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Brackett 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. 24) and defendant's cross-motion for summary judgment (Doc. 25).


Plaintiff applied for social security benefits on September 22, 2005. In the application, plaintiff claims that disability began on April 1, 2003. Plaintiff claims that disability is caused by a combination of: "... multilevel degenerative disk disease with obliteration of the neural foranima at L5-S1, diffuse idiopathic skeletal hyperostosis (DISH), diabetes, hypertension, and depression." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 13, 2007, before Administrative Law Judge ("ALJ") L. Kalei Fong. Following the December 2007 hearing, plaintiff was referred for a consultative orthopedic examination, which took place in January 2008. A second hearing was held on May 7, 2008, at which time an impartial medical expert testified. In a October 15, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine; diabetes; and hypertension;

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

3. The claimant has the residual functional capacity to perform the full range of medium work; he is limited to only occasional climbing of ladders, ropes, and scaffolds, and he can occasionally crawl; stooping, kneeling, and crouching are limited to occasional;

4. The claimant is unable to perform any past relevant work; and 5. Considering the claimant's age, education, work experience, and residual functional capacity, and based on application of the Medical-Vocational Guidelines set forth in the regulations, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on May 5, 2009, this appeal followed.


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

August 3, 2006 -- Dr. Mulligan, plaintiff's treating physician, signed a "Verification of Physical or Mental Incapacity" indicating that plaintiff was unable to work for three months due to chronic low back pain. The doctor does not reference any objective findings.

August 20, 2006 -- Plaintiff submitted a "Function Report -- Adult" in connection with his applications. Plaintiff stated that, on a day-to-day basis, his activities consist of: "Eat, shower, watch TV, read news paper, eat dinner, watch TV." He prepares his own meals consisting mainly of TV dinners. He stated that he does not care for any people or animals. He stated that it is hard to put on his shoes and socks due to pain. As to household chores, he stated that he only does laundry once a week and that he does not need help with this task. He stated that he cannot do yard work or other house work due to pain. He stated that he goes out of the house four or five times a week, but can only drive short distances due to back pain. He does his own grocery shopping once or twice a week for about one-half hour at a time. He added that he requires the use of a walker, wheelchair, or cane when shopping. He stated that he can handle funds, count change, and use savings and checking accounts, though he stated that he cannot pay his bills due to lack of money. He stated that, due to pain, he is unable to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, or use his hands. He stated that he can only walk 150-200 feet and then must stop and rest for five or ten minutes. He stated that he usually finishes what he starts and can follow both written and spoken instructions. He stated that he gets along with authority figures "very good." He added that he does not handle stress well, but can do "ok" with changes in routine.

August 28, 2006 -- Plaintiff's mother, Geraldine Brackett, submitted a "Function Report -- Adult -- Third Party." Her statements as to plaintiff's capabilities are essentially the same as the description provided by plaintiff in his August 20, 2006, function report.

December 7, 2006 -- Janet O'Brien reported on a complete internal medicine evaluation. Plaintiff's chief complaints were low back pain, hip pain, hypertension, and diabetes. Regarding low back pain, the doctor outlined the following history:

This has troubled him for years; he dates it back to a motorcycle accident when he landed with his back across a curb. He was seen in a hospital for a bruised kidney after the accident. In 1993 he was lifting weights and developed a sciatic pain and was told "I had a vertebra pushed forward." He was given an epidural steroid injection without improvement. Currently he complains of "lots of pain" in the lumbosacral spine. It will wax and wane but it is present constantly. He notes "it hurts a little bit all the time, but sometimes it can be pretty unbearable." The severity varies between 4-8/10 in intensity. It is worse "depending on how much I walk, but better with rest."

As to hip problems, the doctor reported: He notes that the hips and knees hurt "just pretty much all the time." It is difficult for him to describe the quality. He relates that "sometimes it feels like I am cut in half here" and he indicates the waist. He notes that he might had to walk for a second when it starts to lock up. He complains of an aching pain of varying intensity.

On physical examination, Dr. O'Brien observed that plaintiff demonstrated "... some guarding with walking and changing positions." The doctor noted a slight limp favoring the right and that plaintiff expressed pain when reaching down for his socks. However, the doctor also observed:

He demonstrates no difficulty walking down the hall to the examination room, no difficulty sitting during the history, and no difficulty getting onto the examination table. He demonstrated no difficulty removing his socks and shoes.

On examination of plaintiff's back, Dr. O'Brien noted: "Normal lumbar lordosis and thoracic kyphosis.. No evidence of scoliosis." The doctor observed no difficulty with squatting and rising. Decreased ranges of motion were noted on cervical flexion and rotation as well as dorsolumbar flexion. Decreased ranges of motion were also noted on elbow flexion, hip forward flexion, and knee flexion. Straight -leg raising was negative for low back pain bilaterally both in the seated and supine positions. Strength was intact. Dr. O'Brien diagnosed low back pain without evidence of radiculopathy, as well as hip and knee pain consistent with degenerative joint disease. The doctor outlined the following functional assessment:

The claimant should be able to stand and walk 6 hours in an 8-hour workday.

The claimant should be able to ambulate as needed for banking, shopping, and traveling to and from work or school. He should be able to walk a block over rough or uneven surfaces. He should be able to use public transportation. He should be able to climb a few steps with the use of a handrail.

The claimant should be able to sit 6 hours in an 8-hour workday. Assistive device: none.

The claimant should be able to lift and carry 25 pounds frequently and 50 pounds occasionally, limited by age.

Postural limitations: the claimant should be able to stoop, crouch, kneel, and climb 6 hours in an 8-hour workday.

Dr. O'Brien did not note any other limitations.

January 10, 2007 -- Dr. Mulligan signed another "Verification of Physical or Mental Incapacity" form indicating that plaintiff could not work for three months due to low back pain and "prognosis uncertain." Again, no clinical findings are noted to support the doctor's conclusion that plaintiff's low back pain is disabling.

January 17, 2007 -- Agency consultative doctor P. Suster, M.D., submitted a physical residual functional capacity assessment. The doctor opined that plaintiff can occasionally lift/carry up to 50 pounds and frequently lift/carry up to 25 pounds. Plaintiff could sit/stand/walk for about six hours in an eight-hour workday. Plaintiff's ability to push/pull is unlimited. Plaintiff could frequently balance but only occasionally climb, stoop, kneel, crouch, or crawl. No manipulative, visual, communicative, or environmental limitations were noted. Dr. Suster noted that the treating records do not contain findings which would support a significantly different assessment.

April 6, 2007, October 22, 2007, and January 10, 2008 -- The record contains three more "Verification of Physical or Mental Incapacity" forms completed by Dr. Mulligan indicating that plaintiff cannot work. No objective findings are noted.

June 21, 2007 -- Dr. Mulligan prepared a progress note on follow-up to plaintiff's complaints of chronic low back pain. The doctor noted that plaintiff had been advised to take baby aspirin once a day but had not been compliant with that instruction. On physical examination, the doctor did not note any clinical findings relating to back pain. Dr. Mulligan directed plaintiff to take the aspirin.

January 25, 2008 -- Agency examining doctor Jane Wang, M.D., reported on a comprehensive orthopedic evaluation performed at the request of the agency. As to activities of daily living, the doctor reported:

He drove to today's appointment. He can fill gas in his car. He can drive for about an hour or so, when his back becomes painful and he would need to stretch. He lives in a one level house with his mother....

Following a detailed physical examination, Dr. Wang offered the following diagnosis:

1. Low back pain, since 1993. X-rays of the lumbar spine shows DJD changes. On today's examination there was decreased active range of movement in the dorsolumbar area associated with pain. Straight leg raising tests were negative both in the sitting and supine positions. There was no weakness noted in the lower extremities. Knee examination was unremarkable. There was decreased internal and external rotation of the right hip associated with pain.

2. Depression: claimant appears depressed and was tearful at the end of the examination. He is on medications for this and would benefit from evaluation.

3. History of diabetes, hypertension and hypercholesterolemia: followed up every month by his physician.

The doctor offered the following functional assessment:

1. Claimant is permitted to stand and walk six hours in an ...

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