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Debra Lynn Bowen v. Michael J. Astrue

September 12, 2012


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Debra Lynn Bowen ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge.


Plaintiff filed her application on March 27, 2008, alleging disability since February 5, 2007, due to a bulging disc in her back, neck problems and right knee problems. AR 120-121, 142-148. After the application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 56, 65, 84-85. On April 7, 2010, ALJ John Cusker held a hearing in Fresno, California. AR 28-55. He issued a decision denying benefits on June 25, 2010. AR 9-21. On July 20, 2011, the Appeals Council denied review. AR 1-5.

Hearing Testimony

ALJ Cusker held a hearing on April 7, 2010, in Fresno, California. Plaintiff appeared with her attorney, Robert Christenson. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 28.

Plaintiff testified that she was 50 years old at the time of the hearing. AR 32. She has a driver's license and drives short distances. She drove from Porterville to Fresno for the hearing, but had to stop twice to walk around. AR 33. Plaintiff completed the ninth grade and can read, write and do simple arithmetic. AR 33. She worked for Porterville Developmental Center for 27 years, as a housekeeper. She has not worked since February 5, 2007, when Workers' Compensation "put [her] disabled." Plaintiff was found permanent and stationary in March 2007. AR 33-34. Plaintiff testified that she could not work because of moderate to severe neck pain and almost constant back pain that radiates down her right arm. When she isn't on medication, she can hardly move her right arm, and her medication makes her feel like she's drunk. AR 35. Plaintiff explained that her pain medications (Norco and Soma) make her dizzy and a little nauseous for a while. AR 35, 41. Plaintiff also had surgery for a torn meniscus and fractured her leg in 2008. She still has problems with swelling in her right knee. AR 36, 39.

Plaintiff testified that she still rides her horse, but not often. She can't saddle the horse and needs assistance to mount the horse. Plaintiff brushes the horse once in a while. AR 37, 46.

Plaintiff was taking numerous medications, including Xanax for anxiety. She tried physical therapy in 2002, but it left her in tears. AR 37-38.

For her back, Plaintiff takes medication and gets massages. AR 40. Her pain medications do not totally relieve the pain. Soma helps at night to relax her neck and back so she can sleep, but she still sometimes needs a sleep aid. AR 41. Other than Xanax, no other treatment has been recommended for her anxiety. AR 41.

Plaintiff thought that she could walk for about a half block before her lower back starts to spasm. She thought she could stand for about 10 to 15 minutes before needing to sit or lay down. AR 42. She cannot stoop or squat much and her right hand is sometimes numb. AR 42. When she is taking her medications, she experiences numbness in her right arm about four times per week. It burns every morning until she takes her medication. AR 43. She is able to grip with her left hand, but asks her husband to open jars and cans. Plaintiff thought that she could lift a gallon of milk, or 10 pounds. AR 43. She could sit for 15 to 20 minutes. AR 44. Plaintiff is able to take care of her personal grooming and does a little cooking. AR 44-45.

Typically, Plaintiff gets up around 8 a.m., then drinks coffee and watches the Today Show. AR 44. She does the breakfast dishes and will do small loads of laundry. She also does light dusting, but never vacuums. AR 45. Plaintiff does the grocery shopping with the assistance of her husband. AR 45. In the afternoon, Plaintiff usually makes a sandwich, takes a nap and walks her dogs for 15 minutes. AR 45. When her husband gets home, they make dinner together. She attends church with her mother once in a while. AR 45-46.

When questioned by her attorney, Plaintiff explained that she needed to take rest breaks throughout the day because of her neck and back pain. She takes at least one nap, sometimes two. AR 46-47. She has at least five really bad days a month, where she doesn't even get dressed. AR 47. On those days, her arm and neck burn when she wakes up and the medication only dulls the pain. AR 47. Her pain has gotten worse in the last two years because prior to that, there was no radiation into her arm. AR 47.

Plaintiff testified that the medication makes it difficult for her to concentrate. About 20 to 25 minutes after she takes it, she feels "real loopy." She takes this medication three times a day. AR 48.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could not lift, push or pull more than 20 pounds occasionally, had to avoid repetitive work at or above shoulder level with both shoulders and could not frequently kneel, squat, crouch or crawl. This person could not perform Plaintiff's past relevant work, but could perform the positions of cashier, sales attendant and counter clerk. AR 52.

For the second hypothetical, the ALJ asked the VE to assume a person with subjective symptoms of pain that would frequently interfere with attention and concentration. This person could maintain attention and concentration for ten minutes at a time, but could perform low stress jobs. This person could sit for no more than 15 minutes at a time, about four hours total, and could stand for no more than five or ten minutes at a time, about two hours total. This person would need to be able to change positions at will, and would need to walk for at least five minutes after sitting for 20 to 30 minutes. This person may need to take unscheduled breaks as often as three times per week, and such breaks may last all day. This person could not lift ten pounds and could rarely lift up to ten pounds, rarely look up or down, occasionally turn the head right or left, and rarely hold the head in a static position. This person could rarely twist, crouch or climb stairs, occasionally stoop, and never climb ladders. This person would have significant limitations in repetitive reaching, handling or fingering with the right dominant hand. This person may have more than four bad days per month. The VE testified that this person could not work. AR 53-54.

Medical Record

Plaintiff suffered a work-related injury on October 16, 2002, when she tripped and fell on her right knee. AR 261. She underwent arthroscopic surgery on the right knee on April 7, 2003. AR 263, 297-298.

Plaintiff had a second work-related injury on September 23, 2003, when she suffered a cervical strain resulting from a "client altercation." AR 190-258. An MRI of Plaintiff's cervical spine performed on June 3, 2004, revealed minimal early degenerative disc disease at C6-7. AR 191. She was released to full duty work, without limitations, on June 16, 2004. AR 190.

On July 7, 2005, Plaintiff underwent a Qualified Medical Evaluation performed by Kenneth Baldwin, M.D. He diagnosed status post arthroscopy of the right knee with grade III chondromalacia, mechanical low back pain, and cervical spine pain, resolved. Other than self-management exercises, no further treatment was needed. He opined that Plaintiff was precluded from squatting and kneeling, and could not perform very heavy lifting. Based on her job description, she was capable of returning with her usual and customary work activities. AR 260-267.

On September 29, 2005, treating physician Mark L. Tindall, M.D., indicated that Plaintiff's right knee grade III chondromalacia could progress to grade IV chondromalacia, and then to post traumatic osteoarthritis. AR 259.

Dr. Baldwin prepared a supplemental report on November 1, 2005. After reviewing Dr. Tindall's suggestion, Dr. Baldwin indicated that his opinions in the July 15, 2005, report remain the same and that he would not change any issues pertaining to future treatment. AR 392-393.

Plaintiff saw Sanjay J. Chauhan, M.D., on February 9, 2006, for a neurologic consultation. She complained of neck pain, upper, mid and lower back pain and right knee pain and was currently taking Tylenol and Vicodin. On examination, muscle strength and tone were normal in all extremities. Sensation to light touch was normal and gait was normal. There was slight spasm in the paracervical muscles, more on the right than the left, as well as slight paralumbar muscle spasm in the lower region. Plaintiff also had mild to slight spasm and tenderness of the parathoracic muscles from T2-T8, mostly on the left side. Range of motion of the shoulders was limited due to cervical spine pain. Plaintiff's right knee was tender medially, but both knees had full range of motion. He diagnosed cervical strain with right cervical radiculitis, thoracic strain, mostly left-sided, lumbar strain and right knee strain, status-post surgery in April 2003 with residual. Dr. Chauhan believed that Plaintiff could continue her work duties with minor modifications of "no pushing or pulling of laundry carts," effective February 9, 2006, to March 24, 2006. He recommended an MRI and physical therapy, prescribed Soma and instructed Plaintiff to continue Vicodin. AR 474-481.

An MRI of the cervical spine taken on February 11, 2006, revealed a complex mass in the right lobe of the thyroid and moderate bilateral neural foraminal narrowing secondary to a 6 mm posterior disc bulge. AR 483-485. An MRI of her thoracic spine revealed 2 mm posterior disc bulges at T2-T3 and T6-T7, without evidence of canal stenosis or neural foraminal narrowing, and a thyroid mass. AR 486-489. An MRI of the lumbar spine revealed a 2-3 mm posterior disc bulge and facet joint hypertrophy, without evidence of canal stenosis or neural foraminal narrowing at L5-S1. AR 491492.

Plaintiff underwent electrodiagnostic studies on March 23, 2006. The study was negative for cervical radiculopathy or compressive neuropathy at either wrists or elbows. AR 468.

On April 20, 2006, Dr. Chauhan reviewed additional medical records. MRIs of the cervical spine and lumbar spine showed worsening of symptoms. Plaintiff was to continue modified duty with no ...

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