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Claudette Hurt v. Michael J. Astrue

July 30, 2012

CLAUDETTE HURT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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

I. PROCEDURAL HISTORY

Ms. Hurt applied for DIB on May 21, 2008, alleging that he became disabled on April 2, 2008, due to Scheuermann's Kyphosis (R. 110-113), a deformity of the curve of the spine. Her application was denied initially and upon reconsideration. (R. 50-52, 65-67). Ms. Hurt requested a hearing and, on December 1, 2009, appeared and testified, without representation, before an ALJ. (R. 26-49). In addition, Cheryl Hoiseth testified as a vocational expert. (R. 45-48). On February 4, 2010, the ALJ issued a decision finding that Ms. Hurt was not disabled because she could perform her past relevant sedentary work in computer data entry. (R. 17-22). This became the final decision of the Commissioner when the Appeals Council denied Ms. Hurt's request for review of the decision on November 12, 2010. (R. 2-4). See 20 C.F.R. §§ 404.955; 404.981. Ms. Hurt 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).

II.

THE EVIDENCE OF RECORD

A.

The Vocational Evidence Ms. Hurt was born on December 20, 1951, making her almost fifty-nine years old at the time of the ALJ's decision. (R. 110). She has a high school education. (R. 31). Her most recent job was as a bus driver for handicapped persons from 2004 to 2008. (R. 153). Prior to that, she also worked very briefly as a store clerk, and worked in an office doing computer data entry from 1999-2000. (R. 153).

B.

The Medical Evidence Ms. Hurt's main problem is clearly her back impairment. She has Scheuermann's Kyphosis, a defect in the curve of the spine resulting in a rounding or bowing of the back. She has had two surgeries on her spine -- a diskectomy and a multilevel spinal fusion -- and is a candidate for a third. (R. 218, 265, 276, 284). The spinal fusion involved the T12, L2, L4, and L5 levels of her spine. (R. 287).

In January of 2007, Ms. Hurt was complaining of back pain extending into both legs. (R. 287). She had an MRI that revealed minimal facet hypertrophy at L2-3, and bilateral facet hypertrophy at L4-5. (R. 287-88). More significantly, there was "diffuse disc bulge and bilateral facet hypertrophy . . . moderate to severe central canal stenosis . . . mild to moderate left-sided neural foraminal narrowing and moderate right-sided neural foraminal narrowing . . . fluid . . . within the facets . . . [s]light lateral recess narrowing . . . bilaterally at L4." (R. 287). Her treating physician, Dr. Ronjon Paul, called the stenosis "quite severe." (R. 284). He thought she might need yet another fusion but, with two prior surgeries, he recommended conservative treatment for the time being. (R. 284).

That treatment entailed multiple epidural steroid injections. Ms. Hurt had two at the L4 level of her lumbosacral spine on March 21, 2007. (R. 216, 278-281). That seemed to relive her back pain, but she continued having leg pain extending down to her ankles. (R. 273). She had a caudal injection at base of her spine on April 10th. (R. 273). Shortly after that procedure, on April 27th, Ms. Hurt was again complaining of low back and leg pain. She had another two injections at the L3 level of her lumbosacral spine.

(R. 270-71). In the end, all this treatment provided her with only "minimal temporary relief." (R. 269).

Ms. Hurt turned to physical therapy. By June 12, 2007, this course had resulted in significant improvement of her back and leg pain. She asked her doctor whether she could return to work. Dr. Paul indicated he would release her for work in another two weeks, on June 25th. (R. 268). Again, Ms. Hurt's relief didn't last and she didn't tolerate her return to employment. In March of 2008, she was once again complaining of severe pain that was exacerbated by walking any distance or lying on her side. (R. 263). Dr. Paul noted back pain, sciatica, and bilateral hip pain and tenderness. (R. 265). He sent her for another two injections, this time in both her hips. (R. 263).

Dr. Chukwu Emeka F. Ezike examined Ms. Hurt on July 16, 2008, for the Bureau of Disability Determination Services ("DDS"). (R. 217). He noted that Ms. Hurt still had back pain despite two surgeries. Hurt described constant back pain, about 8/10 in severity, which radiated into both lower extremities and caused numbness. She also said that she had arthritic pain in her thumbs and knuckles and occasional hand weakness that caused her to drop objects (R. 217). She told Dr. Ezike that she could stand or walk for 15 minutes and sit for up to 30 minutes at a time. (R. 218). Dr. Ezike found that Ms. Hurt had normal range of motion in her extremities and spine with mild pain in her lumbar spine and could walk 50 feet without support. Her grp strength was 4/5 bilaterally, and she was able to pick up a penny with both hands. Pinch strength was minimally reduced bilaterally. Straight leg raising was "equivocal" bilaterally. The doctor noted a healed midline surgical scar over her spine from the base of her neck to her waist line. No imaging or additional tests were performed. Hurt's overall effort and cooperation were satisfactory (R219). Dr. Ezike diagnosed Hurt with kyphosis, spinal stenosis, osteoarthritis with pain in the lower back, hips, and hands, and lumbar radiculopathy (R. 220).

Based on Dr. Ezike's evaluation (R. 229), Virgilio Pilapil, M.D., completed a physical RFC assessment for DDS on August 7, 2008. He found that Ms. Hurt could lift 50 pounds occasionally, 25 pounds frequently; stand/walk for about six hours, sit for 6 hours; frequently balance; and occasionally climb ramps/stairs. (R. 223, 224). On December 4, 2008, Charles Kenney, M.D., also non-examining, confirmed Dr. Pilapil's RFC. (R. 231). Neither the reviewers nor Dr. Ezike saw any evidence from Ms. Hurt's treating physician.

The record also includes a few treatment notes from a health center near her home. On February 25, 2009, Ms. Hurt complained of back pain and muscle spasms. (R. 249). Dr. Govinda's Musculoskeletal exam revealed multiple scars over the back midline and scoliosis. (R. 249). On October 30, 2009, Ms. Hurt complained of reflux esophagitis and Dr. Rajesh advised her to avoid the NSAID medications she was taking for her back pain. Dr. Rajesh also reported that musculoskeletal exam was within normal limits. (R. 240). On November 18, 2009, Dr. Govinda counseled Ms. Hurt on her borderline sugars/cholesterol levels and the potential for cardiovascular disease as a result of her long-term Celebrex use. (R. 238). Ms. Hurt takes, or has taken, an array of medications: Flexeril (muscle relaxant); Zesoteric and Lisinopril/Hydrochlorothiazide (hypertension); Celebrex (NSAID); Fomatidine (ulcer); Omaprozole and Protonix (reflux); Metformin (diabetes); Pravastatin (choleserol).

C.

The Administrative Hearing ...


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