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Mary H. Demaio v. Denial of Benefits Michael Astrue

March 7, 2011


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


Plaintiff Mary H. DeMaio, proceeding in forma pauperis , by her attorneys, Binder & Binder, LLC, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II 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 affirms the Commissioner's decision.

I. Administrative Record

A. Procedural History

On February 7, 2007, Plaintiff filed for Title II disability insurance benefits, alleging disability beginning October 12, 2006. AR 25. Her claim was denied initially, and upon reconsideration, on August 3, 2007. AR 25. On September 26, 2007, Plaintiff filed a timely request for a hearing. AR 25. Plaintiff appeared and testified at a hearing on March 2, 2009. AR 64-92. On April 22, 2009, Administrative Law Judge Michael D. Radensky ("ALJ") denied Plaintiff's application. AR 25-33. The Appeals Council denied review on September 8, 2009. AR 1-3. On October 21, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

I. Agency Record

Disability Report (AR 147-150). Following a face-to-face interview on February 21, 2007, agency interviewer W. Ross reported that Plaintiff had difficulty sitting, standing, and walking, but no difficulty hearing, reading, breathing, understanding, being coherent, concentrating, talking, answering, seeing, using hands, or writing. Ross noted, "She walked slowly. She was in pain and took two Advils during the interview." AR 149.

Adult Disability Reports (AR 151-158; AR 162-167; AR 171-176). In her initial disability report (February 21, 2007? *fn2 ), Plaintiff reported that because of degenerative disc disease, she experienced constant extreme pain. She could not sit or stand for any length of time, could not lift or bend, and could not perform daily tasks. She was discharged from her last job, for which she had been conditionally hired, when she was unable to perform the job's duties.

In an undated report prepared for her appeal (June 11, 2007?), Plaintiff reported that her pain had increased, causing difficulty walking and standing and an inability to sit for more than 15 minutes. She was unable to lift more than ten pounds. She had developed carpal tunnel syndrome and pain in her left shoulder joint. She reported that the effect of her condition on her ability to care for her personal needs was unknown.

In a third report, Plaintiff reported no change in her condition.

Kern Medical Center (AR 189-202; 359-440). *fn3 KMC treated Plaintiff for moderate low back and leg pain on March 2, 2007. The treating physician diagnosed back strain. After treatment with Valium, morphine, and toradol, Plaintiff reported a decrease in pain intensity.

On March 14, 2008, Plaintiff went to the emergency room with severe lower back pain. She had been referred by Clinic of Frazier Park to rule out a pinched nerve. Radiologist Jamshid Jamshidian, M.D., reported on lumbar spine x-rays taken to rule out fracture. His impression was "Mild to moderate narrowing of L5-S1 intravertebral disc space without evidence of significant osteophyte formation which may be secondary to disc pathology or disc herniation." AR 380.

On June 23, 2008, James Y. Ching, M.D., reported on an MRI of Plaintiff's lumbar spine. He noted diminished disc height, indicative of degenerative disc dessication at L5-S1. He also noted mild disc protrusions at L2-L3, L3-L4, L4-L5, and L5-S1. His impression was degenerative disc disease of the lumbar spine and mild disc protrusions from L2 to S1 with mild neural foraminal stenosis.

On July 3, 2008, Plaintiff went to the emergency room, complaining of left shoulder pain radiating to her hand. Plaintiff returned to the emergency room on July 11, 2008, complaining of low back pain that had worsened in the past two days. Janice Nichols, NP-C, noted clinical impressions of chronic low back pain and sciatica. Plaintiff was given aftercare instructions for low back strain.

On July 16, 2008, Plaintiff went to the KMC clinic for treatment of nausea and vomiting.

Patricia Alvarado, P.A., noted chronic lower back pain with recent emergency room treatment.

On July 20, 2008, Plaintiff went to the emergency room, complaining of low back pain, chills, and diarrhea. Her pain had increased since she ran out of Norco *fn4 three days earlier.

On July 28, 2008, a physician in the clinic diagnosed Plaintiff as having degenerative joint disease, among other things. He or she prescribed Vicodin, *fn5 Elavil, *fn6 and Nexium. *fn7

Dr. K. Sabetian performed nerve conduction tests and electromyography (EMG) on August 15, 2008. The EMG was normal, with no denervation or myopathy. The nerve conduction studies revealed normal bilateral post tibial motor and neural sensory potentials but moderate to severe bilateral peroneal motor axonal neuropathy with L5 radiculopathy.

On September 15, 2008, Plaintiff went to the emergency room complaining of middle and lower back pain, numbness in her back and legs, and diarrhea. She was referred to the neurology clinic.

Frazier Mountain Community Health Center (AR 47-63; AR 211-324). Plaintiff's medical records summarized her major problems as depression; carpal tunnel syndrome; shoulder pain; chronic pain, mostly lower back; and anxiety attacks. Acute and recurrent problems were low back muscle spasm, lumbar radiculopathy, irregular menses, diarrhea, lumbar spasm, and lower back pain. Medications included Vicodin, Cymbalta, *fn8 Neurontin, *fn9 Valium, *fn10 Soma, *fn11 ibuprofen, *fn12 and Tramadol. *fn13

Plaintiff had a new patient consultation on March 20, 2006. Plaintiff, who reported breaking her tail bone ten years earlier, complained, among other things, of low back pain for the past six weeks. She had aggravated the pain when lifting a large log with her sons four weeks earlier. Her prior physician prescribed Lortab *fn14 and Soma.

On April 4, 2006, Radiologist Martha Weidman reported of Plaintiff's lumbar spine: "There is minimal anterior spondylosis from L2 to L5. Disc spaces are preserved. No fracture of dislocation is seen. Normal alignment is present." AR 254. Plaintiff also saw the doctor for lower back pain on April 28, and May 31, 2006. On May 31, 2006, Plaintiff saw her physician, complaining of menstrual problems, back pain, and shortness of breath.

On October 3, 2006, Plaintiff complained of severe pain in her lower back, legs, and hand. Her physician noted muscle spasms and pain radiating down her right leg. The physician prescribed Soma and Motrin, and referred Plaintiff to a chiropractor.

On November 7, 2006, Plaintiff complained of severe lower back pain, including pain when she walked and "pins and needles pain," for which she had been taking Advil. Her physician noted low back pain and lumbar/sacral radiculopathy, prescribing Vicodin and an illegible medication. On November 21, 2006, Plaintiff stated that Vicodin did not relieve her pain and that she wasn't sleeping. The physician's name and a large portion of his notes are illegible.

On December 21, 2006, Plaintiff saw Michael V. Lee, M.D., for a follow-up appointment for her back pain and renewal of her prescriptions. Lee noted pain without spondylosis. Although he renewed Plaintiff's Norco prescription, Lee directed her to use heat, exercise and stretching, warning her of the potential of Norco addiction.

On January 19, 2007, Lee wrote a brief note indicating that Plaintiff was under treatment and unable to work. On January 31, 2007, Plaintiff made an appointment for depression but did not show. On March 6, 2007, x-rays indicated mild levoscoliosis convex at L3-4 *fn15 and moderate disc narrowing at L5-S12.

On March 23, 2007, Plaintiff complained to Lee, of spasms and pain in her hands, arms, and shoulders. Diagnosing carpal tunnel syndrome and shoulder impingement syndrome, Lee gave Plaintiff a steroid injection in her left shoulder to decrease pain and improve her range of motion.

On April 21, 2007, Plaintiff was seen for lower back pain and chronic diarrhea. On April 30, 2007, Plaintiff complained to Lee of continued significant back pain and sciatica. Lee directed her to avoid heavy lifting and prolonged standing and sitting.

On May 10, 2007, Frazier Park Pharmacy faxed a note to Lee regarding Plaintiff's request to fill her Neurontin prescription early, noting that this was Plaintiff's third consecutive request for an early refill.

In a letter addressed "to whom it may concern," dated May 11, 2007, Lee described Plaintiff as having "a long history of chronic low back pain with associated radicular symptoms" that was exacerbated by prolonged sitting or standing. Lee indicated that Plaintiff needed to see a spine specialist.

On July 6, 2007, Plaintiff saw Lee to refill her Soma and Neurontin, complaining of worsened neuropathic pain in her lower back that radiated into her right leg. She demonstrated no loss of sensory motor function and no incontinence. She complained that taking Neurontin did not always provide pain relief. Observing that Plaintiff was in discomfort, Lee modified Plaintiff's medications, again adding Norco.

On August 7, 2007, Plaintiff, who had come in to have forms completed for her application for disability benefits, was in moderate distress with back pain radiating into her right leg. If she sat more than ...

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