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DENHAM v. BARNHART

July 23, 2004.

TONIA DENHAM, Plaintiff,
v.
JO ANNE BARNHART, Commissioner for Social Security, Defendant.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff Tonia Denham's ("Denham") motion for summary judgment and on Defendant Jo Anne B. Barnhart's ("SSA") motion for summary judgment. For the reasons stated below, we deny both motions and remand this case to the Social Security Administration ("SSA") for further proceedings consistent with this opinion.

BACKGROUND

  On September 22, 1998, Tonia Denham injured her back in an automobile accident. Before her accident, Denham earned an associate's degree and held several jobs, including positions as an assistant funeral director from 1991 to 1993, a frozen food packer in 1994 and 1995, and a jewelry salesperson and office manager from 1995 to 1998. Since her accident, Denham has held several part-time jobs, such as a position as a phone interviewer from January to August of 2000. However, Denham has not worked at all since August of 2000.

  In the months and years following her accident, Denham has undergone numerous medical examinations and received treatment from numerous physicians. Immediately following her accident, Denham received roughly one month of physical therapy for her back injury. In March and April of 1999, Denham experienced swelling and strain in her right wrist and had a mass surgically removed from her left thumb. In late April and early May of 1999, doctors twice diagnosed Denham with situational depression. Then in October of 1999, her doctors diagnosed her with asthma and fibromyalgia, a chronic condition that causes tenderness and pain in muscle and soft tissue.

  In January of 2000, Denham saw Dr. Ellens, her family physician, for a knot in her right hand Dr. Ellens diagnosed right hand arthralgia and back pain and ordered more physical therapy for Denham's right arm, hand, and back. However, Denham made little progress in therapy and her therapist recommended referral to a pain clinic in March of 2000. That same month, Dr. Ellens diagnosed carpal tunnel syndrome in Denham's right wrist and back pain and instructed Denham to wear a brace on her right wrist. However, another test conducted the previous month had found no such evidence of carpal tunnel syndrome.

  In late March 2000, an x-ray of Denham's lower back produced substantially normal findings, although it also revealed that Denham's L5 vertebrae had anomalously fused with her sacrum, the five fused vertebrae at the base of her spine. In early April, Denham saw Dr. Labanauskas, an orthopedic surgeon, who diagnosed exaggerated lumbar lordosis, or abnormal inward curvature of the lower spine, as well as limited flexion and extension due to pain. He recommended a new lumbosacral corset, epidural steroid injections, Vioxx, and Flexeril.

  Denham again saw Dr. Ellens in May 2000, who again diagnosed back pain and asthma, prescribing a back brace, asthma medication, and continued treatment with Vioxx and Flexeril. Upon return visits in July, Dr. Ellens also diagnosed edema and knee strain and instructed Denham to stop taking Flexeril. In early August, Denham again visited Dr. Labanauskas, who prescribed a cane for her swollen knees, writing "arthritis" on the prescription slip.

  Also in early August, Denham underwent an MRI of her lumbar spine, which produced normal results. Later that month, Denham saw Dr. Burnet, who diagnosed back pain, mild depression, obesity, controlled asthma, stable irritable bowel syndrome, and insomnia. However, Dr. Burnet's exam found no tenderness in Denham's spine or joint swelling, unlike Denham's prior exams with Dr. Ellens. Dr. Burnet suggested that weight reduction and other non-pharmaceutical methods might aid with Denham's pain. Dr. Burnet also offered to refer Denham for treatment of her depression, but Denham declined.

  From August to September 2000, Denham received another round of physical therapy for her back pain. During this period, she received a transcutaneous electrical nerve stimulation ("TENS") unit to reduce her back pain, which increased Denham's mobility and tolerance of daily activities.

  In late September, another x-ray of Denham's cervical spine found bilateral cervical ribs. When Denham consulted with Dr. Jayasanker, a hand surgeon, in late October, he found no conclusive evidence of carpal tunnel syndrome, but suggested that her bilateral cervical ribs might be causing pressure on a nerve and producing her pain.

  Denham returned to Dr. Ellens in late September, reporting improved mobility. Dr. Ellens diagnosed lumbar strain, hypertension, and asthma, prescribing Flexeril again and instructing Denham to continue using her TENS unit. She returned to Dr. Burnet in mid December 2000 and again in March 2001. At the latter examination, Burnet again noted edema in Denham's extremities and recommended elastic stockings for the problem. Dr. Burnet also advised Denham to continue using her TENS unit and Amitriptyline for her back pain.

  Denham applied for Disability Insurance and Supplemental Security Income disability benefits on May 11, 2000, but the SSA denied her claims. She requested a hearing and appeared before an Administrative Law Judge ("ALJ") on August 21, 2001. At the hearing, the ALJ heard testimony from Denham as well as a vocational expert ("VE"). Denham testified that she suffers from chronic neck and back pain with spasms, arthritis in both knees, asthma, and significant depression, resulting in frequent crying spells and a significantly decreased ability to concentrate.

  As evidence of her pain, Denham testified she is severely limited in her ability to do ordinary housework and daily tasks, describing a daily routine of driving her children to school, preparing food in the microwave, watching television, and talking with her aunt. She testified that she could not clean vegetables or wash more than a single dish. When sitting or laying down, Denham claims that she must prop herself up because of her persistent pain. In addition, Denham testified that she can barely sweep her floor and that she cannot mop at all. Finally, she ...


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