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Barker v. Astrue

June 13, 2010

RICHELLE A. BARKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Richelle A. Barker ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability insurance benefits and supplemental security income 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 Gary S. Austin, United States Magistrate Judge, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on or about July 12, 2006, alleging disability beginning November 7, 2005. AR 66-68. Her application was denied initially (AR 61-65) and on reconsideration (AR 55-59), thereafter Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 53. ALJ Bert C. Hoffman held a hearing on April 3, 2008 (AR 314-343) and issued an order denying benefits on August 19, 2008. AR 13-23. Plaintiff requested a review of the hearing (AR 8-9) and the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Hoffman held a hearing on April 3, 2008, in Fresno, California. Plaintiff appeared and testified. Plaintiff was represented by attorney Dennis Bromberg. AR 314-343.

Plaintiff was born June 8, 1970. AR 317. She is 5' 3", weighs 120 pounds, and is right-handed. AR 317. Plaintiff graduated from high school and completed one year of college. AR 317. Plaintiff has four children, three of whom live at home. AR 327-328.

Plaintiff was last employed as an escrow assistant in 2005. AR 318. The position primarily involved "desk work" and required sitting a majority of the time, lifting computers and boxes of files occasionally, and lifting individual files frequently. AR 318. Previous to the escrow assistant position, Plaintiff was employed as an office administrator for a real estate company. AR 318. This position also involved "desk work," with some lifting of files and about two hours of driving per day. AR 318-319. Plaintiff worked as a waitress in 1995, 1996, and 1998. AR 319. She carried trays and bussed tables, which required lifting about 40 to 45 pounds. AR 319. Plaintiff was also previously employed as an accounts manager in a dental office. AR 320. This work was largely sedentary and required Plaintiff to explain the cost of treatment to patients and perform collections. AR 321. Plaintiff also worked full-time in a daycare facility. She was on her feet all day, changing diapers, and lifting children ranging in age "from six weeks to thirteen [years]." AR 321-322. Plaintiff also worked for Orange Julius as a young adult. AR 319-320.

When asked about depression, Plaintiff indicated she has had problems since early 2006 when she stopped working. AR 322-323. She has not been sleeping well since early 2007. More particularly, her sleep is interrupted and typically totals four to five hours per night. AR 323-324. Plaintiff complained of low energy levels and indicated that she has been eating only one meal per day for the last three years. AR 324. Her ability to concentrate and maintain focus and her short-term memory are "not very good." AR 325. She denied thoughts of suicide. AR 325.

Plaintiff suffers from anxiety attacks that last between 30 minutes and one hour, but does not know what causes them. AR 326. The attacks used to occur two to three times per week, until her doctor prescribed Lorazepam. AR 327. Now the attacks occur about twice per month. AR 326. Plaintiff has not wanted to leave the house by herself for about one year, although her medication is helping with this. AR 329. She has tried to go out by herself but her stomach "does bad things to her." AR 329. Plaintiff's son usually accompanies her when she leaves the house to go shopping or attend a doctor's appointment. AR 328. People visit her, such as her mother, father, and brother. She has a friend that does her hair once every three months. AR 339. Currently, Plaintiff is not receiving any mental health treatment other than "the pill," prescribed by her primary doctor, Dr. Alegarbes,*fn2 at Valley Family Health Center in Armona. AR 339-341. Dr. Alegarbes has been her doctor since late 2006. AR 340.

Plaintiff has back pain just below her waist, on both sides. AR 330. The pain has been constant since 2005. AR 331. Bending, walking, sitting, standing for too long, and lying down can make the pain worse. AR 331. The pain radiates down her left leg to her knee; it occurs randomly, about twice per week, and lasts for an hour or more. AR 333. Plaintiff also fractured her foot in January 2008 when she was walking her dogs. AR 337.

When asked how long she could stand without pain, Plaintiff indicated she could do so for about 30 to 45 minutes at one time. AR 332. She can walk for 20 minutes before she has to get off of her feet and can sit for about 15 minutes at one time. AR 332. Plaintiff uses aromatic heating pads and prescription medication to treat her back pain. AR 332. The medication however does not help with the pain in her left leg. AR 334. She currently takes Lorcet and Soma. AR 333. When she goes to the hospital for the pain, she gets Oxycontin to replace the Lorcet. AR 333. Plaintiff experiences side effects of "some dizziness, some drowsiness, [and] some kind of emptiness" when she takes her medication. AR 333.

Plaintiff has discussed surgery with her doctors, but Dr. Watson, an orthopedic surgeon she saw in March 2008, told her she was not a candidate due to osteoporosis. AR 334. She was not referred to Dr. Watson by another physician, rather she just scheduled a consultation. AR 335.

Plaintiff is treated for thyroid disease. AR 335. She was treated by a doctor in Tampa, Florida, who completely removed her parathyroid gland after a parathyroid tumor was found. AR 336. She found the Florida physician on the internet after learning from physicians at Stanford that the surgery risks included the loss of her voice and an eight inch scar. AR 336. She chose the Florida doctor because he had invented a minimally invasive procedure that gave her a "99 percent chance of speaking" after the operation.

When asked about her average day, Plaintiff stated she does not do very much during the day. AR 336. She does the dishes and makes her bed. AR 336. Occasionally she does some laundry, but she does not do any vacuuming, mopping, or sweeping. AR 336-338. She gets her daughters ready for school and then watches television all day. AR 336. Plaintiff does go grocery shopping, but the kids go with her. For the last several years, she has had to use a motorized cart or scooter to shop. AR 337. Once in a while she goes to her daughters' softball games. AR 338.

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in these findings and recommendations.

Dr. Rudolph

On December 13, 2005, Plaintiff was seen by Dr. Rudolph at Central Valley Comprehensive Care because "her back went out."*fn3 Dr. Rudolph noted that Plaintiff had a history of degenerative disc disease. Plaintiff was given Demerol, Phenergan, Lorcet, and Soma. AR 155.

On March 3, 2006, Plaintiff was seen for complaints of increased lower back pain. She was in a wheelchair. The doctor noted "back pain due to nerve root impingement" and prescribed Demerol. AR 151.

On March 13, 2006, Plaintiff was seen for complaints of lower back pain. She stated that the Oxycodone did not help and gave her an upset stomach. She was encouraged to take medication for depression and was prescribed Lexpro. The treatment notes indicate the doctor discussed with Plaintiff that she take no more than four Loracet per day. AR 150.

In April 2006, Plaintiff requested an increase in the quantity and dosage of her Loracet and Soma prescriptions. Dr. Rudolph requested that she sign a drug contract. She refused. Dr. Rudolph denied her request and discharged her from the practice. The doctor's records also note that she was seeing three outside doctors and going to the emergency room for treatment. AR 149.

Central California Imaging Center

On January 23, 2006, Donald C. Wheeler, M.D. performed an MRI of the lumbar spine at the request of Dr. Riddle. The MRI showed a three to four millimeter broad-based disc protrusion at L4-5 associated with a tear of the annulus fibrosis. The disc abutted both the L4 and L5 nerve roots bilaterally. The MRI was otherwise unremarkable. AR 139-140.

Thomas E. Hoyt. M.D.

On February 27, 2006, Plaintiff was examined by neurologist Thomas E. Hoyt, M.D. at the request of Dr. Riddle. Dr. Hoyt determined that Plaintiff had left L5 radiculopathy and that her symptoms were consistent with neurogenic claudications suggesting lumbar stenosis. He found surgical intervention unnecessary. He noted a "disconnect between [Plaintiff's] clinical presentation and the MRI." He ordered an EMG in both legs, a lumbar myelogram, and a post myelo CT scan. AR 141.

On April 18, Plaintiff saw Dr. Hoyt for a follow-up appointment. Dr. Hoyt reported that the EMG was a normal study. The findings showed no radiculopathy or peripheral neuropathy. The myelogram was also normal. The CT myelogram showed lack of filling on the right side at L4-5. There was also incomplete filling of the left nerve root, but without mass effect. Dr. Hoyt suspected a conjoint nerve root rather than a herniated nucleus pulposus. He did not see an explanation for Plaintiff's left leg pain that would require surgical intervention. AR 174.

Calvon Voong, M.D.

On March 29, 2006, Plaintiff was examined by Calvon Voong, M.D., at the request of Dr. Riddle, for lower back pain. Dr. Voong diagnosed lumbar disc degeneration and gave Plaintiff a lumbar epidural steroid injection to ...


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