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Erin Hudleton v. Carolyn W. Colvin

April 26, 2013


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Erin Hudleton, by her attorney Sengthiene Bosavanh, seeks review of the final decision of the Commissioner of Social Security that she is not entitled to benefits under the Social Security Act. The matter is before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. The undersigned finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards, and recommends that the Court affirm the Commissioner's denial of benefits.

I. Procedural History

Plaintiff's previous application was denied in 2002. AR 124. In November 2008, she again applied under Titles II and XVI of the Act, claiming disability since June 2004.*fn1 The agency denied benefits. On June 2, 2010, Plaintiff appeared and testified before ALJ Laura Speck Havens. On July 22, 2010, the ALJ found her not disabled. The Appeals Council denied review. Plaintiff appealed.

II. Factual Record 2

A. Plaintiff's Testimony

Plaintiff was born in 1971 and was age 39 at the hearing. She has a limited education and 4 past relevant work as a security guard and child caregiver or monitor. Plaintiff said she could not 5 work due to lupus, degenerative disc disease, peripheral neuropathy and breathing problems. The 6 lupus caused a "burning, stabbing" pain in her joints, limbs, and back. AR 39, 48. Even between 7 flare-ups, she had back pain made worse by obesity. AR 49. She was 5'6" and weighed 240 pounds. 8

AR 39. She had body pain "all the time." AR 127. She said her peripheral neuropathy was 9 increasing. She was prescribed a walker to assist in her walking. AR 160. The pain had increased to the point where she sometimes had to crawl to the bathroom. AR 160, 167.

Plaintiff lived in a duplex with her six-year-old son and her boyfriend. AR 41. She could dress and bathe herself without help, but could not do chores around the house because of pain. She tried to cook, but it was hard to concentrate. She washed dishes. Either her boyfriend or her friend, Ms. Mitchell, would come over to assist with certain chores. Plaintiff said she lost interest in hobbies, but watched television four to five hours per day. She could drive for probably ten minutes before experiencing back problems. AR 40-42.

Her medication made her drowsy, tired, and weak. AR 43. She could walk for 10 minutes and sit for 30 minutes. She could only lift an item such as a mop, though she clarified that she could not mop. In addition, she testified that she felt pain in her legs and hands and had shortness of breath due to lung disease. Injections in her back had helped for about a month. Her lupus would flare up three to five times a year, lasting three to four weeks. During flare-ups she could not walk and had to elevate her feet. She had to lie down three to four times a day. She could not have back surgery because of her lung disease. AR 49-50.

B. Medical Record

1. Lupus

Plaintiff's rheumatologist, Dr. Donald Powell, stated that she was first diagnosed with lupus in 1996. AR 296. Medical records from her primary care physician, Raissa Hill, D.O., show a history of complaints from lupus through at least the date of the alleged disability. However, no conclusive objective medical evidence confirmed recent flares related to lupus. As far as objective medical 2 evidence of lupus, Plaintiff was noted as having skin issues, but these were attributed to dermatitis. 3

AR 201, 246. While Plaintiff has complained of joint pain and neuropathy, the ALJ observed that the 4 results had not been fully conclusive as to the etiology of her pain. February 3, 2009 laboratory 5 results showed the Plaintiff had negative antinuclear antibody (ANA) tests results and were negative 6 for rheumatoid factor as well. AR 289-90. 7

2. Neuropathy

In February 2008, Dr. Hill recorded "acute" neuropathy, and in September 2008 "chronic" 9 neuropathy, although she could not determine the cause. Hand x-rays from two years earlier showed no abnormalities. AR 286.

In October 2008, Plaintiff was referred to a neurologist, Dr. Warren Clift. AR 221-23. He noted a "give sensation" on strength testing in the upper extremities. Plaintiff reported she could not use her left upper extremity and could not approximate a handgrip in either hand. She had a limited (90%) range of motion in the neck with tenderness throughout the spine and paraspinal muscles. However, her gait and station were normal, and she could perform some heel walking, toe walking, and tandem walking. Romberg's position was "held fairly well." While she reported she could not attempt deep knee bending or hop on either foot, heel-to-shin testing was done well and deep tendon reflexes were symmetrical in the upper extremities at a trace to 1, knee jerks and ankle jerks were absent, and plantar responses were downgoing. Plaintiff showed "patchy hyperesthesia affecting the distal four extremities" and "decreased vibration," particularly affecting the left extremities. She had extreme tenderness in the left carpal tunnel. Dr. Clift opined that these findings strongly suggested radiculopathy and neuropathy as well as possible carpal tunnel syndrome. Her condition could also represent sciatica. He recommended EMG and nerve conduction studies.

In November 2008, Dr. Clift performed these tests on Plaintiff's lower extremities. AR 320-30. The EMG studies were essentially within normal limits. The nerve conduction study showed moderately severe neuropathy, both sensory and motor, very likely related to her lupus. However, Plaintiff also reported that the pain from her neuropathy was well controlled by Neurontin, Atarax, and Norco. The following week, Dr. Clift performed these same tests on Plaintiff's upper extremities. Again, the EMG was normal, while the nerve conduction studies showed diffuse 2 moderate neuropathy changes, both sensory and motor, very likely related to her lupus. Also in 3

November 2009, Dr. Clift opined that Plaintiff could do sedentary work, including sitting for six 4 hours and standing and/or walking for four hours in an eight hour day. AR 331. 5

Dr. Clift continued to treat Plaintiff through April 2010. Subsequent treatment notes 6 indicated normal objective findings despite her allegations of swelling in her joints. AR 311-12, 315-7 17. In a questionnaire from June 2010, Dr. Clift again opined that Plaintiff could do sedentary work, 8 which the questionnaire defined to include sitting for six hours and standing and walking for two 9 hours in an eight-hour day. However, in the same form, he also indicated that Plaintiff could sit for five hours and stand or walk for two hours in an eight-hour day. He stated that she had been disabled to this degree since 2001. AR 343.

3. Back Pain and Obesity

Plaintiff complained of back pain for several years. AR 192-223. Although she had had muscle spasms in the back, straight leg raising testing was generally negative. AR 192, 203, 224. X-rays of Plaintiff's lumbar spine from December 2007 revealed minimal discogenic and spondylolytic changes. AR 192. An October 2008 MRI of her lumbar spine revealed mild degenerative disc disease at L1-L2, L4-L5 and L5-S1 and mild focal disc protrusion to the right of midline at L5-S1 resulting in compression and posterior displacement of the right S1 nerve root. AR 287.

In November 2008, Plaintiff was evaluated by Dr. Moris Senegor, a neurosurgeon. AR 224-25. Her gait was labored and her range of motion was reduced to about 20% in the lumbar spine, but she had normal motor strength, normal sensation and no neurological deficits. He diagnosed lumbar disc degeneration and lumbar disc herniation with nonradicular low back pain, but also ...

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