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Worden v. Astrue

November 23, 2010


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


Plaintiff Kelly Ann Worden, proceeding in forma pauperis , by her attorney, Robert E. Lowenstein, Jr., A Professional Corporation, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (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 and applicable law, this Court concludes that the ALJ properly found Plaintiff ineligible for benefits.

I. Administrative Record

A. Procedural History

On May 18, 2005, Plaintiff filed for supplementary security income, alleging disability beginning February 25, 2005. AR 22. Her claim was initially denied on November 7, 2005, and upon reconsideration, on February 13, 2007. AR 22. On March 14, 2007, Plaintiff filed a timely request for a hearing. AR 22. Plaintiff appeared and testified at a hearing on September 20, 2007. AR 882-899. On October 24, 2007, Administrative Law Judge Edward C. Graham denied Plaintiff's application. AR 22-30. The Appeals Council denied review on March 13, 2009. AR 5-8. On May 9, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Background*fn2

Plaintiff (born April 9, 1966) initially attributed her inability to work to (1) her felony conviction; (2) her inability to stretch to put dishes on the top shelf, which hurt her back; (3) frequent head jerks; and (4) shaking hands. AR 96. She was five feet, six inches tall, and weighed 211 pounds. AR 95. Plaintiff first noticed her inability to work on February 25, 2005. AR 96. She had worked briefly as a telemarketer and a merchandise control clerk, but was most recently employed as a home care worker. AR 88. Plaintiff is a high school graduate with a year of college. AR 196.

1. Physical Ailments (Back Pain and Head Tremor)

At an appointment on February 11, 2005, Plaintiff complained of lower back pain to Albert Encina, M.D. AR 180.

Plaintiff was treated in the emergency room at Tehachapi Valley Healthcare District for acute low back pain on February 25, 2005. AR 200-217. Plaintiff was stricken with sharp pain when she bent over at home. AR 203. Upon arrival, Plaintiff complained of pain with any movement. AR 205. Medical personnel administered Demerol*fn3 and Phenergan.*fn4 AR 205. Three hours later, Plaintiff's pain had decreased, and she was able to move on her own. AR 205. Spinal x-rays were unremarkable, except for revealing limbus vertebrae at S1-S2.*fn5 AR 648.

On February 27, 2005, Plaintiff appeared at High Desert Hospital's urgent care facility complaining of lower back and upper rib pain. AR 272. She reported that the vicodin*fn6 was making her sick. AR 272.

Richard Elton, M.D., of the orthopedic clinic at High Desert Health System, examined Plaintiff and took x-rays on March 9, 2005. AR 271. Plaintiff reported that, on the evening of February 24, 2005, she experienced low back pain. AR 271. The following morning she woke and went from the bedroom to the kitchen where she felt crushing pain in the middle of her back. AR 271. She experienced shortness of breath and felt her ribs crunching. AR 271. Plaintiff reported that her anterior thighs had been numb for two days prior to the incident, and that her lower back and the base of her neck swelled and hurt. AR 271. After examining Plaintiff's x-rays, Elton saw only an abnormality (accessory ossification, i.e., limbus vertebrae) that he considered developmental. AR 271. Similarly, radiologist Hrayr A. Kabakian, M.D., opined that Plaintiff's cervical and thoracic spine were normal. AR 294. Regarding Plaintiff's lumbar spine, Kabakian opined:

A fracture is not identified. There is an ununite [ sic ] secondary ossification center of L4 body at its anterosuperior corner. This is of no clinical significance. The vertebrae are otherwise, normal. The disc spaces and the sacroiliac articulations are normal.

AR 294.

Elton again saw Plaintiff on March 30, 2005. AR 269. She was slightly better but still experienced lower back pain when she reached, as when putting dishes away. AR 269. Elton opined that the "lesion" spotted on Plaintiff's x-ray was developmental and "normal." AR 269. He concluded, "I really can't explain her symptoms." AR 269.

On April 21, 2005, Plaintiff told Encina that she had fractured a vertebra (she was not sure which one) two months earlier while helping someone move. AR 178. Encina ordered a spinal xray. AR 178. Ronald McGrady, M.D., of Lancaster Imaging analyzed the five x-ray views of Plaintiff's lumbar spine and found:

Transitional lumbar anatomy is present. No lytic or blastic lesions or acute fractures are demonstrated. Unilateral sacralization of the lower lumbar vertebral body on the left side is present. There is an abnormality involving the superior aspect of what appears to represent L4, either of a congenital nature or related to prior trauma.

AR 221.

On July 28, 2005, Plaintiff complained to Encina of a head tremor, but he was unable to observe it. AR 171. On August 5, 2005, Encina diagnosed Plaintiff's head tremor. AR 170.

Thu-Anh Hoang, M.D., summarized the results of magnetic resonance imaging of Plaintiff's lumbar spine on August 4, 2005:

The bone marrow signal is normal. There is no evidence of compression fracture or bony lesion. The conus medullaris and cauda equina are unremarkable.

The degenerated L3-4 disk is desiccated. There is no evidence of disk bulge or protrusion at T12-L1, L1-2, L2-3, L3-4, L4-5, or L5-S1. The thecal sac remains normal despite variable degrees of mild to moderate degenerative hypertrophic facet disease (as one progresses from upper to the lower lumbar spine) and mild thickening of the ligamentum flavum. No evidence of nerve root compression in the neural foramina in any levels.

AR 157 ( emphasis added*fn7 ).

Accordingly, Hoang's impression was:

No evidence of compression fracture of the lumbar vertebrae. No evidence of disk bulge, protrusion, significant spinal stenosis, nerve root compression in neural foramina at any levels. No evidence of spondylolisthesis or spondylolysis..

AR 157.

On August 12, 2005, Gurprem Kang, M.D., analyzed x-rays of Plaintiff's cervical spine. AR 231. He found:

Mild degenerative changes of the cervical spine are seen with small osteophyte formations between C4 and C7. Mild posterior osteophyte formations are also seen between C5 and C7. No evidence of recent fracture, compression or subluxation. Lordotoc curvature is decreased. No prevertebral soft tissue swelling.

AR 231.

On August 25, 2005, Encina noted that Plaintiff's low back pain continued and diagnosed back strain. AR 168. He also noted that Inderol*fn8 was not helping the head tremor. AR 168.

After analyzing a CT scan of Plaintiff's spine on September 14, 2005, Kang reported: There is no evidence of posterior herniation or significant posterior bulging of any of the lumbar intervertebral disks between L1 and S1. There is no evidence of extrinsic pressure on the thecal sac. There is no evidence of significant encroachment of the neural foramina. Very minimal degenerative changes of the facet joints is seen. Small to modest anterior osteophyte formation is seen from the body of L4 vertebra.

AR 159.

Kang also analyzed a CT scan of Plaintiff's head and found that it appeared normal. AR 229.

On September 16, 2005, Plaintiff saw Jong S. Lee, M.D., an ambulatory care doctor at High Desert Hospital, complaining of head tremor and lower back pain.*fn9 AR 262. Lee ordered MRI and CT scans. AR 262. On October 3, 2005, Plaintiff again complained to Lee of lower back pain. AR 261.

On November 8, 2005, Plaintiff saw Sri to discuss her primidone prescription, which was not helping her head tremors. AR 256.

On November 30, 2005, neurologist L. Janumpally, M.D., evaluated Plaintiff's head tremor. AR 251. He found no evidence of Parkinsonism. AR 251. A CT scan of her head was unremarkable. AR 251. Accordingly, Janumpally recommended that Plaintiff continue to take mysoline.*fn10 AR 251.

Plaintiff saw Sri on January 13, 2006, to discuss mysoline, her severe head tremors, sharp shooting pain, and fatigue. AR 253. On January 24, 2006, Plaintiff complained to Sri of pain in the back of her head and her ears. AR 252.

On February 10, 2006, Plaintiff saw Janumpally, reporting subjective symptoms. AR 318. Noting no change on the CT scan of Plaintiff's head, Janumpally reported that the mysolin was not helping Plaintiff's "cerebellar tremor" and that inderol could not be given since the tremor caused headache and fever. AR 318. On October 5, 2006, Janumpally ordered MRI of Plaintiff's spine, noting that Plaintiff wanted "disability." AR 317.

Mark Beller, M.D., provided a report of an October 20, 2006, lumbar spine MRI. AR 790-791. He reported bilateral facet arthropathy at L4-L5; limbus vertebra at L3; and multilevel mild discogenic disease. AR 790. Generally, the various examined portions of Plaintiff's spine were "normal" and "patent." AR 790-791.

On February 5, 13, and 20, 2007, a doctor (signature illegible*fn11 ) at Cal City Hospital recommended physical therapy for Plaintiff's lower back pain. AR 745, 746, 747. On April 2 and 20, 2007, a doctor diagnosed Plaintiff's head tremor as benign essential tremor.*fn12 AR 741. On May 26, 2007, Plaintiff saw a doctor for chronic back pain. AR 735. She declined treatment by injection. AR 735. On March 19, 2008, Plaintiff saw a doctor when four days of lower back pain occurred after lifting. AR 849.

Between December 18, 2006, and April 13, 2007, Plaintiff received physical therapy for lower back pain at West Point Physical Therapy Center. AR 779-785. On December 18, 2006, Plaintiff's pain was rated four on a scale of one to ten. AR 785. Therapy included hot and cold treatments and work on walking, sitting, standing, and lifting and carrying. On April 13, 2007, Plaintiff reported that her lower back was "feeling good." AR 779-780. Plaintiff's formal therapy appointments were discontinued, and she was directed to perform her exercises at home. AR 779. The therapist's assessment was:

Chronic pain level has subsided. Exhibits generalized [abdominal-lower back] weakness and [lower back/middle back] tightness. No functional limitations. Plateaued at this time.

AR 779 ( emphasis added ).

On August 8, 2007, radiologist Warren Becker, M.D., reviewed Plaintiff's x-rays and found that, except for a limbic vertebra at L4, Plaintiff's spine was normal. AR 761. Her pelvis and left and right hips were also normal. AR 761.

Radiologist Javed Syed, M.D., analyzed an MRI of Plaintiff's lumbar spine on September 17, 2007. AR 837-838. He found, "Minimal degenerative changes in the lumbar spine with no appreciable spinal stenosis, neural foramina narrowing, or disc herniation." AR 837. He noted a mild deformity on L4 and a deformity on the left of S1, which could not be fully evaluated with the MRI. AR 838.

2. Mental Ailments

On October 31, 2005, Catherine Murray, an MFT intern, completed an assessment of Plaintiff for Kern County Mental Health (KCMH). AR 195-199). Murray noted that Plaintiff was then caring for five teenagers, her own two children,*fn13 and her boyfriend's three children. AR 195. Plaintiff complained of anger, anxiety, and frequent confusion. AR 195. She felt depressed and angry because she had always been dependent on her parents or a man, and had never been independent. AR 195. She sought treatment to resolve mood swings. AR 195.

Plaintiff reported no suicidal ideation since she stopped substance abuse. AR 195. She reported that she was hospitalized in 1985 after supposedly attempting suicide but she insisted that she had been pregnant and had simply acted impulsively under the influence of hormones when her grandmother tried to drive away with her cat. AR 195. She had no urges to harm others, although she acknowledged wanting to harm her ex-husband, who had molested her children. AR 198. Among other matters of medical history, Plaintiff told Murray that she had broken her L4 vertebra on February 28, 2005. AR 196.

Plaintiff reported that she had no close friends, having let go of her old friends when she became sober. AR 196. She related poor judgment with men. AR 197.

Plaintiff's longest job had been caring for an elderly woman for seven years. AR 197. She reported doing volunteer work with her church, animal control, two girl scout troops, and her son's young marine troop. AR 197. She was now living on government aid and paying the bills only when the collectors called. AR 197. She had applied for social security disability because of her broken vertebra and her head tremors. AR 197. Plaintiff had been convicted of burglary in November 2003 after she stole checks from a neighbor who had died and used them to get money for drugs. AR 197. Consequently, Plaintiff was on probation until 2007. AR 197.

Plaintiff's speech was low, somewhat garbled, and difficult to understand. AR 198. She displayed odd motor movements, possibly from her previous methamphetamine use. AR 198. Her insight, judgment and ...

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