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Carolyn Sue Watts v. Michael J. Astrue

July 3, 2012

CAROLYN SUE WATTS,
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 her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. § 405(g). 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 1961, has a ninth-grade education, and previously worked as a veterinary assistant. (Administrative Record ("AR") 12, 13, 27.) On January 7, 2009, Plaintiff filed an application for DIB, alleging disability beginning November 19, 2008, due to degenerative disk disease, herniated disk, sciatica, arthritis, and depression. (AR 12, 73, 195.)

A. Medical Evidence

1. Physical Impairments

Plaintiff reported lower back pain from at least May 2002, when she sustained an injury while working as a veterinary assistant. (AR 253, 308, 356.) A May 20, 2002, X-ray of the lumbar spine revealed no fracture, dislocation, or focal bony lesion, and no spondylolysis or spondylolisthesis. (AR 451.) A Magnetic Resonance Imaging ("MRI") scan performed on August 21, 2002, showed degenerative disc disease, anterior disc protrusions with osteophytes from L1 to L4, and a L5/S1 right posteromedial disc protrusion measuring approximately 3 mm. (AR 247-48.) An October 1, 2002, electromyogram study showed mild slowing in the left common peroneal nerve, and the treatment notes indicate that Plaintiff had "poor pain tolerance for the EMG," but the results obtained were normal. (AR 251.) The study did not reveal a primary neurological condition to explain her pain, and recommended physical therapy or epidural injections. (AR 251.)

Dr. Dwight James examined Plaintiff in connection with a worker's compensation claim on January 24, 2003, and found that Plaintiff experienced a permanent and partial disability and was limited to light work. (AR 308-09.) Dr. Munir Uwadayah performed an orthopedic consultation on December 17, 2004, diagnosing Plaintiff with lumbar spine herniated nucleus pulposus and bilateral lower extremity radiculopathy. (AR 257.) Dr. Uwadayah, noting that Plaintiff was working on light duty, provided anti-inflammatory, analgesic and anti-spasmodic medication, and enrolled her in physical therapy. (AR 255, 258.) An October 4, 2005, MRI found minimal degenerative spondylosis in the lumbar spine and no spinal canal stenosis or additional focal abnormality to account for Plaintiff's reported pain. (AR 399.)

X-rays of Plaintiff's cervical spine taken on July 19, 2007, revealed mild cervical thoracic levoscoliosis, no fractures, and no significant degenerative disc disease. (AR 384.) X-rays of Plaintiff's lumbar spine taken on March 21, 2008, revealed mild disc space narrowing at L5-S1 and no fractures. (AR 364.)

Plaintiff was treated by Dr. Dinesh Sharma from August 2008 through March 2010. (AR 400-01, 432-46, 477-90.) An October 22, 2008, MRI of Plaintiff's lumbar spine showed disk degeneration and bulging at the L2/3, L3/4, L4/5 and L5/S1 levels, a small broad-based protrusion of the left posterolateral margin of the L4/5 disk that creates only a mild to moderate compromise of the left L4/5 neural foramen, and no disk herniations or severe central/peripheral spinal canal stenoses at any lumbar level. (AR 399.) Dr. Sharma's records from August 2008 through August 2009 indicate that Plaintiff presented with persistent lower back pain, and prescribed pain medication, a back brace, physical therapy, exercise, and muscle relaxants. (AR 432-46.) In a medical source statement*fn2 completed on March 26, 2009, Dr. Sharma opined that Plaintiff could lift or carry 20 pounds occasionally and less than 10 pounds frequently, could stand or walk less than two hours in an eight-hour day, sit less than six hours in an eight-hour day, needed to alternate between standing and sitting, and could occasionally climb, balance, stoop, kneel, crouch, or crawl. (AR 400-01.) Dr. Sharma supported his opinions by referencing Plaintiff's MRI showing degenerative disc disease of the lumbar spine. (AR 400.)

In April 2009, Dr. Frederick Young conducted an orthopedic examination of Plaintiff, and concluded that Plaintiff's objective findings did not correlate well with her subjective complaints. (AR 408.) Dr. Young noted that he could find no appreciable compromise to Plaintiff's musculoskeletal system and Plaintiff should be able to perform normal duties. (AR 408.)

On July 15, 2009, state agency physician Dr. Roger Fast concluded in a Residual Functional Capacity ("RFC")*fn3 Assessment that Plaintiff could lift and carry 20 pounds occasionally, 10 pounds frequently, stand, walk, or sit about six hours in an eight-hour day, and had no other limitations. (AR 411.) Dr. Fast concluded that the MRI showing multi-level disc bulging and degenerative change gave some credibility to Plaintiff's statements of pain, but he doubted Plaintiff's credibility given that she apparently had no difficulty walking or sitting at her consultative examinations. (AR 411, 430.) Dr. Fast concluded that a light RFC was appropriate, noting that Dr. Sharma's less than sedentary RFC was based totally on subjective findings and imaging studies. (AR 430.)

In August 2009, Dr. Maria Cunanan examined Plaintiff, and diagnosed her with lower back pain and paresthesia in her feet. (AR 452, 455.) Dr. Cunanan noted that Plaintiff had a normal gait. (AR 455.) On follow-up, Plaintiff exhibited localized superior lumbar edema and pain upon palpitation, but otherwise her symptoms essentially remained unchanged. (AR 463-76.)

On September 2, 2009, Dr. Albert Lizarraras, the state agency consulting physician concluded that Plaintiff's physical impairments were non-severe and found no objective support for Plaintiff's allegations of lower back pain. (AR 462.) The consulting physician did not base his recommendations on any of Dr. Sharma's handwritten notes, commenting that he "[couldn't] get anything from them." (AR 461.)

An October 21, 2009, X-ray of Plaintiff's thoracic spine revealed mild hypertrophic changes consistent with thoracic spondylosis, minimal loss of height in at least one lower thoracic intervertebral disk, and minimal levoscoliosis of the upper thoracic and upper lumbar spine. (AR 482.) An X-ray of Plaintiff's lumbar spine performed the same day showed minimal hypertrophic changes consistent with lumbar spondylosis and that the lumbar intervertebral disk spaces had retained their normal height. (AR 482.) Further X-rays of Plaintiff's lumbar spine in December 2009 revealed only mild degenerative joint disease with anterior spurs. (AR 480.)

Dr. Sharma completed a RFC questionnaire in March 2010, diagnosing Plaintiff with lumbar spine degenerative joint disease with a fair prognosis. (AR 486.) Dr. Sharma stated that Plaintiff's pain frequently interfered with her attention and concentration, allowing her to maintain attention for 20 minutes at a time. (AR 487.) He opined that Plaintiff was incapable of tolerating even "low stress" jobs; Plaintiff could walk for one to two blocks; sit or stand for 10 minutes at a time; sit, stand, or walk for less than two hours in an eight-hour day; walk every 30 minutes for three minutes; and needed to alternate between sitting and standing or walking. (AR 488-89.) Furthermore, Dr. Sharma stated that Plaintiff would need to take unscheduled breaks; could rarely lift 10 pounds or less; could occasionally look down, turn her head, look up, or hold her head in a static position; and could rarely twist, stoop, crouch, or climb. (AR 489.) Dr. Sharma also concluded that Plaintiff likely would miss three to four days of work per month. (AR 490.) In support of his conclusions, Dr. Sharma referenced Plaintiff's MRI showing degenerative disc disease at the L4/5 and L5/S1 levels. (AR 487.)

2. Mental Impairments

Plaintiff saw Dr. Roger Izzi in April 2009 for a psychiatric evaluation. (AR 402.) Dr. Izzi diagnosed Plaintiff with a depressive disorder, not otherwise specified, and opined that Plaintiff was capable of performing simple and repetitive type tasks on a consistent basis over an eight-hour period. (AR 404.) Dr. Izzi noted that Plaintiff was not receiving any mental health treatment. (AR 403.)

State agency physician Dr. A. Garcia evaluated Plaintiff's Mental RFC in July 2009, concluding that Plaintiff was able to sustain simple, repetitive tasks with adequate pace and persistence, and was able to relate to others and adapt to customary work pressure. (AR 428.)

B. Lay Witness Testimony

On February 12, 2009, Wilma Hicks, Plaintiff's niece, completed a Third Party Function Report regarding Plaintiff's functioning. (AR 177-84.) Ms. Hicks stated that Plaintiff watched television and read, and could care for her personal needs, perform light housework, and visit with friends and family. (AR 177-81.) Ms. Hicks reported that Plaintiff's condition affected all postural ...


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