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Holly R. Vejvoda v. Michael J. Astrue

May 6, 2011


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


The plaintiff, Holly Vejvoda, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 423(d)(2). Ms. Vejvoda asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.


Ms. Vejvoda applied for DIB on February 6, 2007, alleging that she had become disabled on June 25, 2006, due to rheumatoid arthritis and a cancerous bladder tumor.

(R. 126, 183). Her application was denied initially and upon reconsideration. (R. 70-76, 89-93). Ms. Vejvoda filed a timely request for a hearing. An ALJ held a hearing on May 21, 2009, at which Ms. Vejvoda, represented by counsel, appeared and testified. (R. 24-69). In addition, James Breen testified as a vocational expert. (R. 61-68). On June 15, 2009, the ALJ issued a decision finding that Ms. Vejvoda was not disabled because she retained the capacity to perform her past sedentary work as a telephone operator and customer service clerk. (R. 6-23). This became the final decision of the Commissioner when the Appeals Council denied Ms. Vejvoda's request for review of the decision on October 23, 2009. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Vejvoda has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).



Vocational Evidence Ms. Vejvoda was born on October 22, 1952, making her fifty-six years old at the time of the ALJ's decision. (R. 29). She has a GED. (R. 189). She is 5'81/2 " and weighs 224 pounds. (R. 165). Her most recent job was as an assistant cook in a high school cafeteria, and prior to that, she had a part-time job as a crossing guard. (R. 184). The longest position she held was in customer service, from 1995 through 200. (R. 184). She quit her assistant cook job in December 2006 because of her impairments. (R. 183-84). At the time of her hearing, she was working 20 hours a week at a hot dog stand, manning the register and preparing food. (R. 30, 38).


Medical Evidence It appears as though Ms. Vejvoda's back problems began in January 2005. On the 25th of that month, she went to the Rush-Copley emergency room, complaining of back pain and right leg pain and numbness. (R. 480-86). Gait was normal, as were motor and sensory exams. (R. 482). Straight leg raising produced pain on the left, although not on the right. (R. 482). This later subsided. (R. 483). Extremities were normal. (R. 482). She was discharged o n Vicodin and Ibuprofen. (R. 485).

Thereafter, she was treated by Dr. Samuel Farbstein. An MRI of the lumbar spine performed on February 1, 2005, revealed: mild to moderate degenerative facet disease throughout the lumber spine; small broad-based disc protrusion at L5-S1; disc bulging with right foraminal protrusion and osteophyte causing foraminal stenosis at L4-L5; diffuse disc bulge and osteophytes causing bilateral foraminal stenosis at L3-L4; minimal degenerative changes at L2-L3; and diffuse disc bulge with moderate-sized disc protrusion and foraminal stenosis at L1-L2. (R. 583).

An X-ray on November 29, 2006, showed moderate degenerative facet changes at L4-5 and L5-S1. (R. 323). Ms. Vejvoda had a nerve conduction study on December 4, 2006. It was within normal limits aside from a mild amplitude reduction in the sural sensory response, which was not of adequate severity to explain her symptoms. Overall, the results were nondiagnostic of radiculopathy, but given the limitations of the test, an MRI was recommended. (R. 321). Dr. John Wyatt evaluated Ms. Vejvoda on December 29, 2006. Her strength, reflexes, sensation, and gait were all normal. Straight leg raising was negative. Flexion of her lumbar spine was limited to 45 degrees. (R. 350). Dr. Wyatt recommended epidural steroid injections. (R. 351).

Ms. Vejvoda received epidural steroid injections on February 16, 2007, and March 6, 2007. (R289, 291). She followed up with her primary physician, Dr. Farbstein, on May 21, 2007, and was referred for physical therapy. The initial physical therapy evaluation noted that Ms. Vejvoda had a full range of motion in her lumbar spine, but did have some pain. Strength and reflexes were normal, and straight leg raising was negative. (R. 464). Ms. Vejvoda reported that three steroid injections had helped her back pain but not her leg pain. (R. 464). She was taking Ibuprofen and Vicodin at the time. (R. 464).

On April 11, 2007, Dr. M.S. Patil examined Ms. Vejvoda at the request of the Agency. Ms. Vejvoda reported "constant mild pain in the low back area, radiating to the right leg." (R. 443). The pain worsened when she stood for three minutes or sat for thirty minutes. (R. 443). She said she couldn't walk more than a block. (R. 443). She denied any bladder dysfunction. (R. 443). She was taking Diltiazem and Hydrocodone.

(R. 443). Upon examination, there was no paravertebral tenderness or spasm. (R. 445). Reflexes, strength, and sensation were normal. (R. 445). Range of motion in the lumbar spine was limited to 50/90 degrees flexion, 20/25 extension, 20/25 lateral flexion. (R. 445). Straight leg raising was positive at 25 degrees bilaterally. (R. 445). There was a full range of motion in all extremities, and grip strength and manipulation were normal.

(R. 445). Dr. Patil noted that Ms. Vejvoda's BMI (body mass index) was over 35, meaning she was Class II obese. (R. 446).

Dr. Jiminez reviewed Ms. Vejvoda's medical record on April18, 2007. He felt she could perform a full range of light work activity. She could stand or walk about six hours per eight hour workday and sit for the same period of time. The doctor characterized her arthritis as "mild". (R. 448-55).

On July 2, 2007, Dr. Farbstein noted that Ms. Vejvoda had just started on arthritis and cholesterol medication, and was not complaining of any worsening problems with her back and joints. (R. 725). She was also starting physical therapy. (R. 725). The doctor said he would take care of her "form regarding disability." (R. 726).

To that end, Dr. Farbstein provided an assessment of his patient's ability to do work related activities on July 5, 2007. The doctor had been treating his patient for over ten years. He diagnosed cervical disc disease, lumbar disc disease with sciatica, lower extremity arthritis and a history of bladder cancer. He said that Ms. Vejvoda had recovered from cancer, but her sciatica had gotten worse -- she had not had a good response to conservative treatment. (R. 468). She had poor tolerance for both sitting and standing. (R. 468). The doctor felt that Ms. Vejvoda could sit, stand, and walk for only three hours in a workday. (R. 469). He said that she experienced paresthesia that was improved if her legs were elevated. (R. 469). He said she needed to lie down intermittently during the day due to her "back fatigue caused by disease process & pain medication." (R. 469). He noted she could carry twenty pounds occasionally and ten pounds frequently, but had limitation in her ability to grasp and handle objects due to bursitis in her right shoulder. (R. 469). Her medication caused her fatigue, nausea, and weight gain. (R. 470). She would have marked limitations on her ability to complete a normal work day and work week or to maintain a consistent pace without an unreasonable length and number of rest periods. (R. 470). A month later, in August 2007, Dr. Farbstein reported that Ms. Vejvoda stopped taking her cholesterol medication out of laziness. (R. 727). He said her back problems were better with physical therapy.

(R. 727).

On February 4, 2008, Dr. Farbstein said Ms. Vejvoda complained of back pain radiating down the right leg and some loss of leg strength. (R. 729). She reported no urinary problems since her surgery. (R. 729). The doctor prescribed some steroids and stated that if those resulted in improvement, he would refer her for an injection. (R. 730). By February 25th, Ms. Vejvoda was reporting mid-back pain and there was obvious spasm around the paralumber/parathoracic muscle group. (R. 731). Dr. Farbstein had her continue with narcotic pain relievers. (R. 732).

On March 17, 2008, Ms. Vejvoda had no back pain, but there was some crepitation upon movement of her knees. (R. 733-34). He was hopeful that she would get her weight down in the next two months. (R. 734). On April 28, 2008, Ms. Vejvoda complained of some low back pain she thought felt like a bladder infection. (R. 735). A month later, Ms. Vejvoda returned, having twisted her ankle at work. (R. 737). There was some swelling and tenderness. (R. 738). The doctor recommended she use a cane, and gradually build up weight-bearing tolerance. (R. 738). On June 2nd, Dr. Farbstein noted that there was still some swelling and thought she should remain off work until the following week. (R. 740). The ankle improved and, by June 16th, she was back to full weight-bearing status. (R. 745. Ms. Vejvoda was instructed to exercise and get her weight down. (R. 745). At physical therapy on the 28th, Ms. Vejvoda exhibited a full range of motion in her lumbar spine, with some pain at full extension and flexion. (R. 795). She said she was limited in standing and long-distance walking and had to sit frequently due to pain. (R. 795).

On January 19, 2009, Ms. Vejvoda reported that she had almost fallen down some stairs due to back, right leg, and right buttock pain. (R. 750). Straight leg raising was normal. (R. 751). There were no deep tendon reflexes, but lower extremity and hip examination were otherwise normal. (R. 751). She went to physical therapy on February 8th, and it was noted that she walked with a very short stride. (R. 797). Strength was 3/5 in her hips, 1/5 in her abdomen, and 4/5 throughout the rest of her lower extremities. (R. 797). Straight leg raising was negative, as was the slump test for nerve entrapment. (R. 797). When Ms. Vejvoda returned on the 20th, her stride was normal. (R. 796). Her strength was unchanged, but straight leg raising was positive. She was making positive gains with decreasing pain and slight improvement in functioning. (R. 796).

On March 16th, Ms. Vejvoda said she had some back and leg pain, but was active without difficulty. (R. 753). She denied any urinary symptoms. (R. 753). On April 2nd, Dr. Farbstein said he was "happy with her blood pressure, happy with her knee for the most part . . . ." (R. 755). On June 4, 2008, an MRI of Ms. Vejvoda's lower back revealed moderate to severe right foraminal stenosis at L3-4, as well as moderate left foraminal stenosis. "The central component ha[d] progressed and there ha[d] developed moderate central stenosis since prior exam." (R. 782). At L5-S1, there was ...

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