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Lila M. Wallace v. Michael J. Astrue

January 11, 2012

LILA M. WALLACE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Lila M. Wallace, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2008. On January 6, 2005, Plaintiff filed for disability insurance benefits, alleging disability beginning September 10, 2003. Her claim was initially denied on May 20, 2005, and upon reconsideration. Plaintiff appeared and testified at a hearing on August 30, 2006. On September 22, 2006, Administrative Law Judge Edward C. Graham denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which remanded the matter to the ALJ on October 28, 2008, for consideration of additional evidence.

Plaintiff appeared and testified at a second hearing on September 15, 2009. On October 30, 2009, Judge Graham again denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review on July 2, 2010. On August 17, 2010, Plaintiff filed her District Court complaint.

B. Agency Record

Plaintiff (born August 17, 1957) was injured in an auto accident on May 28, 2003. She claimed that neck and hip injuries caused pain that prevented her working.

Plaintiff completed secretarial training and attended one year of college. From 1988 through 1999, Plaintiff worked as a supermarket baker, mixing bread dough and doughnuts, preparing products, and decorating cakes. From 2000 until shortly after her auto accident, Plaintiff was an interior technician for an business that designed and maintained plants in commercial spaces such as malls, offices, and hospitals.

In May 2005, Plaintiff reported more frequent neck spasms and dropping of items since beginning physical therapy. She was unable to pick up heavy items. When Plaintiff reached above her head, she experienced neck spasms and "instant migraines."

In a disability report completed April 19, 2006, Plaintiff reported that she was receiving pain management services. She was unable to grip, "dropping things all the time." She could no longer decorate a cake or open her medicine bottles. Her pain medications were working poorly, impairing her ability to sleep. Plaintiff experienced panic attacks when she rode in a car and was constantly afraid of increasing her neck injury. She complained of vertigo. Her medications included Estrace (hormones), Inderal (antianginal), pamelor (antidepressant), phenegan (antihistamine), and Xanax (anxiolytic). The agency interviewer observed no difficulties in behavior, appearance, grooming, or limitations.

Agency Hearing (August 30, 2006). At the agency hearing on August 30, 2006, Plaintiff testified that, following her auto accident, she had to call on her boyfriend [now her husband, Jack Rosema] to help her do her plant maintenance job since she was unable to climb ladders and pull the heavy hoses. Shortly thereafter, her doctor told her that her efforts to keep her job had exacerbated her injuries. Describing the condition of her neck as bones sitting on bones, Plaintiff testified that she had pain from her head through her neck and arms. She was weak and nauseous. She dropped things frequently.

Plaintiff testified that she had migraine headaches that lasted for several days two or three times monthly. She wore a neck brace since turning her head too quickly would cause a neck spasm followed by a migraine headache. Her neck made constant crackling noises that sounded like Rice Krispies. She experienced burning and tingling from her shoulder blades to her fingers. She could not have surgery to correct her neck problem because she had osteopenia.

On a typical day, Plaintiff got out of bed only to use the bathroom and briefly sit in the living room. Because of her many medical conditions, she was constantly sick. Her daughter helped her with personal care, cleaning shopping, and driving.

Plaintiff testified that she could stand and walk one-and-a-half to two hours and sit twoand-a-half hours in an eight-hour work day. She could sit no more than ten to fifteen minutes at a time, and could not lift more than ten pounds.

Agency Hearing (September 15, 2009). Plaintiff testified that, since the first hearing, she was frequently experiencing numbness and pain in her feet. She fell often. Her memory had deteriorated, requiring her husband to make her a box to help her manage her medication. Her overall pain level was "very chronic." AR 1028. Since experiencing her seizures, she was taking morphine and experiencing tremors and a lack of coordination. Even with medication, she could not sleep. Plaintiff experienced incapacitating migraines three or four times weekly. She was confined to bed two to three days at a time. Her doctors encouraged her to move around so she would not atrophy. Lying in bend caused back spasms.

Plaintiff could stand for less than two minutes. She could sit for less than five minutes, swaying and moving back and forth. Plaintiff did not shop, cook or clean. Her sole activity was to sit outside and smell the rose garden that her husband had planted for her.

Plaintiff's husband, Jack Rosema, testified that Plaintiff had experienced migraines before her car accident. Plaintiff returned to work the day after her accident but required his help to pull the hose needed to water the plants since any activity "would pop her neck out." AR 1034. Plaintiff did not see a doctor until she became unable to do her job even with Rosema's help. She chose to see a chiropractor.

Rosema testified that Plaintiff had problems with concentration and memory, particularly with her medications. For example, Plaintiff overmedicated herself because her prescriptions directed her to take a pill when she felt pain and she could not keep track of how many she had taken in her attempts to control her chronic pain. Eventually, overdosing on pain killers led to Plaintiff's seizures. Plaintiff was able to sleep only for short periods. She could not handle stress and could not communicate her emotions.

Quality Health Medical Center.*fn1 Chiropractor David E. Eckel, D.C., began treating Plaintiff on July 29, 2003. On September 9, 2003, Eckel referred Plaintiff to a neurologist. On November 19, 2003, Eckel referred Plaintiff to "Dr. Prakash" for pain management, noting her persistent headaches, left scapular pain, and left hip burning. Plaintiff's prescription medications included Keppra,*fn2 Flexeril,*fn3 and Seroquel.*fn4

On September 23, 2003, radiologist Ronald L. McGrady, M.D., interpreted an MRI examination. He reported:

Loss of normal cervical lordosis, either related to patient's positioning or spasm with mild to moderate degenerative disc disease at the C5-6 level. There is mild to moderate left-sided neural foraminal stenosis at the C 5-6 level as well. no acute fractures are demonstrated.

AR 379.

The pain management specialists at Quality Health Medical Center treated Plaintiff from December 2, 2003, through January 20, 2004, when she was discharged as having reached maximum medical improvement. Plaintiff reported that since the auto accident, she had been treated by chiropractors and a neurologist, had undergone physical therapy, and was taking Flexeril and Seroquel. Pain management consultant Chitta Thiagarajah, M.D., examined Plaintiff on December 9, 2003, and noted "limitation of lateral rotation and flexion of the neck," but found that extension was "slightly limited, but almost normal." AR 270.

Thiagarajah provided a course of facet joint injections in Plaintiff's cervical spine on December 9 and 16, 2003, and January 13, 2004. On February 10, 2004, Plaintiff reported receiving relief from acupuncture but complained of migraine headaches. Plaintiff's final diagnosis was interscapular neuritis, chronic cervical sprain/strain, left cervical radiculopathy, depression, chronic pain, and anxiety. The diagnosis also indicated "loss of normal lordosis, cervical spine, with mild to moderate degenerative disc disease at the C5-67 level, and mild to moderate left-sided neural foraminal stenosis (722.71) at the C5-6 level, as per MRI scan examination dated 09-23-03." AR 240.

At follow-up appointments in January 2005, Plaintiff continued to complain of chronic neck pain and extreme pain in her left hip and leg. She continued to wear a cervical brace. Her medications included Fiornal*fn5 and Percodan.*fn6 Noting that Plaintiff complained that her whole body ached, Ramanathan Prakash, M.D., reported that Plaintiff's physical condition was unchanged since February 20, 2004. Prakash diagnosed possible traumatic fibromyalgia and generalized pain, and referred Plaintiff to a rheumatologist.

Kaiser Permanente. When Plaintiff first saw Sukanya E. Holmes, M.D., in the physical medicine department of Kaiser Permanente in June 2005, she reported chronic neck pain since her 2003 accident that had worsened with physical therapy and chiropractic treatment. She experienced headaches that kept her in bed two to three days a week. Plaintiff reported that she was not taking Vicodin*fn7 and had not received chronic pain management. After noting pain behavior,*fn8 no atrophy, a full range of neck motion, and 5/5 strength, Dr. S. Holmes diagnosed chronic neck pain syndrome and cervical degenerative disc disease, and referred Plaintiff for pain management.

On August 12, 2005, Plaintiff's primary care physician, Steven Lawenda, M.D., completed a short-form evaluation for musculoskeletal impairments. Lawenda reported that he saw Plaintiff approximately every two months to treat her chronic neck pain. He assessed her range of motion as approximately 45 degrees flexion, 30 degrees extension, 45 degrees right lateral, and 45 degrees left lateral.*fn9 Sensory and motor nerves, and reflexes were intact. There was no atrophy. Straight leg raising was positive on the left.*fn10

Carson Ling, M.D., performed a consultative examination on September 6, 2005. He observed that Plaintiff's neck had a full range of motion without pain except for mild pain on extension. Plaintiff demonstrated positive trigger points bilaterally in her trapezius and paracervical regions. Strength was 5/5; reflexes were equivocal; and sensation was decreased on the left in contrast to the right. Ling referred Plaintiff to a neurologist based on her reports of recent increased weakness and dropping things.

On October 11, 2005, neurologist Shilpa Wali, M.D., examined Plaintiff and recorded this impression:

This is a 48-year-old lady with a history of motor vehicle accident with some whiplash injury. Since then, she has had chronic pain in her neck as well as all of her limbs. In addition, she has numbness and tingling of her hands that is chronic in nature. Neurologic exam reveals the presence of a nondermotomal pattern of numbness to pinprick in her upper extremities, involving both the entire upper extremities bilaterally and patchy patterns on the left lower extremity distally. She has negative Phalen's and Tinel's signs. In addition, the remainder of her neurologic exam is normal and nonfocal. Differential diagnosis for patient's symptoms of pain and numbness include a chronic pain syndrome secondary to motor vehicle accident with ensuing cervicalgia. The numbness and tingling that she experiences in her upper extremities may reflect the presence of some radicular component; however, this pattern is not established on examination today, and rather may just be part of her chronic pain syndrome. She has no suggestion of a carpal tunnel syndrome, either. She has no evidence of weakness. On her examination, her strength is full in the distal hand muscles as well as proximal and the entire lower extremities. In view of the persistent complaints and persistent symptoms of numbness and tingling, however, her MRI of the cervical spine will be repeated to ensure that there is no worsening of the foraminal stenosis that was present before. She has no evidence of cervical myopathy on exam today; however, this can also be excluded by MRI of the cervical spine. She has no evidence to support a carotid artery dissection as well, in view of her history of trauma and back pain, thus this in not likely a factor contributing to her chronic pain syndrome. Patient has responded well to Pamelor and she is taking only one tablet a night, presumably 25 mg, thus I have asked her to increase this to 2 tablets a night and I have given her a prescription to last her for the month, followed by which she will be seen by pain doctors. This can be further titrated up. I have also discussed with her extensively that she has problems with polypharmacy at this time and when the nortriptyline is at a therapeutic dose for her, she may be able to reduce some of her medicines, such as temazepam and Vicodin and Fiorinal, as the Pamelor will also prove as a headache-prevention medicine and will help her migraine as well as chronic pain.

AR 470-473; 505.*fn11

Following magnetic resonance imaging on October 15, 2005, radiologist Andrew Deutsch, M.D., diagnosed "mild discogenic disease of the cervical spine most evident at the C5-C6 level where a small broad based disc/osteophyte complex [was] present effacing the ventral subarachnoid space but no[t] significant[ly]the cervical cord," and mild foraminal narrowing. AR 492. Deutsch also noted a lesion, possibly a polyp or cyst, in the right vallecula.

On July 14, 2006, Lawenda signed a letter "to whom it may concern" reporting that Plaintiff suffered chronic severe pain that required daily medication including narcotic pain killers and anti-inflammatory medications.

On November 2006, Plaintiff was treated in the emergency room when she experienced an episode of apnea during a severe migraine. Dr. Lawenda hypothesized that Plaintiff likely overdosed on Endocet*fn12 and switched her prescription to longer-acting morphine.

Dr. Wali prescribed Verapamil*fn13 to prevent the headaches. On January 25, 2007, Plaintiff told Wali that her headaches were better on Verapamil. Wali could not rule out that Plaintiff's headaches were cardiovascular and directed Plaintiff to modify her lifestyle to reduce her cholestrol and to consult her primary care physician about a daily aspirin regimen.

In June 2007, therapist Paul Enns, Ph.D., M.F.T., performed an intake examination for the outpatient psychiatry clinic. Dr. Lawenda had referred Plaintiff for evaluation and treatment of depression. Plaintiff reported "lots of pain" and told Enns that she spent 90 per cent of her time in bed. Her marriage was not going well, and ...


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