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Clemmons v. Astrue

September 15, 2010

JULIE CLEMMONS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 2)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1969 and completed the eleventh grade and a GED. (Administrative Record ("AR") 428-29.) Plaintiff previously worked as a tractor trailer truck driver and bus driver. (AR 474-75.) She stopped working on January 30, 2001, because of a back injury sustained in a motor vehicle accident. (AR 358.)

On January 30, 2001, X-rays of Plaintiff's lumbar spine revealed no evidence of fracture or subluxation*fn2 and only minimal degenerative changes. (AR 22, 354.) On February 5, 2001, Thomas Evans, M.D., a family physician, diagnosed Plaintiff with acute lumbar spine strain and prescribed pain medication and physical therapy. (AR 346.) On February 12, 2001, Plaintiff reported improvement in her condition, although she continued to have discomfort in her neck and shoulders. (AR 345.) On February 21, 2001, Plaintiff reported feeling slightly improved with physical therapy, but she was still very stiff and sore, so Dr. Evans recommended an orthopedic consultation. (AR 343.) On March 5, 2001, Dr. Evans noted Plaintiff's improvement with physical therapy. (AR 341.)

On March 23, 2001, Michael Florio, M.D., performed an orthopedic consultative examination of Plaintiff. (AR 358-60.) Dr. Florio opined that, with medication and exercise, Plaintiff would recover from her injury. (AR 360.)

On May 3, 2001, Plaintiff related to Dr. Evans that she could drive an automobile for only five to ten minutes and that her medication was only partially helpful. (AR 338.)

On May 23, 2001, an MRI scan revealed dessication of intervertebral discs, degenerative joint disease, disc bulge, and possible nerve root impingement. (AR 22, 336.)

On June 29, 2001, Dr. Florio saw Plaintiff for her continued complaints of back pain. (AR 22, 356-57.) Dr. Florio noted that Plaintiff's gait was normal, she performed the walking maneuvers without difficulty, and her functional use of the back was excellent. (AR 22, 356.) Dr. Florio prescribed physical therapy, with which Dr. Florio opined Plaintiff would show considerable improvement. (AR 357.)

On July 5, 2001, Dr. Evans referred Plaintiff to Dr. Florio because of persistent back pain and lumbar disc involvement and sciatica that were not improving with conservative treatment. (AR 334.) On July 17, 2001, Plaintiff canceled her appointment with Dr. Florio and did not reschedule the appointment. (AR 355.) Plaintiff underwent physical therapy in August 2001, but canceled her appointment on August 31, 2001. (AR 361.)

On August 21, 2001, Michael Wlasichuk, M.D., a treating physician, opined that Plaintiff could not sit or stand for prolonged periods of time. (AR 362.) Plaintiff could not repeatedly bend, stoop or climb, nor lift more than 15 pounds. (AR 362.) On October 9, 2001, Dr. Wlasichuk opined that Plaintiff would be precluded from heavy lifting and repeated bending and stooping. (AR 372.)

On August 4, 2003, X-rays of Plaintiff's lumbar spine revealed no fracture, no significant disc narrowing, and only slight degenerative changes. (AR 293.) On August 9, 2003, additional X-rays revealed (1) no acute compression fracture or dislocation after trauma and (2) mild degenerative osteoarthritis. (AR 290.)

On September 26, 2003, an MRI of Plaintiff's lumbar spine revealed (1) very mild facet joint disease at L3-L4 through L5-S1, (2) no spinal stenosis,*fn3 (3) no lateral recess encroachment, (4) very mild bulge at L5-S1 not affecting canal or nerve roots, and (5) no identifiable fracture. (AR 282.)

On November 3, 2003, Dr. Evans noted that Plaintiff's MRI scan showed minimal lumbar disc disease and opined that Plaintiff would be able to perform jobs not requiring heavy lifting. (AR 276.) On November 15, 2003, despite this "negative MRI scan," Dr. Evans opined that Plaintiff was not able to work. (AR 273.)

On November 17, 2003, Plaintiff filed an application for SSI, alleging disability beginning on January 30, 2001, due to back pain. (AR 107-12, 131.)

On February 17, 2004, Jonathan Gurdin, M.D., performed a consultative orthopedic evaluation of Plaintiff. (AR 189-90.) Dr. Gurdin opined as follows:

Unquestionably [Plaintiff's] excess weight is aggravating her back complaints. I would expect improvement with weight loss and ongoing physical therapy.

At the present time [Plaintiff] would have difficulty bending and working in a bent over position. She could probably be on her feet moving around for 60 to 90 minutes at a time and for 4 or 5 hours out of 8 hours. She could probably sit for 11/2 to 2 hours at a time and for 5 or 6 hours out of 8 hours. Hand and arm function was intact. (AR 190.)

On March 15, 2004, Plaintiff reported to Dr. Evans that her pain medication was effective and requested a lower dose. (AR 253.)

On April 19, 2004, a state agency medical consultant, Carmen Lopez, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). (AR 203-210.) Dr. Lopez opined that Plaintiff could (1) occasionally lift and/or carry up to 20 pounds and frequently up to 10 pounds; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling with the upper and lower extremities. (AR 204.) Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. (AR 205-07.)

On August 21, 2004, Dr. Evans noted that, although Plaintiff had not been driving a commercial vehicle since her back injury, she drove a private vehicle without difficulty. (AR 242.) On November 29, 2005, Dr. Evans completed an RFC questionnaire, noting that he had seen Plaintiff every eight to twelve weeks since 2002. (AR 324.) Dr. Evans opined as follows:

* Plaintiff's pain, fatigue, or other symptoms were severe enough to "constantly" interfere with attention and concentration needed to perform even simple work tasks. (AR 325.)

* Plaintiff could maintain attention and concentration for fifteen minutes at a time. (AR 325.)

* Plaintiff could only walk one city block without rest or severe pain. (AR 326.)

* Plaintiff could sit for 20 minutes before needing to get up. (AR 326.)

* Plaintiff could stand for ten minutes before needing to sit down or ...


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