United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY
MILLOY, UNITED STATES MAGISTRATE JUDGE
14, 2016, the parties consented to proceed before a United
States magistrate judge for all purposes, including the entry
of a final judgment, under 28 U.S.C. § 636(c). (Docket
Entry #9). The case was then transferred to this court.
(Docket Entry #10). Cross-motions for summary judgment have
been filed by Plaintiff Hermann Barraza (“Plaintiff,
” “Barraza”) and Nancy Berryhill
(“Defendant, ” “Commissioner”), in
her capacity as Acting Commissioner of the Social Security
Administration (“SSA”). (Plaintiff's Motion
for Summary Judgment [“Plaintiff's Motion”],
Docket Entry #13; Defendant's Cross Motion for Summary
Judgment [“Defendant's Motion”], Docket Entry
#12). Defendant has also filed a reply. (Defendant's
Response to Plaintiff's Motion for Summary Judgment
[“Defendant's Response”], Docket Entry #14).
After considering the pleadings, the evidence submitted, and
the applicable law, the court ORDERS that Defendant's
Motion be GRANTED, and that Plaintiff's
Motion be DENIED.
March 19, 2012, Plaintiff Herman Barraza filed an application
for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“the Act”),
and under Part A of Title XVIII of Act. (Transcript
[“Tr.”] at 144). In his application for benefits,
Barraza claimed that he has been unable to work since
February 16, 2007, because he has arthritis, nerve damage in
his arms, legs, back and neck, high blood pressure,
depression, anxiety, and joint pain. (See Tr. at
144, 175). On June 14, 2012, the SSA found that Barraza was
not disabled under the Act, and so his application was
denied. (Tr. at 57-58). Plaintiff petitioned for a
reconsideration of that decision, but his claim was again
denied on September 4, 2012. (Tr. at 85). He then
successfully requested a hearing before an administrative law
judge (“ALJ”). (Tr. at 99-100). That hearing took
place on September 5, 2013, before ALJ William B. Howard.
(Tr. at 27-35). Plaintiff testified at the hearing and was
assisted by his attorney, Donald Dewberry. (Tr. at 52-83).
Dr. Robert H. Smiley, a medical expert witness, testified at
the hearing, as did Kay Squires Gilreath, a vocational
rehabilitation consultant. (Tr. at 71-83).
October 25, 2013, the ALJ engaged in the following five-step,
sequential analysis to determine whether Plaintiff was
capable of performing substantial gainful activity or was, in
1. An individual who is working or engaging in substantial
gainful activity will not be found disabled regardless of the
medical findings. 20 C.F.R. §§ 404.1520(b) and
2. An individual who does not have a “severe
impairment” will not be found to be disabled. 20 C.F.R.
§§ 404.1520(c) and 416.920(c).
3. An individual who “meets or equals a listed
impairment in Appendix 1” of the regulations will be
considered disabled without consideration of vocational
factors. 20 C.F.R. §§ 404.1520(d) and 416.920(d).
4. If an individual is capable of performing the work he has
done in the past, a finding of “not disabled”
must be made. 20 C.F.R. §§ 404.1520(f) and
5. If an individual's impairment precludes performance of
his past work, then other factors, including age, education,
past work experience, and residual functional capacity must
be considered to determine if any work can be performed. 20
C.F.R. §§ 404.1520(g) and 416.920(g).
Newton v. Apfel, 209 F.3d 448, 453 (5th
Cir. 2000); Martinez v. Chater, 64 F.3d 172, 173-74
(5th Cir. 1995). It is well-settled that, under
this analysis, Barraza has the burden to prove any disability
that is relevant to the first four steps. Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
If he is successful, the burden then shifts to the
Commissioner, at step five, to show that he is able to
perform other work that exists in the national economy.
Myers v. Apfel, 238 F.3d 617, 619 (5th
Cir. 2001); Wren, 925 F.2d at 125. “A finding
that a claimant is disabled or is not disabled at any point
in the five-step review is conclusive and terminates the
analysis.” Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
be emphasized that the mere presence of an impairment does
not necessarily establish a disability. Anthony v.
Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)
(quoting Milam v. Bowen, 782 F.2d 1284, 1286
(5th Cir. 1986)). Under the Act, a claimant is
deemed disabled only if he demonstrates an “inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death, or which has lasted
or can be expected to last for a continuous period of not
less than twelve months.” Selders v. Sullivan,
914 F.2d 614, 618 (5th Cir. 1990) (citing 42
U.S.C. § 423(d)(1)(A)). Substantial gainful activity is
defined as “work activity involving significant
physical or mental abilities for pay or profit.”
Newton, 209 F.3d at 452. A physical or mental
impairment is “an impairment that results from
anatomical, physiological or psychological abnormalities
which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” Hames v.
Heckler, 707 F.2d 162, 165 (5th Cir. 1983)
(citing 42 U.S.C. § 423(d)(3)). Further, the impairment
must be so severe as to limit the claimant so that
“[he] is not only unable to do [his] previous work but
cannot, considering [his] age, education, and work
experience, engage in any kind of substantial gainful work
which exists in the national economy.” Greenspan v.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994)
(citing 42 U.S.C. § 423(d)(2)(A)).
on these principles, as well as his review of the evidence
presented at the hearing, the ALJ found that Barraza has not
engaged in substantial gainful activity since February 16,
2007, when he last worked. (Tr. at 29). The ALJ further
concluded that Plaintiff suffers from degenerative disc
disease of the cervical and lumbar spine, hypertension, and
obesity, and that these impairments are severe.
(Id.). The ALJ also considered Plaintiff's
testimony that he continues to have pain in both hands
following surgery for carpal tunnel syndrome. (Id.).
The ALJ determined this condition to be a non-severe
impairment, because there was no objective medical evidence
that Plaintiff's hands were limited in any way.
(Id.). The ALJ further found that Barraza's
impairments did not meet, or equal in severity, the medical
criteria for any disabling impairment in the applicable SSA
regulations. (Id.). He then assessed
Plaintiff's residual functional capacity
(“RFC”), and concluded that he is capable of
performing light work,  although he can stand and/or walk for
only about four hours in an eight hour workday, and he can
sit for only six hours. (Tr. at 32). The ALJ also determined
that Barraza should not work at unprotected heights or around
dangerous machinery, and he can only occasionally climb one
flight of stairs. (Tr. at 32). With these limitations, the
ALJ decided that Barraza is capable of performing his past
relevant work as a security guard. (Tr. at 34). For that
reason, he concluded that Barraza is “not under a
disability, as defined in the Social Security Act, ”
and he denied the application for benefits on October 25,
2013. (Tr. at 35).
November 21, 2013, Plaintiff requested an Appeals Council
review of the ALJ's decision. (Tr. at 23). SSA
regulations provide that the Appeals Council will grant a
request for a review if any of the following circumstances is
present: “(1) there is an apparent abuse of discretion
by the ALJ; (2) an error of law has been made; (3) the
ALJ's actions, findings, or conclusions are not supported
by substantial evidence; or (4) there is a broad policy issue
which may affect the public interest.” 20 C.F.R.
§§ 404.970 and 416.1470. On October 7, 2014, the
Appeals Council denied Plaintiff's request, finding that
no applicable reason for review existed. (Tr. at 1-3). With
this ruling, the ALJ's decision became final.
See 20 C.F.R. §§ 404.984(b)(2) and
April 15, 2016, Plaintiff filed this lawsuit, pursuant to
section 205(g) of the Act (codified as amended at 42 U.S.C.
§ 405(g)), to challenge that decision. (Plaintiff's
Original Complaint, Docket Entry #1). The parties have filed
cross-motions for summary judgment. (Docket Entries 12, 13).
Having considered the pleadings, the evidence submitted, and
the applicable law, Defendant's motion for summary
judgment is GRANTED, and Plaintiff's
motion for summary judgment is DENIED.
courts review the Commissioner's denial of disability
benefits only to ascertain whether the final decision is
supported by substantial evidence and whether the proper
legal standards were applied. Newton, 209 F.3d at
452 (citing Brown v. Apfel, 192 F.3d 492, 496
(5thCir. 1999)). “If the Commissioner's
findings are supported by substantial evidence, they must be
affirmed.” Id. (citing Martinez, 64
F.3d at 173). “Substantial evidence is such relevant
evidence as a reasonable mind might accept to support a
conclusion. It is more than a mere scintilla and less than a
preponderance.” Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995); see Martinez, 64
F.3d at 173 (quoting Villa v. Sullivan, 895 F.2d
1019, 1021-22 (5th Cir. 1990)). On review, the
court does not “reweigh the evidence, but . . . only
scrutinize[s] the record to determine whether it contains
substantial evidence to support the Commissioner's
decision.” Leggett v. Chater, 67 F.3d 558, 564
(5th Cir. 1995); see Fraga v. Bowen, 810
F.2d 1296, 1302 (5th Cir. 1987). If no credible
evidentiary choices or medical findings exist that support
the Commissioner's decision, then a finding of no
substantial evidence is proper. Johnson v. Bowen,
864 F.2d 340, 343 (5th Cir. 1988).
this court, Barraza argues that the ALJ erred, because he did
not consider Plaintiff's carpal tunnel syndrome when
determining his residual functional capacity.
(Plaintiff's Motion at 6, 7-11). Plaintiff also contends
that the ALJ ignored the testimony from the medical expert
witness when he concluded that Barraza was capable of doing
light work, rather than only sedentary work. (Plaintiff's
Motion at 6, 11-14). Finally, Plaintiff complains that the
ALJ incorrectly concluded that he could perform his past work
as a security guard even though his physical limitations, as
described by the ALJ, prevent him from meeting all of the job
requirements for that position. (Plaintiff's Motion at 6,
14-16). Defendant insists, however, that the ALJ properly
considered all of the available evidence, and followed the
applicable law, in determining that Barraza is not disabled.
(Defendant's Motion at 4).
Facts, Opinions, and Diagnoses
earliest medical records show that Plaintiff was treated at
the Veterans Administration Medical Center in October, 2001.
(Tr. at 577-580). An x-ray of his right shoulder was normal.
(Tr. at 565). X-rays of both knees revealed bone spurring on
both kneecaps. He complained of back pain, and x-rays
showed that his lumbar spine was normal, but he had
degenerative changes in the lower thoracic spine. (Tr. at
561, 564). Barraza was seen at the VA clinic's eye care
center on November 1, 2001, as part of a new patient
evaluation. (Tr. at 546). He complained of hypertension, as
well as arthritis in his right shoulder, hips, and knees.
(Tr. at 546-547).
of the left knee was completed on January 9, 2002, at the
request of Dr. John Vanderpool. (Tr. at 558, 560-561). That
examination showed that Barraza had tendonitis, which was
caused by calcium deposits in the muscles surrounding the
knee, but no structural defect or damage to the knee was
apparent. (Id.). X-rays of the lower back were
repeated. (Tr. at 557-558). This time, the x-rays were
interpreted to show spondylosis throughout the lumbar spine
with small anterior osteophytes.
following year, in May of 2003, Barraza went to the Bay Area
Neurology for an EMG because of pain and tingling in his left
arm and hand. (Tr. at 501-505). Dr. Edward Good (“Dr.
Good”) believed the test showed mild carpal tunnel
syndrome in the left hand and wrist. (Tr. at 500). Dr. Good
did posit that it was possible that the left hand complaints
were caused by pressure on the spinal nerve root at the
junction of the cervical spine and the thoracic spine. (Tr.
at 500). One week after the EMG was completed, Barraza
returned to Dr. Good's office. (Tr. at 506). While at
work that day, Barraza developed a sharp, severe pain in his
back, which was accompanied by numbness and tingling in his
face. (Id.). He also complained of pain under his
left arm when turning his head to the left and raising his
arm. (Id.). Dr. Good's neurological examination
of Plaintiff was unremarkable. Plaintiff's strength,
reflexes, and sensations were intact and normal. (Tr. at
506). Dr. Good recommended an MRI of the cervical spine, but
the results of that test are not included in the
administrative record. (Id.).
next went to see Dr. Michael Brown (“Dr. Brown”),
at The Hand Center, to have surgery on his left hand and arm.
(Tr. at 509). He told Dr. Brown that for several months, he
had experienced numbness and tingling in the fingers and
fingertips of his left hand. (Id.). Dr. Brown's
examination of Barraza revealed symptoms consistent with
carpal tunnel syndrome. (Tr. at 509). A nerve conduction
study confirmed that diagnosis, and also ruled out a nerve
injury in the neck as a cause of the numbness in his hands.
(Tr. at 510-511). Barraza was also diagnosed with tennis
elbow in his left arm. (Tr. at 508). Dr. Brown operated on
Plaintiff's left hand and elbow on July 15, 2003, to
correct the tennis elbow and carpal tunnel syndrome. (Tr. at
10, 2004, Barraza told Dr. Benny Sanchez (“Dr.
Sanchez”), of Doctor's Hospital - Tidwell, that he
had experienced pain in his neck and upper left arm for more
than six months. (Tr. at 367). Dr. Sanchez diagnosed a
pinched nerve in his neck, and, because conservative
treatment had not been successful, he recommended a cervical
epidural steroid injection. (Tr. at 62, 367). That procedure
did succeed in reducing Plaintiff's pain, and a second
injection took place on July 26, 2004. (Tr. at 365).
Terry Newman (“Dr. Newman”) treated Plaintiff on
March 8, 2005, for high blood pressure. (Tr. at 328). Dr.
Newman's records show that Barraza had been taking
medication to control his blood pressure, but he wanted to
discontinue the medication. (Id.). Because his blood
pressure was still borderline high, the doctor decided to
continue the medication. (Id.). Plaintiff then had
surgery for carpal tunnel syndrome on his right hand in March
of 2006. (Tr. at 518, 330). Plaintiff testified that this
surgery was necessary because he injured his hand while
assembling air conditioning units at work. (Tr. at 61). The
next record of treatment is dated October 27, 2006, when
Plaintiff saw Dr. Benjamin Guillermo (“Dr.
Guillermo”) at Gulf Coast Medical Group to review and
refill his prescriptions for Tricor and Caduet. (Tr. at 285).
December 18, 2006, Barraza went to the emergency room at
Clear Lake Regional Medical Center, complaining of left arm
and left leg pain, as well as facial numbness. (Tr. at 255).
He was worried because the pain originated in his chest and
radiated to his extremities. (Id.). Several cardiac
tests were completed, but they did not explain his complaints
of chest or arm pain. (Tr. at 257-258). An MRI of the
cervical spine showed mild degenerative changes in
Barraza's neck, but no herniations or narrowing of the
spinal canal. (Tr. at 259-260). An x-ray confirmed
degenerative changes at the level of C2-3. (Tr. at 264). An
MRI of the lumbar spine showed a herniated disc at the L5-S1
level in his lower back. (Tr. at 262-263).
then saw Dr. Guillermo on December 20, 2006, complaining of
headaches, neck pain, left arm pain and pain down his left
side. (Tr. at 283). X-rays of the lumbar spine revealed
minimal bone spurring in the upper lumbar spine and lower
thoracic spine. (Tr. at 312). Cervical spine x-rays showed
arthritis in his neck at the C2-C3 level, and mild narrowing
of the disc spaces at the C5-C6 level. (Tr. at 313). Dr.
Guillermo prescribed Flexeril, a muscle relaxant, and
methylprednisolone, a steroid used to treat inflammation from
arthritis. (Tr. at 283). He also referred Plaintiff to Dr.
Ali Javanshir (“Dr. Javanshir”) for a
neurological evaluation. (Tr. at 283). Dr. Janvashir, at
Omega Neurology, treated him on December 28, 2006. (Tr. at
314). Plaintiff explained to Dr. Janvashir that his neck and
back pain had occurred suddenly about two weeks earlier while
he was driving. (Tr. at 314). Although he had pain in his
neck radiating to his left arm, and pain in his lower back
extending into his left leg, he did not have any weakness or
difficulty in walking. (Tr. at 314). When Dr. Janvashir
examined him, Barraza did not have any spinal pain, was able
to walk normally, and had a normal sensation in his fingers
and toes. (Tr. at 315-316). Dr. Javanshir considered several
possible causes of Plaintiff's pain, including spinal
stenosis, entrapped nerves, nerve damage, either at the spine
or in the extremities (polyradiculopathy and polyneuropathy),
and multiple sclerosis. (Tr. at 316). He recommended an MRI
of Plaintiff's brain and spine, and an emg/nerve
conduction study of his left arm and leg. There is no
evidence these tests were ever completed. (Tr. at 317).
again complained of back pain to Dr. Rajeswari Rajan
(“Dr. Rajan”), at Gulf Coast Medical Group, on
April 4, 2007, when he sought treatment for a rash. (Tr. at
281). Dr. Rajan reported that Barraza had a reduced range of
motion, but a normal heel/toe walk. (Tr. at 281). Dr. Rajan
prescribed an antifungal cream for the rash, and refilled
Plaintiff's prescriptions for Caduet, Tricor, Flexeril,
and Vicodin, a painkiller. (Tr. at 281). Barraza saw Dr.
Rajan again for an annual physical on April 18, 2007. (Tr. at
279-280). Dr. Rajan listed obesity, spondylosis, high
cholesterol, and high blood pressure, when describing
Barraza's health conditions. (Tr. at 279). Dr.
Rajan's physical examination showed no abnormalities in
Plaintiff's upper or lower extremities, and normal
coordination without sensory or motor deficits during the
neurological examination. Dr. Rajan did report that Plaintiff
had a reduced range of motion during the examination. (Tr. at
279). Dr. Rajan counseled Plaintiff to diet and to exercise,
and to return in one month. (Tr. at 279). Barraza went back
to Dr. Rajan on April 30, 2007, complaining of pain in the
right side of his abdomen, reporting that the pain had begun
a month earlier. (Tr. at 277). Dr. Rajan ordered an
ultrasound of the abdomen that showed a slightly enlarged
liver, but no other abnormalities. (Tr. at 309). Plaintiff
returned to Gulf Coast Medical Group on August 22, 2007, to
have his prescriptions refilled. (Tr. at 274). He complained
that his medications were not strong enough, and he was
prescribed Soma in place of Flexeril, and given Norco, a
stronger version of Vicodin. (Tr. at 274). During the
examination, Dr. Rajan reported that Plaintiff had a reduced
range of motion in his spine. (Tr. at 274). He again
instructed Barraza to diet and exercise, and return in one
month. (Tr. at 274).
continued to complain of neck pain when he returned to Dr.
Guillermo on November 1, 2007. (Tr. at 271). Although he did
not have low back pain at that time, he complained of neck
pain radiating to both shoulders and arms. (Tr. at 271). He
also complained that the pain was worse on the left side.
(Id.). Dr. Guillermo found Plaintiff to have a
normal range of motion in his shoulders and neck, but he did
complain of discomfort when bending his neck. (Id.).
He walked with a normal gait, had no muscle weakness,
tingling or numbness, and no joint stiffness. (Tr. at 271).
Dr. Guillermo replaced the Norco prescription with Darvocet
and Flexeril, and ordered an MRI and x-rays of his neck. (Tr.
at 272). The x-ray showed arthritis at ¶ 2-C3 and C5-C6
with some narrowing of the opening where the nerve exits the
spine at ¶ 5-C6. (Tr. at 308). An MRI showed bone
spurring at the C5-C6 level that pressed into the spinal
canal and caused narrowing of the opening for the nerves.
(Tr. at 300). There was also a small disc bulge at ¶
3-C4. (Id.). An x-ray of the low back showed bone
spurring at several levels, but, did not show any significant
structural problems with the lumbar spine. (Tr. at 297). Dr.
Guillermo discussed the results of these studies with
Plaintiff on November 19, 2007. (Tr. at 269). At that time,
Barraza still complained of neck pain radiating into both
arms, but he now also complained of low back pain radiating
into his legs. (Tr. at 269). A straight leg test was
positive, and Plaintiff complained of tenderness in his lower
back. (Tr. at 269). However, he had a normal
gait when Dr. Guillermo examined him, and the doctor saw no
evidence of spinal tenderness, muscle spasms, or abnormal
motor, sensory or reflex responses. (Tr. at 269). Dr.
Guillermo prescribed Ultram, and told Plaintiff to see a
spine specialist. (Tr. at 269-270).
Newman saw Plaintiff on February 25, 2008, to treat his
hypertension and high cholesterol. (Tr. at 267). Barraza did
not describe any significant neck or back complaints at that
time, and he had no edema or abnormal pulses in his
extremities. (Id.). Dr. Newman refilled
Plaintiff's blood pressure medication. The next medical
record available is from August 19, 2008, when Plaintiff
returned to the VA clinic. (Tr. at 536). At that time, he
complained of pain in his neck and shoulders, lower back, and
left knee. (Tr. at 539). Plaintiff told Dr. Ronald Marek
(“Dr. Marek”) that he had received a series of
three injections in his neck and back between November 2007,
and January 2008, because of pain radiating into his arms and
legs.(Tr. at 536). He also told Dr. Marek that
the injections relieved his pain for only a month, at most,
and that the only medications he was taking were Caduet for
hypertension, and ibuprofen. (Tr. at 536). During the
examination, Plaintiff had a full range of motion in his
neck, without any significant limitations. (Tr. at 539).
Although Plaintiff complained of back pain, Dr. Marek saw no
evidence of a neurological deficit in his spine. (Tr. at
535). Dr. Marek prescribed naproxen and gabapentin for the
back pain. (Tr. at 535).
December 1, 2008, Plaintiff returned to the VA clinic for
treatment. (Tr. at 531). During this visit, Dr. Marek
reported that Barraza did not have any weakness, numbness, or
tingling in his extremities, and he saw no sign of any motor
or sensory deficits. (Tr. at 532, 533). The doctor also noted
that Plaintiff's “walking distance [was] not
limited.” (Tr. at 532). Plaintiff was prescribed
naproxen and gabapentin for pain and inflammation, and
continued on medication for high cholesterol and high blood
pressure. (Tr. at 532). He was referred to the nutrition
clinic for help with his diet and weight loss, but he did not
attend that appointment. (Tr. at 530).
April 1, 2009, Plaintiff was seen again at the VA clinic.
(Tr. at 524). He complained of pain on the left side of his
body. (Tr. at 523). Dr. Marek found no neurological deficits
and no motor or sensory deficits during his examination of
Plaintiff. (Tr. at 525-526). Plaintiff told the doctor that
he was not taking his pain medication, but instead
occasionally used his wife's Vicodin. (Tr. at 526). Dr.
Marek prescribed gabapentin and started Plaintiff again on
Piroxicam in place of naproxen. (Tr.at 523, 526).
John Samuel ordered an echocardiogram on July 7, 2009. (Tr.
at 432). The right ventricle of Plaintiff's heart was
found to be enlarged, and he had mild mitral valve
regurgitation, but there were no other abnormalities found.
(Tr. at 432). A treadmill exercise stress test did not show
any problems with the function of his heart during exercise.
(Tr. at 433). An x-ray of the cervical spine was interpreted
to show degenerative disc disease throughout the spine, as
well as narrowing of the neural foramen on the right side at
¶ 3-C4, C4-C5, and both sides at ¶ 5-C6. (Tr. at
428). A lumber spine x-ray showed degenerative changes
throughout the lower back, with disc space narrowing and
osteophytes. (Tr. at 427). Later that month, Plaintiff
described a history of back pain and numbness/tingling in his
arms to Dr. Asha Samuel (“Dr. Samuel”). (Tr. at
415). He also complained of pain in both of his arms and
shoulders, his left hip, and his left leg. (Tr. at 410). On
September 14, 2009, he again complained of left hip pain. Dr.
Samuel treated these complaints with Celebrex. (Tr. at 407).
On October 19, 2009, Barraza complained that his “whole
body hurt.” (Tr. at 406). Plaintiff went back to the VA
clinic nine days later, on October 28, 2009. (Tr. at 520). At
that time, he complained of pain in his left arm and hand.
(Tr. at 515). He did not complain of any acute episodes of
back pain during this visit. (Tr. at 516). His medications
were changed to Tramadol, cyclobenzaprine, and
Celebrex. (Tr. at 516).
November 11, 2009, Plaintiff saw Dr. Samuel after two days of
severe back pain that radiated to his left leg. (Tr. at 405).
He told Dr. Samuel that he did not have numbness or weakness
in his leg, but he described his pain to be at a level of
“8 to 9 out of 10.” (Tr. at 405). X-rays of the
lumbar spine were similar to the previous films and showed
degenerative disc disease throughout the lower back, but
worsening at the L1-L2 and L2-L3 levels. Dr. Samuel
prescribed Flexeril and Ultram and referred him to a pain
management doctor. (Tr. at 405). Two weeks later he returned
to Dr. Samuel for a follow up examination. (Tr. at 404). He
told Dr. Samuel that his back was better, but there is no
indication that he had seen a pain management doctor.
(Id.). The records from this treatment show that
Plaintiff told Dr. Samuel the “spine surgeon wants
[him] to lose weight.” (Tr. at 404).
April 5, 2010, Plaintiff complained to Dr. Samuel that he had
low back pain and intermittent shoulder pain. (Tr. at 403).
Barraza wanted Dr. Samuel to refill the prescriptions for
Celebrex, Flexeril, and Tramadol. (Tr. at 403). Dr. Samuel
diagnosed “degenerative disc disease” of the
spine, told Plaintiff to exercise, and refilled his
prescriptions. (Tr. at 403). On September 10, 2010, Plaintiff
bent over to lift a basket of laundry when he felt a shooting
pain in his lower back and right leg. (Tr. at 402). He saw
Dr. Samuel four days later, and the doctor continued the
prescriptions for Flexeril and Celebrex. (Id.).
Plaintiff was then seen at the VA clinic on August 31, 2010.
(Tr. at 514). During this visit, he complained of pain in his
left arm and hand. (Id.). Although his history of
chronic back pain was included in a list of “active
problems, ” Plaintiff listed only medications for
depression, high blood pressure, and high cholesterol, and
did not list Flexeril or Celebrex, when identifying his
current medications. (Tr. at 514). Dr. Utpal Ghosh told
Plaintiff to take ibuprofen for the hand pain, and also
prescribed Celebrex, Tramadol, and Flexeril for his back
pain. (Tr. at 515).
returned to Dr. Samuel on October 14, 2010, to review the
results of blood tests to monitor his high cholesterol and
hypertension. (Tr. at 401). He complained of low back pain at
this visit. (Tr. at 401). The following month, on November
23, 2010, Plaintiff told Dr. Samuel that his lower back hurt,
and the pain radiated into both legs. (Tr. at 399). Dr.
Samuel reported that Plaintiff was not in any distress and
did not want to see an orthopedic doctor, but instead wanted
to return to pain management. (Tr. at 399). Plaintiff was
continued on Tramadol and Flexeril, as well as the
medications for high cholesterol and hypertension. (Tr. at
399). Dr. Samuel then sent Plaintiff to see Soraya Hoover,
M.D. (“Dr. Hoover”), because he was having
difficulty in sleeping. (Tr. at 370). Dr. Hoover diagnosed a
deviated septum, and Plaintiff had surgery to correct that
problem on November 4, 2010. (Tr. at 370). Plaintiff saw Dr.
Samuel on March 7, 2012, for ongoing pain in his back,
shoulder, hip and knee. (Tr. at 392). Plaintiff was
“not in any distress, ” and Dr. Samuel did not
find any neurological deficits. (Tr. at 392). The doctor told
Plaintiff to exercise, and continued his pain medications.
(Tr. at 392).
14, 2012, Barraza was examined by Dr. Manoj Vakil (“Dr.
Vakil”), a doctor of internal medicine acting on behalf
of the state. (Tr. at 455-457). Plaintiff told Dr. Vakil that
his neck and back pain began five years earlier. (Tr. at
455). He claimed that his low back pain was getting worse,
and he described it as a constant dull pain that radiates
into his legs. (Tr. at 455). He also said that his neck and
upper back pain radiates into his shoulders and arms.
(Id.). Plaintiff explained that his back pain
worsens if he sits in one position for more than 20 minutes,
or if he lifts objects weighing more than 30 pounds. (Tr. at
455). Plaintiff was able to walk on his toes and heels, and
could get on and off the examination table without help. (Tr.
at 456). Dr. Vakil examined Plaintiff's spine and said
that Barraza had a normal range of motion in both his neck
and lower back, with no indications of any muscle spasms.
(Tr. at 456-457). Plaintiff also had the full range of motion
in his hips, knees, ankles, elbows, shoulders and wrists.
(Tr. at 457). A straight leg raising test was negative, and
there was no muscle atrophy, loss of sensation, or loss of
reflex. (Tr. at 456-457). Barraza could squat, but he could
not hop, because of his back pain. (Tr. at 457). He told Dr.
Vakil that he is able to drive, and that he helps his wife
cook and clean the house. (Tr. at 455). An x-ray of the
lumbar spine was interpreted by Dr. Ali Salehi, a
radiologist, to show mild degenerative changes and bony
spondylosis in the lumbar spine. (Tr. at 459). An EKG showed
non-specific ST-T wave changes, a finding that ruled out a
past heart attack, but not other primary or secondary heart
problems. (Tr. at 457). From this examination, Dr. Vakil
concluded that Plaintiff is able to sit, stand, move around,
and lift and carry objects weighing up to thirty pounds
without any problem. (Tr. at 457).
Dr. Vakil's report from this examination, Dr. Hajra
Madani (“Dr. Madani”), an internal medicine
doctor acting on behalf of the state, prepared an evaluation
of Barraza's physical residual functional capacity. (Tr.
at 461-468). Dr. Madani listed “mild lumbar
degenerative disc disease” and high cholesterol as the
diagnoses for Plaintiff. (Tr. at 461). She found that
Plaintiff could occasionally lift or carry items weighing up
to fifty pounds, and could frequently lift or carry items
weighing up to twenty-five pounds. (Tr. at 462). She also
found that he could stand and/or walk for about six hours in
an eight hour work day; he could sit for the same amount of
time; and that he could perform an unlimited amount of
pushing and pulling, within the weight limitations previously
stated. (Tr. at 462). Dr. Madani found that Barraza had no
postural limitations, no manipulative limitations, no visual
limitations, no communication limitations, and no
environmental limitations. (Tr. at 463-465). Dr. Madani
determined that the alleged severity and limiting effects of
Plaintiff's impairments were not fully supported by the
medical evidence. (Tr. at 545). Dr. Madani also said that it
was reasonable to assume that Plaintiff had the same level of
function for the six month period before Dr. Vakil's
examination. (Tr. at 468).
Roberta Herman, an internist retained by the state, reviewed
the conclusions by Dr. Vakil and Dr. Madani, on September 4,
2012, during the reconsideration of Plaintiff's claim for
disability benefits. (Tr. at 474). Dr. Herman agreed with
their findings, and pointed out that Plaintiff had not
followed up with a doctor for his back pain since the
examination by Dr. Vakil. (Tr. at 474).
Background, Work History, and Present Age
time of the hearing, Barraza was 54 years old. (Tr. at 54,
484). He had dropped out of high school in the eighth grade,
had joined the job corps, and had earned his GED. He then
joined the United States Navy as a machinist in 1981. (Tr. at
56, 144, 58, 538). He served in the Navy for twenty years,
during which he was stationed overseas in the Persian Gulf
War. (Id.). He was honorably discharged from the
Navy on April 30, 2001. (Id.). He received a 10%
service connected disability rating for tinnitus caused by
his service in the military. (Tr. at 515). After leaving the
Navy, he worked as a machinist for Baker Oil from 2001 until
2005. (Tr. at 182). He then worked as a security guard for
five months before going to work at Lennox, where he
assembled air conditioning units. (Tr. at 182). He returned
to work as a security guard in May, 2006, and continued in
that position until March, 2007, when he stopped working
altogether. (Tr. at 182).
claims that he has been unable to work since February 16,
2007, because of arthritis in his neck, back, shoulders and
knees. (Tr. at 144, 190). He explained that his neck stiffens
up, begins to hurt, and the pain then spreads through both
shoulders and down his arms, and he cannot grasp or hold his
gun. (Tr. at 62-63). He does not have any trouble raising his
arms above shoulder level, but his hand cramps if he writes
more than a few lines, or types for more than five minutes.
(Tr. at 66-67).
has daily pain in his lower back that is only partially
relieved by the medications that he takes. (Tr. at 65).
Because of his lower back pain, he is not able to bend over
to pick up objects off the floor or walk long distances. He
said that his back pain is the primary reason he is not able
to work, because he is not able to walk around the property
and the parking lot. (Tr. at 64, 68). Plaintiff tries to use
Vicodin only at night to help him sleep, because he is
worried about becoming addicted. (Tr. at 65-66). To cope with
back pain during the day, he adjusts his sitting position,
and will also lie down once or twice for an hour or more.
(Tr. at 66). He sleeps in a loveseat, and has to change his
position every couple of hours, because of his back pain.
(Tr. at ...