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Smith v. Commissioner of Social Security

July 2, 2009

PATSY L. SMITH, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Patsy L. Smith ("Plaintiff") brought this suit under section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. section 405(g), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability insurance benefits.

I. FACTS

a. Procedural History

Plaintiff applied for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits on June 9, 2004. On March 22, 2005, the applications were denied. Reconsideration was denied on October 20, 1999. On April 6, 2005, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held on June 1, 2006.

In a decision dated August 1, 2006, the ALJ found that Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act. Specifically, the ALJ concluded that:

(1) Plaintiff met the insured status requirement; (2) Plaintiff has not engaged in substantial gainful activity since September 1, 1991; (3) Plaintiff's chronic low back pain secondary to degenerative disc disease and herniation constitutes a severe impairment, but his mental condition does not constitute a severe impairment; (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Plaintiff cannot perform any past relevant work; and (6) considering Plaintiff's age, education, language abilities, prior unskilled work, and residual functioning capacity, there are jobs that exist in significant numbers in the national economy that he can perform.

Plaintiff commenced the present action seeking review of the Commissioner's decision.

b. Medical History

Plaintiff was born on June 18, 1954 and attended school through the eighth grade. In April 2003, Plaintiff complained to his physician of localized pain in the middle of the lower back that radiated down to the buttock and knee of the right leg. Tr. at 127. Plaintiff stated that the pain had been present for many years. Id. Plaintiff also reported episodic fits of anger and depression. Id. Upon examination, the physician found "no obvious lesions," tenderness to palpation of spinous processes on lower thoracic/lumbar spine and of the right sciatic notch. Id. Plaintiff was found to have full range of motion, a normal gait, to be alert, able to give a dependable history, and giving appropriate answers to questions. Id. One month later, Plaintiff complained of increased pain. Tr. at. 129. His physician, therefore, recommended an MRI. Plaintiff was prescribed medications for his depression. Id.

An x-ray identified "mild DJD . . . in the disk spaces and posterior articulations with no acute bony injuries." The MRI revealed "normal alignment and position of the bones" with "[s]ome slight disk bulging at 3/4, 4/5 and 5/1. No focal disk herniations. A small, piece of disk has herniated in cephalic direction into the posterior body of L4 near the end of plate. This can sometimes result in pain. No other significant findings." Tr. at 140-41.

On June 4, 2003, Plaintiff was examined by a neurologist. The neurologist noted "progressive back pain without defined radicular symptoms. When working or over-exerting himself he may have back and hip pain, but never any numbness, parasthesias, tingling or weakness distal in his feet. . . . [M]inimal mechanical findings. He has negative straight leg raise. He has no sensorimotor abnormalities in the lower extremeties." The neurologist found that the MRI showed "significant degenerative disc disease at multiple levels" and a "lesion in the posterior L4 body" which he concluded to be "isolated hemangioma." The neurologist stated that "[h]is collapsed disc spaces, which are completely degenerated at multiple levels, could certainly be a source for chronic back pain which would be exacerbated with physical activity." The neurologist did not recommend surgery, but, rather, use of an non-steriodal anti-inflammatory drug, physical therapy, and proper exercises. Tr. at 146-47. The treating physician referred Plaintiff to physical therapy. Tr. at 131. In October 2003, Plaintiff's spine was noted to be stable with Relafen and his depression well-controlled with Celexa. Tr. at 132.

In May 2004, Plaintiff presented to the emergency room for pain running down his left leg. The exam revealed tenderness diffusely over his left lower back. Plaintiff was prescribed pain medication and released. Tr. at 227-235. Two days later, Plaintiff returned to the emergency room complaining of low back pain radiating into his left thigh and leg.

Plaintiff was given morphine and referred to physical therapy. An x-ray demonstrated disc space narrowing at L4/5 "which is slightly increased since prior exam from 2003. . . ." Tr. at 222. An x-ray of ...


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