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Robyn G. Cook v. Michael J. Astrue

July 26, 2012


The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge


The plaintiff, Robyn G. Cook ("Cook"), seeks judicial review of the Social Security Commissioner's denial of her applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401-433, and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et. seq.


A. Procedural history

Cook filed applications for DIB and SSI on June 25, 2007, alleging that she has been disabled and unable to work since January 15, 2005. (Tr. 161-71). Her applications were denied initially and upon reconsideration. (Tr. 100-07). At her request, an administrative law judge ("ALJ") convened a review hearing on August 26, 2009. (Tr. 33-95, 119-31).

The ALJ issued his written opinion on September 30, 2009. (Tr. 9-22). He concluded that Cook was not disabled as defined by the applicable regulations and therefore entitled to neither DIB nor SSI benefits. (Id.). Dissatisfied, Cook requested a review of the ALJ's decision with the Appeals Council. (Tr. 27). Upon completion of its review, the Appeals Council adopted the ALJ's decision as the Commissioner's final decision. (Tr. 1-6).

Cook initiated the above-captioned action, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. No. 1). She filed a Motion for Summary Judgment and the Commissioner subsequently filed his own motion. (Doc. Nos. 10 & 16). Both motions have now been fully briefed and are ripe for the court's consideration.

B. General background

Cook stands five feet, three inches tall. At the time of her administrative hearing she was 53 years old and weighed 275 pounds. (Tr. 39-41). She is a high school graduate. (Id.). She has taken accounting courses at a community college but holds no advanced degrees. (Tr. 39-40). In the 15 years preceding the alleged onset of her disability, she worked as a "house mom" in a Las Vegas night club, a dispatcher for a trucking company she co-owned with her ex-husband, and an office manager assistant for an automotive plating and services company. (Tr. 43-46, 192, 227).

In 2007, Cook moved from Las Vegas to Minot, North Dakota. Although she has worked sporadically (and no more than parttime) at Bernina Plus, a sewing/fabric store in Minot, since the alleged onset date, she has not engaged in anything that qualifies as substantial gainful activity. (Tr. 228).

Cook has been diagnosed with degenerative disc disease, chronic pain, urinary urge incontinence, and depression. (Tr. 42). As of the date of the ALJ hearing, she was also extremely obese. She rates her daily pain as a six on a scale of one-to-ten. (Id.).

C. Medical and other records

Cook presented to Southwest Medical Associates, Inc. ("SMA"), in Las Vegas, Nevada, on January 18, 2004. (Tr. 238). According to the care note, she had a week long history of dysuria and increased frequency but was otherwise in good health. (Id.). She was diagnosed with a urinary tract infection, for which she was prescribed Tequin. (Id.).

Cook presented to the University Medical Center's ("UMC") emergency room twice in early 2005 with complaints of urinary difficulties and epigastric pain. (Tr. 265-72). In each instance she was discharged with instructions to take her prescribed medications as directed. (Id.).

Cook returned to UMC's emergency room on April 20, 2005, complaining of discomfort when urinating. (Tr. 265). Lab work ordered by the attending physician revealed little. (Tr. 268). She was again discharged with instructions to take her prescribed medication as directed. (Tr. 265).

On August 22, 2005, Cook presented to Sunrise Hospital and Medical Center in Las Vegas, Nevada, with complaints of intermittent back and leg pain. (Tr. 240). She was examined by Dr. Gary Goldberg, who reported that she exhibited no gross sensory deficits, had normal reflexes in her lower extremities, and was able to ambulate, albeit slowly on account of her pain. (Id.). X-rays revealed degenerative changes to her lumbosacral spine. (Tr. 243). She was given analgesics, a dose of steroids, and prescriptions for Soma and Lortab. (Tr. 240). She was further advised to rest and follow up with a specialist if her pains persisted. (Id.).

Cook returned to SMA on October 26, 2005, with complaints of lower back pain that radiated down her legs and into her toes. (Tr. 260). She requested pain medication and a refill of her Paxil prescription. (Id.). She was given Paroxetine, hydrocodone, and Cyclobenzaprine. (Id.)

Cook presented to Sahara Health Care for a chiropractic treatment in January 11, 2006. (Tr. 246-51, 253-55). She returned for additional treatment on January 18, January 25, and February 1, 2006. (Tr. 245).

Cook returned to SMA on May 30, 2006, with complaints of sciatica and stiffness in her upper back. (Tr. 258-59). She advised her treating physician, Dr. Nancy Lao, that she had taken neither over-the-counter nor prescription pain medication in the preceding month. (Id.). She denied having any bowel or bladder incontinence. (Id.).

Dr. Lao observed in her treatment notes that Cook was able to ambulate with the help of a walker. (Tr. 258). She hypothesized that Cook was suffering from lumbago and sciatica. (Tr. 259). However, she was reluctant to order any additional tests on account of the fact that Cook did not have health insurance. (Tr. 259). She instead advised Cook to take ibuprofen and use hydrocodone sparingly as a backup. (Id.). She further suggested that Cook that she seek assistance from UMC. (Id.).

Cook reported to UMC on January 14, 2007, with back pain ranging between seven and nine on a scale of one-to-ten. (Tr. 262). According to the screening/order/discharge form and accompanying examination notes, her chief complaints were back, arm, and leg pain. (Tr. 262-64). She was otherwise alert and did not appear to be in any acute distress. (Id.). She was discharged with medication. (Id.).

Cook returned to UMC on January 23, 2007. (Tr. 276-84). She was examined by Dr. Miguel Sepulveda. (Tr. 276-84). According to the "physician record," she voiced complaints of moderate back pain that was exacerbated by movement. (Tr. 276). Although she exhibited veterbral tenderness and decreased range of motion, her reflexes were normal. (Tr. 277). X-rays of her back indicated that she was suffering from spondylolysis. (Tr. 277, 284). However, the radiologist was careful to note in his report that there were no definite acute findings. (Tr. 284). She was discharged with medication (Ultram and Pepcid) and instructed to return for follow-up exam in two weeks. (Tr. 277).

Cook presented to Trinity Hospital in Minot, North Dakota, on August 7, 2007, with complaints of abdominal pain. (Tr. 306). An ultrasound ordered by her attending physician, Dr. Ricardo Machado, indicated that she was suffering from gallstones. (Tr. 306).

On August 15, 2007, Cook was examined by Dr. Frank Shipley, who confirmed that Cook was likely suffering from gallstones. (Tr. 330). Noting Cook's limited resources, Dr. Shipley suggested that she contact Ward County Social Services for assistance. (Id.). In the interim, he wrote her a prescription for painkillers. (Id.).

The medical records indicate that a surgeon removed Cook's gallbladder laparoscopically in late August 2007. (Tr. 328-29). According to clinical notes signed by Dr. Shipley on August 22, 2007, the surgery was successful and Cook was doing well. (Tr. 328).

Cook was examined by Dr. Rajnikant Mehta at the SSA's behest on October 16, 2007. (Tr. 287-89). According to Dr. Mehta's notes, Cook walked with a slight limp, was unable to walk on her toes or heels for one or two steps, could not squat, and had limited range of motion in her back and neck. (Tr. 288). She retained normal range of motion in her upper extremities. (Id.) She had some limits on the range of motion in her lower extremities, however. (Id.) She could walk without assistance or supportive devices. (Tr. 288-89).

Dr. Mehta ordered x-rays of Cook's back, which revealed: (1) the presence of a minor anterior wedged compression involving the T12 vertebra; (2) mild multifocal degenerative changes involving the thoracolumbar spine; and (3) the presence of multilevel degenerative disc disease involving the lumbrosacral spine. (Tr. 290, 304, 325).

On October 23, 2007, Dr. Thomas Christianson assessed Cook's residual functional capacity ("RFC"), presumably at the SSA's request. (Tr. 291-98). Based upon his review of Cook's medical records, Dr. Christianson determined that Cook remained capable of: (1) lifting and carrying ten pounds frequently and twenty pounds occasionally; (2) standing and/or walking for a total of about six hours in an eight-hour work day; (3) sitting for a total of about six hours in an eight-hour work day; (4) pushing and/or pulling without limitations; and (5) occasionally climbing, kneeling, stooping, and crawling. (Tr. 292-93). He further opined that Cook suffered from no demonstrable manipulative, visual, communicative, or environmental limitations. (Tr. 294-95). As discussed later, there is a substantial amount of record evidence that postdates Dr. Christianson's assessment, which he was not able to take into account.

Cook was examined by Dr. Manual Colon at Trinity Hospital's Pain Center on October 25, 2007. (Tr. 322). According to Dr. Colon's notes, Cook appeared to be under a significant amount of distress with any and every maneuver of her neck and lower back. (Tr. 323). She also had a significant amount of myofascial tenderness in her neck and upper back. (Id.) Dr. Colon's initial impression was possible radiculitis and possible fibromyalgia. (Id.).

MRIs of Cook's cervical and lumbar spine were performed on October 30, 2007. (Tr. 301-03). According to the radiologist's report, Cook's disk at L5-S1 was mildly flattened and moderately desicatted and there was a mild broad-based disk bulge that did not appear to have any mass effect on the adjacent nerve. There was slight narrowing of her left neural foramen at L3-4, and she had disk-osteophyte complexes at C3-4 and C5-6, with the later possibly impressing on an existing nerve root. (Tr. 301-02, 318-19).

Cook received a cervical epidural steroid injection from Dr. Manual Colon on November 27, 2007. (Tr. 315-17). The injection only briefly alleviated her pain. (Tr. 313, 315-17).

Cook reported to Dr. Todd Fife on December 3, 2007, to establish care. (Tr. 313-14). She complained of back pain, bilateral knee pain, and leg cramps that interfered with her sleep. (Id.). She further reported that she had been taking oxybutin for her incontinence and, although it had helped, it did leave her mouth feeling dry. (Id.). X-rays ordered by Dr. Fife revealed that there were very early changes in her left knee. (Tr. 300, 312-14). Dr. Fife started her on Cymbalta, Ultram ER, and Detrol. (Tr. 313-14).

Cook followed up with Dr. Colon on December 12, 2007. (Tr. 311). According to Dr. Colon's notes, Cook was generally pleased with the results of her medications and was in no distress. (Id.).

Cook followed up with Dr. Fife on December 14, 2007. (Tr. 310). Dr. Fife found her to be pleasant and in no distress. (Id.). He further noted that Cook was doing well in terms of pain control when taking her medication and did not complain of headaches, fatigue, muskoskeletal issues, or skin concerns. (Id.). He planned to continue Cook on Cymbalta and Ultram ER. (Id.).

Cook returned to Dr. Fife on January 9, 2008, complaining that she was struggling to keep her thoughts and emotions intact. (Tr. 308). She further reported that she began having suicidal thoughts when taking Cymbalta. (Id.). Dr. Fife took Cook off Cymbalta, with the intent of starting her on Paxil. (Id). He further recommended that she seek therapy. (Id.)

Cook followed up with Dr. Fife on January 21, 2008. (Tr. 357). According to the treatment notes, she was having quite a bit of pain in her lower back and was unable to tolerate either Cymbalta or Lexapro. (Id.). Dr. Fife referred her to Dr. Colon. (Id.).

In February 2008, Cook was evaluated by the North Dakota Department of Human Services ("NDDHS") in connection with a request for vocational services. The NDDHS determined she was severely disabled, in a great deal of pain, and would only be able to work a very limited number of hours. (Tr. 230-235). Cook was assigned a vocational counselor. After she obtained parttime employment at Bernia Plus doing bookkeeping, the NDDHS purchased a chair with arm rests and adjustable lumbar support to assist with her employment. She was followed by the NDDHS for a number of months thereafter, and the NDDHS did not close its case file until November 2008, after Cook and her counselor were satisfied with her parttime employment. (Tr. 236).

Cook returned to Dr. Fife on March 20, 2008, with a cough, congestion, and shortness of breath. (Tr. 356). Dr. Fife concluded that she was suffering from acute bronchitis, for which he prescribed her doxycycline. (Id.).

Cook presented to Dr. Fife on April 14, 2008, "with ear pain, clicking and popping, as well as chronic pain and weight management." (Tr. 354). Dr. Fife started her on a multivitamin and Nasonex. (Id.). He also referred her to a nutritionist. (Id.).

Cook followed up with Dr. Colon on April 25, 2008. (Tr. 340). According to Dr. Colon's notes, he had planned to administer a second cervical epidural steroid injection to Cook. (Id.). However, he decided to postpone the procedure because she was recuperating from a recent bout of bronchitis and appeared to be short of breath. (Id.)

Cook reported to Dr. Fife on May 8, 2008, complaining of stuffiness in her eyes, itchiness, and continued wheezing. (Tr. 353). Determining that she was suffering from allergic rhinoconjuctivitis and reactive airways, Dr. Fife started her on Advair, Claritin, and Nasonex. (Id).

Cook was reevaluated by Dr. Fife on May 15, 2008. (Tr. 352). She reported that her respiratory difficulties had waned since taking Advair and Claritin. (Id.). Dr. Fife instructed her to continue taking Claritin, but cut back on the Advair. (Id.).

Cook reported to Trinity Hospital Pain Center on May 21, 2008. (Tr. 338-39). There she received a caudal epidural steroid injection from Dr. Colon. (Id.).

Cook presented to Dr. Fife on July 3, 2008, with bronchitis and trouble breathing. (Tr. 350). Dr. Fife gave her Lidoderm patches, along with a small supply of Vicodin for use on a temporary basis. (Id.).

Cook contacted Dr. Fife on August 25, 2008, seeking, inter alia, a referral to the pain clinic. (Tr. 348). Dr. Fife prescribed her Flexeril and referred her back to the pain clinic as needed. (Id.).

Cook presented to Dr. Fife on September 10, 2008, complaining of back pain and numbness in her legs. (Tr. 346). Dr. Fife noted that she had exhibited some paraspinal muscle tenderness, but otherwise had good reflexes and no sensory deficits. (Id.). His plan was for a short course of prednisone. (Id.).

Cook returned to Dr. Fife on October 6, 2008, with complaints of back pain. (Tr. 345). She was advised to continue taking her meds and to follow up with the pain clinic. (Id.).

Cook presented to Trinity Hospital Pain Center on October 14, 2008. (Tr. 336). There, she received a cervical interlaminar epidural steroid injection at C7-T1 from Dr. Colon. (Tr. 336-37).

Cook returned to Dr. Fife on November 10, 2008, to get her pain medication refilled. (Tr. 344). According to Dr. Fife's examination notes, Cook reported that her pain was controlled and that she was doing well. (Id.).

Cook presented to Dr. Fife on December 22, 2008, for a "recheck." (Tr. 342). She reported that she had some numbness and tingling in her hands, as well as occasional weakness in legs and hands. (Id.). However, she added that she was doing well overall and that her urge incontinence had shown significant improvement since she began taking Detrol. (Id.).

On January 8, 2009, Cook followed up with Dr. Fife. (Tr. 341). He reported that Cook was doing well overall. (Id.).

Cook next returned to Dr. Fife on June 17, 2009. (Tr. 361). According to Dr. Fife's notes, she had a lot of "breakthrough troubles" but was continuing to take her meds ...

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