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Deborah Lynn Atchison v. Michael J. Astrue

August 1, 2012


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge


Plaintiff Deborah Lynn Atchison, proceeding in forma pauperis, by her attorneys, Christenson Law Firm, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") pursuant to Title XVI 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 Barbara A. McAuliffe, United States Magistrate Judge. Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards.

I. Administrative Record

A. Procedural History

On February 28, 2008, Plaintiff filed an application for supplemental security income, alleging disability beginning January 2, 2007. Her claim was denied initially on May 7, 2008, and upon reconsideration on August 28, 2008. On October 10, 2008, Plaintiff filed a timely request for a hearing.

Plaintiff appeared and testified at the hearing on March 23, 2010. On April 30, 2010, Administrative Law Judge James P. Berry denied Plaintiff's application. The Appeals Council denied review on September 10, 2010. On October 21, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born November 21, 1961) testified that she had completed high school and vocational training leading to certification as a nursing aide. She worked full time in the rehabilitation and cardiac departments of Kaweah Delta Hospital from 1989 to 1999. From approximately 2005 to 2007, Plaintiff worked as a church receptionist, answering phones, taking messages, creating forms handling mailing, and shopping for different departments of the church. Although Plaintiff had difficulty lifting some items, such as the turkeys for benevolence boxes, other employees who knew of her chronic back pain were happy to assist her.

Plaintiff described multiple impairments that kept her from working. Plaintiff was depressed and saw a psychologist regularly. Because of difficulty concentrating, Plaintiff frequently repeated herself. Her hands shook, and she frequently dropped things. After multiple falls, Plaintiff began using a cane so that her doctor would not prescribe a walker. After kneeling or squatting, she had difficulty getting up and sometimes fell. If she sat too long, she experienced shooting pains in her left leg and buttocks, or her leg, arm, or hand would become numb. Because her medications made her sleepy, she attempted to stagger taking them to minimize drowsiness. She had frequent severe headaches. Each week, Plaintiff had two or three particularly bad days.

Although Plaintiff could lift a turkey, a bag of potatoes, or a gallon of milk, she could not lift that much weight repetitively over a number of hours. She estimated that she could stand for five or ten minutes and could sit up to thirty minutes, depending on the chair. She could concentrate for no more than thirty minutes. In a typical eight-hour day, Plaintiff took a two-hour nap. She often needed to elevate her leg. Plaintiff and her husband rented a room from a fellow church member. Plaintiff kept house there by performing tasks, such as washing dishes, mopping, and sweeping, in stages and resting as she needed to.

Adult Function Report. In a typical day, Plaintiff performed some light housework, such as vacuuming or dusting or doing the dishes of a load of laundry. She cared for her dogs. Plaintiff could shop for thirty minutes and took her son along if she would need to purchase anything heavy. She sang on her church's worship team.

Medical treatment. Plaintiff saw orthopedic surgeon Stephen A. Smith, M.D., in December 2006, complaining of pain in her head, neck, and upper arm as well as numbness in her hands, and numbness and burning under her left heel. She described her neck as grinding. Dr. Smith observed a normal gait and no motor or sensory deficit in the upper or lower extremities. Tinel's sign, Phalen's test, and reverse Phalen's test were negative. Cervical range of motion was slightly reduced, with pain on extension and flexion. Lumbar range of motion was markedly reduced. Dr. Smith's impressions included (1) scoliosis and degenerative disc disease of the lumbar-sacral spine; (2) osteoarthritis; (3) S1 radiculopathy secondary to herniated disc or spinal stenosis; (4) cervical radiculopathy C6 secondary to spinal stenosis or herniated disc; (5) possible left carpal tunnel syndrome; and (6) chronic cervical and lumbosacral sprain and dysfunction.

In January 2007, Dr. Smith ordered MRI, x-rays, and EMG. Radiologist Spencer Silberbach opined that x-rays of Plaintiff's lumbar spine revealed scoliosis with spondylosis; x-rays of her thoracic spine revealed spondolysis with an endplate irregularity at T5-6; and x-rays of Plaintiff's cervical spine revealed spondolysis with disc thinning and muscle spasm. X-rays revealed that Plaintiff's pelvis was normal. Lumbar spine MRI indicated scoliosis and degenerative disc disease at L3-4 with a slight narrowing of the left neural foramen by osteophytes, but no nerve root compression. The EMG results suggested mild neuropathy at the left wrist and elbow.

In February 2007, the Tulare Community Health Clinic began treating Plaintiff for anxiety and depression. Nauman Qureshi, M.D., prescribed Lexapro.*fn1 On February 24, 2007, Dr. Qureshi prescribed Darvocet for headaches and chronic back pain. On February 24, March 24, and May 14, 2007, Dr. Qureshi observed that Plaintiff was doing well on Lexapro.

The records include treatment notes from the Home Garden Center of Adventist Health from November 12, 2007 through April 1, 2008. The notes are largely illegible. The unidentified treating professional diagnosed depression and anxiety.

On May 6, 2008, Roger D. Fast, M.D., prepared a residual functional capacity analysis. Dr. Fast opined that Plaintiff could lift 50 pounds occasionally and 25 pounds frequently; could stand or walk six hours in an eight-hour day; could sit about six hours in an eight-hour day; had unlimited ability to push and pull; could frequently climb ramps, stairs, ladders, ropes, and scaffolds; and could balance, stoop, kneel, crouch, and crawl. Dr. Fast noted:

Based on lumbar MRI showing scoliosis, and cervical x-rays showing DDD, claimant's allegation of back and neck pain are credible. Despite lack of functional impairment, some restrictions are appropriate due to pain. Similarly, her allegation of wrist pain has credibility based on mildly abnormal NCV even though no functional limitations are described. She is on chronic pain medications which seem to be helping. I think the restrictions of a medium RFC would be appropriate.

AR 206.

On the same day, agency physician Glenn Ikawa, M.D., performed the psychiatric review technique, indicating that Plaintiff had affective and anxiety-related disorders that were not severe impairments.

When Plaintiff began treatment with Dr. Olayinka Omololu at Family Health Care on December 3, 2008, she requested refills of Soma*fn2 and Vicodin*fn3 to treat pain from herniated discs in her lower back and neck. Dr. Omalolu refilled the prescriptions for one month, directing Plaintiff to obtain copies of her old records before her next appointment.

On January 5, 2009, although Plaintiff was to follow up with Dr. Omololu, she saw William Barreto, PA-C, since her husband had an appointment with him. Barreto refilled Plaintiff's Soma and Vicodin, and directed her to see Dr. Omololu in February. On January 26, 2009, Dr. Omololu refilled her prescriptions and referred her to a gastroenterologist for difficulty swallowing.

On March 5, 2009, Dr. Omololu noted:

I have prescribed Tramadol 50 mg. every 6 hours. The patient has been taking Vicodin and demands to have Vicodin. This is addictive. I explained that it is better to take a non-addictive medication. I have referred her to a pain specialist for further management. Refill of Effexor XR 150 mg was done. The patient is upset that she could not get Vicodin refills today.

XR 256.

On March 6, 2009, psychologist Paul Pasion-Gonzales, Ph.D., saw Plaintiff on referral from Dr. Omololu. Plaintiff reported little interest, depressed mood, suicidal thoughts, and social anxiety. Within the past few months, she had lost her job and home, experienced chronic pain, and was forced to live separately from her husband, whose work hours had been reduced. Plaintiff was tapering her Effexor*fn4 dosage until she could arrange for coverage of refills by Patient Assistance Program.

On March 19, 2009, Plaintiff contacted Family Health Care to request refills of Soma and Vicodin. She also saw Dr. Pasion-Gonzales, who noted she was responding well to Effexor SR although she continued to struggle with significant stressors and reported suicidal ideation. Although Plaintiff was depressed and anxious, Pasion-Gonzales described her as within normal limits for grooming, affect, psychosis, and cognition.

At a March 26, 2009 appointment with Peter Caballes, M.D., Plaintiff reported no improvement with her Vicodin prescription and requested possible titration of medication. She denied recreational drug use. Dr. Caballes prescribed a higher dose of Vicodin but advised Plaintiff of the possible side effects of Vicodin and advised that her would recheck her urine screen in four weeks. Because Plaintiff reported that the Patient Assistance Program did not cover Effexor, Dr. Caballes directed tapering ...

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