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DAHLGREN v. BARNHART

January 6, 2005.

JUDITH DAHLGREN, Plaintiff,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge

REPORT AND RECOMMENDATION

Judith Dahlgren ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. §§ 405(g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. §§ 416, 423. This matter is before the Magistrate Judge for Report and Recommendation pursuant to Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)(B).

I. BACKGROUND

  Plaintiff filed for DIB on August 7, 1997 (Tr. 114), and her application for benefits was denied on December 5, 1997. (Tr. 91). Plaintiff filed a request for reconsideration on December 9, 1997, and her application was denied after reconsideration on January 26, 1998. (Tr. 95-96). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on January 29, 1998. (Tr. 99). Plaintiff appeared, with counsel, before ALJ J. Robert Brown on December 11, 1998. (Tr. 392). In a decision dated October 22, 1999, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 32-42). Plaintiff's request for a review of the ALJ's decision by the Appeals Council was received on November 19, 1999. (Tr. 349). On August 2, 2001, the Appeals Council vacated Plaintiff's original hearing decision and remanded Plaintiff's case for further proceedings.*fn1 (Tr. 374-76). Subsequent to the remand, a hearing was held on April 24, 2002, before ALJ Cynthia Bretthauer. (Tr. 425-69). On May 30, 2002, ALJ Bretthauer found Plaintiff was not entitled to DIB. (Tr. 28). Plaintiff filed a request for review on June 4, 2002. (Tr. 16). Plaintiff's request for review was denied on November 7, 2003. (Tr. 3-5).

  II. FACTS

  Plaintiff was born on November 15, 1953, making her forty-five years of age at the time of her December 11, 1998, hearing before ALJ Brown and forty-nine years of age at her April 24, 2002, hearing before ALJ Bretthauer. (Tr. 112, 396, 425). Plaintiff completed her education through high school, plus two years of college. (396). At the time of her hearings, Plaintiff lived with her boyfriend. (Tr. 466). Plaintiff was approximately five foot three inches tall and weighed approximately 152 pounds. (Tr. 70). Plaintiff's primary impairments noted by ALJ Bretthauer were cervical fusion, bulging disc, fibromyalgia, confusion, decreased concentration, and elevated liver enzymes. (Tr. 21).

  Plaintiff had no reported income since April 24, 1993. (Tr. 13). From 1979 to 1981, Plaintiff worked for UPS as a loader, driver, and driver supervisor. (Tr. 123). Plaintiff was paid $2,500.00 per month for her services. (Id.). From 1981 to 1982, Plaintiff worked for Fed Ex as a delivery driver at a rate of ten dollars per hour. (Id.). From 1982 to 1985, Plaintiff worked for a food catering business as a delivery driver on commission. (Id.). From 1985 to 1993, Plaintiff worked as a delivery driver for an office products and furniture business, where she was paid nine dollars per hour for her services. (Id.). Plaintiff worked for Tempro Office Products as a driver from 1993 to April 24, 2003. (Tr. 145). Plaintiff worked nine plus hours a day, five days a week. (Id.). Plaintiff was paid nine dollars per hour for her services. (Id.). Plaintiff was terminated from her job with Tempro due to injuries sustained in a work-related automobile accident, but Plaintiff did return to Tempro for a short time period after her accident, performing office work until she was let go. (Tr. 145, 435).

  Plaintiff stated at her hearing before ALJ Bretthauer that she could not do much during her typical day since she stopped working. (Tr. 450). She reported a daily routine that included reading newspapers or books propped up at eye level, preparing dinner by working in shifts of activity, dusting, and taking care of laundry and shopping with assistance from her boyfriend. (Tr. 451). Plaintiff stated she could not push a grocery cart. (Tr. 451). Plaintiff explained that she could bathe and dress herself, but noted that doing so made her uncomfortable and tired so she limited showering to twice a week. (Id.). Plaintiff reported spending most of her time on the couch laying down, approximately eighteen hours a day. (Tr. 460).

  Though Plaintiff has a driver's license without restrictions, Plaintiff does not drive much. (Tr. 432-33, 438, 453-54). Plaintiff took a trip to Florida at the end of 1993, but did not drive herself. (Tr. 438, 372-73). Plaintiff stated she mainly stayed on a couch in Florida, but did occasionally go out for dinner. (Id.). Sometime in 1995 or 1996, Plaintiff rode to Philadelphia for a funeral. (Tr. 459). Plaintiff reported that the trip made her feel horrible and that she spent most of her time on a relative's couch. (Id.). Plaintiff occasionally went out for dinner and visited family and friends. (Tr. 454-55). Plaintiff also visited the racetrack with her boyfriend once a week or once a month when she lived in close proximity to the facility. (Tr. 456).

  Plaintiff testified at her hearing that mental and physical impairments prevented her from working even light duty jobs. (Tr. 435-36). Plaintiff stated that mental confusion, limited use of her arms and neck, inability to lift, bend, or squat, and restricted sitting, standing, and walking kept her from being able to work. (Tr. 436). Plaintiff stated she could not do assembly line work or desk work because her neck would be in the wrong position if she had to look down. (Tr. 436-37). Plaintiff stated she was diagnosed with Fibromyalgia*fn2 by Dr. Pupillo in 1994. (Tr. 442). Plaintiff expressed that she could walk one to two blocks, but could not use a cane for assistance like she wanted to because it hurt to grip the handle. (Tr. 448-49). Plaintiff stated she could stand five minutes at a time and sit for an hour at a time without moving. (Tr. 449). Plaintiff thought she could lift ten to twelve pounds on an irregular basis. (Id.).

  Plaintiff explained that she did not seek medical treatment between 1994 and 1997 because she had no insurance. (Tr. 441). Also, from 1997 to 1999, Plaintiff stated she did not take prescription medications because her stomach could not tolerate pills. (Tr. 443-44). Plaintiff opined that even though she hardly sleeps, she did not think sleeping pills "were worth it" because they only made her sleep four hours in a row. (Id.). In the past, Plaintiff tried pain relievers like Darvocet, Acetaminophen with Codeine, and Motrin. (Id.). Plaintiff stated she did not seek mental health treatment for her confusion*fn3 because she did not want "to be considered a nut." (Tr. 444). Plaintiff also stated her confusion was not that severe, and that she did not think she could afford treatment. (Id.). Plaintiff tried an anti-depressant for her Fibromyalgia symptoms in 1997, but stated she did not like the way Zoloft made her feel. (Tr. 445).

  Plaintiff reported that her pain primarily affected her right arm during the period of 1997 and 1998. (Tr. 446). She relayed at her hearing that the pain from her neck was "piercing" when she moved her right arm or her neck. (Tr. 446-47). Plaintiff thought her pain got "either worse or the same" in 1997, when she began seeking medical treatment again. (Tr. 447). By then, Plaintiff also developed lower back pain. (Tr. 448). Plaintiff stated her therapy programs caused her to be in so much pain that she would not be able to do anything on the following day. (Tr. 453).

  Vocational Expert ("VE"), Susan Entenberg, was present at Plaintiff's hearing for questioning. (Tr. 462). The VE described Plaintiff's past work as a driver as semi-skilled and heavy work. (Id.). The ALJ then asked the VE whether a hypothetical female, with the following characteristics, could perform work in the economy:
[A]n individual who as of December '98 was 45 years old, had the work experience and education of this claimant, and had the following exertional limitations: could sit for six hours, stand and walk for six hours, lift and carry frequently up to 10 pounds, occasionally up to 20 pounds, could do no repetitive pushing and pulling, further assuming someone who could only occasionally stoop and occasionally climb stairs and ramps, but could never climb any ladders, ropes, or scaffolds. Also someone who could occasionally crouch and someone who could do no repetitive reaching above shoulder level with the right upper extremity. (Tr. 463).
  The VE testified that such a hypothetical female could work at jobs such as a cashier (40,000 jobs in the Chicago Metropolitan area), packer (8,000 jobs), and assembler (15,000 jobs). (Tr. 463). If Plaintiff could do no overhead reaching, the VE testified that she would reduce the jobs available to Plaintiff twenty percent across the board. (Tr. 464). The ALJ further limited her hypothetical to restrict repetitive grasping with the right hand and inquired into the impact on Plaintiff's work. (Id.). The VE stated the assembly jobs would be eliminated. (Id.). The VE further stated that Plaintiff could not do any of the jobs if she were limited to only occasionally moving her head side-to-side or up and down. (Id.).
  Plaintiff's attorney posed a new hypothetical to the VE, asking whether a hypothetical female, with the following characteristics, could perform work in the economy:
same age, education, and past work experience that this individual who could stand or walk for no more than a total of two hours in an eight-hour workday, lift more than 10 pounds at a time, occasionally lifting or carrying articles like docket files, ledgers, small tools, could only perform activities such as bending, stooping, crouching, kneeling, and crawling occasionally, with no climbing of ladders, ropes or scaffolds. She cannot reach with either arm or hand, say, any significant extent. There is also limited ability to move the head from side-to-side or down so that that can be done occasionally.
(Tr. 465). The VE responded that there would not be any jobs that such an individual would be able to perform. (Id.).

  III. MEDICAL HISTORY

  Plaintiff was injured in a work-related automobile accident on January 4, 1993. (Tr. 215). Though records of Plaintiff's treatment immediately after her accident are not available, Plaintiff reported to Dr. Pupillo that she developed an acute onset of neck pain and developed severely painful paresthesias almost immediately in both hands after the accident.*fn4 (Id.). Plaintiff also developed low back pain within a day or two of the accident. (Id.). In a letter to Dr. Grear, Dr. Pupillo stated Plaintiff's accident caused an acute cervical disc herniation with some evidence of cord compression and chronic lumbosacral strain, but also noted that Plaintiff walked with a normal gait. (Tr. 216).

  In January, 1993, Plaintiff under went various exams related to her injuries from her accident. On January 9, 1993, a radiology consultation report ordered by Dr. Pupillo indicated normal cervical alignment with fusion at C5-C6. (Tr. 164). A January 11, 1993, radiology report prepared by Dr. Cottrell indicated no injury to Plaintiff's lumbar spine. (Tr. 161).

  Plaintiff met with Dr. Michael Grear on March 12, 1993. (Tr. 305). Plaintiff noted her pain had not gone away since her accident. (Id.). Dr. Grear's clinical examination revealed twenty percent loss of Plaintiff's left and right lateral rotation. (Id.). Dr. Grear also noted trace paraspinal muscle spasm in Plaintiff's cervical spine. (Id.). Dr. Grear prescribed Naprosyn*fn5 and Flexeril,*fn6 and he recommended mild home stretching exercises. (Id.). He opined that he believed Plaintiff would improve with conservative management and that Plaintiff could continue with light duty work. (Id.). On March 16, 1993, Plaintiff underwent a partial bone scan ordered by Dr. Grear. (Tr. 211). Images of Plaintiff's spine, skull, shoulders, ribs, pelvis, and hips were normal. (Id.). On March 23, 1993, Dr. Grear reported the he felt comfortable allowing Plaintiff to resume activity as a truck driver with no lifting greater than twenty-five pounds. (Tr. 308). Dr. Grear continued Plaintiff on Naprosyn and stopped the Flexeril. (Id.). On March 30, 1993, Dr. Grear noted that Plaintiff was experiencing a fair amount of pain and difficulty sleeping. (Id.). He prescribed Darvocet, Vicodin, and Naprosyn.*fn7 (Id.).

  On April 20, 1993, Plaintiff reported doing well with Darvocet and Naprosyn, but stated Vicodin made her too sleepy. (Id.). Plaintiff reported mild discomfort in her proximal left humerus. (Id.). Dr. Grear affirmed that Plaintiff could continue working without significant restrictions. (Id.). On May 4, 1993, Plaintiff reported pain in her cervical and lower lumbar spine, as well as paraspinal muscle spasm. (Id.). Dr. Grear recommended physical therapy with hot packs, ultrasound, and dynawave. (Id.). Dr. Grear also noted that Plaintiff's medications were upsetting her stomach, so he did not give any new prescriptions. (Tr. 309).

  From May 5, 1993, to May 28, 1993, Plaintiff attended physical therapy. (Tr. 219). On May 5, 1993, Dr. Grear ordered a MRI of Plaintiff's cervical spine. (Tr. 213). A defect was present upon the thecal sac at the C5-C6 disc space level and the cervical cord appeared compressed and indented at the C5-C6 disc space level. (Id.). The radiologist's impression was recorded as "[c]entrally herniated C5-C6 disc with cord compression without cord edema." (Id.). Dr. Grear ordered a MRI of Plaintiff's lumbar spine on May 21, 1993. (Tr. 212). No defects were noted, and the radiologist's impression was recorded as "[n]ormal MRI study of the lumbar spine." (Id.).

  On May 19, 1993, Plaintiff's medications were switched to Motrin and Tylenol #3 because of Plaintiff's stomach distress. (Tr. 309). Dr. Grear opined that conservative treatment and avoidance of surgical intervention could be successful. (Id.). Plaintiff was started on cervical traction for the spine in her physical therapy. (Id.). On June 6, 1993, Dr. Grear resumed Plaintiff's treatment with Naprosyn and referred her to Dr. Lou Pupillo. (Id.). Dr. Grear opined that Plaintiff should not return to work as a truck diver, but stated she could do clerical activities as long as she did not lift more than fifteen pounds. (Id.). Plaintiff's physical therapy progress report of June 8, 1993, stated that Plaintiff was treated with electric stimulation, cervical traction, ultrasound, and hot packs for twelve sessions. (Id.). Plaintiff continued to report pain post-treatment, including muscle spasm in her trapezious and rhomboid and pain upon rotating her neck. (Id.). Physical Therapist, Laura Teven, noted that Plaintiff relied on her pain medication too much, and stated that Plaintiff was given a home cervical traction unit. (Id.).

  On June 28, 1993, Plaintiff was admitted to the Holy Family Hospital due to neck and left arm pain. (Tr. 210). A myelography was performed on Plaintiff, indicating a defect at C5-6 and minimal bulges at 3-4 and 4-5 and 5-1. (Tr. 208-210, 218). Plaintiff noted persistent low back pain, but her range of motion was normal. (Tr. 218). Plaintiff's strength was much improved. (Id.). Dr. Pupillo suggested conservative treatment with epidural blocks in both the cervical and lumbar areas. (Id.).

  In July and August 1993, Plaintiff underwent multiple epidural blocks with steroid injections for lumbar radiculopathy. (Tr. 219). Plaintiff received her first lumbar epidural block with steroid injection on July 19, 1993, and later injections on July 27 (cervical), August 4 (lumbar), and August 24, 1993 (cervical). (Tr. 189, 192, 200, 207, 219).

  On September 9, 1993, Plaintiff consulted with Dr. John Ruge, a specialist in neurological surgery. (Tr. 219-221). Plaintiff explained that her pain was worse since her accident, and that she had lost strength in both arms. (Id.). She also felt it was dangerous for her to drive. (Tr. 219). Dr. Ruge noted that Plaintiff had returned to light desk-duty at her job from February 15, 1993 to April 27, 1993, and recommended that she not work because of her progressive symptomatology. (Tr. 219-20). Dr. Ruge also stated that Plaintiff had signs of codeine addiction or allergy. (Id.). Dr. Ruge opined that Plaintiff sustained a mild form of a central spinal cord injury and recommended ...


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