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Darlene Dunn v. Michael J. Astrue

August 30, 2011

DARLENE DUNN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Darlene Dunn ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge Gary S. Austin for findings and recommendations to the District Court.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed an application for Social Security Disability Insurance Benefits on August 31, 2006, alleging disability beginning March 2, 2003. AR11. Plaintiff's applications were denied initially and on reconsideration. AR 61,64. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 76. ALJ William Thompson held a hearing on May 10, 2005, and issued an order denying benefits on June 23, 2005. AR. 41-53. Plaintiff did not appeal this decision so the decision became final on that day.*fn3

Plaintiffapplied for Social Security Disability Insurance Benefits a second time on October 6, 2006, alleging disability beginning March 3, 2003. AR 11. Plaintiff's applications were denied initially and on reconsideration. AR 54-55. Plaintiff requested a hearing before an ALJ. AR 76. ALJ Howard Treblin held a hearing on March 28, 2008, and issued a decision denying benefits on June 27, 2008. AR 8-21. The Appeals Council issued a decision affirming the ALJ's order on April 13, 2010. AR 1-3.

Hearing Testimony

ALJ Treblin held a hearing in Stockton, California, on June 25, 2008. Plaintiff personally appeared and was assisted by attorney Jeffrey Milam. AR 22-40.

Plaintiff was fifty-three years old at the time of the hearing. AR 25. She is married and lives with her husband and her thirty-three year old son. AR 25, 33. Her husband is working and supports the family. AR 34. Plaintiff completed the eleventh grade but does not have a GED.

AR 26. She is however, able to read, write, and do simple math. AR 26. Plaintiff has a driver's license but she cannot drive long distances without experiencing pain. AR 25-26.

Plaintiff worked as department manager at K-Mart from 1991 until January 2003. AR 26-28. She was terminated in 2003 due to disputes over merchandise and pricing. AR 26-27. She has not worked since her termination. AR 26-27.

Plaintiff's physical problems began in 2003 after she fell off a ladder and broke her fibula and tore her Anterior Cruciate Ligament ("ACL"). AR 27-28. Her doctors recommended that she have surgery but she did not do so because she was afraid of the procedure. AR 28-29. She also has pain in her back and she wears a brace when she doing heavy work in the garden or feeding her animals. AR 30.

Plaintiff smokes approximately one pack of cigarettes per day which causes her to have shortness of breath. AR 28. She also suffers from anxiety several times a month but she usually calms down after taking her "nerve pill." AR 29. She has high blood pressure and a stomach ulcer, however, she is able to manage her stomach pain by taking Hydocodone four times a day. AR 30-31. Despite taking the medication, Plaintiff reports that her pain is an eight out of ten on most days. AR 31. As a result of the pain, she lies down approximately four to five times per day for twenty to thirty minutes at a time. AR 31-32. Plaintiff has not had epidural injections because she is afraid that she will become paralyzed. AR 38.

Plaintiff's primary care doctor is Veronica David. AR 32. Plaintiff sees her doctor as needed which usually is once every six months. AR 32. Plaintiff is only able to lift between five and ten pounds and she is not able to lift anything over her head. AR 32-33. She is able to sit in a chair with her back straight for no more than three to five minutes and she has difficulty bending over. AR 33. Plaintiff also has difficulty concentrating, getting along with others, and sleeping at night AR 33-34.

Despite these limitations, Plaintiff is able to take a shower, do the dishes and laundry, as well as feed her animals including a pig, chickens, and horses. AR 35. She also gardens, grocery shops, and helps with her grandchildren daily. AR 35. However, she is no longer able to do other activities that she used to do such as going tubing in the lake, going four wheeling with her husband, or horseback riding. AR 36.

Medical Record

The entire medical record was reviewed by the Court (AR 127-233), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

Documents from Sutter Gould Medical Foundation

In March 2003, Plaintiff fell off a ladder, landed on her right hip, and experienced severe pain in the right thigh and knee area. TR 14, 135. She was examined by Thomas Kraft, Physician's Assistant ("PA"), in the Department of Orthopedics on March 14, 2003 for severe pain and intermittent swelling from her right mid-thigh down to the foot. AR 134-136. According to MRIs and x-rays taken within a month of her fall, Plaintiff sustained a fractured calf bone near the knee (proximal fibular fracture), a suspected torn knee ligament (ACL), and a bruised ankle. TR 14, 128. A lumbar spine MRI dated April 15, 2003 showed "some mild disc bulging at L1-2, L3-4 without disk protrusion." and a hip and pelvis MRI ruled out injuries in those areas. TR 14, 128. Plaintiff was diagnosed with suspected complex regional pain syndrome ("RSD") of the lower leg, and referred to the pain management clinic. TR 14, 129.

On May 15, 2003, Plaintiff was examined again by PA Kraft. AR 128. It was noted that Plaintiff's walk was antalgic. She held her knee at about 35 degrees of flexion when she walked and limped quite profoundly. There was some cyanosis (bluish coloring due to lack of oxygen) of the right leg and palpation revealed that the right leg was cooler than the left leg from the knee down to the toes. AR 128.

On August 13, 2003, Radiologist Cesar Tumakay, D.O. reported that an MRI scan of Plaintiff's right knee indicated a "chronic tear of a pascicle ACL in which the torn fragment has now [sic] parasitization of blood supply from the posterior cruciate ligament." AR 140.

On March 30, 2004, Plaintiff returned to PA Kraft for examination. AR 206. At that time is was noted that in January 2004, Plaintiff had fallen in her kitchen while carrying a bag of groceries and she developed right sided sciatica. AR 206. Plaintiff reported she was doing some work around the ranch with her horses but that she had to rest because of chronic back pain and pain radiating into her right leg. An examination revealed that her reflexes were 2/4 KJ and AJ bilaterally. She had 4/5 weakness of the right "EHL" but otherwise her strength in both lower extremities was normal. AR 206-207. Plaintiff's leg raise test was positive for back pain but not for leg pain. Full range of motion of the right hip without tenderness was noted. AR 206-207; 209-210. PA Kraft also indicated that an MRI and x-rays revealed there was no bony lesions, fractures or spinal stenosis. AR 207. There was some dessication of the L3-4 and the L4-5 lumbar disc and also a milder dessication of the T12-L1 disc as well. However, no herniated discs were noted. AR 207, 209. Plaintiff was diagnosed with contusion of the lumbar spine, complex regional pain syndrome in the lower right extremity and a sprain of the cruciate ligament of the right knee. AR 207. Plaintiff was referred to Dr. Gesson for pain management. AR 207.

On April 13, 2004, Plaintiff saw Dr. Gesson, a pain specialist who noted Plaintiff had fears of injections and epidurals. He prescribed Paxil in an attempt to alleviate her anxiety and reported that in the future Plaintiff could be sedated during any pain injection procedures. Dr. Gesson was waiting to hear whether Plaintiff was interested in receiving pain management therapy. AR 205.

In May 2004, Plaintiff began seeing Dr. Satvinder Sachdeva, M.D.,who diagnosed her with low back pain syndrome. He recommended physical therapy. TR 197, 199. Plaintiff reported that she does not like to take medications. AR 199. Although Plaintiff had seen Dr. Gesson, she told Dr. Satvinder that she was not interested in receiving epidural injections. AR 199.

On August 6, 2004, Plaintiff was seen by Nancy Gills, P.A. who noted that Plaintiff's reported pain in her back was a 9/10. AR 194. Upon examination, Plaintiff's gait was antalgic, however, her range of motion was normal in her knee and back. Plaintiff was tender over the sacro-sciatic notch in her hip and she had some decreased right hip flexion. She had normal hip extension, however, abduction produced right saccral pain. AR 195. Plaintiff was prescribed Gabapentin and then told to report for a follow-up in two weeks. AR 195. An x-ray performed on that same day was unremarkable. AR 196.

In September 2004, Plaintiff returned to see Dr. Sachdeva again who noted that in spite of "endlessly complaining of pain in her low back and leg," Plaintiff was reluctant to take prescribed non-steroidal anti-inflammatory medication (NSAID) due to an alleged history of bleeding ulcer. AR 192. Plaintiff indicated that she did not want to see Dr. Gesson either. AR 192. Plaintiff saw Dr. Sachdeva again on November 29, 2004 for low back pain. AR 189-190.

Plaintiff was examined on August 8 and 10, 2006, by Drs. Veronica David and Ton Ngo after Plaintiff was in a car accident and complained of neck, back, and left shoulder pain. Plaintiff was diagnosed with a back sprain. AR 176. A cervical spine x-ray series performed on August 8, 2006, revealed mild bilateral luschka joint spurring seen at the C4-C5 but otherwise the findings were unremarkable. AR 180. T-spine x-rays performed on that same day revealed minimal spondylosis in the lower T-spine segments with no acute injury noted. AR 181. Lumbar spine x-rays revealed that there had been no changes ...


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