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Shafer v. Commissioner of Social Security

September 29, 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. 23) and defendant's cross-motion for summary judgment (Doc. 24).


Plaintiff applied for social security benefits on September 29, 2005, and on July 13, 2006. In the applications, plaintiff claims that disability began on November 2, 2004. Plaintiff claims that disability is caused by a combination of degenerative disc disease, scoliosis, depression, dysthymia, and a learning disability. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on September 19, 2007, before Administrative Law Judge ("ALJ") Peter F. Belli. In an October 26, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: chronic lower back pain secondary to history of scoliosis repair with Harrington Rod and mild degenerative disc disease;

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

3. The claimant has the residual functional capacity to perform the full range of light work; the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently, she can sit and stand for six hours during an eight-hour day; she can occasionally climb ramps and stairs, kneel, crouch, and crawl, but she should avoid climbing ladders, ropes, and scaffolds; and

4. The claimant is capable of performing her past relevant work as an office manager and tow truck dispatcher.

After the Appeals Council declined review on December 8, 2008, this appeal followed.


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

January 26, 2004 -- The record contains a chart note prepared by Dr. Yokoyama. The doctor reported the following objective complaints:

The patient in follow-up of low back pain. It seems to be worse over the last two weeks despite no increase in activity or trauma. She said she has been using her TENS unit with some improvement. Naprosyn initially was helpful but is not very effective lately. She is also taking some Vicodin at times for her pain. She has pain primarily in the lower back. Also gets some radiation down into the front of her thigh to the midportion of the lower leg. No neurologic concerns; no GI or GU complaints.

On physical examination, Dr. Yokoyama noted that straight leg raising was negative, motor strength was 5/5 throughout, and plaintiff was intact to light touch. Dr. Yokoyama changed plaintiff's medication to Clinoril and directed that she "continue to do her warm and cold stretching."

August 20, 2004 -- Dr. Yokoyama prepared a chart note. The doctor stated that plaintiff was being seen for two complaints -- worsening mood and low back pain. While the chart note does not reflect that any mental status examination was performed, the doctor diagnosed depression and prescribed Paxil. As to low back pain, the doctor referred plaintiff for additional consultation.

April 28, 2005 -- John A. Byer, M.D., reported following a neurological examination to address plaintiff's complaints of numbness in her right hand. As part of his report, the doctor noted the following: ". . . She has a lack of income. She is currently looking for a job and does have some job prospects. She is also running a medical billing."

September 20, 2005 -- Dr. Yokoyama completed a progress note. As to plaintiff's low back pain, the doctor reported:

Patient is here for follow-up of chronic back pain. She continues to have low back pain on a continuous basis. Waxes and wanes. It has been progressively worsening over the years. No radiation. Denies any neurologic symptoms. No incontinence. Ibuprofen has been somewhat helpful. TENS unit is variable. She has been to physical therapy and been doing exercises. She is able to sit for about 30 minutes, stand for about 30 minutes, and walk for about an hour before she starts having difficulties. As a result she has not been able to do much in the way of employment that would allow her to keep the pain down.

On physical examination, straight-leg raising was negative, motor strength was 5/5 throughout, and sensation was intact to light touch. Dr. Yokoyama switched medication to Neurontin and recommended that plaintiff continue with warm to cold stretching.

October 13, 2005 -- The CAR contains a progress note prepared by Dr. Yokoyama. The doctor noted that plaintiff had been taking Neurontin, "but stopped secondary to making her feel funny." Plaintiff told the doctor that "some swimming sensations" in her head had stopped since she ceased Neurontin. Dr. Yokoyama switched plaintiff to Clinoril and referred plaintiff for a neurologic consultation.

October 31, 2005 -- Alan Shatzel, D.O., completed a neurological evaluation. Dr. Shatzel reported the following background:

I was asked by Dr. Don Yokoyama to evaluate and provide recommendations for this 42-year-old right-handed woman with a history of scoliosis and major corrective surgery in 1976. The patient had a Harrington rod placed when she was 12 years old to straighten her spine. She has done fairly well, however over the last 5 years, has had increasing back pain and discomfort. It is becoming worse over the last several years. She was recently tried on sulindac. This is making her sick to her stomach and causing her significant nausea. She does not want to try narcotic medicines as she has a strong family history of addiction and is concerned as she has a 6-year-old child at home to care for. She has tried massage therapy which is transiently helpful. She has had yoga which is mildly helpful and she has a TENS unit which is helpful. All of these are transient, however. She also undergoes chiropractic treatments with deep tissue massage. This is transiently helpful, again, but does not relieve the symptoms for the long term.

Based on his general physical examination and detailed neurologic examination, the doctor reported as follows:

. . . The patient has a recent increase in weight and the pain seems to be getting worse over the last several years. Her examination is mostly intact without symmetrical loss of reflexes and no symmetrical sensory or strength loss. She continues to have low back pain and discomfort and has not responded to anti-inflammatories medications.

Dr. Shatzel recommended low-dose medication, such as Elavil. The doctor did not offer any functional assessment.

November 14, 2005 -- Plaintiff completed a "Pain Questionnaire." She stated that her pain began in 1976 and is located in her low back. She stated the pain is constant and radiates down her legs. According to plaintiff, sitting, standing, walking, lifting, squatting, reaching, and bending over bring on her pain. Rest does not relieve the pain. She stated that medication does not help at all but causes side effects such as dry mouth and dizziness. Plaintiff stated that no surgery had been scheduled or attempted to relieve the pain. She stated that she uses a TENS unit and sees a chiropractor. She stated that, despite her pain, she is able to drive, do light house work, and prepare meals. She added that, due to pain, she cannot "sit at a desk, lifting, driving, or riding for any length of time." She also stated that she requires assistance with mopping, vacuuming, and yard work. She stated that she can only walk 200 yards, stand for up to ten minutes, and sit for up to 20 minutes.

January 20, 2006 -- Agency consultative doctor T.P. Nguyen, M.D., prepared a physical residual functional capacity assessment. The doctor concluded that plaintiff can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds. Plaintiff can sit/stand/walk about six hours in an eight-hour day. The doctor opined that plaintiff is unlimited in her ability to push/pull. Plaintiff can frequently balance, occasionally climb ramps and stairs, kneel, stoop, crouch, and crawl, but should never climb ladders, ropes, or scaffolds. No manipulative, visual, communicative, or environmental limitations were noted.

January 21, 2006 -- Agency consultative doctor V. Meenakshi completed a psychiatric review technique form. The doctor concluded there was insufficient evidence to establish the existence of any mental impairment.

March 1, 2006 -- Plaintiff completed a "Disability Report -- Appeal" describing how her conditions have changed over time. Specifically, plaintiff stated that since January 2006 she had been experiencing "more pain, decreased range of motion, increasing loss of function." Plaintiff also stated that she was experiencing a decreased ability to take care of personal hygiene. While she stated that she will continue to see a doctor for her physical impairments, she stated that she had not seen any mental health provider since her last disability report and she added that she had no plans to do so.

May 9, 2006 -- Agency consultative doctor Sharon Amon, M.D., submitted a second physical residual functional capacity assessment. Dr. Amon's opinion was the same as Dr. Nguyen's except Dr. Amon concluded that plaintiff could in fact occasionally climb ladders, ropes, and scaffolds.

July 11, 2006 -- Plaintiff completed another "Disability Report -- Appeal." She stated that her condition had changed for the worse since March 2006. In particular, she reported "more difficulty moving, lifting, bending" and added that she cannot twist. Plaintiff stated that "[i]ncrease in pain meds results in decrease in my ability to function daily."

August 18, 2006 -- Dr. Shatzel submitted a "Letter of Current Medical Status." The doctor stated:

Ms. Mary Shafer has been a patient of mine for almost one year. I continue to follow her for intractable low back pain and discomfort. I have been following Ms. Mary Shafer (AKA Mary Alcala) since October of 2005. At that time I saw her in neurological consultation for low back pain and discomfort. She has complicated history related to her scoliosis repair surgery with Harrington Rods placement as teenager. Plain imaging of the lumbosacral spine showed normal Rods anatomical alignment, no evidence of listhesis with flexion or extension. There was noted disc disease and end plate sclerosis as well as facet arthritis. We have been trying medical management including interventional pain medical consultation and epidural steroids which were not able to completely relieve the pain and discomfort. The patient was prescribed therapy quite some time ago but has been unable to complete the prescribed course due to financial and time constraints. At last visit on August 18, 2006, it was quite clear that despite our best efforts Ms. Shafer's back pain has remained intractable and at that time she was referred for evaluation with our Physical Medicine & Rehabilitation specialist. The patient has been off work and unable to return due to her low back pain and discomfort. Hopefully we will be able to obtain some functional recovery through Physical Medicine and Rehabilitation and patient will achieve minimal or no pain and be able to return to work.

January 10, 2007 -- Clare L. Gavin, a learning disability specialist with Dyslexia Consultants of Northern California, prepared a learning disabilities evaluation based on testing performed in November and December 2006. Ms. Gavin reported the following background:

Mary Shafer was referred to assessment of potential learning disabilities by Mary Deuel, Vocational Assessment Counselor with the Sacramento County Department of Human Assistance. Although Ms. Shafer has no history of special education placement, her score of 20 on the Payne Learning Needs Screening Tool (LNST) is highly suggestive of adult learning disabilities. Ms. Deuel has requested an evaluation of Ms. Shafer's current levels of cognitive and academic functioning in order to identify learning strengths and challenges, as well as to determine if she is eligible for ...

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