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Lehman v. Astrue

January 3, 2008

CHARLENE LEHMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

This is an action for judicial review, pursuant to 42 U.S.C. § 405(g), of defendant Commissioner's final decision denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. For the reasons provided herein, defendant's motion for summary judgment [doc. 14] will be granted, and plaintiff's motion for summary judgment [doc. 11] will be denied. The final decision of the Commissioner will be affirmed.*fn1

I. Procedural History

Plaintiff applied for benefits in November 2002, claiming to be disabled by constant pain which prevents her from "walk[ing] or sit[ting] or stand[ing] very long . . .[,] lift[ing] anything . . . [or] walk[ing] without crutches." [Tr. 58, 67]. She alleged a disability onset date of May 27, 2000, secondary to an on-the-job fall. [Tr. 58, 81]. Plaintiff's claim was denied initially and on reconsideration. She then requested a hearing, which took place before an Administrative Law Judge ("ALJ") on June 15 and November 18, 2004.

In November 2004, the ALJ issued a decision denying benefits. He concluded that plaintiff suffers from sacroiliac pain, borderline intellect, and right piriformis syndrome, but that these conditions did not meet or equal any impairment listed by the Commissioner. [Tr. 22, 28]. The ALJ found plaintiff's allegations to be "not totally credible." [Tr. 31]. Citing vocational expert testimony, the ALJ concluded that plaintiff retained the residual functional capacity ("RFC") to perform a significant number of sedentary jobs existing in the regional and national economies. [Tr. 30-31]. Plaintiff was accordingly deemed ineligible for benefits.

Plaintiff then sought review from the Commissioner's Appeals Council. Review was denied on December 14, 2006. [Tr. 2, 8]. The ALJ's ruling therefore became the Commissioner's final decision. See 20 C.F.R. § 404.981. Through her timely complaint, plaintiff has properly brought her case before this court. See 42 U.S.C. § 405(g).

II. Background

Plaintiff was born in 1971. [Tr. 58]. She has an eleventh grade education and a GED. [Tr. 472]. Her previous employment is as a nursing assistant, clothing sorter, and fast food worker. [Tr. 68].

Plaintiff stands less than five feet tall and weighs as much as 216 pounds. [Tr. 340, 399]. She is reportedly able to do only minimal shopping, driving, and housework. [Tr. 82, 92-94, 99]. Plaintiff states that she cannot ambulate without canes, crutches, or a walker due to extreme pain and the likelihood of falling. [Tr. 470]. She further contends that her "shoulders and arms and hands are not very good from using my crutches for so long[.]" [Tr. 47]. She uses her computer an hour or two per day, and she crochets. [Tr. 259, 379].

III. Relevant Medical Evidence

A. Physical

Plaintiff was treated by Dr. David Kern on June 1, 2000. Plaintiff reported a May 27 on-the-job fall in which "she fell off a stair onto an adjacent radiator. She landed on her left buttock and immediately felt a pain in the local area." [Tr. 129]. Dr. Kern noted that "[w]ith great effort she made her way onto the examination table by climbing onto her stomach and then rolling over onto her side." [Tr. 129]. Dr. Kern conducted a partial examination which was largely unremarkable. He was unable to complete the examination because when he tried to touch plaintiff on her buttocks or thighs, "she almost jumped off the table. . . . The patient's response seemed rather exaggerated." [Tr. 129]. Dr. Kern diagnosed an acute contusion of the left buttock along with possible sciatic nerve trauma. He prescribed physical therapy. [Tr. 130]. At her initial therapy appointment, she was described as possibly "a bit hyper sensitive to her pain[.]" [Tr. 233].

Plaintiff returned to Dr. Kern's office, on crutches, one week later. [Tr. 126]. Examination showed tenderness to touch in the buttocks and hypersensitivity in the medial calf. [Tr. 126]. Dr. Kern opined, "For now, she will remain out of work. Her need to use crutches and inability to sit would make light duty essentially impossible." [Tr. 127]. The previous two days, however, her physical therapist described her as "much improved" and he saw "nothing clinically wrong." [Tr. 231]. The following week, the therapist wrote that plaintiff was improved "but still has a long way to go." [Tr. 227]. Shortly thereafter, plaintiff reported an exacerbation of pain secondary to taking her children to the beach. [Tr. 225].

On June 21, 2000, the physical therapist expressed his agreement with the purported assessment of Dr. Robert Furman that plaintiff was suffering from piriformis syndrome. [Tr. 223].*fn2 Plaintiff returned to Dr. Kern on June 22, 2000. He wrote, "She will remain out of work at this time" based on plaintiff's report that Dr. Furman "has recommended that she remain out of work for 2 weeks." [Tr. 125].*fn3

At a June 30, 2000 therapy appointment, plaintiff reported increased pain likely due to lack of the medication Flexeril, which she "stopped taking . . . because I ran out and I don't have much money to get new." [Tr. 218].*fn4 At a July 5 appointment with Dr. Kern, plaintiff limped, walked with a cane, and preferred not to sit because of discomfort. [Tr. 123]. Dr. Kern wrote a prescription for a cane and noted that, "She will remain out of work at this time per [Dr. Furman's] recommendation." [Tr. 123]. Dr. Kern continued to observe tenderness to light touch in the lower buttocks, but "[t]his palpation is light enough that it should not be putting any pressure on the sciatic nerve directly." [Tr. 123].

On July 26 and 28, 2000, the physical therapists planned to "wean[] her off her crutch" and initiate "more aggressive" exercise, noting that plaintiff "should be able to handle it comfortably." [Tr. 207].*fn5 Plaintiff, however, took a break from physical therapy to go on a one week vacation. [Tr. 207].

On August 7, 2000, plaintiff told her therapists, "I'm certainly much better" but that Dr. Furman "says I shouldn't go back to work until I'm much better." [Tr. 206].*fn6 The therapists noted that plaintiff was not "in real good shape" but was "much improved" and that her piriformis muscle was "stretching out beautifully." [Tr. 206].

On August 25, 2000, the therapists wrote that "we're getting fairly close to" releasing plaintiff to return to work. [Tr. 201]. That same day, Dr. Furman wrote, "Patient is definitely better. She thinks she is '75% better.' . . . We'll let her return to work 4 hours a day, 3 days a week in the light duty job. Advance one hour per day every week and then slowly go from 3 to 5 days a week." [Tr. 186]. Plaintiff returned to work but soon reported increased left leg pain, deemed possibly due to driving to customers' homes and "getting in and out of the car so much." [Tr. 199].

One month later, plaintiff told her therapists that she had decided against having an injection, even though "everyone else wants me to have it[.]" [Tr. 192]. The therapists were "disappointed [because they thought] it is her best bet to get better." [Tr. 192]. The therapists opined that there was "still a long ways to go to get back to work." [Tr. 192].

On October 25, 2000, Dr. Furman wrote that plaintiff "is not doing well at all" due to complaints of pain, numbness, and tingling. [Tr. 183]. He opined that plaintiff currently was unable to work due to reported discomfort caused by sitting or standing. [Tr. 183].

In November 2000, plaintiff consulted with pain specialist Jonathan Herland. She complained of continuous left buttock and left leg pain since her on-the-job fall. [Tr. 239]. Dr. Herland's review of lumbosacral MRIs showed only slight abnormalities. [Tr. 239]. Plaintiff was termed "exquisitely sensitive" to double straight-leg raise testing and palpation over the left sacroiliac joint. [Tr. 240]. There was also a positive piriformis test for pain radiating into the left leg. [Tr. 240]. Dr. Herland diagnosed piriformis syndrome and recommended sacroiliac and piriformis injections. [Tr. 240-41].

Plaintiff received a sacroiliac injection near the beginning of 2001. Three weeks later, she told Dr. Herland that the injection had been beneficial but that her pain still "increases throughout the day with her usual activities to the point where in the evening it is still very bothersome." [Tr. 238]. Dr. Herland opined that plaintiff would more likely tolerate light duty work than her traditional nursing duties "which are quite demanding." [Tr. 238]. On February 9, 2001, Dr. Furman noted that plaintiff "does not want to return to Dr. Herland[.]" [Tr. 182].

Dr. Furman opined that plaintiff could return to light duty work "within the limits of her comfort." [Tr. 182]. He further opined that plaintiff's "problem is due to her left [sacroiliac] joint." [Tr. 182]. However, on subsequent x-rays Dr. Furman described both sacroiliac joints as appearing "entirely normal." [Tr. 182].

Plaintiff returned to Dr. Herland in July 2001 for a second injection but reported that the treatment did not provide lasting relief. [Tr. 236]. At a September 7, 2001 appointment, Dr. Kern noted a limp, use of two canes, mild tenderness at the LS spine, and more tenderness in the left buttock. [Tr. 119]. He wrote that Dr. Furman had retired and "her care was transferred to Dr. Howard Jones in Stockton Springs. Apparently he saw her on several occasions but has now apparently refused to continue seeing her or prescribe any medication for her." [Tr. 119].*fn7 The following month, Dr. Kern recorded a diagnosis of "[c]hronic pain syndrome with somewhat inconsistent findings," stating, "I really have little in the sense of what this woman's problem is at this point." [Tr. 116-17]. Plaintiff continued to report sharp pain and limped with the use of two canes. [Tr. 116].

Three weeks later, Dr. Kern noted "the absence of objective abnormalities, despite a multitude of tests." [Tr. 114]. He had received records from an insurance company (presumably plaintiff's workers' compensation provider). Dr. Kern wrote, "In a note of Sept. 10th, an evaluating physician wrote . . . to report that his opinion has changed in light of a video tape which reportedly showed [plaintiff] shopping, moving freely without the use of her canes, walking fluidly, and entering her car and driving without difficulty." [Tr. 113]. Dr. Kern commented that this raised questions as to the veracity of plaintiff's complaints, although "on the other hand the patient has never claimed weakness, just pain, worse with weightbearing activity." [Tr. 113].

In November 2001, plaintiff told Dr. Kern that she had recently experienced improvement from physical therapy "but this has no longer been the case of late. She believes that perhaps the loss of persistent improvement might be attributable to the fact that she is moving . . . and as a result had to do a lot of packing and lifting[.]" [Tr. 111].

On November 26, 2001, plaintiff consulted with rehabilitation specialist Dr. G.T. Caldwell. Plaintiff reported daily, unimproved left buttock and leg pain along with left foot numbness. [Tr. 253]. On examination, plaintiff was "clearly . . . overweight and deconditioned." [Tr. 254]. Pain resulted from stretching the piriformis or from palpation of the left buttock. [Tr. 254]. The left sacroiliac joint and the buttocks were "quite sensitive to touch." [Tr. 254]. Dr. Caldwell diagnosed piriformis syndrome and was "not very optimistic about the future." [Tr. 254]. He opined, "Working sedentary to light duty capacity two to four hours per day would be reasonable, and then we could build up time from that point." [Tr. 255]. Dr. Caldwell did not want to make further treatment recommendations until he had reviewed insurance company videotapes and until plaintiff had "respond[ed] to me directly" regarding that evidence. [Tr. 255].

On December 7, 2001, Dr. Caldwell reviewed the available evidence and assigned a five percent whole body impairment, noting the absence of "clear objective evidence of pathology[.]" [Tr. 251-52]. He "believe[d] that she does have a work capacity, but that she should not return to work that involves heavy lifting and other forceful activity." [Tr. 251].

At an appointment later that month, plaintiff told Dr. Caldwell that she is unable to lose weight and that she cannot tolerate walking due to pain. [Tr. 250]. Dr. Caldwell told her that there is not much I have to offer her. It is up to her to start walking and losing weight and to get strong. It has been more than a year and a half since the injury, and the actual pathology is minimal. This is more of a functional problem. If she is motivated and wants to lose weight and exercise, then that is up to her. I encouraged her to get involved in a pool program, and I wrote out a prescription for that. I cannot make her swim or make her do the exercises that she knows she needs to do. She feels she cannot do them because of pain, and I do not have any power to break that pattern. . . . based on her past history I do not see that there is a lot of hope for change in the future, and the issue of her pain problem is basically up to her and not to a treating physician. I do not have much more to offer. [Tr. 250]. Regarding plaintiff's request for a disability license plate, Dr. Caldwell responded, "I believe that you do not qualify for the disability plates according to their criteria. I am aware that you use a cane, but I do not think that you are incapable of walking without a cane. Therefore, I did not send in the form and am returning it to you." [Tr. 249].

In February 2002, plaintiff complained to Dr. Tara Nolan that her right forearm hurts due to the use of her canes. [Tr. 259]. Dr. Nolan described plaintiff as "not a terribly active person." Dr. Nolan referred plaintiff to physical therapy to determine whether plaintiff was overusing, and/or using inappropriately, her canes and crutches. [Tr. 259]. Physical therapist Sue Phillips opined that "the elbow pain will continue unless we are able to help her ambulate without assistive devices." [Tr. 278].*fn8

At her next appointment with Dr. Nolan, plaintiff reported that her right arm pain had resolved, but that she was now experiencing left forearm and shoulder pain due to cane/crutch use. [Tr. 258]. Dr. Nolan opined, "She is unable given her multiple complaints to pursue employment at this time." [Tr. 258]. At an April 2002 appointment, plaintiff continued to report arm pain secondary to cane use. [Tr. 257]. She acknowledged being told that cane use was "optional," but claimed severe back pain when she walks independently. [Tr. 257]. Dr. Nolan asked if she would like to see her physiatrist, Dr. Caldwell, and she tells me that she would prefer to see a different provider as she states there was some issue of her being videotaped in a parking lot for disability and Dr. Caldwell in her words 'not getting along with her after that'. [sic] In any event, her ...


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