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Merrell v. Astrue

August 29, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Suzanne Merrell brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for disability insurance benefits ("DIB"). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


Plaintiff was born on June 15, 1961, and was 41 years old at the time of the administrative hearing in October of 2002. (Administrative Transcript at p. 30).*fn2 Plaintiff is single and lives alone. (T. 30). Plaintiff has a high school education. (T. 34). From 1992 until January of 1997, plaintiff was employed as a hardware salesperson. (T. 36-37). Plaintiff's job duties included customer service, stocking, climbing ladders and walking. (T. 36).*fn3

Plaintiff alleges that she sustained an injury to her back on January 30, 1997 while she was working at a Lowe's home center. (T. 124). After her injury, plaintiff remained an employee of Lowe's, but worked "light duty" as a cashier and customer service representative due to pain in her lower back. (T. 37). In August of 1998, plaintiff ceased all work activity allegedly as a result of the physical restrictions associated with her back pain. (T. 37). The office of Vocational and Educational Services for Individuals with Disabilities ("VESID") referred plaintiff to Vocational Rehabilitation Services, where she participated in a training program for computer and office skills. (T. 106-107). Plaintiff completed the program on April 27, 2001, having gained "the skills necessary to obtain employment in the clerical field." (T. 108-110). Plaintiff claims she is disabled due to a lumbrosacral strain and sprain which causes chronic pain. (T. 11, 83).

A. Plaintiff's Medical Treatment

Jonathan Briggs, FNP

The record indicates one visit with Jonathan Briggs at the Guthrie Medical Group on July 9, 1997. The visit is noted as a "workers' compensation follow-up visit". (T. 122). Dr. Briggs noted that plaintiff did not exhibit any tingling or numbness and had no difficulty ambulating. (T. 122). She complained of some discomfort in her lower back that was relieved with physical therapy and medication.*fn4 (T. 122). She was working as a cashier but she "does not feel that she is able to tolerate this". (T. 122). Upon examination, straight leg raising was negative, lower extremity strength, sensation were normal and plaintiff could heel-toe walk without difficulty. (T. 122). She exhibited a full range of motion in her spine with minimal discomfort. (T. 122). She was referred to an occupational therapist.*fn5 (T. 122).

Dr. John Brosnan

On September 26, 1998, Dr. Brosnan completed a "functional appraisal" for VESID. (T. 120-121). In that assessment, Dr. Brosnan noted that plaintiff had "no limitations" in her ability to sit, use her extremities, reach above her shoulders, use her fingers, hear or see. (T. 121).

Further, plaintiff had no environmental limitations. (T. 121). Plaintiff was able to use public transportation and operate a motor vehicle without any assistance. (T. 121). Plaintiff could push, pull, carry or lift between 10 and 25 pounds. (T. 121). She had a 25% limitation in walking or standing and a 50% limitation in walking stairs, stooping, crawling, squatting and bending. (T. 121).

An MRI was taken of plaintiff's lumbar spine on September 15, 1998.*fn6 (T. 123). The MRI did not reveal any discogenic degeneration, disc herniations or stenosis. (T. 123). The impression was "within normal limits". (T. 123).

Dr. Saeed Bajwa

Dr. Brosnan referred plaintiff to Dr. Saeed Bajwa for a neurosurgical evaluation. (T. 154). Dr. Bajwa's initial exam, on February 4, 1999, revealed normal alignment and curvature of the spine. (T. 155). He noted that the claimant had "mild to moderate paraspinal muscle spasm with tenderness in the posterior left SI joint area which [extended] toward the upper buttock." (T. 155). Dr. Bajwa concluded that plaintiff suffered from "left SI joint pain but with no evidence of radiculopathy"*fn7 and recommended that plaintiff undergo a CT-guided injection of the SI joint.

(T. 156).

Dr. Bajwa examined plaintiff 13 times between February 5, 1999 and January 15, 2002.

(T. 146-156, 223-226). During his treatment of plaintiff, Dr. Bajwa provided plaintiff with a variety of medications for pain relief due to muscle spasms. (T. 146-156, 223-226). Dr. Bajwa also prescribed a transcutaneous electrical nerve stimulation ("TENS") unit to be used for pain control only after the suggestion was made by an IME doctor. (T. 152). Dr. Bajwa advised plaintiff to stay out of work after the November 8, 1999 visit. (T. 150). In March of 2000, Dr. Bajwa noted that she may be able to return to "light duty" after some chiropractic treatment but until then, she is "100% disabled".*fn8 (T. 143).

According to Dr. Bajwa's records, from March 1999 until December 2000, plaintiff's straight leg raising was negative, focal and sensory deficits were normal. (T. 148-153). Plaintiff exhibited good strength and sensation. (T. 148-153). During this time, the examinations revealed no "abnormalities" and were "completely unremarkable and normal". (T. 148-153). From December 2000 until September 2001, the doctor noted that plaintiff's range of motion was restricted with straight leg raising positive between 70 and 75 degrees on one side. (T. 146-147). However, during this time, the neurological examination was still noted as being normal with the lower back pain "improved". (T. 146-147, 225-226).

On September 26, 2001, Dr. Bajwa completed a medical assessment of plaintiff's physical ability to perform work-related activities. (T. 219-222). The doctor concluded that plaintiff could frequently lift or carry less than ten pounds. (T. 219). Dr. Bajwa indicated that plaintiff could stand or walk for one hour and sit for two hours during an 8 hour work day. (T. 220). Plaintiff could not climb, balance, crouch, kneel, or crawl. (T. 220).

After an examination on October 15, 2001, Dr. Bajwa noted that plaintiff had "no limitation of spine movements" and "neurological examination is unremarkable and stable". (T. 224). During the last noted visit with Dr. Bajwa in January of 2002, plaintiff complained of pain in the left lower back radiating to the left buttock. (T. 223). Dr. Bajwa noted that the "neurological examination objectively does not show any focal abnormalities in any dermatomal pattern". (T. 223). The doctor also stated that plaintiff underwent an MRI which "does not show any evidence of bony or disc abnormality" and further that "the spinal canal is completely unaffected from compression".*fn9 (T. 223). The doctor does not comment on plaintiff's work status and states that she does not have a follow up appointment scheduled with his office. (T. 223).

In a response to a letter from plaintiff's counsel dated October 24, 2002, Dr. Bajwa stated that his September 26, 2001 assessment of plaintiff's ability to do work was still valid.*fn10 (T. 233).

Dr. Paul Dougherty

On November 17, 1999, plaintiff began treating with chiropractor, Paul Dougherty, D.C.*fn11

From November 1999 until May 2000, her treatment consisted of manipulations. (T. 189-206). On April 12, 2000, Dr. Dougherty diagnosed plaintiff with "pain syndrome of the lumbosacral spine which originates at the type 2A transition segment on the let [sic]." (T. 126). On May 26, 2000, Dr. Dougherty gave plaintiff a CT guided steroid injection. (T. 126-127). The record indicates that plaintiff received chiropractic treatment from Dr. Dougherty until May 8, 2001. (T. 13).

Dr. James Kowalczyk

Dr. Dougherty referred plaintiff to Dr. Kowalczyk, a pain management specialist. Dr. Kowalczyk began treating plaintiff in January 2001and examined plaintiff on four occasions. (T. 136-143). Plaintiff complained of "persistent low back pain radiating ot [sic] the upper gluteal region, hip, anterolateral thigh, occasionally with symptoms below the knee into the calf." (T. 143). On January 3, 2001, January 24, 2001 and February 7, 2001, Dr. Kowalczyk performed a series of fluoroscopic-guided left L5 and S1 facet medial branch blocks. (T. 137-145). Plaintiff returned to Dr. Kowalczyk on March 30, 2001 for a follow-up evaluation. (T. 136). Dr. Kowalczyk noted that the series of lumbar facet medial branch blocks briefly provided an improvement in plaintiff's symptoms of pain. (T. 136). However, in the five weeks prior to the follow-up appointment, plaintiff reportedly experienced a gradual return and increase in symptoms of pain "originating in the low back, traversing the upper gluteal region, hip, [and] anterior thigh." (T. 136). Plaintiff also "had some radiation of symptoms into the left groin." (T. 136). On examination, Dr. Kowalczyk observed that plaintiff could forward flex to approximately 70 degrees, but had difficulty returning to neutral. (T. 136). Plaintiff had good muscle tone and bulk in her lower extremities without evidence of atrophy. (T. 136). Dr. Kowalczyk concluded that plaintiff was suffering from persistent lumbar osteoarthropathy, and provided her with prescriptions for pain relievers and muscle relaxers and noted that he would request authorization for radio-frequency ablation (rhizotomy) of left sided lumbar facets L3 and S1. (T. 136).*fn12

Dr. L. Martin

Dr. Martin began treating the plaintiff in April of 2002.*fn13 (T. 228 - 230). The doctor noted that plaintiff had "chronic low back pain". (T. 230). Plaintiff saw the doctor again in May of 2002 for a refill of her pain medication. (T. 228). The last record of treatment with Dr. Martin was on September 27, 2002. (T. 228). During that visit, plaintiff complained that her back was worse in damp weather. (T. 228). Dr. Martin diagnosed plaintiff with L5 disc disease with radiculopathy requiring treatment with anti-inflammatories. (T. 239). In response to a letter from plaintiff's counsel dated October 24, 2002, Dr. Martin concurred with the functional assessments provided by Dr. Bajwa. (T. 240).

B. Consultative Examinations

Dr. William Bauman

William Bauman, D.C., performed consultative chiropractic examinations of plaintiff at the request of the agency on October 23, 2000 and March 19, 2001. (T. 129 - 135). During the first consultation, plaintiff informed Dr. Bauman that she had injured her lower back and was experiencing pain into the gluteal regain and numbness from the hip and posterior thigh down to the knee primarily on the left. (T. 132). Dr. Bauman concluded that plaintiff suffered from a lumbar sprain/strain with radiculopathy superimposed on degenerative disc disease. (T. 134). He further concluded that plaintiff had mild to moderate limitations and would be able to sit and do ...

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