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Sourinhamet v. Commissioner of Social Security

July 16, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Mouck Sourinhamet seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for social security disability benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record, this Court concludes that the ALJ erred in rejecting Plaintiff's testimony regarding the degree of pain that she experienced and in adopting the opinions of the non-examining agency physicians over those of Plaintiff's treating physicians. Accordingly, the Court reverses and remands for payment of benefits.

I. Administrative Record

A. Procedural History

Plaintiff applied for disability insurance benefits on March 9, 2006. AR 92-94. The Commissioner initially disapproved Plaintiff's claim on August 11, 2006. AR 83-87. Plaintiff requested reconsideration. AR 82. A hearing was held before Administrative Law Judge James P. Berry on April 1, 2008. AR 25-41. On May 30, 2008, the ALJ determined that Plaintiff was not disabled and denied her application. AR 13-24. On July 22, 2008, Plaintiff requested review. AR 5-12. The Appeals Council denied Plaintiff's request for review on December 10, 2008. AR 2-4. Plaintiff filed a timely appeal on January 29, 2009. Doc. 1; 42 U.S.C. §§ 1383(c)(3) and 405(g).

B. Factual Record

Plaintiff's claimed disability had its genesis in an on-the-job accident. On March 15, 2005, Plaintiff, a chicken packer, was injured when she was hit on the back of her head and neck by a bag of frozen chicken meat.*fn2 AR 336, 338. Dr. Dwight James, who diagnosed a cervical strain, gave Plaintiff a three-inch collar to support her neck, administered tramadol*fn3 and ketorolac,*fn4 and prescribed Voltaren(r) (diclofenac),*fn5 Zantac(r) (ranitidine),*fn6 and Soma(r) (carisoprodol).*fn7 AR 335-338. X-rays of Plaintiff's cervical spine were normal. AR 335.

Plaintiff, who was sent home, was to be given a modified work schedule (sedentary work) from March 17 through 24 or 26, 2005. AR 332-335.

A member of the Occupational Health Program at Valley Prompt Care Medical Clinic, Dr. James cared for Plaintiff pursuant to workers' compensation for approximately one year. Throughout that time, Plaintiff repeatedly complained of unrelenting pain, and James prescribed pain medications, referred her to specialists and for therapy and diagnostic tests, and limited her work responsibilities.

After checking Plaintiff on March 16, 2005, Dr. James noted that Plaintiff was "improved, but slower than expected." AR 330. Dr. James directed that she was to be permitted to lie down for 25 minutes each hour while at work. AR 331. On March 17, 2005, Dr. James reported that Plaintiff, who complained of pain and lightheadedness, was not taking her medication at work but must be permitted to do so. AR 328-29. Her modified work schedule was to be three hours only, with permission to lie down for 45 minutes. AR 328-29. On March 24, 2005, Plaintiff complained of increased numbness in her shoulders and "pain in neck region." AR 326-27. James noted that Plaintiff's condition had not improved significantly. AR 326.

On March 28, 2005, after Plaintiff reported that her neck pain remained the same, Dr. James recommended an MRI. AR 323-35. Plaintiff was to be off work until March 31, 2005. AR 325. An MRI of Plaintiff's cervical spine performed on March 30, 2005, indicated "intervertebral disc degenerative changes... most prominently at C3/4 and C5/6... resulting in mild spinal canal stenosis at C3/4." AR 321, 344. No fractures, subluxation, or acute abnormality was present. AR 344. On March 31, 2005, Dr. James again reported that Plaintiff was improving more slowly than expected and complaining of increased pain. AR319-20. He directed her to remain off work and prescribed Voltaren(r), Zantac, Soma(r), and Ultram(r) (tramadol). AR 319-20; 337.

On April 8, 2005, Plaintiff complained of sharp pain in her upper back. AR 318. Nonetheless, Dr. James cleared her to return to work, specifying "sedentary work only." AR 316-318. At her April 22, 2005 follow-up appointment, Plaintiff complained that her neck was still painful and that her right shoulder pain had increased. AR 315. James noted that Plaintiff's condition was improving, but more slowly than expected, and continued to permit "sedentary work only." AR 315, 317. The restrictions continued after the May 9, 2005 follow-up at which Plaintiff reported feeling nauseous and dizzy, and being unable to sit for long periods of time (AR 312), and after the May 24, 2005 follow-up, at which Plaintiff reported increased pain in her neck and shoulders. AR 308, 310. On May 24, 2005, Dr. James prescribed Soma(r), Voltaren(r), Tagamet(r),*fn8 and Keflex.*fn9 AR 311.

When Plaintiff saw her family doctor for a blood pressure check on May 20, 2005, she complained that her left thumb, but not her left arm, was numb. AR 213.

On June 27, 2005, after Plaintiff complained to Dr. James of increased neck pain radiating into her shoulders, he continued to limit her to sedentary work. AR 304-05. On July 7, 2005, Plaintiff complained of increased neck pain radiating into her shoulders and frequent headaches. AR 307. She remained restricted to sedentary work after her July 12, 18, and 29, 2005 follow-ups, at which she reported "increased pain and decreased mobility." AR 297-03; 306-07; 313-14. On July 18, 2005, Dr. James specified, "No pushing, pulling or tugging; No overhead work or reaching; and absolutely no lifting over five pounds." AR 314. On July 29, 2005, Dr. James decreased limitations on Plaintiff, permitting her to lift up to ten pounds. AR 298. Although limitations continued, beginning on August 16, 2005, Dr. James permitted limited lifting between ten and fifteen pounds. AR 293-96.

On September 8, 2005, Plaintiff complained of increased pain and was returned to sedentary work. AR 291-92. On both September 21and 28, 2005, Dr. James noted tenderness and limited range of motion, but no swelling or sensory loss. AR 286-90. He recommended a physical therapy consultation. AR 288-90; 279-80. Sedentary work and physical therapy continued through November 16, 2005. AR 277-78; 281-84. On October 12 and December 15, 2005, Dr. James prescribed Soma(r), Voltaren(r), and Tagamet(r). AR 272; 285. On November 16, 2005, Dr. James again limited lifting to five to ten pounds. AR 275-77. On November 30, 2005, the doctor raised the weight limit to ten to fifteen pounds, where it remained through the December 29, 2005 examination. AR 265-68; 273-74. Because of Plaintiff's complaints of increased neck pain, Dr. James requested an orthopedic referral on December 15, 2005. AR 267-68.

Plaintiff was again injured on or about January 3, 2006, when a machine backed up and chicken again fell on her head. AR 264, 339. Dr. James noted a head contusion, concussion, and cervical strain but allowed Plaintiff to return to work immediately. AR 263, 339. At a follow-up appointment with Dr. James on January 5, 2006, Plaintiff reported headaches and increased neck pain. AR 262-63. Dr. James restricted her to sedentary work and prescribed a pain medication. AR 260-62.

On January 9, 2006, Plaintiff reported that the medication did not relieve her pain and that she was having trouble sleeping. AR259. Dr. James requested authorization for an immediate orthopedic referral and for physical therapy. AR 257-58. He restricted Plaintiff to sedentary work with no lifting over two pounds. AR 256-59. Although Plaintiff continued to complain of pain, Dr. James increased the weight limits to ten to fifteen pounds on January 12, 2006, although he limited her work to four to six hours per day. AR 254-55.

In a pain questionnaire completed in January 2006, Plaintiff reported that she was able to do light dishwashing, make beds, engage in some socializing, dust, and fold laundry. AR 185. She required assistance with grocery shopping, traveling to medical appointments, paying bills, mopping and scrubbing floors, and doing laundry. AR 185. She required others to drive her places.*fn10 AR 185. Plaintiff indicated that she was able to walk five to ten minutes, stand ten to fifteen minutes, and sit ten to twenty minutes at a time. AR 185.

On January 17, 2006, Plaintiff saw Dr. Reynaldo Garcia, at the Family Healthcare Network*fn11 for a second opinion. AR 205. Garcia considered the back and back pain to be "likely musculoskeletal in origin." AR 205. Although Plaintiff wanted to receive worker's compensation, Dr. Garcia advised her that the pain was getting better, that he would add a medication (Elavil(r)*fn12 ), and that he would simply observe her progress. AR 205. Garcia also suggested continued physical therapy. AR 205.

Plaintiff stopped working on January 18, 2006. AR 92.

On January 19, 2006, orthopedist Albert Simkins, Jr., conducted an orthopedic consultation. AR 250-53; 269-71. Plaintiff told Simkins that she had neck and back pain, headaches, bilateral radiating pain into her arms, and numbness and weakness below her waist. AR 269. Simkins recommended a spinal MRI to rule out significant pathology because of Plaintiff's reports of numbness and tingling in her arms. AR 271.

Dr. James also examined Plaintiff on January 19, 2006; Plaintiff reported neck pain with a burning sensation. AR 249. James limited Plaintiff to sedentary work and to lifting two pounds or less, and provided that she be allowed to lie down as needed. AR 249.

Beginning on January 30, 2006, Jacobo Physical Therapy treated Plaintiff three times a week for two weeks for pain attributed to cervical strain, using interferential current to promote healing; soft tissue mobilization to treat trapezius and paraspinals; isotonic and isometric cervical and dorsal exercises; stretches, education, and body mechanics. AR 342.

After reviewing six x-rays of Plaintiff's cervical spine, taken at Sierra View District Hospital on February 22, 2006, the radiologist reported:

The cervical vertebra are normally aligned. The vertebral bodies and posterior elements are unremarkable. No fractures. No appreciable joint pathology. The disk spaces are well-preserved.

AR 341.

On February 10, 2006, Plaintiff's physical therapist reported, "Patient showed little progress. Plaintiff is not working, stated she was fired and now is worried about her future. [indescipherable] pain in both legs and numbness." AR 240.

Between February 6 and March 16, 2006, Plaintiff continued to complain of headaches and pain, and Dr. James continued to prescribe sedentary work. AR 231-34; 241-44. On April 6, 2006, James concluded treatment of Plaintiff, recording "Plaintiff is permanent and stationary." AR 220. He directed Plaintiff to arrange for follow-up care as needed. AR 230. Although Plaintiff continued to complain of neck pain radiating into her right shoulder, James determined that Plaintiff could lift up to fifteen pounds, and engage in limited walking or standing, limited prolonged sitting, and limited repetitive use of her hands. AR 229.

Plaintiff returned to see Dr. James less than two weeks later, complaining of continued pain. AR 225. James directed her not to lift over ten pounds and to avoid overhead work or reaching. AR 225-26.

Plaintiff returned to Family Healthcare Network on February 13, 2006. AR 203. Dr. Kolker recorded:

Patient comes in complaining of pain all over her body. Plaintiff takes Soma.

Plaintiff takes Vicodin. Patient takes diclofenac. Patient still has absolutely no relief. Patient just does not feel very good. Patient just feels that everything is hurting and patient feels like pain is shooting down her legs, shooting down or causing pain every where especially in the back of the neck that is the worse [sic].

AR 203.

Kolker questioned whether Plaintiff had somatoform disorder.*fn13 AR 203. He ordered several medical tests and a cervical spine x-ray, continued Plaintiff's prescriptions for diclofenac, Soma(r), and Vicodin(r),*fn14 and added prescriptions for Lyrica(r)*fn15 and vitamins. AR 203.

On March 29, 2006, Kolker reported that Plaintiff had cervical disc disease. AR 199. Plaintiff complained that Lyrica(r) did not help and that the pain relief doctors were not doing anything for her. AR 199. She continued to experience radicular neck pain extending into her arms to a point above her elbows. AR 199. Plaintiff's hands were not affected. Kolker noted, "[W]hen I did the peripheral neuropathy exam for the hands, full perception, graphesthesia, the crude touch and the light touch, they are all spared in both hands, good pulses as well. Good strength." AR 199. Kolker noted that surgery or injections might be helpful. AR 199.

On October 3, 2006, Dr. Luztre Capili (apparently an associate of Dr. Kolker) noted that Plaintiff seemed unable to understand that her chronic neck pain likely resulted from disc degeneration and would always be there. AR 197. Capili noted "tenderness on examination, although she does have some limitation o[f] motion on side to side motion and also is complaining about pain whenever she tries to hyper extend her neck. No sensorimotor deficits noted on both upper and lower extremities." AR 197. Capili renewed Plaintiff's Norco prescription.*fn16 AR 197.

On November 4, 2006, Plaintiff again saw Dr. Kolker, who noted that Plaintiff still had not experienced any pain relief. AR 195. Kolker had not reviewed the MRI results and still felt injections might be appropriate. AR 195. He prescribed two atypical pain relievers, Baclofen*fn17 and Neurontin,*fn18 on a trial basis. AR 195.

On November 11, 2006, radiologist Narin Siribhadra reported that an x-ray revealed a small calcified plaque in the area of the supraspinatus tendon, ...

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