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August 6, 2003


The opinion of the court was delivered by: David Larimer, Chief Judge, District


I. Procedural Posture

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security ("the Commissioner"), who determined that Joanne M. Youney ("plaintiff) is not disabled under the Social Security Act ("the Act") and, therefore, is not entitled to benefits. Plaintiff applied for benefits under Titles II and XVI of the Act on March 6, 2000 claiming that she was disabled as a result of a work-related accident which occurred on December 13, 1999 (T. 72-74).*fn1 Her application was denied both initially, (T. 44-50), and upon reconsideration (T. 53-56). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on June 20, 2001 (T. 27-39). The ALJ, after considering all of the evidence, decided that [ Page 2]

plaintiff was not disabled under the Act (T. 11-15). The decision of the ALJ became the final decision of the Commissioner on May 22, 2002 when the Appeals Council denied plaintiffs request for review of the ALJ's decision (T. 3-4).

Plaintiff timely appealed the Commissioner's decision and the action is, therefore, properly before this Court. Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and, for the reasons discussed below, the Commissioner's decision is reversed, and this matter is remanded for further proceedings consistent with this opinion.

II. Factual Background

Plaintiff is a forty-three year-old female with a high school education and some college credit (T. 28). She has worked as a medical records clerk and a veterinary assistant (T. 120-21). In December 1999, after a period of unemployment, (T. 29), plaintiff began the latter job, which involved feeding and caring for animals (T. 28-29). At that job, on December 13, 1999, while cleaning the kennels, plaintiff injured her back and right shoulder. Within a few days of the accident, plaintiff went to her physician, David W. Sanchez, M.D. The doctor ordered x-rays, which proved to be negative. He also prescribed heat and several medications and directed plaintiff not return to work for one week (T. 128). Plaintiff saw Dr. Sanchez twice more before mid-January 2000 complaining of "pain shooting up and down [her] back [and] legs" (T. 127). Dr. Sanchez kept plaintiff from returning to work and referred her to a specialist, Andrew J. Palafox, M.D. (T. 127).

Plaintiff's initial visit to Dr. Palafox was on January 12, 2000. The doctor tested plaintiff's back flexibility, which was generally below the normal ranges and accompanied by noticeable pain. [ Page 3]

Dr. Palafox noted that there was no atrophy of the lower extremities, and plaintiff's right shoulder showed full range of motion (T. 198-199). Dr. Palafox began conservative care by administering an injection of pain medication and prescribing other medication and physical therapy (T. 198). Plaintiff attended physical therapy, but was dropped after seven sessions at the therapist's behest because of three consecutive "no-shows" (T. 133). Records of plaintiffs visits to the physical therapist show that many of the activities involved in the physical therapy increased plaintiff's pain (T. 135-36).

Plaintiff returned to Dr. Palafox on February 2, 2000 complaining of "severe exacerbation" of the pain in her lower back, whereupon the doctor ordered magnetic resonance imaging ("MRI") (T. 196). The results of the MR1 were reported on February 11, 2000 by Bruce P. Foreman, M.D., and showed that plaintiff suffered from L5-S1 left paracentral annular fissure and mild degenerative disc disease at that level. The report noted that this ailment could be symptomatic of plaintiffs pain (T. 194).

When plaintiff again saw Dr. Palafox on February 15, 2000, she reported moderate back pain and some improvement in her leg pain, but in light of the MR1 results, the doctor suggested that she not "return[] to her job with lifting" (T. 193). Dr. Palafox also stated that he believed that she "ha[d] a chemical irritation to the nerve root which is consistent with the disc injury" (T. 193). Plaintiff next visited Dr. Palafox on March 15, 2000 complaining of continued pain and an inability to return to work or perform daily activities at times. Dr. Palafox noted plaintiff's "moderate/severe" pain and tenderness in her lower back and continued conservative care, with some adjustments in medication (T. 186, 192). Dr. Palafox still did not approve plaintiff for work, but scheduled her for an appointment one month later (T. 192). [ Page 4]

On that visit, April 26, 2000, plaintiff reported that her condition was "unchanged with frequent exacerbations" (T. 185). plaintiff's back pain was "worse and radiating into her right lower extremity," including her foot (T. 185). She also complained of severe headaches. Dr. Palafox ordered a functional capacity evaluation ("FCE") at plaintiff's insurance carrier's request. In the meantime, Dr. Palafox continued his order that plaintiff not return to work (T. 187).

The FCE was performed by physical therapist Ismael Garcia on May 4, 2000, and plaintiff visited with Dr. Palafox on May 5, 2000 before the results were available. Dr. Palafox opined that, "depending on [the] restrictions from [the] FCE," plaintiff would possibly be able to "return to some light duty" (T. 184). The physical therapist eventually concluded that plaintiff could carry only five pounds in each arm, with "poor activity tolerance." Plaintiff could lift no weight from the "floor to [her] knuckle" ("secondary to [her] inability to squat"), only six pounds from her "knuckle to [her] shoulder," and nothing higher than that, despite assistance. While performing these lifting tests, plaintiff complained of "exacerbation of pain to [her] right shoulder [and] cervical[,] thoracic[, and] lumbar spines [sic]." plaintiff's arm and leg control were rated "poor," and she demonstrated an ability to push and pull only five pounds. During these activities, plaintiff "demonstrated poor bilateral upper [and] lower extremity strength," an inability to "effectively stabilize cervical, thoracic[,] and lumbar spine," and complained of exacerbation of pain. Plaintiff could perform only eight repetitions in one minute, forty-eight seconds on the stair climbing test and required "upper extremity assistance by holding onto guardrails." plaintiff's movements with her feet were rated "good." The therapist did not administer the treadmill test for safety reasons related to plaintiff's condition (T. 177-79). [ Page 5]

The FCE summarized that plaintiff's "effort was inconsistent" because she was "symptom limited," and she "demonstrated slow[,] guarded movements throughout the activities." The report concluded that plaintiff had the following "[significant [d]eficits": "[d]ecreased static sitting, standing, overhead reaching, horizontal reaching, prolonged walking, climbing, lifting, carrying, pushing, and pulling." Despite these limitations, the physical therapist concluded that plaintiff was functioning at a sedentary work capacity level (T. 179).

When plaintiff next visited Dr. Palafox on May 12, 2000, the doctor noted the conclusion of the physical therapist, but did not change his "no work" order and ordered a neurological evaluation for plaintiff's earlier-reported headaches (T. 176). In a subsequent letter on May 25, 2000, Dr. Palafox again acknowledged the physical therapist's conclusion that plaintiff could perform sedentary work, but, nonetheless, stated that plaintiff was "unable to return to gainful employment" at that time (T. 175). That same month, a Disability Determination Services (DDS) physician, without examining plaintiff or consulting examining physician statements, determined that plaintiff could frequently lift twenty-five pounds, occasionally lift fifty pounds, stand or walk for six hours in an eight-hour workday, sit about six hours in an eight-hour work day, and could push or pull with no limitations. That physician also opined that plaintiff had no limitations in climbing, balancing, stooping, kneeling, crouching, or crawling. Nevertheless, the physician concluded that plaintiff's "alleged limitations caused by her symptoms [were] supported by the medical and other evidence" (T. 146-53). Shortly after this, on May 17, 2000, the Commissioner denied plaintiff's application initially, stating that "[t]he medical evidence shows that[,] although [plaintiff's] injuries are currently severe, they are expected to respond to treatment and will not be disabling for 12 continuous months" (T. 50). [ Page 6]

Luis F. Vasquez, M.D. performed a neurological evaluation for plaintiffs headaches on June 26, 2000. The test yielded "normal" results (T. 156-58). Plaintiff again saw Dr. Palafox on August 17, 2000, at which time he performed an assessment for plaintiff's worker's compensation claim. Dr. Palafox rated plaintiff's total body impairment at twenty-six percent, opining that her condition was "stable" and not expected to achieve further healing, despite "residual pain" (T. 161-62).

Plaintiff's next visit to Dr. Palafox was on September 18, 2000. Plaintiff complained of continued moderate pain and said she could not perform activities of daily living. Dr. Palafox continued conservative care, scheduled a follow-up exam, and was silent with regard to plaintiff's ability to return to work (T. 160). Approximately one month later, another non-examining DDS physician, again without treating source statements, performed a second FCE. He concluded, as did the first DDS physician, that plaintiff could frequently lift twenty-five pounds, occasionally lift fifty pounds, sit about six hours in an eight-hour workday, and stand or walk six hours in an eight-hour day. He found no other limitations and concluded that the medical evidence before him did not fully support plaintiff's alleged limitations (T. 201-08).

From that point, the record contains several letters from Dr. Palafox to plaintiff's insurance company. The first, dated October 24, 2000, requested that plaintiff be reimbursed for overnight accommodations when she visited his office, which was a considerable distance from plaintiff's home. The doctor suggested that constant driving was "detrimental to her overall condition" (T. 168). Dr. Palafox wrote another letter, dated December 21, 2000 after a visit on November 17, 2000, which stated that plaintiff's condition had "deteriorat[ed] ...

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