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Gwendolyn Green v. Michael J. Astrue

June 9, 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 applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act (the "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 1967, completed the ninth grade, and previously worked as a housekeeper, caretaker, janitor, recycling specialist, and a recycling supervisor. (Administrative Record ("AR") 33, 139.) On November 14, 2005, Plaintiff protectively filed applications for SSI and DIB pursuant to the Act, alleging she became disabled as of October 28, 2004. (AR 118-19, 132.)

A. Summary of Medical Evidence

Plaintiff left her job in October 2004 as a result of chronic back, hip, and leg pain. (AR 132.) From November 2004 through 2006, Plaintiff sought treatment from Dr. Jay H. Yoo at Dr. Yoo's Rehabilitation and Pain Clinic. (Doc. 214-46.) In November 2004, Dr. Yoo recommended that Plaintiff undergo a magnetic resonance imaging ("MRI") scan of her lumbar spine to rule out a neurogenic cause of her pain. (AR 246.) She was recommended to stay "off work" until December 8, 2004, due to severely symptomatic right lumbar radiculopathy. (Id.) She was prescribed Elavil and Percocet. (Id.)

On November 10, 2004, Plaintiff underwent an MRI that revealed a disc protrusion at L3-4 and L4-5 and facet hypertrophy involving moderate canal stenosis and mild to moderate bilateral foraminal stenosis. (AR 244.) Dr. Yoo also determined that the MRI showed a bulging disc and facet hypertrophy at L5 and S1, resulting in mild to moderate canal stenosis and moderate bilateral foraminal stenosis. Dr. Yoo noted that Plaintiff was having difficulty sleeping and walking, and that one tablet of Percocet "only provides partial pain relief." (AR 244.)

At a January 2005 follow-up examination, Dr. Yoo noted that Plaintiff's chronic low back and right leg pain were "symptomatically improved." (AR 238.) He reported that Plaintiff had started on pool therapy and her right-hip pain had decreased. He also noted that she had stopped taking Elavil and was still sleeping better than previously. (Id.) Plaintiff was advised to exercise and watch her calorie intake. (Id.)

In February 2005, Plaintiff presented for another follow-up examination with Dr. Yoo where he noted that "[s]he has been gradually feeling better," and "[h]er tolerance has been gradually improving." (AR 237.) He noted "steadily improving" chronic low back and right lower extremity pain secondary to right S1 radiculopathy. (AR 237.) Dr. Yoo recommended that Plaintiff stay on her present medication and continue her home-exercise program. He also noted that her "off work recommendation will be effective until March 18, 2005." (AR 237.)

Plaintiff continued to present for follow-up examinations with Dr. Yoo monthly. In May 2005, Dr. Yoo examined Plaintiff and found that she had mild to moderate tenderness of the left upper gluteal area, but that her right lumbar radicular symptom was mostly resolved. (AR 234.) Dr. Yoo noted that she was considered as "not being able to perform standing more than 30 minutes or lifting more than 25 pounds at a time; thus, he recommended that Plaintiff remain temporarily disabled from her job responsibilities. She was also recommended to undergo a work hardening program to improve her work tolerance and capability. (AR 234.)

By October 2005, Dr. Yoo reported that Plaintiff had "[n]o significant tenderness in both sides of the lower lumbar and upper buttock area and right lateral hip area." (AR 228.) He noted that her myofascial pain syndrome was symptomatically much improved. Plaintiff was recommended to continue with her home exercise program two times per day. (AR 228.) At another examination in December 2005, Dr. Yoo recommended that Plaintiff proceed with a lumbar epidural steroid injection to obtain better pain relief which Plaintiff underwent; she reported good pain relief to Dr. Yoo. (AR 224, 226.) Dr. Yoo noted significant symptomatic relief following the injection and reported that her myofascial pain syndrome was symptomatically decreased. (AR 224.) However, in February 2006, Plaintiff reported that much of the pain that was relieved by the steroid injection had subsequently increased in intensity. (AR 222.) Although Dr. Yoo noted no significant tenderness in her lower lumbar and upper buttock area, she continued to identify this area as the most painful. She was recommended to proceed with a second lumbar epidural steroid injection to obtain better pain relief. (AR 222.) It was recommended that she not return to work until March 13, 2006. (AR 222.)

On March 10, 2006, Plaintiff was examined by Dr. Juliane Tran related to her complaints of back pain and lower extremity numbness. (AR 200.) Plaintiff reported to Dr. Tran that she had been told she had extensive nerve damage in her back and that she was not a candidate for surgery. Plaintiff reported that she was provided therapy between December 2004 to January 2005, but the therapy did not help her. (AR 200.) She reported that she was not currently receiving therapy for her back, but she had undergone an epidural injection in 2006, which relieved her back pain for only two weeks. On examination, Dr. Tran assessed Plaintiff as having a slightly antalgic gait with guarding of the right lower extremity and some guarding of both extremities. (AR 201.) Dr. Tran opined that Plaintiff was restricted in activities involving prolonged standing and walking more than six hours per day and that she would probably need to alternate between sitting and standing. (AR 203.) Dr. Tran also noted that Plaintiff did not need to use an assistive device to ambulate. (AR 203.)

On March 13, 2006, Plaintiff underwent a second epidural injection (AR 294-95), but did not report significant pain relief. (AR 220). Dr. Yoo again noted that there was no significant tenderness of the lower lumbar and right hip area where Plaintiff reported her pain. Dr. Yoo reported that Plaintiff was willing to return to work "despite persistent low back pain of moderate degree." Dr. Yoo reported that Plaintiff was medically cleared to return to work, with a continuing "back precaution." (AR 220.) On examination, Dr. Yoo described Plaintiff to be "in fair spirit, flat affect, and in no distress." (AR 220.)

On March 21, 2006, a state agency physician, Dr. E.A. Fonte, reviewed Plaintiff's medical records and determined that Plaintiff could frequently lift or carry 10 pounds, could occasionally lift or carry 20 pounds, could stand and/or walk at least two hours in an eight-hour day, could sit for a total of about six hours in an eight-hour day, and was unlimited in her ability to push or pull. (AR 204-11.)

In July 2006, Dr. Yoo noted that Plaintiff described her back pain as mildly decreased, but also noted that she had "not been doing much home exercises." (AR 214.) He recommended that she increase her home exercises, including swimming, and that she increase her effort of losing more weight. (AR 214.)

In August 2006, pursuant to a referral from Dr. Yoo, Dr. Afaq Kazi examined Plaintiff. (AR 290-93.) Dr. Kazi summarized his physical examination findings, noting that Plaintiff appeared to be in a "mild amount of distress." (AR 291.) He described her as having a functional range of motion in her cervical spine but tender to palpation at the bilateral upper trapezius area, left greater than right. (AR 291.) As to Plaintiff's lumbar spine, she had a functional range of motion, but forward flexion of the lumbar spine increased her pain. (AR 292.) She had tenderness at the right sacroiliac joint area and decreased sensation in the right lateral leg. (AR 292.) He recommended a diagnostic right L3 selective nerve root block to address the right hip pain and an MRI of the cervical spine. (AR 292.)

On December 1, 2006, Plaintiff was evaluated by Kimball Hawkins, Ph.D. (AR 299-302.) In setting forth the results of Plaintiff's "mental status exam," Dr. Hawkins noted that Plaintiff was "passively cooperative with the testing process" and expressed an uncertainty "at times whether [Plaintiff] is doing her best because of her constant display of pain symptoms." (AR 300.) Dr. Hawkins found that Plaintiff's ability to understand, remember, and carry out simple instructions was adequate, but she needed reminders. Dr. Hawkins described Plaintiff's ability to maintain concentration, attention, and persistence as "poor." (AR 301.) Dr. Hawkins also found that her ability to perform activities within a schedule and maintain regular attendance as well as her ability to complete a normal work day and week without interruptions from psychologically based symptoms was poor. (AR 301.) Dr. Hawkins recommended that Plaintiff receive ongoing medical follow-up, that she receive counseling, and that she receive a referral for pain management. (AR 302.)

On January 12, 2007, state agency consultant Dr. L. Bobba reviewed Plaintiff's medical records and affirmed Dr. Fonte's assessment of Plaintiff's condition -- i.e., that Plaintiff was capable ...

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