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Bryan L. Page v. Michael J. Astrue

June 28, 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 his application 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). 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


A. Medical Evidence

Plaintiff was born in 1963, has a ninth-grade education, and previously worked as a garbage collector and a truck driver. (Administrative Record ("AR") 26, 29-30.) On October 19, 2006, Plaintiff filed an application for SSI and DIB, alleging disability beginning September 1, 2005, due to back pain. (AR 15, 103-13.)

Plaintiff indicates that he had a back surgery in 1996. (AR 31, 188.) On May 28, 2003, a magnetic resonance imaging ("MRI") scan of Plaintiff's lumbar spine showed a small disk herniation causing mild lateral recess narrowing, a broad-based disk bulge, hypertrophy, spinal canal narrowing, minimal lateral recess narrowing, and mild neural foraminal narrowing. (AR 192-93.) In a November 5, 2004, medical evaluation, Bryan L. Page, M.D., noted that Plaintiff's x-ray showed L3-4 laminotomy, narrowing at multiple lumbar vertebrae, no spondylosis,*fn2 and no spondylolisthesis.*fn3 (AR 209.)

On September 19, 2005, Johnson K. Wong, M.D., Ph.D. ("Dr. J. Wong"), conducted a limited examination of Plaintiff noting that deep tendon reflexes were absent in Plaintiff's knees, and that Plaintiff felt pain when the lumbar spine was palpated. (AR 199.)

From September 26, 2005, to November 21, 2005, Plaintiff visited Kaiser Permanente several times and complained of back and spine pain. (AR 178-90.) Radiology reports on October 3, 2005, found good preservation of joint and disk space, no fractures, no dislocation, no compression deformities, pelvic bones intact, and a minimal osteophyte formation on the lower lumbar spine. (AR 189-90.)

On October 17, 2005, Dr. J. Wong conducted a limited examination of Plaintiff and described it as "normal." (AR 200.) On October 31, 2005, Andrew Finlay, M.D., examined Plaintiff and recommended heat, ice, massage, stretching, exercise, and physical therapy to alleviate Plaintiff's back pain. (AR 186.) In February 2006, Dr. J. Wong conducted an examination of Plaintiff and noted diminished knee jerks and back pain. (AR 200.) In February or March 2006,*fn4 Plaintiff visited Dr. J. Wong to request a higher dose of Methadone, but also reported that his pain levels had improved. (AR 203.) A physical examination on this date revealed nothing related to Plaintiff's back pain. (AR 203.) On March 30, 2006, Dr. J. Wong noted that Plaintiff's back pain had increased, but he recommended no changes to Plaintiff's pain regiment. (AR 204.) On May 22, 2006, Plaintiff visited Dr. J. Wong regarding allergies. (AR 205.) Dr. J. Wong did not conduct a physical examination of Plaintiff and noted Plaintiff's statements that his back pain levels were the same. (AR 205.) On June 16, 2006, Dr. J. Wong again declined to increase Plaintiff's medication, opining that Plaintiff was "showing good medication which works for him," and noting that Plaintiff's prescribed dose of Methadone was equivalent to 400 mg of morphine daily. (AR 206.) Dr. J. Wong mentioned that, despite Plaintiff's back pain, he was walking regularly and losing weight. (AR 206.) Dr. J. Wong also noted that Plaintiff had "failed conservative pain management," and he recommended that Plaintiff try alternative treatments, that Plaintiff use his medications "in the most efficient ways to maximize the pain control," and that Plaintiff consider another back surgery. (AR 206.) In a letter dated November 20, 2006, Dr. J. Wong wrote that Plaintiff was "totally medically disabled" because of back pain. (AR 198.)

In December 2006, Ernest E. Wong, M.D. ("Dr. E. Wong"), a state agency physician, reviewed Plaintiff's medical records and concluded that Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, and stand or walk for a total of six hours in an eight-hour workday, with postural limitations on climbing, balancing, stooping, kneeling, crouching, and crawling. (AR 211-12.) The doctor opined that Plaintiff was credible for his conditions, but not their severity, and he recommended light work.*fn5 (AR 216.)

On April 10, 2007, Plaintiff returned to Dr. J. Wong with complaints of back pain. (AR 232.) Upon physical examination, Dr. J. Wong noted that Plaintiff's deep tendon reflexes were normal.

(AR 232.) Dr. J. Wong also opined that Plaintiff was "refractory to conservative pain management," but he also decided not to increase the pain medication and recommended acupuncture. (AR 232.) On May 22, 2007, Dr. J. Wong noted that Plaintiff's pain was "about the same," and described the physical examination as normal. (AR 233.)

State agency physician Durell Sharbaugh, M.D., reviewed the record and on May 22, 2007, opined that there was insufficient evidence to support a change from Dr. E. Wong's initial recommendation of light work with postural limitations. (AR 221-22.)

X-rays were taken of Plaintiff's lumbar spine, sacrum, and coccyx on July 1, 2007, because of a recent fall that resulted in no bone fractures. (AR 246, 234.) The spinal x-ray found vertebral body height within normal limits, no fracture or acute bony process, and some degeneration at the T11-12 level. (AR 246.) The sacrum and coccyxal x-ray found "very questionable buckling near the sacrococcyx junction," with the rest of the bones within normal limits. (AR 246.) On July 5, 2007, Dr. J. Wong saw Plaintiff regarding pain concerns resulting from the recent fall and noted that treatment would remain the same. (AR 234.)

A physical examination conducted by Dr. J. Wong on September 24, 2007, was normal. (AR 235.) On November 20, 2007, Plaintiff saw Dr. J. Wong for increased back pain; the doctor described his limited examination as normal. (AR 237.) The doctor noted that Plaintiff had failed chiropractry and steroid injections in the past. (AR 237.) Dr. J. Wong declined to increase pain medication doses noting that Methadone use adds to Plaintiff's danger of sleep apnea and night time anoxia. (AR 237.) Dr. J. Wong further stated that Plaintiff was "not ready for more surgery at present." (AR 237.)

Plaintiff visited the Emergency Roomat Sonora Regional Medical Center on March 13, 2008, after another fall. (AR 239-40.) The examining Nurse Practitioner noted that the fall resulted in moderate effusion and diffuse tenderness on Plaintiff's left knee. (AR 239.) An x-ray was ordered which found moderate degenerative changes, some spurring of the tibia spines, and calcification on the lateral joint, but no fracture. (AR 244.)

A Social Security Disability Claim questionnaire completed by Dr. J. Wong on September 12, 2008, indicated that, upon examination and testing, Plaintiff presented neuro-anatomic distribution of pain, positive straight leg raising test, severe burning or painful dysesthesia, the need to change position more than once every two hours, and an inability to ambulate effectively. (AR 248.) Dr. J. Wong also identified Plaintiff's pain as moderate to severe and reported that he was "uncertain" about lifting on an occasional basis and that he did not "recommend a job with lifting." (AR 248.) Dr. J. Wong also noted that Plaintiff should never bend, that he may occasionally stoop, and that "per patient," Plaintiff could stand for fifteen minutes at a time, sit for fifteen minutes at a time, and work four hours per day. (AR 248.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 58, 59, 60-64, 65, 68-69, 77-79.) On September 10, 2008, ALJ William C. Thompson, Jr., held a hearing. (AR 22-52.) During the hearing, Plaintiff testified that he stopped working in 2005 because of back pain and that he could not work presently because of back pain and pain in his left leg. (AR

29.) Plaintiff stated that the severity of his pain was getting worse and that it never subsided. (AR 38.) Further, Plaintiff indicated that he did take his pain medication but that it did not get rid of all his pain. (AR 32-33.) Plaintiff stated that on a typical day, he would crawl out of bed into his reclining chair. (AR 34.) According to the Plaintiff, he could stand for ten minutes at a time, walk for five minutes at a time, and sit for "only a couple minutes." (AR 34-35.) Plaintiff said that he could lift a gallon of milk but also reported that his wife had to help him use the bathroom and put on his shoes and socks. (AR 35.)

C. ALJ's Decision

On January 22, 2009, the ALJ issued a decision finding Plaintiff not disabled since the date of his application on October 19, 2006. (AR12--21.) ...

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