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Julio Garcia v. Michael J. Astrue

August 31, 2011

JULIO GARCIA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)

BACKGROUND

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), 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

FACTUAL BACKGROUND

Plaintiff was born in 1966, has a high school education from Mexico, and previously worked as a truck driver. (Administrative Record ("AR") 87, 95.) On March 1, 2001, Plaintiff filed an application for DIB and SSI, alleging disability beginning November 12, 1999, due to back pain. (AR 94, 242.)

A. Medical Evidence and Plaintiff's Statements

On September 2, 1998, Plaintiff was involved in a car accident. (AR 490, 502-16.) Plaintiff was driving his truck in the course of his work when another driver fell asleep at the wheel and collided with Plaintiff's vehicle. (AR 508-09, 514.) Initially after the accident Plaintiff suffered no significant pain or injuries.*fn2 (AR 143, 520.)

Plaintiff underwent a computed tomography ("CT") scan of his brain on September 21, 1998. (AR 274.) This scan showed no evidence of any fractures or any intraaxial or extraaxial fluid collections. (AR 274.) Plaintiff's lateral ventricles were normal in size and position, and the cotrical gray white interface was intact. (AR 274.) Overall, the CT scan of Plaintiff's brain on this date was considered normal. (AR 274.)

On January 26, 2000, a CT scan was conducted of Plaintiff's lumbar spine. (AR 166, 283.) The CT indicated a central to left lateral disc herniation at L4-5, compression of the thecal sac, and compression of L5's exiting nerve root. (AR 166, 283.) This scan showed normal findings for L1-L4 as there was "no evidence of disc bulge or disc herniation." (AR 166, 283.)

Plaintiff initiated a personal injury lawsuit as a result of the car accident, and on May 31, 2000, Plaintiff was deposed. (AR 476-555.) During his deposition, Plaintiff described the car accident in detail. (AR 502-16.) Plaintiff stated that initially after the accident only his shoulder and neck hurt, but that as time progressed he began to have pain in his head which prompted him to get "checked" with a doctor. (AR 519-20.) Plaintiff also stated that he had trouble using his left shoulder in certain ways, such as turning a steering wheel. (AR 522.) Further, Plaintiff felt contracting pain in his neck, suffered from regular headaches, felt constant back pain, felt pain throughout his left leg, and continued to have trouble with sight in his left eye. (AR 522-41.)

Plaintiff began to visit Firebaugh Family Health Center ("Health Center") in April 2000 for his health needs. (AR 164-66.) Plaintiff had a colon surgery scheduled for June 8, 2000, and during the week prior, went to the Health Center for a pre-surgery check up. (AR 163.) On June 14, 2000, Plaintiff came to the Health Center for a cough. (AR 161.) The notes on this date indicated "Dr. Kaleka will complete disability papers," and were marked by a stamp that read "Ok'd by M.D." (AR 161.) Progress notes from June 29, 2000, stated that Plaintiff's disability forms were completed and that Plaintiff needed to follow up with an orthopedic specialist. (AR 160.)

Plaintiff was seen by physician's assistant ("PA") Smith at Community Medical Center on September 11, 2000, regarding his back pain. (AR 285.) The PA noted that though Plaintiff was scheduled for surgery in June, Plaintiff "decided against it in favor of trying [physical therapy.]" (AR 285.)

On October 9, 2000, Plaintiff again visited the Health Center due to sharp pain behind his left eye that was causing blurred vision. (AR 156.) Although the notes indicate that Plaintiff had an ophthalmology consultation concerning this pain and "was told nothing [was] wrong with his eye," Plaintiff still worried. (AR 156.) On this date, Plaintiff's chronic back and neck pain were also noted. (AR 1566.)

Plaintiff visited Community Medical Center on November 13, 2000, due to his back pain. (AR 234.) Plaintiff indicated that his physical therapy was helping, but pain still persisted. (AR 234.) The record for this date indicates that Plaintiff's motor strength was rated five out of five. (AR 234.)

Nurse Practitioner ("NP") Brown saw Plaintiff on November 29, 2000, reviewed Plaintiff's medical history, and conducted a physical examination. (AR 229-33.) Plaintiff complained of pain, and the NP noted that Plaintiff's pain was gradually increasing in severity. (AR 229-30.) Plaintiff further indicated that he had been suffering blurriness in his left eye since the accident. (AR 232.) The purpose of the exam, at least in part, was to discuss surgery as a remedy to Plaintiff's pain. (AR 229.)

On December 11, 2000, Plaintiff went to Community Medical Center to discuss the procedures for his upcoming surgery on December 15, 2000. (AR 228.) Two days later on December 13, Plaintiff's surgery was rescheduled to December 20, 2000. (AR 227.) On December 15, 2000, NP Brown prepared a preoperative history and physical report of Plaintiff, noting that Plaintiff had received "moderate relief" from his six weeks of physical therapy. (AR 143-44.) The surgery plan outlined that Plaintiff was scheduled for an L4-5 laminectomy, diskectomy, and foraminotomy. (AR 145.)

Plaintiff was admitted for surgery on December 20, 2000, at Fresno Community Hospital. (AR 140-42.) In the operating room, Steven Hysell, M.D., took an X-ray of Plaintiff's spine that showed a localizing probe posterior to L4-5. (AR 137.) The surgery was completed without complication, and Plaintiff was discharged on December 22, 2000. (AR 138-39, 141.) Upon discharge Plaintiff was doing well, but was advised to avoid heavy lifting, bending, and stooping. (AR 141.) Plaintiff's only discharge medications were ibuprofen and Tylenol. (AR 141.)

On January 3, 2001, Plaintiff was seen by NP Brown. (AR 226.) NP Brown noted that Plaintiff was still in pain and having trouble walking after his surgery. (AR 226.) On February 5, 2001, a progress note indicated that Plaintiff's motor strength was rated five out of five in all areas, but Plaintiff complained that he still had leg pain. (AR 224.) On that same day, Plaintiff's lumbar spine was X-rayed at University Medical Center in Fresno. (AR 225.) The X-ray showed no change in the appearance of Plaintiff's spine compared to a previous X-ray from 1999. (AR 225.) There were minor changes of degenerative disc disease at L2-4 and a slight narrowing of the disc at L4-5, but no fractures or dislocations. (AR 225.)

An X-ray of Plaintiff's cervical spine was taken on March 12, 2001. (AR 151.) This X-ray indicated straightening of Plaintiff's lordosis and well-maintained intervertebral disc heights. (AR 151.) The X-ray showed no fractures, lytic lesions, blastic lesions, gross facet arthropathy, or anterolisthesis, and the soft tissues were normal. (AR 151.)

On April 9, 2001, Plaintiff saw Dr. Hysell and reported left-leg pain. (AR 222.) The doctor noted that Plaintiff had no weakness and gave Plaintiff a five out of five motor strength rating in all areas. (AR 222.)

A magnetic resonance imaging scan ("MRI") of Plaintiff's lumbar spine was taken on May 10, 2001, for comparison with Plaintiff's spine CT dated January 26, 2000. (AR 210-11.) This MRI showed "status post resection of L4-L5 disc protrusion with resolution of spinal stenosis" compared to the earlier CT. (AR 211.) Also found were recurrent disc materials, but the significance of that finding was reduced by Plaintiff's history of left-sided symptoms, the fact that the material was small, and also by the fact that it did not "impinge on traversing neural structures." (AR 211.)

Plaintiff was authorized to have six physical therapy sessions which took place between May 10, 2001, and June 6, 2001. (AR 202, 215.) At the end of the physical therapy regimen, the physical therapist found that Plaintiff had "essentially no change" in his range of motion or strength, noted that Plaintiff made "little to no progress with therapy," and recommended that Plaintiff follow up with his doctor. (AR 202.)

On July 2, 2001, Plaintiff filled out a daily activities questionnaire. (AR 115-20.) In this questionnaire, Plaintiff stated that he goes to school sometimes, cooks three times a day, shops for groceries twice a month, waters plants, dusts furniture "little by little," plays with his children by drawing and painting, watches TV, reads books, goes to church weekly, and walks and sits outside with his family. (AR 115-20.) Plaintiff also noted that he did not need help grooming, dressing, or cleaning himself. (AR 115.) Plaintiff listed his current medications as Amitriptyline, Elavil, and Perphen Triavil. (AR 119.)

On July 19, 2001, Gail Asleson, M.D., conducted an orthopedic consultation of Plaintiff. (AR 167-71.) Dr. Asleson opined that Plaintiff's entire cervical spine range of motion was within normal limits except for his left rotation, which was limited because of pain. (AR 168.) Some of Plaintiff's lumbar spine range of motion was limited; Plaintiff's flexion reached only seventy of ninety degrees and his extension reached only fifteen of twenty-five degrees, but his lateral flexion was within normal limits. (AR 168.) An examination of the range of motion of Plaintiff's upper and lower extremities showed that Plaintiff's shoulders, elbows, wrists, hips, knees, and ankles were all within normal limits. (AR 169.) The motor strength of Plaintiff's shoulders, elbows, hips, knees, and feet were also within normal limits. (AR 170.) Dr. Asleson opined that Plaintiff's examination was "entirely normal aside [from] symptoms suggestive of left-sided sciatica and mild decreased range of motion of his back." (AR 171.) The doctor believed that Plaintiff had the functional capacity to lift and carry fifty pounds occasionally and twenty-five pounds frequently. (AR 171.)

Plaintiff was examined by Dr. Hysell on September 1, 2001. (AR 199.) At this appointment, Plaintiff complained of pain in his leg, arm, and left side of his head. (AR 199.) Plaintiff rated his pain between four and six on a scale of zero to ten. (AR 199.) On September 13, 2001, Plaintiff visited Dr. Hysell and again complained of his pain problems. (AR 197.)

On October 18, 2001, Plaintiff had an MRI of his cervical spine. (AR 299.) The MRI showed a slight lateral disc bulge/osteophyte complex at the C3-4 level, but no significant canal compromise. (AR 299.) At the C5-6 level, there was a small broad-based left lateral high signal intensity lesion which could cause encroachment of the exiting nerve roots, but no significant compromise of the thecal sac or distortion of the spinal cord. (AR 299.) All the other levels were within normal limits. (AR 299.) On October 29, 2001, Plaintiff reviewed this MRI with Dr. Hysell who explained to Plaintiff that the MRI was unremarkable and did not look clinically significant. (AR 300.) Dr. Hysell formulated a plan for Plaintiff to try more physical therapy and to discuss pain management with his primary care physician. (AR 300.)

An MRI of Plaintiff's cervical and lumbar spine was conducted on January 31, 2002. (AR 277-80.) Plaintiff's lumbar spine showed that the T12 through L4 levels were normal. (AR 279.) On the cervical spine MRI, levels C4-T1 showed no significant abnormalities. (AR 277.) There also appeared to be a C3-4 posterior disc bulge, but Plaintiff compromised the picture by moving during the MRI. (AR 277.) Plaintiff consequently had another MRI taken of his cervical spine the next day, and the findings remained unchanged. (AR 280.)

On March 18, 2002, Mythili Sundaresan, M.D., saw Plaintiff for a consultation. (AR 267-70.) Dr. Sundaresan reported her findings in a letter to Plaintiff's primary care physician, Dr. Kaleka, noting that Plaintiff had normal electrophysiological findings from his lower extremeties. (AR 268.) Dr. Sundaresan further opined that Plaintiff's nerves were within normal limits, but that vibratory sensations were reduced in the left L4 distribution and were absent in the left S1 distribution, distally in his right leg, and along the ulnar distribution bilaterally. (AR 268-70.)

Plaintiff also had sensory modalities, shown by impaired pinpricks throughout his right arm and leg, and on the right side of his face. (AR 330.)

Another MRI of Plaintiff's lumbar and cervical spine was taken on March 28, 2002. (AR 281-82.) The cervical spine was found to be unremarkable except for straightening of the cervical lordosis. (AR 282.) The lumbar spine was found to be normal except for minimal degenerative changes of the lumbar spine with osteophyte formation. (AR 281.)

On April 22, 2002, Dr. Sundaresan saw Plaintiff for a follow-up examination. (AR 271.) Dr. Sundaresan again reported her findings from this examination to Dr. Kaleka in a letter. (AR 271.) After reviewing Plaintiff's X-rays, the doctor opined that Plaintiff's cervical X-ray was "essentially normal," and his lumbar X-ray showed "minimal degenerative changes, primarily consisting of osteophytes." (AR 271.) An EMG/NCV of Plaintiff's upper and lower extremities was conducted, and Dr. Sundaresan opined that the test was "essentially within normal limits." (AR 271.) Dr. Sundaresan further found that there was not "anything specific for the type of [r]adicular type of pain [Plaintiff] is complaining of." (AR 271.) The doctor therefore requested that Plaintiff undergo a Myelogram with a CT scan and provide a sample of spinal fluid for evaluation. (AR 271.) Dr. Sundaresan also prescribed Plaintiff 300 mg of Neurontin for his pain. (AR 271.)

PA Manuel Ramirez, employed at the Health Center and supervised by Dr. Kaleka, assessed Plaintiff's physical capacities in a form dated June 5, 2002. (AR 258-59.) In this assessment, PA Ramirez indicated that Plaintiff could never lift more than twenty pounds, occasionally lift fifteen pounds, and frequently lift ten pounds. (AR 258.) He opined that Plaintiff could never climb, but could occasionally balance, crouch, crawl, and reach, and could frequently stoop. (AR 258.) PA Ramirez further stated that Plaintiff's pain medications made him unable to work or drive, and that overall Plaintiff could only work for two- to four-hours in an eight-hour workday. (AR 259.)

On August 27, 2002, Plaintiff saw Dr. Sundaresan for another follow-up appointment. (AR 272.) Dr. Sundaresan again reported her findings to Dr. Kaleka in a letter. (AR 272.) Dr. Sundaresan noted that Plaintiff had not kept his return appointments for the past four months. (AR 272.) Further, Plaintiff did not undergo the Myelogram or spinal tap that the doctor had requested in April. (AR 272.) Dr. Sundaresan noted that Plaintiff still had the same symptomatology. (AR 272.)

Dr. Sundaresan saw Plaintiff again on October 8, 2002, and once more memorialized her findings in a letter addressed to Dr. Kaleka. (AR 273.) On that date, Dr. Sundaresan noted that Plaintiff's evaluations thus far had been "essentially negative." (AR 273.) The doctor opined that because Plaintiff was complaining of pain but there were "no obvious clinical findings or neuro diagnostic findings" to explain the source of such pain, the doctor felt that there could be "psychological overlay." (AR 273.) Dr. ...


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