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Martin v. Commissioner of Social Security

September 27, 2010


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. 21) and defendant's cross-motion for summary judgment (Doc. 24).


Plaintiff applied for social security benefits on April 5, 2006. In the application, plaintiff claims that disability began on July 14, 2002. Plaintiff claims that disability is caused by a combination of "degenerative disc disease..., bilateral lumbosacral radiculopathy, lumbar facet atrophy, amyloidosis, and depression." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on May 7, 2008, before Administrative Law Judge ("ALJ") William C. Thompson, Jr. In a July 23, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment: degenerative disc disease of the lumbar spine;

2. The claimant does not have an impairment or combination of impairments that meet or medically equal any impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform light work except he would be limited to occasional stooping, squatting, kneeling, crawling, and climbing, and no tasks involving the use of foot controls; and

4. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on February 13, 2009, this appeal followed.


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

July 16, 2002 -- Treating chiropractor Timothy Brown, D.C., prepared a doctor's first report of injury relating to a work accident occurring earlier that day.*fn1

August 14, 2002 -- A "Work Status Worksheet" prepared by an attending physician at St. Joseph's Hospital indicates that plaintiff's work status was classified as "limited duty" from August 14, 2002, through August 28, 2002. The doctor opined that plaintiff should not push/pull/lift more than 10 pounds and that he should avoid repetitive bending or stooping and all kneeling and squatting.

November 12, 2002 -- John H. Karan, M.D., reported on a neurologic evaluation performed at the request of plaintiff's treating chiropractor. Dr. Karan reported the following history:

... As you know he is a 46-year-old Caucasian male who reports that he has no prior history of back pain, numbness, or tingling in the arms or legs except for a history of amyloidosis of the skin. Patient reports that he works as a tile setter and construction worker for Simar Flooring Company in Lathrop, CA. He reports that on August 16, 2002, he was tearing out a kitchen and removing an old sink and replacing it with a new sink when he was bending down and lifting up the sink and felt a pop in his lower spine area....*fn2 Chiropractic therapy was initiated. He reports that he tried physical therapy, hot tub treatments at home. He also reports that he has been getting chiropractic therapy three times a week with some improvement in his symptoms. He reports that he is still experiencing intermittent pain in his lower back. Sometimes it is a constant discomfort and he has difficulty sleeping. Some days are worse than others are. He is also experiencing numbness and weakness and tingling sensation and shooting pain in the left leg.

On physical examination, Dr. Karan reported the following impressions:

Mr. James Martin appeared to have sustained a lower back injury as a result of this bending and placing of the sink as he was doing at his job on July 16, 2002. It appears that his symptoms are persisting with moderate to severe low-back pain intermittently. He is also experiencing radicular symptoms. Apparently he had some x-ray studies done at St. Joseph Hospital. The details of which are not available to me. He has also been receiving chiropractic therapy with significant relief....

Dr. Karan recommended an MRI, medication, and additional chiropractic therapy.

November 12, 2002 -- Plaintiff completed a "Neurological Questionnaire." He stated that, in light of his occupational injury, he could only lift up to 50 pounds whereas before the accident he could lift up to 100 pounds.

November 15, 2002 -- Treating chiropractor Dr. Brown reported that plaintiff was disabled due to "flare-ups to his low back when he attempts to perform activities such as lifting, bending, twisting, and stooping." No objective findings were noted. The doctor opined that plaintiff could return to his regular and customary work by December 20, 2002.

November 25, 2002 -- Plaintiff's treating chiropractor prepared a progress note following an examination. Plaintiff complained of "frequent to constant moderate to severe low back pain with intermittent bilateral buttock and left leg pain and numbness." Objectively, the doctor noted decreased thoraco-lumbar range of motion with pain in flexion, as well as muscle tightness and tenderness. The doctor also reported that Kemp's, Ely's, Yeoman's, and straight leg raising tests were all positive. Chiropractic care was recommended. The doctor opined that plaintiff should remain off work until January 6, 2003.

December 3, 2002 -- Plaintiff underwent diagnostic imaging of his left hip and pelvis incident to complaints of left hip pain. The examiner noted the following findings:

In the left proximal femur I see no evidence of sclerotic areas. No linear lucencies. The femoral head is normal in contour. No joint space narrowing. No osteophytes.

The doctor concluded there was no evidence of avascular necrosis.

December 19, 2002 -- Plaintiff underwent a lumbar MRI. The results showed: Degenerative discs and facet joints at L4-5 and L5-S1, causing no central stenosis. The... L5 nerve roots are questionably compressed at the L4-5 subarticular lateral recesses. Slight L5-S1 foraminal narrowing.

March 5, 2003 -- Dr. Brown prepared a follow-up note after treatment. While objective findings are noted, it is unclear whether those are based on a current examination or a prior examination. The doctor did note recent EMG findings of February 25, 2003, provided by Dr. Karan. Dr. Brown recommended that plaintiff remain off work until April 16, 2003.

June 11, 2003 -- Dr. Brown prepared a follow-up progress note. While objective findings are listed, it is not clear whether those reflect a current or prior examination. The doctor opined that plaintiff should remain off work until July 25, 2003. The doctor recommended continued conservative treatment consisting of chiropractic therapy. No medication is indicated.

September 29, 2003 -- Plaintiff completed a form entitled "Personal Injury Patient History" on which he reported involvement in an auto accident on September 26, 2003. Plaintiff listed his employer as "BAC Local #3 Oakland" and stated that his occupation was "Bricklayer -- Tilesetter."

November 14, 2003 -- Dr. Brown submitted a letter to MasterPlan vocation rehabilitation services indicating that, in his opinion, plaintiff "can complete the duties and responsibilities as outlined in the job analysis for Home Inspector/Contractor." This job involves occasional to frequent standing/walking, frequent sitting, occasional stooping/bending/crouching/ crawling, occasional lifting/carrying up to 10 pounds, and occasional pushing/pulling.

January 20, 2004 -- A new patient form prepared by staff at Central Valley Medical Care indicates that plaintiff presented with no acute complaints.

April 8, 2004 -- Qualified medical examiner Robert B. Steiner, M.D., performed an orthopedic evaluation and submitted a report. At that time, plaintiff's complaints were reported as follows:

He continues to have daily pain in his low back but more pain in his legs, left greater pain than right and to the foot. He gets a tingling sensation in the lateral aspect of the foot, and has cramping in the calf, particularly. His night cramps are a major issue, involving the calves and feet.

On physical examination, plaintiff was seen getting on and off the examination table without apparent difficulty. Gait was normal, he could negotiate heels and toes, though heel walking on the left was somewhat difficult compared to the right. Flexion of the spine was limited 50 %, and spine extension was 50% to 75% in the standing position. Straight leg raising was positive at 70 degrees. The doctor noted that plaintiff's back and leg pain were absent at rest and increased to frequent and moderate with activity. Dr. Steiner concluded that plaintiff could no longer perform "substantial work" and could stand/walk four hours in an eight-hour day, and sit for four to six hours in an eight-hour day.

July 13, 2004 -- Qualified medical examiner Ronald B. Wolfson, M.D., examined plaintiff and prepared a report. On physical examination, ranges of motion of the back were 70% to 80% of normal. Ranges of motion of the ankles, hips, and knees were normal. Straight leg raising showed tightness in the hamstrings at 70 degrees. Dr. Wolfson diagnosed back sprain resulting from the July 2002 work accident, with "underlying degenerative arthritis at two levels, 4-5 and 5-1." The doctor offered the following discussion:

Jimmy Martinez is a forty-eight year old, right hand dominant man, who I had previously seen for an AOE/COE evaluation on December 10, 2002. At that time, I felt that there was industrial causation for his low back complaints. The treatment he has had has been generally appropriate. He has had medication, he has had rest and he has had vocational rehabilitation and will not be returning to work as a tile setter. The MRI that was done showed that he had facet arthritis and degenerative disk disease at two levels, 4-5 and 5-1 and had EMG studies suggestive of some mild radiculopathy, greater on the right than on the left. His spine mobility has increased and there is less tenderness.

Dr. Wolfson opined that plaintiff "has a disability precluding very heavy work."

February 23, 2005 -- Dr. Brown completed a doctor's certificate in connection with plaintiff's claim for disability benefits. On this form, Dr. Brown indicates that plaintiff's disability began on June 25, 2004, due to lumbar neuralgia. While objective findings, such as decreased range of motion are noted, it is not clear whether these are findings observed at a current or past evaluation. Dr. Brown indicated that the course of treatment consists of manipulative chiropractic treatment "when needed." No medication is mentioned.

March 25, 2005 -- Dr. Brown prepared a progress note on which he indicates that plaintiff "is doing better both subjectively and objectively/functionally since his last evaluation dated 02/04/2005." On a pain questionnaire completed at the time of the follow-up evaluation, plaintiff reported that his pain "comes and goes and is moderate." He also reported that he could manage his own dressing and washing without changing his routine due to pain. He added that, while he cannot lift "heavy weights" due to pain, he can list "light to medium weights." Plaintiff stated that he cannot walk for more than 1/4 mile or sit for more than one hour. Plaintiff added that his "pain seems to be getting better, but improvement is slow at present."

July 27, 2005 -- Desmond Erasmus, M.D., reported on a neurological evaluation requested by Dr. Brown. Dr. Erasmus ...

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