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Harris v. Astrue

January 26, 2009

THERESA HARRIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff Theresa Harris seeks judicial review of a final decision made by the Commissioner of the Social Security Administration ("SSA") denying her application for Disability Insurance Benefits ("DIB") and Supplementary Security Income ("SSI") under Title II and Title XVI of the Social Security Act. Pursuant to the Commissioner filing a motion for Summary Judgment, this Court must decide whether to affirm, reverse, or remand that decision. This Court grants the plaintiff's motion to remand [dkt 25] and denies the Commissioner's motion to affirm [dkt 31].

PROCEDURAL HISTORY

December 31, 2003 was the last date on which plaintiff was eligible for DIB and SSI.*fn1 On May 4, 2004, plaintiff protectively filed for DIB and SSI claiming disability since December 13, 2001.*fn2 Plaintiff later amended this disability date to December 30, 2003.*fn3 She alleged in her DIB and SSI application that she suffered from lumbar stenosis, which prevented her from being able to walk without a walker or a cane.*fn4 Plaintiff's application stated that her illness began on December 22, 1994, and became so severe by December 13, 2001 that she could no longer work.*fn5 On November 18, 2004, the SSA denied her application.*fn6 On January 13, 2005, plaintiff filed a timely request for reconsideration, noting in her disability report that her medical condition had not changed.*fn7 On March 10, 2005, the SSA denied plaintiff's request for reconsideration, so on April 29, 2005, plaintiff filed a request for a hearing by an administrative law judge ("ALJ").*fn8 On August 16, 2006, ALJ Joseph Donovan presided over a hearing finding plaintiff not disabled and denying her application for DIB and SSI.*fn9 On June 11, 2007, plaintiff filed a request for review of the ALJ's decision.*fn10

STATEMENT OF FACTS

Born on September 6, 1953, plaintiff was fifty-two years old when she appeared before the ALJ.*fn11 She had completed high school and graduated from a four year institution with a liberal arts degree.*fn12 After graduating from college, plaintiff worked as a data-entry operator in a post office and as a mail room supervisor in an electronic supervising company.*fn13

In 1994, plaintiff was involved in a head-on automobile collision and soon after began experiencing back pain and muscle spasms.*fn14 Even as she complained to her doctors of severe back pain that prevented her from walking properly, she worked full-time as: a group home assistant responsible for monitoring mentally handicapped patients; an in-school detention, suspension, and study-hall supervisor; and finally; a substitute teacher.*fn15 On December 13, 2001, plaintiff terminated her employment as a suspension supervisor and has not attempted to work again.*fn16 On September 23, 2004, plaintiff filed a disability report as part of her application for disability insurance benefits under Title II of the Social Security Act, alleging that her infliction with lumbar stenosis, which was first noticed in a magnetic resonance imaging ("MRI") scan taken on March 24, 2004, has existed since December 13, 2001, the last date she was insured ("DLI").*fn17

I. Plaintiff's Medical History Before The Date of Last Insured

After her December 1994 automobile accident, plaintiff began experiencing back pain and muscle spasms.*fn18 In 1995/1996 plaintiff sought treatment at the Mayo Clinic for back spasms and lower back pain.*fn19 At that time, plaintiff was found to have some crushed thoracic vertebrae in her upper back.*fn20 The 2004 documentation referencing this time period reports that after 1995/1996 the plaintiff subsequently experienced "some intermittent discomfort, but was okay for a couple of years."*fn21 In fact, in 1996, plaintiff told her doctor that she had no complaints and wanted to discontinue her pain medication.*fn22

In March of 1998 plaintiff began to see her primary care physician, Charlotte H. Mitchell, M.D., of St. James Hospital, for help with lower back pain.*fn23 In April 1998, medical records indicate that plaintiff had "no complaints."*fn24 Nonetheless, soon after she began seeing Dr. Mitchell, plaintiff had an MRI taken of her spine.*fn25 Medical records dated April 14, 1998, from the Department of Radiology at St. James Hospital, indicated that "there is no intervertebral disk space narrowing or degenerative changes. There is a slight lumbar scoliosis demonstrative of a lumbar curvature with convexity towards the left. No bony destructive lesions are noted."*fn26 On April 27, 1998, the radiologist, Walter S. Tan, M.D., read the results of the same MRI and reported to Dr. Mitchell that plaintiff had a "normal MRI of the thoracic spine," because the saggital scans of her spine "show normal alignment of the thoracic vertebral bodies...no fracture or destructive lesion in the bones...no abnormal focus of increased or decreased signal in the bones...[and] no spinal canal stenosis or herniated disc."*fn27

Plaintiff had another MRI taken of her spine on July 13, 1998, which indicated that she had a T12, L1 disk herniation.*fn28 Dr. Mitchell prescribed physical therapy to help mitigate plaintiff's lower back pain but, according to plaintiff, the pain never subsided. In 2000, Dr. Mitchell began treating plaintiff for a balance problem that was making it difficult for plaintiff to walk without using something to stabilize herself.*fn29 Plaintiff testified that her balance problems worsened in 2001 because she was walking with a cane.*fn30 In 2002, Dr. Mitchell reexamined plaintiff's back and found signs of attaxic gate secondary to plaintiff's back.*fn31

Between July 13, 1998 and December 31, 2003, the last date on which plaintiff was eligible for DIB and SSI, she had no more MRIs taken of her spine. The SSA tried to obtain sufficient medical records for the period between July 1998 and the end of 2003 documenting the condition of plaintiff's spine during this five year span, to no avail.*fn32 In this regard, there is only sparse documentation available from plaintiff's physician at the time, Dr. Mitchell. The documentation available indicates that in May of 1999, plaintiff complained of stiffness in her back, but that her back pain was improving by June 1999.*fn33 A record from June 2001 indicates that plaintiff had a back "flare up" for one month prior to her doctor's visit, where she was prescribed physical therapy.*fn34 Records from April 2002 indicate that plaintiff had some lower back discomfort and that she "wants [another] order for [physical therapy] because she didn't go before."*fn35 In May of 2002 plaintiff reported that the physical therapy was helpful, but that she had back stiffness, so it was recommended that she continue physical therapy.*fn36 The documentation available from this five year time period contains only three references to plaintiff's balance problems, twice in 1999 and once in 2002.*fn37

II. Plaintiff's Medical History After The Date of Last Insured

Plaintiff switched doctors and received medical treatment from Kathryn Burke, D.O., from February 4, 2004 to July 26, 2004.*fn38 Dr. Burke initially noted that plaintiff had an extremely tense lumbar musculature and decreased range in motion in flexion and extension, so she scheduled an MRI for March 24, 2004.*fn39 The MRI revealed that "disc desiccation is evident at L3-4, L4-5 and L5-S1, manifest by a loss of normal disc height and T2 signal intensity."*fn40 However, the lumbar vertebral bodies remained preserved in height and alignment with no signs of fracture or subluxation.*fn41 The MRI also demonstrated "normal signal and morphology" of the conus medullaris, the terminal end of the spinal cord,*fn42 and the cauda equine, the bundle of spinal nerve roots for all the spinal nerves below the first lumbar.*fn43 At L3-L4 and L4-L5, the MRI showed narrowing of the thecal sac to less than one centimeter in diameter, "secondary to diffuse bulging disc, bilateral facet arthropathy, and hypertrophy of the ligament flavum."*fn44

On April 12, 2004, plaintiff received an exam and referral from Richard Freeman, M.D., at the Midwest Minimally Invasive Spine Specialists for her back pain.*fn45 Between April and August of 2004, plaintiff saw Ramesh P. Kanuru, M.D., of DBA Pain Management Consultants for epidural injections to moderate her back pain, and she visited Midwest Physicians Group, Ltd. for physical therapy.*fn46 She also took Betra, a muscle relaxer that Dr. Kanuru prescribed to treat her back pain.*fn47 In July and August of 2004, Aida Spahic-Mihajkovic, M.D., treated plaintiff for her back pain and inability to walk.*fn48 Dr. Mihajkovic prescribed plaintiff Xanax for her anxiety and Paxil for her fear of falling.*fn49

On October 12, 2004, Dr. Burke submitted a report to the Bureau of Disability Determination Services ("BDDS") documenting the condition of plaintiff's spine.*fn50 In the report, Dr. Burke posited that plaintiff's back problems began sometime "prior to 3/1/04 (approximately) 1995/1996."*fn51 Dr. Burke noted that the plaintiff complained of pain and noted physical findings concerning plaintiff's need for help walking and standing and her need for constant back support.*fn52 The report went on to note the presence of lumbar stenosis, and to diagnose the plaintiff with spinal stenosis as well as psychosomatic problems.*fn53

On October 12, 2004, Dr. Burke also prepared a Chronic Pain Residual Functional Capacity ("RFC") Questionnaire.*fn54 Dr. Burke's overall prognosis of plaintiff's condition was poor.*fn55 The report named an inability to walk without assistance, muscle spasms, and abnormal gait as positive signs of plaintiff's spinal ailment.*fn56 Dr. Burke further opined that plaintiff was severely limited in dealing with work stress and often experienced severe symptoms that interfered with her ability to concentrate.*fn57 Dr. Burke surmised that plaintiff would likely be absent from work twice a month as a result of her impairments or treatment for her impairments.*fn58

On June 13, 2005, Dr. Spahic-Mihajkovic evaluated plaintiff's health in a Mental Impairment Questionnaire.*fn59 Dr. Spahic-Mihajkovic gave her a Global Assessment of Function ("GAF") score of 60-70 out of 90 total points, but noted that plaintiff would likely suffer from chronic panic disorder and a fear of falling for at least twelve months.*fn60 Mental health professionals use the GAF to convey an individual's psychological, social, and occupational functioning on a spectrum in which scores between 41-50 indicate serious, 51-60 indicate moderate, and 61-70 indicate mild symptoms.*fn61 Dr.

Spahic-Mihajkovic credited mood disturbance, emotional liability, recurrent panic attacks, decreased energy, persistent irrational fears, generalized persistent anxiety, somatization unexplained by organic disturbance, and pathological dependence or passivity as the symptoms on which she based her diagnosis.*fn62 Dr. Spahic-Mihajkovic's clinical findings were that plaintiff relied on others to physically support herself while walking due to a fear of falling.*fn63 In her estimation, plaintiff would have moderate restrictions on her activities of daily living as a result of mental impairments, but would seldom experience deficiencies in concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner.*fn64

In the same questionnaire, Dr. Spahic-Mihajkovic also assessed plaintiff's mental abilities and aptitudes in relation to the performance of unskilled labor.*fn65 The questionnaire asked Dr. SpahicMihajkovic to rank plaintiff with respect to the abilities listed in terms of "poor," "fair," "good," or "very good."*fn66 While plaintiff was not "poor" in any category, Dr. Spahic-Mihajkovic noted that plaintiff had only a "fair" ability to remember work-like procedures, maintain regular attendance, be punctual, perform at a consistent pace, and deal with normal work-stress, including the stress of semiskilled and skilled work.*fn67 She noted that plaintiff would be "good" at completing a normal workday or work week without interruptions from psychologically based symptoms, being cognizant of normal hazards and taking appropriate precautions, understanding, remembering, and executing detailed instructions, setting realistic goals, and making plans independently of others.*fn68 The report also stated that plaintiff had a "very good" ability to understand, remember, and implement very short and simple instructions, maintain attention for two hour segments, sustain an ordinary route without special supervision, work in coordination with or proximity to others without being unduly distracted, make simple work-related decisions, ask simple questions or request assistance, accept instructions and negative feedback, get along with others without unduly distracting them or exhibiting behavioral extremes, and respond appropriately to changes in a routine work setting.*fn69

III. August 16, 2006 Hearing Before the ALJ

On August 16, 2006, the plaintiff appeared before the ALJ along with two expert witnesses, Daniel V. Girzadas, M.D., an orthopedic surgeon, and Pamela Tucker, a vocational therapist, to comment on plaintiff's medical condition and ...


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