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Pamela Nicole Mccarthy v. Michael J. Astrue

February 16, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.


Plaintiff was born in 1960 and has a high-school education but no past relevant work. (Administrative Record ("AR") 18.) On February 23, 2007, Plaintiff filed an application for SSI, alleging disability beginning on November 15, 2006, due to back problems. (AR 86-93, 100, 105.)

A. Medical Evidence

1. University Medical Center

On February 1, 2003, magnetic resonance imaging ("MRI") of Plaintiff's lumbar spine revealed desiccation of the L4-5 disc "associated with a broad base bulge resulting in mild to moderate canal stenosis." (AR 270.) On March 18, 2003, Plaintiff underwent back surgery to treat a herniated disc at L5-S1. (AR 264.) MRI of Plaintiff's lumbar spine on that date revealed unremarkable alignment and no fracture. (AR 266.)

On February 2, 2004, MRI of Plaintiff's lumbar spine revealed "[i]nterval resection of L5-S1 disc herniation. No evidence of residual/recurrent disc herniation. Mild bulging discs at L4-L5 and L5-S1 without frank central spinal stenosis." (AR 244.)

2. Dr. Tran

On June 17, 2007, Juliane Tran, M.D., performed a consultative orthopedic examination of Plaintiff. (AR 139-42.) Dr. Tran noted Plaintiff's complaints of neck pain with radicular symptoms of the left upper extremities and Plaintiff's subjective complaints of back pain with a history of lumbar diskectomy. (AR 142.) Dr. Tran further noted that the "examination has multiple abnormalities, out of proportion to the physical findings." (AR 142.) Dr. Tran could not "evaluate many aspects of [Plaintiff's] range of motion or even strength testing" because "[Plaintiff's] effort on examination [was] minimal." (AR 142.) Therefore, Dr. Tran could not assess Plaintiff's functional restrictions and opined that Plaintiff "probably should have a psychiatric evaluation." (AR 142.)

3. Dr. Brubaker

On December 13, 2004, Daniel Brubaker, D.O., noted that Plaintiff complained of headaches on her left side with numbness. (AR 160.) Dr. Brubaker further noted that Plaintiff was "having a lot of pain resulting from her significant other dying. She is having a lot of back pain. She is dealing with things OK. She is doing OK." (AR 160.)

On February 13, 2008, Dr. Brubaker completed a medical source statement regarding Plaintiff's ability to perform work-related physical activities. (AR 128-33.) Dr. Brubaker opined that Plaintiff could (1) occasionally lift and carry less than five pounds and (2) sit and stand for 30 to 60 minutes and walk for one hour total in an eight-hour work day. (AR 128.) Although Plaintiff did not require the use of a cane to ambulate, Dr. Brubaker opined that she "should use one." (AR 129.) Dr. Brubaker stated that "lumbar disc causes severe back pain" and that "cervical discs cause weakness." (AR 130.) Dr. Brubaker further stated that Plaintiff's limitations were first present in September 2006. (AR 133.)

4. Dr. Abejie

On December 31, 2008, an MRI of Plaintiff's lumbar spine ordered by Dr. Abejie revealed no disc herniation or spinal canal stenosis and only some degenerative changes. (AR 183.) Plaintiff's cervical spine showed mild spinal canal stenosis at C6-C7. (AR 185.)

5. Dr. O'Laughlin

On March 5, 2009, Thomas O'Laughlin, M.D., completed an initial physical medicine consultation with and evaluation of Plaintiff. (AR 276-78.) Dr. O'Laughlin reported as follows:

[Plaintiff] has neck and lower back pain. She had recent MRIs of her neck and back down [sic] in December 2008. We were able to look at the disc. . . . She also gets some left shoulder pain. This MRI did not reveal a lot of arthritis or other symptoms to suggest the etiologies within the shoulder itself[;] although this is possible, it may well be coming from the neck. (AR 276.) Dr. O'Laughlin noted that Plaintiff "would like to be on SSI. Currently the patient [had] a lawyer that [was] working along with her." (AR 276.) The doctor further observed that Plaintiff's left hand appeared "to be more less [sic] swollen than the right." (AR 277.) Dr. O'Laughlin found ...

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