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Ruth Stairs v. Michael J. Astrue

January 31, 2011

RUTH STAIRS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Ruth Stairs ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on May 18, 2007, alleging disability since October 1, 2004, due to migraine headaches and chronic pain in her neck and head. AR 110-117, 126-132. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 49-51, 56, 103. ALJ James Berry held a hearing on April 15, 2009, and issued a decision denying benefits on July 16, 2009. AR 4-15, 16-48. The Appeals Council denied review on November 13, 2009. AR 1-3.

Hearing Testimony

ALJ Berry held a hearing on April 15, 2009, in Fresno, California. Plaintiff appeared with her attorney, Jeffrey Milam. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 16.

Plaintiff testified that she was 63 years old at the time of the hearing. AR 19. She lives with her husband, who works as an independent auto appraiser. AR 20. Plaintiff completed a Master's degree in rehabilitation counseling, though she never worked in the field. AR 20. Plaintiff last worked 2 days a week, for a few hours, in 2006. She was helping her husband by posting receivables. AR 21. Plaintiff no longer performs this work because she was having too much difficulty sitting because of low back and neck pain. AR 22. She explained that she was standing and walking at work, and would sit down for about 30 minutes. AR 24. Plaintiff has not worked full-time since 1989. AR 22.

Plaintiff believed that she could not work because of neck and low back pain and migraines. Her neck pain is a constant, stabbing pain that worsens if she sits too long or overdoes anything. AR 25-26. When she rests, she sits down with her feet up and watches television. Plaintiff estimated that she lays down for 1.5 hours out of 8 and sits 20 minutes, 3 or 4 times a day. AR 26. Her neck pain radiates into her head and right arm. AR 27.

Plaintiff also testified that her back pain is a constant, stabbing and burning pain. The pain radiates into her right leg. AR 26-27.

Plaintiff has migraines for 2 out of 3 days, which cause pain, nausea, dizziness and fatigue. AR 27. The pain lasts 3 hours and she has to take her medication and lay down. She also has pain in her eyes from light and has to make sure that there are no bright lights in the room. The nausea causes vomiting about once a month. AR 27-28. If she's having a migraine and tries to concentrate on something, it causes her eyes, head and neck to hurt. AR 29.

Plaintiff thought that she could lift about 10 pounds and could walk for about 45 minutes. She could stand in one place for 5 minutes, but she could stand for 10 minutes if she could shift back and forth. Plaintiff could sit for about 20 minutes every hour. AR 30-32. Plaintiff thought that she could concentrate for 5 minutes at a time. AR 34. She dusts, cooks, does the dishes and washes and folds clothes. AR 37.

In a typical day, Plaintiff wakes up and reads for about 20 minutes and then makes breakfast. After her husband leaves for work, she washes the dishes and might go outside to throw the ball to her dog or water some plants. She makes something simple for lunch and then might watch television, read, take a walk, make a phone call or visit someone. When her husband comes home from work, he helps her make dinner and then they watch television together. Then she does the dishes, reads and goes to bed. AR 33-34. She constantly has to reread what she's reading because she has difficulty remembering. AR 34.

For pain medication, Plaintiff takes Advil, Tylenol, Robaxin (a muscle relaxant) and Maxalt. She sometimes gets Botox injections in her neck to relax the muscles. Maxalt can help ease her out of a migraine if she takes it before the migraine gets too bad. AR 38. Plaintiff also receives acupuncture, which lessens the pain and helps with numbness and tingling in her legs. AR 39.

The VE testified that Plaintiff's past work was classified as manager, auto specialty. AR 40-41. This position is classified in the Dictionary of Occupational Titles as light. AR 41.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person can lift and carry 10 pounds occasionally, up to 10 pounds frequently, stand and walk for 6 hours and sit for 6 hours with the option to change positions as needed. This person can occasionally reach above shoulder level and can occasionally balance, stoop, kneel, crouch and crawl. The VE testified that this person could perform Plaintiff's past work, as performed. She explained that even though the position was classified as light, Plaintiff testified that she did not lift over 10 pounds. AR43-44.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry 10 pounds, stand 2 to 3 hours maximum, walk 45 minutes maximum and sit for 3 hours maximum. This person could only perform concentrated viewing of objects for less than 2 minutes. This person would need to lie down for 1 to 1.5 hours per day with her feet elevated and could not drive at night. The VE testified that this person could not perform Plaintiff's past work or any other work in the national economy. AR 44-45.

Medical Record

A bone density test performed on July 28, 2004, revealed bone mineral density in the lumbar spine compatible with osteoporosis and bone mineral density in the left hip compatible with osteopenia. This increased her risk of fractures. AR 208.

On November 23, 2004, Plaintiff underwent an x-ray of her lumbosacral spine. The test revealed prominent narrowing intervertebral disc space at L4-5 and sacralization at the right transverse process L5. AR 207.

Plaintiff returned to her treating physician, Don Yoshimura, M.D., on February 24, 2005, and reported increased migraines over the past few weeks as well as increased neck and back pain. Plaintiff was taking Floricet and Maxalt and wanted to try Topamax. AR 209.

On March 29, 2005, Etsehiwot Taye, M.D., reported that Plaintiff has degenerative osteoarthritis and has tried "NSAID, analgesics, physical therapy with no relief." Plaintiff did not want an epidural and Dr. Taye requested acupuncture as the "next modality of pain management." AR 211.

Plaintiff saw Dr. Yoshimura on May 3, 2005, and complained of "lots of labile mood" as she tapered of Paxil, which she tapered off "for ? reasons." Plaintiff denied any clear side effects but felt that her concentration and word finding was better without Paxil. Plaintiff's headaches are usually associated with stress and exhaustion, though they were better on Topamax. Dr. Yoshimura advised Plaintiff to restart Paxil. AR 273.

A second bone density test performed on June 20, 2005, revealed osteoporosis in the lumbar spine and osteopenia in the left hip. AR 212.

On July 26, 2005, Plaintiff complained of back pain after she fell while trying to chase a mouse. AR 239. Plaintiff was walking okay, straight leg raising was negative and flexion/extension was full. She had tenderness at L4-5. AR 240. X-rays of her lumbar spine taken the same day showed no evidence of a compression fracture. AR 213.

Also on July 26, 2005, Plaintiff returned to Dr. Yoshimura and complained of some increase in her headaches. She noted "lots of environmental precipitants with weather changes, perfumes." Her stressors were better on Paxil and she was sleeping well. She was not having any adverse effects from Topamax and Dr. Yoshimura increased her dose. AR 272.

On October 20, 2005, Plaintiff had an injection of Botulinum Toxin in her facial nerve. Plaintiff stopped taking Topamax "due to concerns RE mood changes, hair loss, ? effect on bones." Her headaches were "not any different off" Topamax. AR 214.

Plaintiff received another set of injections on February 13, 2006, after reporting that she did better after the first set of injections. Plaintiff had full cervical range of motion with right occiput trigger point. He diagnosed chronic mixed headaches, increased after recent fall, with some right occiput muscle strain. AR 215.

On April 3, 2006, Plaintiff returned to Dr. Yoshimura and reported that she was having near daily headaches requiring a lot of Maxalt. She has not been on a prophylactic medication since "stopping Topamax for ? reasons last year." Dr. Yoshimura ordered Plaintiff to try Depakote and to taper off Maxalt a little. AR 219.

On April 7, 2006, Plaintiff saw Shashi Bains, M.D., for an initial visit. She complained of chronic pain and stated that she has had neck pain for over 30 years. Plaintiff thought that her neck pain was getting worse because of intermittent numbness in her hands. She also complained of pain in her back. On examination, Plaintiff had reduced flexion of her neck but full range of motion in her back. There was no tenderness, palpable spasm or pain on motion. Plaintiff's grip strength was normal. Dr. Bains diagnosed chronic neck pain with some radicular symptoms and ordered Plaintiff to continue with her current acupuncture regimen. Dr. Bains also diagnosed osteoporosis and low back pain and noted that a spine clinic evaluation would be arranged. AR 218.

An MRI of Plaintiff's cervical spine performed on April 28, 2006, revealed degenerative changes. Specifically, the scan showed (1) a 4.5mm posterolisthesis of C5 on C6; (2) at C3-4, broad-based disc bulge/osteophyte that effaces the anterior epidural fat, as well as right neural foraminal encroachment by osteophytic formation; (3) at C4-5, right neural foraminal encroachment by osteophytic formation; (4) at C5-6, posterolisthesis of C5 on C6, as well as broad-based osteophyte complex; (5) at C6-7, mild right neural foraminal encroachment by osteophytic formation. AR 221. Dr. Bains characterized the MRI findings as showing "multiple arthritic changes." AR 221.

Plaintiff had a third set of injections on May 8, 2006. She was taking Depakote and reported some decrease in frequency and severity of her headaches. AR 216.

On June 13, 2006, Plaintiff saw Karl Quinn, M.D., for a spine consultation. She complained of neck pain for the past 35 years, with an increase in pain over the last few years. On examination, Dr. Quinn noted "Waddell Signs Generalization" and intermittent but intense eye contact. Gait was normal, though she had a slight limp on the right side during heel walking. Range of motion in her lower back produced pain on forward flexion and more pain on extension. Range of motion in her neck was decreased with pain. Plaintiff had decreased deep tendon reflexes in her left biceps and a slight sensory decrease bilaterally in her little finger. She had slight tenderness to palpation of her neck. Dr. Quinn noted that the MRI showed no severe central canal stenosis, though she had degenerative disc disease, some retrolisthesis and some narrowing on the right. The upper/mid vertebral bodies had wear "a bit greater" than expected for her age. AR 263. Dr. Quinn diagnosed chronic axial neck pain with a history of severe migraines. He advised against surgery and asked Plaintiff to continue with acupuncture, yoga and meditation. Her low back pain has improved dramatically with acupuncture and if her neck pain did not improve, he will discuss the chronic pain program. He thought Plaintiff might benefit from the multidisciplinary approach. AR 264.

On August 8, 2006, Plaintiff saw Dr. Yoshimura and reported that she did better after her May 2006 injection. She was not taking Depakote due to weight gain and GI upset. Plaintiff was taking Topamax, but wanted to stop due to diarrhea. She never started Neurontin. Plaintiff received an injection and was instructed to start Neurontin. AR 261.

From August 2006 through approximately September 2007, Plaintiff received acupuncture treatments and often reported improvement. AR 253, 257, 306, 311, 314, 337.

Plaintiff returned to Dr. Yoshimura on October 31, 2006. Plaintiff did better after her August 2006 Myobloc injections. She was off all medications except for Paxil and Soma. Cervical range of motion was full and strength, bulk and gait ...


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