Compensation Insurance Fund. (CAR 147-52). The report outlines the following history:

The above captioned patient is a 49-year-old cook who sustained an injury when he slipped and fell at work on [January 13, 2002]. This was at Summerville Hospital, in El Cerrito. There was some oil and water on the floor. The patient slipped and fell backwards onto a cement floor. He struck his head. He thinks he lost consciousness for about twenty seconds. He was unable to work after the date of injury.

Initially he sought treatment at Doctors Medical Center, in San Pablo. This was on 1/13/02. He had an x-ray of his left elbow. He then was referred to Dr. Wallach, in El Cerrito. He was seen there on about ten occasions. He had physiotherapy at Physical Therapy Innovations, in El Cerrito on about fifteen occasions. He still has not been able to return to work.

On physical examination, Dr. Francis noted that plaintiff had stiff movements getting on and off the examining table. There was some limited mobility in plaintiff's cervical spine on forward flexion, side flexion, extension, and rotation. The doctor observed a range of motion that was 70% of normal. Spasm was present in the paracervical region from C2-7 extending into the trapezius bilaterally. Encroachment test and O'Donahue maneuver were positive. There was spasm and tenderness in the dorsal spine, but no deformity or swelling. Dr. Francis observed limited mobility of the lumbar spine on forward flexion, side flexion, and extension at about 65% of normal. Kemp's test and straight-leg raising were positive at 75 degrees bilaterally. There was also a positive L3 stretch test at 15 degrees bilaterally. Dr. Francis also observed tenderness and limited mobility of the left elbow (90% of normal).

Dr. Francis diagnosed acute sprain of the cervical and lumbar spine secondary to the work injury, myofascial pain syndrome, and contusions of the posterior spinal area and left elbow. The doctor provided the following discussion of plaintiff's condition:

At this time, the patient should remain off work. He needs additional conservative treatment for these conditions. Please authorize him to have some physiotherapy at our facility once weekly to consist of surface electrical stimulation techniques with hertz parameter setting between 2 hz and 200 hz, myofascial release therapy, therapeutic exercise program, and medication. He should continue with this program for the next eight to ten weeks.

Dr. Francis also recommended that MRI studies be conducted.

August 5, 2002 -- An MRI of plaintiff's cervical spine was performed. (CAR 143--44). The cervical curvature was more straightened that usually seen. No disc herniation or stenosis was reported. The radiologist did note, however, that multiple disc spaces showed "degenerative loss of signal." Disc bulging was observed at C5-6 and C6-7. The spinal cord was "intrinsically normal over the levels covered."

On this same day, an MRI of plaintiff's thoracic spine was obtained. (CAR 145-46). This study showed no disc herniation or stenosis, though multiple disc spaces showed degenerative loss of signal. There were "[m]inor 1-2 mm" disc bulges "slightly indenting" the thecal sac at disc spaces from T2 to T12. The cord was "intrinsically normal over the levels covered."

August 7, 2002 -- An MRI of plaintiff's lumbar spine was performed. (CAR 141-42). This study revealed no evidence of disc herniation, "slight-mildly reduced" left foramen and borderline stenotic right foramen at L4-5, and "moderate foraminal stenosis at L5/S1." Disc space height and hydration were normal.

December 11, 2002 -- According to a March 12, 2004, report prepared for State Compensation Insurance Fund by Rolf G. Scherman, M.D., Dr. Scherman also evaluated plaintiff on this date. (see CAR 368). No separate report, however, of an evaluation by Dr. Scherman in December 2002 is in the record. In the March 2004 report, Dr. Scherman describes the December 11, 2002, evaluation as follows:

I have seen Mr. Shelby previously on December 11, 2002.

The situation that emerged at that time was that the patient was a cook who also did a good deal of body building and weight lifting. At that time, the patient struck his head, left elbow, and his back on January 13, 2002, while working as a cook. He did not sustain a head injury. He had occasional slight pain in the elbow. He had a previous head injury in 1993 in which he lost his sense of smell. He continued to have back symptoms and was not able to do his gym work-outs. His examination was normal; specifically, he had no complaints about his shoulder, lower extremities or upper extremities.

February 5, 2003 -- Dr. Scherman's March 12, 2004, report also references a report prepared on this date. (see CAR 368). No report from February 5, 2003, prepared by Dr. Scherman is contained in the record. This report, however, is summarized as follows in Dr. Scherman's March 2004 report:

In my report of February 5, 2003 I received further records. All I found was some tenderness of the back muscles on the left side without neurological deficit, and thought his rating should be described as slight to moderate intermittent back pain without any specific objective findings. There was absolutely nothing to suggest he had symptoms in other parts of the body as are later alleged.

February 18, 2003 -- An MRI of plaintiff's right shoulder was conducted. (CAR 139-40). The radiologist stated that clinical correlation was needed "regarding observation of marginal clearance between undersurface of acromion and superior aspect of humeral head." Also observed was a "[t]iny amount" of fluid at the supraspinatus tendon insertion site on the superior lateral aspect of the humeral head. The radiologist indicated that this raised the possibility of tendonitis.

February 25, 2003 -- Dr. Francis again reported to a claims examiner for State Compensation Insurance Fund on plaintiff's course of treatment. (CAR 137-38). Dr. Francis stated:

The above captioned patient was most recently seen in our office on 2/21/03. The patient is still experiencing ongoing cervical spine pain, as well as right, greater than left, shoulder pain.

Recently, an MRI of the right shoulder was obtained on 2/18/03. This does show a reduced clearance between the acromion and the superior aspect of the humeral head. The possibility of mechanical impingement has been raised by the radiologist. Also, there is a slight amount of fluid, and the possibility of tendinitis is also a question. Th[ere] is also a 10 mm posterior cyst at the humeral head. Also, the biceps tendon is surrounded by fluid.

Dr. Francis recommended additional consultation with an orthopedic surgeon. The doctor concluded: "At this time, the patient's estimation of permanent and stationary status would be 6/1/03."

March 3, 2003 -- A.K. Bhattacharyya, M.D., reported on an evaluation performed at the request of plaintiff's worker's compensation attorney. (CAR 445-52). Based on the doctor's physical examination, he diagnosed "[e]vidence of trapezius strain, chronic cervical strain, lumbosacral and right biceps sprain, and associated left lateral epicondylitis," as well as "[s]ignificant right shoulder sprain with restricted motion in all directions, possible impingement syndrome." The doctor attributed all these problems to the January 2002 work injury. The doctor stated that plaintiff's "neck and low back complaints as well as arm complaints are gradually improving" and opined that plaintiff was permanent and stationary. The doctor noted that plaintiff had experienced "considerable improvement" with chiropractic care and stated that plaintiff could be able to obtain relief from pain with very conservative at-home and over-the-counter treatment. Dr. Bhattacharyya concluded that plaintiff is precluded from work above right shoulder level, forceful pushing and pulling, heavy and repetitive hand use, and forceful hand gripping and torquing.

May 2, 2003 -- Plaintiff was examined by Anthony Bellomo, M.D., who prepared an initial consultation report. (CAR 295-98). Dr. Bellomo described plaintiff's January 13, 2002, work injury and outlined the following complaints: "continuing pain in the neck, mid, and lower back, as well as the right arm and left elbow." On physical examination, the doctor noted that plaintiff had "some difficulty" moving about the examination room "due to pain," as well as "some difficulty" with heel-and-toe walking. The doctor noted positive crepitus with range of motion of the right shoulder, but negative drop-arm test, negative apprehension test, no instability, and negative impingement sign. No problems were noted as to the elbow. On examination of the cervical spine, Dr. Bellomo observed positive cervical tenderness and muscle spasm, positive trapezial tenderness and spasm, but negative Spurling test. The doctor noted that plaintiff complained of pain with straight leg raising and Gaenslen sign. Plaintiff also complained of pain in the lower back with Patrick test on the left side, but femoral stretch test was negative. Sensation was intact over all dermatomes. Motor strength was 5/5 in all muscle groups. Reflexes were symmetric, and Babinski sign was absent. Dr. Bellomo diagnosed right shoulder contusion and chronic right shoulder, neck, mid, and lower back pain. The doctor stated that he wanted to review the MRI studies before making any recommendation as to treatment.

Incident to plaintiff's initial evaluation by Dr. Bellomo, plaintiff completed a pain assessment. (CAR 301-18). Plaintiff stated that he is in constant pain every day and that he is unable to do any work as a result of this pain. He stated that he can dress himself with significant pain, can only lift light objects, and cannot walk or stand for more than 10 minutes or sit more than 30 minutes due to pain. He also stated that he had never been treated for stress or a psychological disorder.

May 16, 2003 -- Dr. Bellomo prepared a follow-up status report. (CAR 279-80). On physical examination, the doctor observed tenderness over the right shoulder diffusely and "mildly positive" impingement sign. There was also positive cervical tenderness and muscle spasm, trapezial tenderness and spasm, and lumbar tenderness and spasm. This report was submitted primarily to comment on the MRI studies. Based on physical examination and the MRI studies, Dr. Bellomo diagnosed cervical degenerative disc disease with chronic lower back pain, right shoulder impingement syndrome, and left elbow pain. Dr. Bellomo's treatment plan consisted of additional x-rays, physical therapy, and additional specialist consultation.

May 30, 2003 -- The record contains a further status report by Dr. Bellomo. (CAR 272-73). The doctor reported the same subjective history and noted that plaintiff had not yet been evaluated by the physical therapist. On physical examination, Dr. Bellomo observed cervical and trapezial muscle spasm, as well as lumbar muscle spasm and tenderness. The doctor again recommended further evaluation by a specialist and that plaintiff begin physical therapy.

June 3, 2003 -- The record contains reports by Julie Wong M.D., of x-rays of plaintiff's cervical spine, thoracic spine, and lumbar spine. (CAR 269-70). As to the cervical spine, the doctor found "multilevel degenerative disc disease with disc space narrowing, endplate sclerosis, and marginal osteophyte formation." Her impression was of mild straightening of the normal cervical lordosis and multilevel degenerative changes. As to the thoracic spine, Dr. Wong noted degenerative disc changes with marginal osteophyte formation, but found no evidence of an acute compression deformity. The doctor's impression was that plaintiff had no fracture, but did have degenerative changes. As to the lumbar spine, the doctor found no evidence of acute fracture, dislocation, or subluxation. She also noted that the intervertebral disc spaces were preserved, and concluded that there was no evidence of spondylolisthesis or spondylolysis.

June 24, 2003 -- The record contains a note of a phone message left by plaintiff for Dr. Bellomo. (CAR 391). The message reads: "Guy would like you to write a letter to his attorney stating that his muscle stimulator is helping him a lot. . . ."

July 10, 2003 -- Dr. Bellomo submitted another status report. (CAR 253-54). By this time, plaintiff had begun physical therapy. Plaintiff reported that physical therapy and use of a muscle stimulating unit were helping with pain. On physical examination, the doctor noted cervical tenderness and muscle spasm, as well as "significant pain with extension." Dr. Bellomo recommended continued physical therapy and use of the muscle stimulating device. As to plaintiff's work status, Dr. Bellomo stated:

The patient is able to work with the restriction of no standing or walking for more than one to two hours over the entire day and no repeated bending or stooping, no overhead work, and no lifting more than 15 pounds.

August 19, 2003 -- Dr. Bellomo prepared a follow-up status report. (CAR 243-44). Plaintiff reported that use of the muscle stimulating machine was helping to relieve his pain. He also reported an increased range of motion. On physical examination, the doctor noted that plaintiff was able to flex to approximately 45 to 50 degrees and that on prior occasions he could only flex to 35 degrees. Less muscle spasm was observed.

September 26, 2003 -- The record contains a further progress report from Dr. Bellomo. (CAR 234-35). Plaintiff again reported that physical therapy and use of the muscle stimulating machine were helping relieve his pain symptoms. As to work status, Dr. Bellomo stated:

The patient is able to return to work with the restriction of no standing or walking for more than two hours over the entire day, including bending and stooping, no overhead work, and no lifting more than 15 pounds.

October 17, 2003 -- Dr. Bellomo prepared another progress report. (CAR 225-26).

Plaintiff reported to the doctor that he had "tried to shampoo his carpet last week, and this flared up his pain for a period of time." Despite having indicated in prior progress reports that physical therapy was helping with his pain symptoms, as well as a contemporaneous report (discussed below) on the progress of plaintiff's physical therapy, Dr. Bellomo stated: "The patient, as of yet, has not been to physical therapy. . . ." On physical examination, the doctor noted muscle spasm in the cervical as well as upper and lower lumbar regions. Dr. Bellomo indicated that plaintiff "ought to be started ...

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