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Maxim v. Astrue

March 13, 2010


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



Plaintiff Cheryl R. Maxim ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") pursuant to Title II 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


Plaintiff filed her application for DIB on July 16, 2002. AR 92-94. Plaintiff alleged disability since October 20, 2001, due to anxiety, myofascial pain syndrome, cervical spondylosis, and muscle spasms. AR 109. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 45-48,51-55, 56-57. On June 24, 2003, ALJ William C. Thompson, Jr., held a hearing. AR 786-829. ALJ Thompson denied benefits on September 12, 2003. AR 31-44. Following Plaintiff's request for review, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings. AR 81-84.

On August 10, 2005, ALJ Thompson held another hearing. AR 830-60. ALJ Thompson denied benefits on June 28, 2006. AR 16-26. The Appeals Council denied Plaintiff's request for review on March 5, 2008. AR 7-11.

Hearing Testimony

Following remand by the Appeals Council, ALJ Thompson held a hearing on August 10, 2005, in Stockton, California. Plaintiff appeared with her attorney, Jeffrey Milam. AR 832. Vocational expert ("VE") Susan Moranda also appeared and testified. AR 832, 852-58.

At the time of the hearing, Plaintiff was 52. She was born in May 1953. AR 834. She is five feet tall and weighs approximately 160. She is married. She has a 21-year-old child that still lives with her. AR 836.

Plaintiff testified that since 1990 she mostly worked as a waitress. She took orders, seated people, carried food, bussed tables, cleaned and occasionally worked as a cashier. AR 837. She stopped working as a waitress when she got this "sudden woof" through her body, up into her head, and felt something was not right. She felt like she was dying. That and the pain she gets prevent her from working. She gets severe pain when she does different things. AR 838.

She has episodes if there is a lot of stress. She cannot take the "least little bit of stress." AR 838. She sees "Dr. Newmeyer" every month and he has her on Xanax four times a day. It has made a difference. She does not get the "sudden woof," but she does get the stress and the nerves. AR 839.

Plaintiff testified that she has pain in the back of her neck on the left, in the scapula and in her head. Her head goes numb, mainly on the left side. She receives medical treatment for her problems. AR 839. "Dr. Maisson" has been treating her with Neurontin for two years. It has made somewhat of a difference as long as she does not do different things. She has had physical therapy two or three times for her neck. She does exercises, uses heat and massage to relieve pain. AR 840. She has pain in her neck or her shoulders, mainly the left, every day. AR 841. The pain goes down her arm to just above the elbow. AR 841-42. She has numbness in her hands almost every day. It lasts from a couple minutes to about 15-20 minutes. AR 842.

Plaintiff testified that she is not able to do housework. She can dust. She does dishes, but cannot put them away because reaching causes pain. She very rarely cooks. She does not go grocery shopping or to church. She goes to Costco with her husband. She occasionally goes to a store when she is able to drive. She occasionally drives. AR 844.

Plaintiff testified that she sleeps through the night most of the time because of narcolepsy. She is being treated for it by Jen Smith and takes Adderall twice a day. AR 844.

Plaintiff testified that she has difficulty with walking. AR 844-45. She tires very easily and her legs hurt. She usually can walk about five or ten minutes without hurting. She can stand about five to ten minutes without having to lift one leg or the other. She has swelling on her right leg and her foot. She has psoriasis on the bottom heel of her left foot. AR 845.

Plaintiff has problems with sitting. AR 845. She falls asleep. During the day, she makes candles once in while and talks on the phone when she can. She takes care of her three dogs. Her husband usually feeds them because she forgets. AR 846.

In response to questions from her attorney, Plaintiff testified that she sleeps at night most of the time. Her sleep patterns would have a bearing her ability to work. She is fatigued. Her sleep varies and depends to some degree on other problems. She is still having symptoms related to urinary frequency and accidents. AR 847. The symptoms from her diabetes are worse. She is getting treatment for fibromyalgia. It is primarily in the neck and the shoulders. AR 848. She has problems using her hands to do things. AR 848-49. She can use them for a half hour to an hour before she has to stop and rest for a couple hours. AR 849.

Plaintiff indicated that she held back tears as she testified. It happens a lot and she gets emotional. AR 849. She is taking over 20 medicines on a daily basis, which has an impact on her ability to work because they cause drowsiness. She has talked to the doctor about it. The doctor tried weaning her off of Neurontin and cannot do it. AR 850.

Plaintiff testified that Dr. Lon Keith treats her for cardiological problems. AR 850-51. She has a blocked artery and is going to get a cardiac catheterization. AR 851. She also gets pain in her shoulder, scapula, back and spine. Reaching out and reaching up cause pain. She is not able to care for her personal hygiene like she used to, but she does not need help. AR 852.

VE Susan Moranda also testified. She described Plaintiff's past work as a waitress, DOT card of 311.477-030, as semiskilled on a lower level, SVP 3. It is considered light exertion as performed in the national economy. AR 852.

Plaintiff also testified that she worked as a home health aide and took care of her dad for eight months until he died. AR 852. She then took care of her mother-in-law for six or seven months. She was paid for the work with her mother-in-law by county social services. She cooked for her mother-in-law, took her to therapy sessions, bathed her, assisted her in and out of bed, and helped her walk. AR 853-54. The VE testified that this past work was a home health aide, non-medical, with a DOT code of 355.674-014. It is semiskilled on the lower level, SVP 3. It is generally considered medium exertion as performed in the national economy. AR 854.

For the first hypothetical, the ALJ asked the VE to consider a 52-year-old individual educated to the tenth grade who is literate and has Plaintiff's past work history. This individual is capable of lifting 20 pounds occasionally and 10 pounds frequently. She is capable of sitting without limit if not required to stand or walk. She can occasionally bend, stoop, twist, squat and kneel, but should not crawl. She should not climbs ladders or scaffolding, but can climb stairs. She should not work at heights or run hazardous moving machinery. She should not be required to perform overhead reaching with either arm. She should have relatively restricted contact with the general public and with co-workers. She can work in the presence of others, but should not be part of a work team or a cooperative work process. AR 854. The VE testified that with those limitations there would be some jobs the individual could perform. AR 854-55. One job would be small parts assembler, DOT code of 739.687-030. It is unskilled, SVP 2, and is considered light exertion as performed in the national economy. The VE eroded the number of jobs by 50 percent because of the limitations, which would leave approximately 48,000 individuals employed in California. The VE's job classifications were consistent with the DOT. AR 855.

In response to questions from Plaintiff's counsel, the VE testified that part of the erosion was related to the restricted co-worker category. AR 855-56. The VE eroded the total amount by 50 percent. The VE also testified that the overhead reaching was significant and that the hypothetical would have a restriction to being on the feet no more than six hours. The VE had observed these jobs and estimated that approximately 50 percent of the small parts assemblers allow for a sit/stand option. AR 856. If the hypothetical were the same, but the reaching restriction was for occasional reaching out in front, the person would not be able to do the job because most assembler positions are frequent to constant reaching. AR 856.

Plaintiff's attorney asked the VE to assume the first hypothetical and add that the person would need bathroom access at least once an hour in addition to usual, customary breaks. The VE testified that a person would not generally be able to perform the assembler jobs because they are production oriented and there would often be work quotas to maintain employment. AR 857.

Plaintiff's attorney asked the VE to consider the first hypothetical and add that the person had a stress problem where one would get emotional for the amount of time that Plaintiff had been upset during the 45-minute hearing. The VE testified that this would detract from being able to maintain a quota or production job. It would be disruptive. AR 857.

The VE also testified that some of the jobs would allow you to move your head from side to side and stretch it on a fairly consistent basis. The VE imagined that in most of these jobs "you're going to be twisting your neck from side to side." AR 858.

Medical Record

On February 25, 2000, Plaintiff saw Lisa Masson, M.D., for complaints of right arm pain and neck pain. Dr. Masson prescribed Voltaren. AR 251.

On November 1, 2001, Plaintiff received treatment for acute anxiety and was prescribed Xanax. AR 223.

On November 4, 2001, Plaintiff was treated in the emergency room for complaints of paraesthesia/discomfort of the scalp. She was diagnosed with occipital neuralgia and prescribed hydrocodone and acetaminophen. AR 153, 157.

On November 5, 2001, Plaintiff saw Denise Wofford, P.A.C., for a recheck following multiple headaches and elevated blood pressure. On examination of her neck, Plaintiff had some tenderness over the left paravertebral muscles and tightness over trapezius muscles. Her range of motion was intact. PAC Wofford assessed probable cervical strain with resulting headache and hypertension with poor control. She was continued on Diovan and Wellbutrin. She also was prescribed Clonidine, given Toradol for headache pain and provided neck range of motion stretching exercises. AR 220.

On November 13, 2001, Plaintiff reported discomfort in her neck and shoulders. She had no weakness and no paresthesias. AR 218. On examination, she had good range of motion in her neck and shoulders. AR 218. Dr. Masson assessed Plaintiff with bursitis/tendonitis, a history of gastric ulcer, hypertension and neck sprain. AR 218-19.

On November 27, 2001, Plaintiff complained to Dr. Masson of episodes of anxiety and indicated that if she reaches up, she feels tired. She also reported pain from neck to chest, like a burn, and a sore back with burning. Plaintiff used a massager and felt relief. AR 214. Dr. Masson assessed Plaintiff with anxiety. She was to continue Wellbutrin and add Desyrel. Dr. Masson also assessed cervical strain and provided Plaintiff with exercises. AR 215.

On February 20, 2002, Plaintiff saw Dr. Masson and complained of feeling stress in the left side of her neck. On examination, her neck was non-tender. She was assessed with stress and family disruption. AR 209.

On March 26, 2002, Plaintiff sought treatment from Dr. Masson. On examination, Plaintiff had no point tenderness and good range of motion of her neck. Her left trapezius was tight. AR 201. Dr. Masson assessed Plaintiff with cervical strain/pain, persistent, ordered an xray and prescribed a trial of Skelaxin. Dr. Masson also discussed disability for left shoulder and neck pain. AR 201.

On March 27, 2002, Dr. Clifton Choo reviewed a radiological report of Plaintiff's cervical spine. He concluded that Plaintiff had multilevel cervical spondylosis extending from C3 down to C7, most prominent at C6-7 interspace with neural foraminal encroachment at these levels bilaterally. AR 198. Her left shoulder was intact. AR 199.

From April 1, 2002 to July 12, 2002, Plaintiff attended ten physical therapy sessions for neck and shoulder pain. AR 165.

On April 22, 2002, Plaintiff requested a referral to mental health. Plaintiff stated that she had been seeing a therapist and was doing great, but now she was back to square one. She was given the Behavioral Health number. AR 193.

On April 29, 2002, on referral from Dr. Masson, Plaintiff saw PA-C Mark Madsen in the Orthopedic Spine Clinic for evaluation of neck pain, headache and left shoulder pain. AR 181. On physical examination, Plaintiff had some mild left occipital area tenderness. Her motor function in the upper extremities was 5/5. X-rays showed some slight straightening of the normal cervical lordosis. She had disk degeneration at C3-4, C4-5, C5-6 and C6-7. At C6-7, there was disk space collapse, anterior osteophyte formation and some slight posterior osteophyte formation. C4-5 and C5-6 were roughly the same. At C3-4, she had moderate posterior spur formation which appeared to create moderate narrowing of the neural foramina at C3-4 bilaterally. AR 182. PA Madsen assessed Plaintiff with cervical disk degeneration, cervical discogenic mechanical pain and myofascial pain syndrome. AR 182. PA Madsen opined that Plaintiff was not a candidate for surgical intervention and she should continue to pursue conservative treatment methods. Plaintiff declined injections. AR 183.

On August 2, 2002, Plaintiff again saw PA Madsen. A MRI revealed multilevel cervical disc degeneration and cervical straightening with loss of normal lordosis. Plaintiff had some moderate disc degeneration and bulges at C3-4, C4-5, C5-6 and somewhat at C6-7. She had some mild decreased AP diameter of the spinal cord at C3-4, C4-5 and C5-6. She also had moderate bilateral neural foraminal narrowing, right greater than left at C3-4. AR 178. PA Madsen assessed myofascial pain syndrome and again opined that Plaintiff was not a surgical candidate. AR 178. He suggested she see Dr. Gesson for an occipital block and trigger point injections. AR 178. It gave her a lot of anxiety to think about, but Plaintiff was willing to try it. She said that physical therapy made her feel worse. AR 178.

On August 21, 2002, Sandra Clancey, M.D., a state agency medical consultant, completed a Physical Residual Functional Capacity Assessment form. Dr. Clancey opined that Plaintiff could lift and carry 20 pounds occasionally, 10 pounds frequently, could stand or walk about 6 hours in an 8-hour workday, could sit about 6 hours in an 8-hour workday and could push and pull without limitation. AR 257. She frequently could climb ramps, stairs or ladders, but never could climb rope or scaffolds. She frequently could balance, stoop, kneel and crouch. She occasionally could crawl. AR 258. Dr. Clancey further opined that Plaintiff was limited in overhead reaching. She had no visual, communicative or environmental limitations. AR 259-60.

On August 29, 2002, the state agency medical consultant completed a Psychiatric Review Technique form. AR 264. The consultant opined that Plaintiff's psychiatric impairment(s) was not severe. AR 264. She had no restriction of activities of daily living and no difficulties in maintaining social functioning. She had mild difficulties in maintaining concentration, persistence or pace. AR 274.

On November 18, 2002, Daniel R. Katzenberg, M.D., completed a neurological evaluation of Plaintiff. AR 278-79. On physical examination, Plaintiff's neck was stiff with limited range of motion. She could only flex forward 50 degrees, extend backward 10 degrees and rotate 60 degrees side to side. AR 278. On neurological evaluation, Plaintiff was awake, alert and oriented. Her motor tone and bulk were within normal limits and her power was 5/5 throughout. Her finger-nose-finger, fine finger movements and rapid alternating movements were done smoothly. Her gait was normal and heel, toe and tandem walk were performed without difficulty. Her deep tendon reflexes were 2 and symmetric. There was no Romberg sign or pronator drift. Dr. Katzenberg opined that Plaintiff had degenerative joint disease of cervical spine. She had limited mobility of the neck, but no evidence of myelopathy or radiculopathy. AR 279. To avoid straining the neck, Plaintiff should probably avoid lifting and carrying more than 20-25 pounds occasionally and 15-20 pounds frequently. She should not crawl. Dr. Katzenberg further opined that Plaintiff had no other particular physical restrictions and had good strength in her arms and legs. AR 279.

On December 6, 2002, Plaintiff saw Dr. Masson and reported a bout of neck and shoulder pain after putting up the Christmas tree. She also reported having an anxiety attack. AR 452.

On December 17, 2002, Plaintiff complained to Dr. Masson of severe panic the previous night and some suicidal ideation. For anxiety, Dr. Masson stopped Wellbutrin and started Plaintiff on Prozac. Dr. Masson noted "[m]ood questionnaire 8 yeses [sic], serious problem" and started Plaintiff on Zyprexa. AR 437.

On December 18, 2002, Gregory Fields, Ph.D., a licensed psychologist, completed a consultative evaluation. Plaintiff reported that she was able to drive, shop for groceries, prepare meals, do laundry and do housework with modification. She received some assistance from her family. On mental status, Plaintiff scored 29/30 on the Folstein Mini Mental Status Exam. AR 281. She was alert and grossly oriented to purpose, time and location. She presented with no gross attentional difficulties. She provided her history without notable difficulty and seemed to recall recent and remote aspects of her personal history equally ...

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