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Gina M. Kirshenmann v. Michael J. Astrue

May 9, 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 applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and 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.*fn1


Plaintiff was born in 1960, attended some college, and received certification in respiratory therapy, previously working in that field. (Administrative Record ("AR") 142, 87-88, 160.) On March 1, 2006, Plaintiff filed an application for DIB and SSI, alleging disability beginning on December 24, 2004, due to spinal stenosis, ridiculpathy, and fibromyalgia. (AR 142-43, 180-81.)

A. Medical Evidence

Plaintiff tripped and fell at work on November 28, 2004, injuring her lower back. (AR 256.) She was treated at Ming and Ashe Medical Center from December 1, 2004, through January 22, 2005, for her industrial injury, receiving prescriptions for Toradol and Ibuprofen. (AR 255-73.) On January 22, 2005, Plaintiff was instructed to return to work but to "[a]void strenuous lifting." (AR 261.)

Plaintiff underwent an MRI of the lumbar spine on February 17, 2005, at Kern Radiology Medical Group, Inc., which revealed mild spondylosis, small disc protrusions in two places, and mild leftward convexity. (AR 248.) On February 21, 2005, Plaintiff was seen by Michael E. Davies, M.D. to review her MRI; she reported that her back was "feeling somewhat better" at that time. (AR 340-41.)

Plaintiff first saw orthopedist Russell W. Nelson, M.D. in April 2005, and continued to see him regularly through April 2009. (AR 346-438, 650-72, 690-99.) At the first meeting on April 25, 2005, Plaintiff reported that on November 28, 2004, she tripped on a metal fire latch on the floor at work, landing on her left side and feeling a "pop" in her back. (AR 388.) Plaintiff stated that she developed "immediate pain" in her neck and upper and lower back, with radiating pain into her buttocks, hips, groin, left knee, and chest. (AR 388.) Dr. Nelson noted that Plaintiff returned to work a few days after her injury but that her condition "gradually worsened" due to her regular job duties. (AR 389.) Accordingly, Plaintiff had not worked since January 17, 2005. (AR 389.) Dr. Nelson found Plaintiff to be "temporarily totally disabled" at that time. (AR 393.) Plaintiff was seen by Dr. Nelson on a regular basis, and he continued to make the finding that Plaintiff was temporarily totally disabled through April 9, 2007. (AR 348, 352, 356, 360, 364, 368, 372, 381, 399, 403, 407, 411, 415, 420, 423, 427, 431.)

On October 7, 2005. Kern Radiology Medical Group, Inc., performed a magnetic resonance imaging ("MRI") on Plaintiff's cervical spine based on her complaint of worsening back pain. (AR 237-38.) The results showed mild to moderate cervical spondylosis, small dorsal disc protrusions, mild to moderate multilevel degenerative canal and foranimal stenoses, and mild ventral cord flattening. (AR 238.) However, the report noted that "[o]verall" there had been "little change since the previous exam of 5/29/01." (AR 238.)

Between September and November 2005, Plaintiff underwent a pain consult and a series of epidural injections at Central Valley Pain Management. (AR 544, 554-64.) Plaintiff also sought physical therapy at Terrio Therapy Fitness on October 17, 2005. (AR 547-51.) On May 26, 2006, Plaintiff underwent a lumbar diskography and a translaminar epidural catheterization for post diskogram pain at Pacific Hospital of Long Beach. (AR 567-70.) On July 7, 2006, Dr. Nelson indicated that Plaintiff was awaiting authorization for lumbar disc replacement surgery. (AR 430-32.)

On August 4, 2006, state agency physician E.A. Fonte, M.D. reviewed Plaintiff's medical records and completed a residual functional capacity ("RFC") assessment, finding that Plaintiff was limited to light work.*fn2 (AR 439-43.) Plaintiff was limited to occasionally lifting 20 pounds, frequently lifting 10 pounds, and could sit with normal breaks for about six hours in an eight-hour workday. (AR 440.) Plaintiff had occasional limitations regarding climbing, balancing, stooping, kneeling, crouching, and crawling, and was limited in her ability to reach in all directions. (AR 441.)

Plaintiff was seen by James McNairn, Psy.D. for a comprehensive psychiatric evaluation on August 26, 2006. (AR 444-50.) Plaintiff was diagnosed with dysthymic disorder and mood disorder due to chronic pain. (AR 448.) Dr. McNairn opined that Plaintiff would have impairments in various work functions ranging from none to slight. (AR 449-50.)

On November 17, 2006, Sean Leoni, M.D. performed an initial comprehensive preoperative evaluation in preparation for spinal surgery. (AR 784-790.) On November 27, 2006, Plaintiff was admitted to St. John's Regional Medical Center where a diskectomy, a disc replacement surgery, of the L3-4 and L4-5 discs was performed. (AR 702-783, 764-65.) She was discharged on December 1, 2006.

Plaintiff was seen by Dr. Nelson on December 12, 2006, who reported that Plaintiff was "doing quite well following her two level disc replacement surgery" and that she was "quite happy." (AR 402-03.) On January 10, 2007, Dr. Nelson again determined that Plaintiff was "doing fairly well" but had some "localized backache." (AR 398.) Plaintiff was going to "gradually increase her activities." (AR 399.) Dr. Nelson issued a permanent and stationary report for Workers' Compensation on March 28, 2007, finding that Plaintiff had "[i]ntermittent slight mid back pain and occasional slight low back pain. These pains are moderate with repetitive twisting, turning, bending and heavy lifting." (AR 692.) As such, Plaintiff should be restricted to "light work only." (AR 692.) On May 24, 2007, Dr. Nelson examined Plaintiff and indicated that "[o]verall, the low back is doing quite well." (AR 669.) However, Plaintiff had "some middle third thoracic pain along the spine" which appeared to be "muscular related." (AR 669.) Dr. Nelson prescribed a short course of physical therapy. (AR 669.)

Also on May 24, 2007, Alan Sanders, M.D. reviewed Plaintiff's medical records. (AR 673-89.) Although Dr. Sanders had initially thought that Plaintiff's surgery would be a "mistake," he admitted that he was "wrong" and that Plaintiff had gotten a "great result from her surgery." (AR 684.) He questioned Dr. Nelson's evaluation method used on the permanent and stationary report and noted that "even according to Dr. Nelson, this patient's range of motion is essentially normal." (AR 684-85.) Dr. Sanders indicated that Plaintiff was "doing very well" and that three times a week she was "working out on the treadmill," "doing pilates," and "bicycling." (AR 685.) Dr. Sanders found that although Plaintiff had an "excellent result" from her surgery and that "her complaints are minor," she should have "prophylactic work restrictions" which would preclude "activities of heavy work." (AR 687.) Dr. Sanders questioned Dr. Nelson's finding that Plaintiff should be restricted to light work, "which would limit her from essentially all physical activities," especially since she was "very active and demonstrate[d] her abilities with regard to her pilates, bicycling and treadmill activities." (AR 688.)

G.W. Bugg, M.D. reviewed Plaintiff's medical records on May 25, 2007, and agreed with Dr. Fonte's earlier RFC that Plaintiff could perform a range of light work. (AR 470-71.)

On October 3, 2007, Dr. Nelson reviewed Dr. Sanders' report and contended that Dr. Sanders' evaluation method of Plaintiff's range of motion would not be "fair" to Plaintiff. (AR 662.) Nonetheless, Dr. Nelson "agree[d] that [Plaintiff] has improved significantly with her surgery." (AR 662.) On April 10, 2008, Dr. Nelson examined Plaintiff and found that she was "doing very well" but had "daily aching in her low back with spasming in the left leg" which was "greatly reduced" when Plaintiff engaged in pilates three times a week. (AR 658-59.) Plaintiff was attending school two times a week. (AR 658.) Plaintiff was next seen by Dr. Nelson on April 9, 2009, who indicated that Plaintiff had "good days and bad days," had been taking medication since the prior visit, and felt that her pain was "related to the weather." (AR 654.) Dr. Nelson found that her "disc replacements seem to be functioning quite well." (AR 655.) Plaintiff did not require any further treatment. (AR 655.)

Plaintiff was also seen at Highgrove Medical Center, Inc., between August 20, 2004, and November 7, 2008, where she was treated for various conditions including fibromyalgia, fatigue and flu-like symptoms, and mild bilateral carpal tunnel syndrome. (AR 609-49.)

B. Administrative Hearing

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 115-18, 120-25, 126.) On June 3, 2009, ALJ Thomas Gaye held a hearing in which Plaintiff and a vocational expert ("VE") testified. (AR 82-112.)

1. Plaintiff's Testimony

Plaintiff stated on a function report completed on April 18, 2006, that she lived with her son and daughter and that she was able to perform light household chores, drive and shop. (AR 125-26.) However, Plaintiff indicated that her activities were limited to "short periods," or else she would become "flared up" and her pain cycle would be difficult to control. (AR 196.) At the administrative hearing, Plaintiff testified that her children were grown but still lived with her at home; her son worked part-time and daughter went to school. (AR 87, 91.) Plaintiff stated that she had difficulty getting up in the morning. (AR 90.) Plaintiff was able to cook "light" meals, fold clothes, do light dusting, pick up around the house "a little bit," and put away dishes, but was unable to put clothes in the washer or dryer, sweep, or vacuum. (AR 91-92.) Plaintiff could read, ...

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