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Catherine S. Ortiz v. Michael J. Astrue

February 23, 2012

CATHERINE S. ORTIZ,
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)

INTRODUCTION

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. 42 U.S.C. §§ 405(g); 1383(c). 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 1948, has a high school education, and has taken three years of college classes. (Administrative Record ("AR") 34, 89.) Plaintiff previously worked as a store supervisor, but has not worked since the alleged onset date of August 15, 2005. (AR 14, 159.) On August 11, 2006, Plaintiff filed an application for DIB, alleging disability due to spondylosis and degenerative disc disease. (AR 12, 100.)

Plaintiff has severe impairments caused by cervical, thoracic, and lumbar degenerative disc disease. (AR 14.) These ongoing physical impairments have also contributed to Plaintiff's increased issues with depression. (AR 14.)

A. Medical Evidence

On August 17, 2005, Plaintiff was initially diagnosed with a viral infection by Raman Verma, M.D., a treating physician specializing in internal medicine. (AR 226-27.) On August 22, 2005, Dr. Verma noted that Plaintiff had anxiety and stress and prescribed Lexapro. (AR 225.) On September 7, 2005, Dr. Verma examined Plaintiff and noted abdominal pain and fatigue, though he could not pinpoint the reason for Plaintiff's pain because all tests were negative; Dr. Verma also noted that Plaintiff had stopped taking the Lexapro. (AR 194-95.) Dr. Verma treated Plaintiff again on October 5, 2005, and noted that it was possible that Plaintiff was developing collagen vascular disease or fibromyalgia. (AR 217-18.) He also noted that, although Plaintiff was still complaining of pain, she had not taken her medication as advised. (AR 217-18.)

On October 11, 2005, Plaintiff was examined by Angela Pap, M.D., a treating physician specializing in internal medicine. (AR 214-16.) Dr. Pap noted Plaintiff reported pain in her epigastric area and opined that Plaintiff's symptoms moderately limited her activities. (AR 214-16.) On November 30, 2005, at Dr. Pap's request, Plaintiff underwent a gastroenterology consultation with Neshan Tabibian, M.D., a physician specializing in internal medicine and gastroenterology. (AR 229-30.) Dr. Tabibian found no showing of disease after performing an ultrasound on Plaintiff, and also noted that "[Plaintiff] becomes fully pain free within a few days of using [medication]." (AR 229-30.) On January 25, 2006, Dr. Tabibian further noted that it was unclear whether Plaintiff was suffering from muscle pain or acid reflux disease. (AR 228.)

On January 18, 2006, Dr. Pap diagnosed Plaintiff with myalgias after continued complaints of pain stemming from fatigue, headache, and muscle weakness. (AR 202.) Dr. Pap described Plaintiff's mood as depressed. (AR 204.) On February 8, 2006, Dr. Pap examined Plaintiff again for complaints of back and neck pain, and stated that the symptoms Plaintiff experienced could be alleviated by taking medication but that Plaintiff had not taken the medication.*fn2 (AR 196.) Also on February 8, 2006, Darrin Smith, M.D., a radiologist, examined Plaintiff's lumbar and cervical spine x-rays. (AR 233.) Dr. Smith noted mild bony demineralization in the lumbar spine and marked degenerative changes of the cervical spine. (AR 233.)

On February 22, 2006, Plaintiff visited Dr. Pap with continued complaints of chronic back pain; Dr. Pap again noted that Plaintiff's symptoms were alleviated by medication.*fn3 (AR 186-88.) On March 22, 2006, Hal McConnaughey, M.D., an orthopedic surgeon, examined Plaintiff at the request of Dr. Pap. (AR 167-68.) Dr. McConnaughey's consultation revealed straightening of the cervical lordosis and marked cervical spondylosis. (AR 167-68.) On April 7, 2006, Dr. Pap diagnosed Plaintiff with spinal stenosis in the cervical region following complaints of pain, numbness, and weakness in her left arm; however, a subsequent magnetic resonance imaging ("MRI") scan revealed no evidence of spinal stenosis. (AR 180-85.) Dr. Pap also noted that Plaintiff's mood and affect were normal and that Plaintiff denied feelings of anxiety or depression. (AR 181-82.)

On May 12, 2006, an MRI of Plaintiff's lumbar spine revealed marked degenerative disc disease but otherwise "no significant bulge, herniation, central canal stenosis or neural foramen narrowing." (AR 241.) Dr. Smith conducted another MRI of Plaintiff's cervical spine which revealed marked degenerative disease and an apparent exiting nerve root effacement at the C4-5, C5-6 and C6-7 levels. (AR 242.) Dr. Smith also noted straightening of the cervical lordosis at the C4-5 level. (AR 242.)

On May 30, 2006, Dr. Pap examined Plaintiff for neck pain and hyperlipidemia, and again noted that Plaintiff's symptoms were alleviated by use of medication*fn4 and described Plaintiff's mood and affect as normal; Plaintiff again denied feelings of anxiety or depression. (AR 180-82.) On September 14, 2006, Plaintiff visited Dr. Pap yet again complaining of chronic back pain. (AR 169-71.) Dr. Pap opined that Plaintiff had signs and symptoms of myalgias in both upper extremities, but noted that Plaintiff's pain was alleviated by medication.*fn5 (AR 169.) Dr. Pap also noted that Plaintiff "has depression," although she made no findings of any depressive symptoms, did not list depression in the diagnosis section of the report, and noted that Plaintiff had normal mood and affect. (AR 171.)

On May 29, 2007, Plaintiff was examined by Dr. Pap for treatment of a rash. (AR 349.) Plaintiff was diagnosed with an unspecified allergy. (AR 350.) Plaintiff's mood and affect were noted to be normal. (AR 350.) On June 12, 2007, Plaintiff was examined by Dr. Pap for treatment of bronchitis. (AR 347.) No psychological symptoms or diagnoses were noted. (AR 347-48.)

On June 23, 2006, Caroline Millar, M.D., a radiologist, obtained x-rays of Plaintiff's cervical spine at Dr. Pap's request. (AR 231-32.) Dr. Millar reported straightening of the cervical lordosis, degenerative disc disease, and degenerative spondylosis. (AR 232.)

On October 24, 2006, E.E. Wong, M.D., a reviewing state agency physician specializing in internal medicine, completed a physical residual functional capacity ("RFC")*fn6 assessment form. (AR 251-55.) Based on his review of the medical evidence, Dr. Wong found that Plaintiff was able to (1) occasionally lift and/or carry 20 pounds; (2) frequently lift and/or carry 10 pounds; (3) stand and/or walk about six hours in an eight-hour workday; (4) sit about six hours in an eight-hour workday; and (5) push and/or pull without limitation. (AR 252.) Dr. Wong noted no postural, visual, communicative or environmental limitations; however, he noted that Plaintiff was unable to reach in all directions. (AR 253-55.) In his case analysis report, Dr. Wong recommended an RFC for light work, and questioned Plaintiff's credibility because of inconsistencies between the medical reports and the severity of Plaintiff's subjectively reported symptoms. (AR 280.) Dr. Wong's physical assessment was affirmed by Dr. Garcia on April 6, 2007. (AR 309-10.)

On November 2, 2006, Adam Brant, M.D., a neurosurgeon, examined Plaintiff for cervical spinal stenosis at the request of Dr. Pap. (AR 284-87.) Dr. Brant diagnosed Plaintiff with multilevel cervical degenerative disc disease and a "suggestion" of foraminal stenosis. (AR 286.) Dr. Brant noted that Plaintiff has decreased range of motion in her cervical area, but normal range of motion in her lumbar area. (AR 286.) He also noted no appearance of muscle atrophy, no neurological concerns, and that Plaintiff was able to ambulate without assistance. (AR 285.)

On November 11, 2006, Greg Hirokawa, Ph.D., a state agency examining psychiatrist, conducted a comprehensive psychiatric evaluation of Plaintiff. (AR 256-62.) Dr. Hirokawa diagnosed Plaintiff with adjustment disorder and mild depression due to her medical issues. (AR 260-61.) He described the likelihood of improvement in Plaintiff's mental condition as "fair." (AR 261.) Dr. Hirokawa found Plaintiff mentally capable of completing a normal workday without restriction. (AR 261-62.)

On December 15, 2006, Dr. Brant confirmed his previous diagnosis that Plaintiff has multilevel cervical degenerative disc disease. (AR 282-83.) Dr. Brant opined that bone scans of the cervical spine suggested facet arthropathy at the right C6-7 and T1 levels, and surgical options were presented to Plaintiff. (AR 282-83.) Dr. Brant again noted that Plaintiff was ambulating with a normal gait. (AR 282.)

On January 30, 2007, William von Kaenel, M.D., a treating physician specializing in pain management, provided a consultative examination of Plaintiff at Dr. Brant's request. (AR 321-24.) Dr. von Kaenel confirmed Dr. Brant's diagnosis, and planned to perform a cervical epidural steroid injection for treatment of radicular pain, and a facet joint injection for treatment of facet joint pain. (AR 324.)

On February 1, 2007, Plaintiff was examined by John Reifenberg, N.D./D.C., a chiropractor at Family Healthcare Network. (AR 296-97.) Dr. Reifenberg also examined Plaintiff on three subsequent visits. (AR 288-95.) At each examination, Dr. Reifenberg noted that Plaintiff's mood and affect were normal, her gait and posture were normal, but that Plaintiff still complained of significant distress from pain. (AR 288-97.) Dr. Reifenberg further noted that Plaintiff had mild to moderate tenderness in sections of her spine, with moderate pain in her shoulders and neck. (AR 288.)

On March 7, 2007, Dr. von Kaenel noted improvement as to Plaintiff's pain*fn7 and scheduled surgery for April 12, 2007, to perform a blockade to the medial branch of the posterior primary ramus at L2-3. (AR 313-14.)

On April 17, 2007, Dr. von Kaenel noted that Plaintiff reported one-hundred percent relief of thoracic pain immediately following the procedure, however, he did note an increase in pain during the follow-up visit. (AR 311.) Dr. von Kaenel further noted that Plaintiff ...


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