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Vicki Barber v. Michael J. Astrue

February 9, 2012


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 her application for disability insurance benefits ("DIB") pursuant to Title II 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 referred to the Honorable Sheila K. Oberto, United States Magistrate Judge.


Plaintiff was born in 1964, has a high school education, and attended one year of college. Plaintiff previously worked as a nurse assistant, a licensed vocational nurse, and a travel agent. (Administrative Record ("AR") 26, 28, 37, 104, 155.) On February 21, 2007, Plaintiff filed an application for DIB, alleging disability beginning June 1, 2005, due to fibromyalgia and problems with memory and concentration, skin problems, asthma, chronic right wrist pain, right de Quervain's tenosynovitis, left acromioclavicular sprain with chronic pain, osteoarthritis to the right knee, chronic pain to the right foot and left shoulder, and a bone spur in the left foot. (AR 23, 125, 144-45.)

A. Medical History

On October 5, 2004, Plaintiff was examined by Dr. Teresa A. Schully. Plaintiff reported that she fell at work in May 2004 and suffered severe pain in her right wrist, thumb, and the inside of the top of the forearm as a result. (AR 530.) At the time of her fall, Plaintiff was treated by Dr. Freeman at the Turlock Urgent Care, and a magnetic resonance imaging ("MRI") was obtained. (AR 530.) Dr. Schully reviewed the MRI report and discussed treatment options with Plaintiff including splinting, therapy, injection, and surgery. (AR 532.) Plaintiff indicated that she would like to proceed with injection therapy, and she was injected with a mixture of Depo-Medrol and lidocaine in her right wrist. (AR 532.) Plaintiff was instructed to follow-up with Dr. Schully in six weeks. (AR 532.)

In November 2004, Plaintiff was again examined by Dr. Schully. (AR 520-21.) Dr. Schully indicated that Plaintiff continued to suffer persistent right-wrist pain that was not responding well to conservative pain management. (AR 520.) She recommended a bone scan and noted that there was no objective evidence of pathology. Dr. Schully gave Plaintiff a "modified work note," and indicated that Plaintiff was limited in the use of her right hand: no lifting greater than five pounds, no pushing or pulling, only minimal vibratory work, and limited gross manipulation of the right hand. (AR 521.)

On January 19, 2005, Plaintiff underwent a bone scan of her right hand and wrist. (AR 516.) Dr. Schully noted that the results were within the normal limits, indicated that Plaintiff had no work restrictions, and referred Plaintiff back to full duty status. (AR 516.) Plaintiff returned to work between February 2005 to June 2005, but her nursing position was ultimately terminated. (AR 426.)

In June 2005, Plaintiff was examined by Dr. Sanjay R. Patel for evaluation and treatment of her right wrist and forearm. (AR 351.) Dr. Patel noted that Dr. Schully did not find any orthopedic issues and sent Plaintiff back to work. (AR 351.) However, Plaintiff expressed frustration to Dr. Patel because she continued to suffer from worsening pain in her right wrist, radiating from her thumb up into the forearm and biceps. (AR 351.) Dr. Patel recommended that Plaintiff undergo electromyogram ("EMG")/nerve conduction studies because Plaintiff may have neuropathic damage which Dr. Patel found difficult to ascertain without a nerve test. (AR 352.)

In July 2005, Plaintiff began occupational therapy at Progressive Therapy Services, where it was noted that she "did not appear to put out maximal effort with the right hand strength testing." (AR 454.) The treatment recommendation was to continue the therapy for eight weeks, two times per week. (AR 454.)

On examination in August 2005, Dr. Patel noted the following findings: The patient comes in for a review and EMG/nerve conduction study done by Dr. Jeffrey Scott. The nerve study was normal. This leaves me to believe that the patient has more of a tendinitis, which also causes me concerns, as she has not had significant improvement despite her injury being over two years old. She undergoes occupational hand therapy with some improvement, but she still has loss of strength in her wrist. She has a new wrist brace as well. She continues to take Vicodin and Soma as needed. (AR 348.) Objectively, Dr. Patel noted that Plaintiff's hand range of motion was full, she had some tenderness to palpation in several spots, no swelling was noted, and her distal pulses and distal sensation were intact. (AR 348.) Dr. Patel diagnosed wrist and forearm pain on the right side most likely tendinitis, long standing. (AR 348.)

In September 2005, Plaintiff was examined by Dr. Thomas K. Johnson; Plaintiff reported that the edema in her legs had grown worse after flying home from Florida. (AR 315.) She stated she was not able to avoid salt on the cruise she had taken. (AR 315.) He recommended compression stockings and elevation of her legs to treat the edema. (AR 315.)

On October 12, 2005, Plaintiff was referred to Progressive Therapy Services to complete a Functional Capacity Evaluation ("FCE"). (AR 438-56.) The results of the FCE indicated that Plaintiff "should be able to eventually work at [the medium] Physical Demand level for an 8 hour day according to the Dictionary of Occupational Titles [("DOT")]." (AR 438.) However, it was noted that pain with repetitive use "remains problematic." (AR 438.) The FCE report indicated that the testing caused Plaintiff increased pain and fatigue through the wrist area, and the active range of motion in her upper right extremity was 8% below normal. (AR 439.) A Blankenship System Reliability Profile was performed and the results indicated the following:

Mrs. Barber demonstrated typical symptom/disability exaggeration behavior by our criteria, and she scored a 0/5 by Wadell's and a 1/21 by Korbin's protocols. She passed 52/71 validity criteria during the FCE, 73%, which suggests fair effort overall, for the duration of the FCE. Mrs. Barber was appropriate and cooperative for the FCE process. (AR 439, 476.)

At a November 18, 2005, examination, Plaintiff reported pain under her right shoulder blade, but Dr. Johnson found no injury or strain. (AR 314.) Plaintiff stated that it hurt to take deep breaths or cough, but she otherwise was not in pain. (AR 314.) She also reported some episodes of "probable low blood sugar." (AR 314.) Dr. Johnson noted that they discussed the urgency of Plaintiff's need to lose weight in light of the future risk of developing diabetes. (AR 314.)

On November 22, 2005, Dr. Patel reported that Plaintiff had permanent work restrictions due to her right-wrist pain "of unknown etiology," she was limited in her ability to do repetitive overhead reaching, pushing, pulling or lifting with the right upper extremity, and she was not to lift more than 10 pounds with her right wrist. (AR 340.) Dr. Patel also provided his opinion of Plaintiff's future medical treatment:

The patient has undergone aggressive conservative treatment with some improvement. However, her subjective complaints are well in excess of what I could find on my objective findings. As a result, I had a long discussion with her that if she was unhappy with the impairment rating, she was welcome to a QME evaluation panel. In terms of medications, the patient should be continued on medications on an as-needed basis . . . She is not a surgical candidate and this has been ruled out, so no surgical follow-up is recommended . . . In addition, she should also be employable in some manner and do many of the aspects of her nursing career.

(AR 340.)

On January 20, 2006, Plaintiff reported to Dr. Johnson that she was having trouble falling asleep and that over-the-counter sleep aides had not helped. (AR 313.) She reported increased anxiety, an increased desire to stay at home because of fear of leaving the house, and increased anxiety if she had to travel. (AR 311.) She was experiencing horrible bouts of diarrhea, and related that she was having a difficult time finding a job. (AR 311.) She reported feeling more anger and upset "for the slightest reason." (AR 311.)

On July 12, 2006, Plaintiff was examined by Dr. Johnson and indicated that she was doing well except for some ongoing anxiety. (AR 310.) She indicated that she had experienced anxiety when stuck in an elevator during a trip to Reno, but otherwise she was keeping very busy and staying at home caring for her children. (AR 310.)

On July 26, 2006, Plaintiff reported to Dr. Johnson that she had been staying at home for the past couple of weeks because of the extremely hot weather, and so "she has not been out in situations when she usually experiences anxiety." (AR 309.) He continued her prescription for Lexapro for another two weeks. (AR 309.)

On September 8, 2006, Plaintiff reported to Dr. Johnson that she felt more anxious, particularly because she and her husband were going to be taking a trip that involved flying; she had concerns about whether she would be "able to handle this." (AR 308.)

On September 20, 2006, Plaintiff reported to Dr. Johnson that she continued to experience difficulty sleeping, and that the Ambien prescription was not helping as much as it had in the past. (AR 307.) Dr. Johnson discussed with Plaintiff strategies for helping her gradually calm down before going to bed, including activities like reading, doing crossword or other puzzles, and watching television. (AR 307.)

On October 3, 2006, Plaintiff was examined by Dr. Maureen D. Miner, a Qualified Medical Evaluator ("QME") for Worker's Compensation, concerning Plaintiff's complaints of pain in her right wrist and left shoulder. (AR 458-74.) Dr. Minor reviewed Plaintiff's medical history, including the reports and findings of Dr. Patel and Dr. Schully, and opined that Plaintiff has a disability of her right upper extremity most consistent with "a preclusion of no repetitive gripping, pushing, pulling or twisting." (AR 470.) With regard to Plaintiff's left shoulder, Dr. Minor opined that the disability is "consistent with no repetitive reaching above shoulder level." (AR 470.) Objectively, Plaintiff demonstrated a loss of grip strength in her right arm, a loss of range of motion at the right wrist, and there was evidence of dorsal hand/wrist soft tissue swelling and dorsal ganglion cyst. (AR 471.) Dr. Minor indicated that Plaintiff "is a candidate for injection trial into the point of maximal tenderness in the right hand, particularly the ganglion cyst." (AR 472.) Further, she "is a candidate for injection into the AC ligament. The patient does not prefer injection therapy, but these remain as treatment options." (AR 472.)

On November 13, 2006, Plaintiff underwent an open MR arthrogram of the right wrist, i.e., a fluoroscopic injection into her right wrist followed by x-rays and an MRI. (AR 356.) The radiologist noted an impression of "[e]ssentially negative MR arthrogram of the wrist." (AR 356.)

On November 14, 2006, Plaintiff followed up with Dr. Johnson and reported that the Xanax and Ambien together at bedtime were helping her relax and sleep better. (AR 305.) She reported she was careful with her diet and was trying to make changes in meals for the family. (AR 305.) Dr. Johnson discussed with Plaintiff the importance of diet in weight and disease management and reviewed strategies for weight loss. (AR 305.)

On December 11, 2006, Plaintiff met with Dr. Patel to review Dr. Minor's QME findings and the MR arthrogram results. (AR 327.) Dr. Patel indicated that the QME recommended four physical therapy sessions for the right shoulder plus a right shoulder injection. (AR 327.) Plaintiff requested that the physical therapy and the shoulder injection be performed. (AR 327.) On examination, Dr. Patel noted that there was no swelling, hyperesthesia,*fn1 or dysesthesia.*fn2 (AR 327.) Her grip was noted to be 4/5, and her wrist extension and flexion were within the normal range. (AR 327.)

On May 19, 2007, Dr. Johnson Moon performed a physical examination of Plaintiff. (AR 360-66.) Plaintiff's chief complaints centered on right-wrist pain and left-shoulder pain; she also related a history of severe arthritis in the bilateral knees and bilateral feet. (AR 360, 362.) She reported that osteoarthritis in her right foot makes it difficult for her to walk, stand, and bear weight. (AR 361.) She stated that she could do some housework, and is able to take care of herself, but it is difficult. (AR 361.) She also indicated that she pays bills at home, helps her children with homework, but she suffers from significant insomnia so she has "scattered sleep throughout the night." (AR 361.)

During the examination, Dr. Moon observed that Plaintiff appeared comfortable walking and in the seated position, she was able to transfer to the examination room without problems, and although reported pain, she did not appear to be in any discomfort. (AR 362.) Dr. Moon also reported that Plaintiff had a normal station and gait and that she could toe walk and heel walk normally. (AR 363.) On neurological examination, Dr. Moon found Plaintiff's motor strength to be 5/5, and noted that "[t]here was some give away weakness in the right wrist and left shoulder secondary to pain, however, she was 5/5 when giving full effort." (AR 364.) Dr. Moon determined that Plaintiff's de Quervain's tenosynovitis on her right hand appeared moderate in nature, she had good strength on manual testing, and there was no sensory deficit. (AR 364.) When her thumb was tested, Plaintiff reported pain but did not appear to be in any significant distress. (AR 364.)

Dr. Moon found that Plaintiff had left shoulder strain with possible impingement that appeared mild to moderate in nature. (AR 365.) She had full range of motion in her left shoulder, but she did have "some give away weakness on examination." (AR 365.) Dr. Moon noted arthritis at the knees and feet appearing moderate to severe in nature. (AR 365.)

Dr. Moon opined that Plaintiff could not be expected to stand and walk more than two hours in an eight-hour workday, and probably no more than 15 minutes to a half hour at one time. (AR 365.) He also determined that Plaintiff could sit without restriction, could lift 25 pounds occasionally and 20 pounds frequently with her upper left extremity. With her right upper extremity, so long as the use of her right thumb was limited, she could lift 25 pounds occasionally and 20 pounds frequently. (AR 365.) He also reported Plaintiff had postural limitations on bending, stooping, and crouching because of arthritis in her knees and feet. (AR 365.)

On May 22, 2007, Plaintiff underwent a psychiatric examination with Dr. Soad Khalifa. (AR 367-70.) Plaintiff reported to Dr. Khalifa that she had problems with anxiety that resulted in panic attacks and she struggled with insomnia. Plaintiff stated she does some shopping, her children help her with housework, she is involved with her children's swimming team, and she goes to church occasionally. (AR 368.) Dr. Khalifa found Plaintiff's concentration to be intact, and noted that her persistence and pace were good. (AR 369.) He assigned her a Global Assessment of Functioning ("GAF") score of 60 and diagnosed her with an anxiety disorder, not otherwise specified. (AR 369.)

He determined that Plaintiff is able to understand, carry out, and remember simple instructions. (AR 369.)

On June 12, 2007, consultative non-examining state agency physician Dr. L.V. Bobba completed a physical residual functional capacity ("RFC")*fn3 assessment based upon a review of Plaintiff's medical records. (AR 371-75.) He determined that she could occasionally lift 20 pounds, frequently lift as much as 10 pounds, stand, walk, and sit for approximately six hours in an eight-hour workday. (AR 372.) Dr. Bobba found that, although Dr. Moon found Plaintiff had limitations in her ability to stand and walk, this assessment was based mainly on Plaintiff's subjective statements because examination of Plaintiff's weight-bearing joints was within normal limits. (AR 395.) Dr. Bobba concluded that Plaintiff would be able to perform light work with restrictions of her upper right extremity. (AR 395.)

On June 22, 2007, consultative non-examining state agency physician, Y.C. McDowell completed a mental RFC assessment based upon a review of Plaintiff's medical records. (AR 376-78.) He found Plaintiff moderately limited in her ability to understand, remember, and carry out detailed instructions, but otherwise had only mild limitations. (AR 376.) He opined that, while Plaintiff did experience some psychiatric symptoms, she retained the ability to understand, remember, and follow simple instructions, sustained adequate concentration and persistence, maintained appropriate workplace social interaction, and was able to adapt to work place changes in routine. (AR 378.)

On October 24, 2007, Plaintiff consulted with Dr. Anthony S. Padula at the Northern California Arthritis Center. (AR 570.) Dr. Padula recommended various studies and x-rays. (AR 571.) In a report to Drs. Patel and Johnson, Dr. Padula indicated that some of Plaintiff's pain symptoms were caused by fibromyalgia. He indicated that "[o]ne of the main focuses [of her treatment] will be . . . correcting her sleep disturbance, which is being disturbed by her pain as well as probably the bipolar aspect." (AR 571.) He stated that he would see Plaintiff in two weeks to review the "above workup and give further impressions." (AR 571.) On November 13, 2007, Plaintiff underwent hand x-rays showing no significant bony, soft tissue, or articular abnormality. The radiological impression was negative with no arthritis or erosive changes identified. (AR 565.) Plaintiff also underwent x-rays of her left knee; the results indicated mild osteoarthritis. (AR 563.) Plaintiff also appears to have undergone a series of blood tests on October 25, 2007. (AR 567.)

On December 11, 2007, Dr. Robert B. Paxton, a non-examining consultative state agency physician, agreed that, as to Plaintiff's mental functioning, she had intact concentration, persistence and pace were good, and she retained the ability to understand, remember, and carry out simple instructions. (AR 413-14.)

On June 19, 2008, Dr. Alvin E. Neumeyer, a psychiatrist, completed a report indicating that he had been treating Plaintiff since September 2007. (AR 416.) He diagnosed Plaintiff with bipolar disorder and reported that Plaintiff's response to treatment had been poor. (AR 416.) He indicated that she had a poor ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, deal with work stress, maintain attention and concentration, remember and carry out complex instructions, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. (AR 417.) He opined that she had a fair ability to function independently, understand, remember, and carry out simple instructions, and maintain her personal appearance. (AR 417.)

On May 1, 2009, Dr. Neumeyer submitted a report indicating that his diagnosis of Plaintiff had changed to major depression that was both chronic and severe. (AR 633.) His clinical findings of Plaintiff included her flat affect and problems with concentration. (AR 633.) In his report, Dr. Neumeyer indicated that Plaintiff's functional abilities had diminished; he found that her ability to adjust to a job in every category ...

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