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Kimberly A. Bales v. Michael J. Astrue

March 14, 2011


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


(Doc. 1)


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). 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.*fn1


Plaintiff was born in 1969 and previously worked as an Account Analyst and Accounting Supervisor. (Administrative Record ("AR") 107-14.) Plaintiff claims that her ability to work is limited by chronic pain in her arms and legs, systemic lupus, and connective tissue disorder. (AR 115.) Based on those complaints, Plaintiff filed an application for DIB on April 28, 2006. (AR 88-93.)

A. Medical Evidence

Plaintiff was diagnosed with lupus in 1993. (AR 171.) Plaintiff began experiencing chronic pain and generalized fatigue in 2004. (AR 171.) Dr. Campbell is Plaintiff's primary care physician. (AR 308-29.) Plaintiff was also treated regularly by Dr. Son T. Dihn for pain management. (AR 271-87.) In an attempt to pinpoint the source of Plaintiff's pain, Plaintiff was referred to several specialists. (AR 182-257.) To date, the etiology of the pain has not been identified. (AR 206, 331, 389.)

In August 2003, Plaintiff participated in a nerve conduction study which showed bilateral peroneal neuropathy.*fn2 (219-20.)

In July 2004, an electromyogram ("EMG")*fn3 showed a lack of peroneal nerve activity and was considered normal. (AR 219-20, 171.)

In December 2004, Dr. Dihn ordered an x-ray of Plaintiff's spine which showed straightening of the normal cervical lordosis,*fn4 mild to moderate bilateral foraminal stenosis,*fn5 right greater than left at C5-C6 and left greater than right at C6-C7 secondary to uncinate process hypertrophy.*fn6 (AR 180.) However, there was no disc herniation or cord compression. (AR 180.)
Plaintiff was referred to the neurology and rheumatological clinics at UCLA. (AR 182.) In June 2005, Plaintiff saw Drs. Taylor and Ferrante at the UCLA rheumatological clinic. Plaintiff was diagnosed as having a questionable undifferentiated collagen vascular disorder*fn7 evidenced by discoloration of the toes. (AR 182.) Extensive studies were performed which were notable for an elevated sedimentation rate,*fn8 a positive C-reactive protein, elevated C3 and C4 levels, positive ANA*fn9 and DNA tests. (AR 227-35, 241-49.) Plaintiff was also seen by Drs. Buxton and Porter at the UCLA neurology clinic in July 2005. (AR 182.) EMG studies were performed, and the results were grossly normal. (AR 208-16.) However, Dr. Buxton noted that these "studies are not entirely sensitive for sensory-only radiculopathy."*fn10 (AR 208-16.)

On July 26, 2005, Dr. Campbell requested that Plaintiff be excused from work until August 18, 2005. (AR 328.)

In August 2005, a magnetic resonance imaging ("MRI")*fn11 of Plaintiff's brain was normal, but showed two small foci in the anterior cerebral white matter which were nonspecific in appearance and which also indicated the presence of paranasal sinus disease. (AR 223-24.) An MRI of the spine showed no abnormalities. (AR 226.)

On September 19, 2005, in response to a long-term disability questionnaire, Dr. Campbell stated he believed that Plaintiff should be restricted from any physical activity and was further limited by a difficulty in concentrating. (AR 326.) Dr. Campbell opined that "claimant could sit, stand, or walk less than 1 hour." (AR 326.) In Dr. Campbell's opinion, these conclusions were evidenced by "objective findings" of palpable tenderness to Plaintiff's extremities. (AR 325-26.) He expected Plaintiff to be able to return to her prior level of functioning by January 19, 2006. (AR 326.) On December 5, 2005, Dr. Campbell revised this estimate to extend the amount of time Plaintiff would be unable to work until February 1, 2006. (AR 323.) On February 14, 2006, this estimate was extended to April 1, 2006. (AR 319.) On April 25, 2006, this estimate was again extended to August 1, 2006. (AR 317.)

In March 2005, Plaintiff was seen by Dr. Scott Gottlieb, an anesthesiologist at UCLA. (AR 182.) Dr. Gottlieb found that there was no neurological cause for Plaintiff's pain and suggested she follow up with a physician regarding her undifferentiated collagen vascular disease.*fn12 (AR 182.)

In June 2006, Plaintiff was examined by state agency examining physician Dr. Min-Ning Huang. (AR 260-62.) Dr. Huang noted that Plaintiff changed positions frequently in order to sit comfortably, but found no orthopedic abnormalities. (AR 260-62.) Dr. Huang noted that Plaintiff had no discoloration in her extremities. (AR 261.) Dr. Huang admitted that Plaintiff's undifferentiated collagen vascular disease was beyond his scope of specialty, but that from an orthopedic standpoint, Plaintiff did not have any limitations. (AR 260-62.)

In July 2006, an examination by Dr. Dihn indicated mild tenderness to palpation and pain in the extremities. (AR 286-87.) Although the source of the pain could not be determined, Dr. Dihn did not believe Plaintiff suffered from fibromyalgia.*fn13 (AR 286.) That same month, Dr. Jim Kim performed blood tests which revealed positive sedimentation rates, ANA, and C3 compliment. (AR 267-70.) Dr. Kim indicated that these findings evidence an inflammatory process, and opined that Plaintiff had an autoimmune disorder. (AR 265.)

In January 2007, Plaintiff was involved in an eight-week research study to test an experimental drug for the treatment of opioid-induced bowel dysfunction for patients with chronic nonmalignant pain. (AR 288-307.) The goal of the experimental drug trial was to study the "safety, effectiveness and tolerability" of a drug which had not yet been approved by the Food and Drug Administration. (AR 288-89.) One of the six participants in the study received a placebo. (AR 289.)

In February 2007, Dr. Bonner, a non-examining state agency physician, found Plaintiff's impairment non-severe because there was no clear etiology for the extremity pain. (AR 330-32.) Dr. Khong, a non-examining state agency physician, affirmed the prior finding of a non-severe impairment because the underlying cause was undetermined, reasoning that the labs for connective tissue disease were essentially normal. (AR 335.)

In August 2007, Plaintiff was seen at Kern County Neurological Medical Group where she underwent a neurological examination. (AR 388-96.) Plaintiff was noted to be "awake and alert and oriented to time, place and person." (AR 394.) This examination showed Plaintiff to have "subjective symptoms of hypoesthesia, parathesia [sic] and algesia involving both arms and legs; however, the detailed neurological examination, especially the sensory examination [was] very normal. The symptoms [were] therefore very subjective. Thus far most of the laboratory testing [had] been normal." (AR 395.)

In October 2007, a nerve conduction study was performed with normal results in Plaintiff's upper extremities; however, there was some evidence of lower extremity peroneal sensory neuropathy. (AR 393-96.)

In October 2007 and February 2008, neurological examinations were performed with normal results. (AR 393-96, 389.)

In an effort to help alleviate Plaintiff's pain, Plaintiff had been prescribed strong narcotic medications. Plaintiff complained that the side effects of these drugs, which included constipation and an inability to concentrate, contributed to her inability to work. (AR 120.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration. (AR 44-54.) Consequently, on March 20, 2007, Plaintiff requested a hearing before ...

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