Lewis v. Bowen

675 F. Supp. 1205, 1987 U.S. Dist. LEXIS 16959, 20 Soc. Serv. Rev. 385
CourtDistrict Court, C.D. California
DecidedDecember 22, 1987
DocketNo. CV 86-8335-ER(GHK)
StatusPublished

This text of 675 F. Supp. 1205 (Lewis v. Bowen) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Bowen, 675 F. Supp. 1205, 1987 U.S. Dist. LEXIS 16959, 20 Soc. Serv. Rev. 385 (C.D. Cal. 1987).

Opinion

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE

RAFEEDIE, District Judge.

This matter is before the court upon a Complaint For Review of the Final Decision of the Secretary of Health and Human Services.

The court has reviewed the entire record in this matter.

IT IS ORDERED that the court adopts the Memorandum and Recommendation heretofore filed by Magistrate King on all issues presented to him in the action. Magistrate King’s Memorandum and Recommendation correctly states the law and is supported by the record in this case.

The court specifically adopts the Memorandum and Recommendation filed on December 22, 1987 for purposes of publication.

MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE

GEORGE H. KING, United States Magistrate.

Plaintiff has filed a Motion for Summary Judgment and/or Remand.1 Defendant, Secretary of Health and Human Services, has filed a Cross-Motion for Summary Judgment seeking affirmance of his decision denying plaintiff supplemental security income benefits.

Administrative Proceedings

On January 11,1985, plaintiff applied for supplemental security income benefits (Certified Administrative Record, hereinafter “A.R.” 52-61) alleging disability beginning February 15, 1980 due to back problems and arthritis. Plaintiff’s application was denied initially (A.R. 62-64), and upon reconsideration. (A.R. 66-78).

On June 27, 1985, plaintiff requested an administrative hearing (A.R. 69-70) which was held on January 2, 1986 (A.R. 33-51) before an Administrative Law Judge (hereinafter “ALJ”). The AU issued his decision on March 31, 1986 finding, inter alia, that plaintiff’s impairments did not prevent her from performing her past relevant work, and she was therefore not disabled. (A.R. 23). On April 28, 1986, plaintiff sought review of the hearing decision. (A.R. 13-14). By decision dated July 21, 1986, the Social Security Appeals Council concluded there was no basis for changing the AU’s decision. Accordingly, the AU’s decision stands as the final decision of the Secretary in plaintiff’s case. (A.R. 8-9).

Background

Plaintiff was bom on June 21, 1944, (A.R. 52), and has a high school diploma with some business training. (A.R. 38). She last worked in February, 1980 (A.R. 38), as a secretary, switchboard operator, medical billing supervisor, and supervisor of employees at a mental health services facility. (A.R. 38-40).

An electromyogram (EMG) dated July 29, 1980 showed plaintiff with chronic bi-segmental neurogenic denervation at L5-S1 left with associated early irritation of the SI nerve root. The radiologist characterized this as “[a]n abnormal electromyo-gram for age 36.” [Emphasis in original]. (A.R. 105). The medical records from Charles M. Bosley, M.D., covering a period of 1980 to September, 1983, (A.R. 106-115), and those of Shirzad A. Abrams, M.D. dated February 20, 1985 (A.R. 116-118) are essentially unremarkable. While neither physician utilized any diagnostic tools more sophisticated than the x-ray, Dr. Abrams noted from his review of the x-ray film that “[t]here may be some degenerative changes on the left side of the L4-5 level, [1207]*1207not well seen on these simple views.” (A.R. 117).

Similarly, records from the Olive View Medical Center between March, 1985 and July, 1985 showed that x-rays of the lumbo-sacral spine were within normal limits, and there was no clinical indication of radiculo-pathy, or herniated disc syndrome. (A.R. 121). Because the records did not indicate that plaintiff had had a myelogram, Dr. Morris suggested that a current neurologic and neurosurgical evaluation was necessary, and referred plaintiff to the Neurosurgery Clinic at Los Angeles County Hospital for a full evaluation, including a CT scan and a myelogram. (A.R. 121).

Starting in May, 1985, plaintiff was evaluated at the Los Angeles County-USC Medical Center. Although an EMG was normal, (A.R. 128), x-rays of the lumbo-sa-cral spine dated May 9, 1985 showed moderate telescoping into the neuroforamina at the L-5, -1 level. The radiologist recommended a computer tomography of the spine. (A.R. 129).

A lumbar metrizamide myelogram and a lumbar CT scan were performed. From the myelogram, the radiologist found epidural compression of the thecal sac ventrally and mild compression of the root sleeves bilaterally at the 4-5 segment. There was also minor deformity of the root sleeve on the left side at SI. No other abnormalities were seen. From these findings, the radiologist concluded that a herniated disc was suspected at L4-5 with compression of the L5 nerve roots bilaterally and the the-cal sac ventrally. There was also subtle compression at the L5 nerve root on the left. (A.R. 143-144).

A CT scan resulted in a finding of mild central disc protrusion at L4-5 causing some flattening of the thecal sac and some mild encroachment of the neuroforamina bilaterally. At L5-S1, “there [was] left lateral disc herniation at the upper portion of the left SI nerve root.” (A.R. 145). There was no evidence of disc herniation at the L3-4 level. From these findings, the radiologist concluded there was lateral disc herniation encroaching on the neuroforami-na and left nerve root, and additional mild central disc herniation or protrusion at the L4-5 level. (A.R. 146).

At the hearing, plaintiff testified to severe pain in her back going out to her hips and down her left leg. (A.R. 43). Stepping down on her foot caused pain, swelling, and numbness in her legs. She also had muscle spasms in her leg and back. (A.R. 43-44). Plaintiff said she was unable to sit too long (A.R. 44), to lift, bend, or stoop (A.R. 46), and had trouble sleeping at night. (A.R. 46). She said her symptoms were getting worse. (A.R. 46). While she was not opposed to surgery, she wanted a second opinion to ensure that surgery might actually do some good. There was some indication that her condition would not improve even with surgery. (A.R. 48-49). At the hearing, the AU suggested another orthopedic evaluation because the medical records from County-USC Medical Center were “old” because they were “six months old.” (A.R. 49).

An orthopedic evaluation was conducted by Magdi Ghaleb, M.D. In his report dated February 10, 1986 (A.R. 154-156), Dr. Gha-leb concluded that plaintiffs complaints were subjective and not substantiated by any other objective findings. He said the x-rays showed a slight thoraco-lumbar scoliosis with main curvature to the left and a slight narrowing of the intervertebral space between L-5/S-1. (A.R. 156).

Based upon his review of the medical evidence, the AU found that the preponderance of the evidence led to a conclusion that plaintiff retained the residual functional capacity to do light work. While the AU said plaintiff may have had a severe limitation from a probable herniated nucleus pulposus in June of 1985, which impairment may have met the Secretary’s Medical Listings at § 1.05(c) regarding disorders of the spine, he said this condition must have resolved itself because it was not revealed on Dr. Ghaleb’s x-rays. Because plaintiff could return to her prior relevant work, she was not disabled within the meaning of the Social Security Act. (A.R. 22-23).

Scope of Review

The Secretary’s findings are reviewable to determine if they are supported by sub[1208]

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675 F. Supp. 1205, 1987 U.S. Dist. LEXIS 16959, 20 Soc. Serv. Rev. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-bowen-cacd-1987.