Ratto v. SECRETARY, DEPT. OF HEALTH & HUMAN SERV.

• Decision Date: 13 August 1993
• Docket Number: Civ. No. 92-1383-JE.
• Citation: 839 F. Supp. 1415
• Parties: Carol RATTO, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of Oregon

839 F. Supp. 1415

Carol RATTO, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. No. 92-1383-JE.

United States District Court, D. Oregon.

August 13, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Drew L. Johnson, Johnson Cram & Harder, Eugene, OR, for plaintiff.

Craig J. Casey, U.S. Attorney's Office, Portland, OR, Richard Wetmore, Dept. of Health and Human Services, Region X, Seattle, WA, for defendant.

ORDER

ROBERT E. JONES, Judge:

Magistrate John Jelderks filed Findings and Recommendation on June 24, 1993 in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

Plaintiff has timely filed objections. I have, therefore, given de novo review of Magistrate Jelderks' rulings.

I find no error with Magistrate Jelderks' factual findings. I agree that the Secretary's decision is not supported by substantial evidence and that plaintiff has been disabled since August 24, 1985. However, I also agree with one of plaintiffs two objections to Magistrate Jelderks' recommendation.

Magistrate Jelderks recommends payment to plaintiff beginning on the date of her initial application for benefits, March 17, 1986. Rather, plaintiff is entitled to benefit payments commencing February 25, 1986, at the end of the five-month waiting period required by 42 U.S.C. § 423. See 42 U.S.C. § 423(b) ("An individual who would have been entitled to a disability insurance benefit for any month had he filed application therefor before the end of such month shall be entitled to such benefits for such month if such application is filed before the end of the 12th month immediately succeeding such month.").

Plaintiff's second objection is based on a mistaken belief that Magistrate Jelderks recommended her benefits run only through March 3, 1992, the date of her hearing before the ALJ. Rather, Magistrate Jelderks "expressed no opinion as to plaintiff's condition subsequent to March 3, 1992" and recommended that the case be remanded for a determination of benefits. I agree with Magistrate Jelderks' recommendation.

I ADOPT Magistrate Jelderks' Findings and Recommendations dated June 24, 1993, as modified by this Order.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

JELDERKS, United States Magistrate Judge:

Plaintiff Carol Ratto brings this action for judicial review of the Secretary's final decision denying Title II disability insurance benefits. This court has jurisdiction under 42 U.S.C. § 405(g). For the reasons set forth below, the decision of the Secretary should be reversed and remanded for a determination of benefits.

PROCEDURAL BACKGROUND

Plaintiff first applied for Title II benefits on March 17, 1986. Tr. 114-17. The application was denied, both initially and upon reconsideration. Tr. 125-28, 138-39. Plaintiff subsequently filed a new application for Title II benefits, with a protective filing date of October 31, 1989. Tr. 163-67. This claim was also denied initially, upon reconsideration, and upon re-reconsideration. Tr. 177-80, 190-91, 323-24. ALJ Kramer held a hearing on March 3, 1992. Tr. 53. On July 15, 1992, the ALJ issued an opinion finding plaintiff not disabled. Tr. 21-30. On October 6, 1992, the Appeals Council declined review. Tr. 5-6.

STATEMENT OF THE FACTS

Plaintiff was born January 27, 1947, making her 45 years old at the time of the hearing. Tr. 114. She has a ninth grade education, and an estimated IQ of 82. Tr. 10, 348. Plaintiff has performed past relevant work as a dining room cashier, cook, sales clerk, cook's helper, hospital cleaner, keno runner, packager, and receptionist. Tr. 28-29.

Plaintiff injured her back in August, 1985. Dr. Deane Stites, an orthopedic surgeon, subsequently examined plaintiff and diagnosed an "acute low back strain with right sciatica and congenital right pars interarticularis defect at L5/S1 with nerve root irritation at this level." Tr. 222. Dr. Stites prescribed conservative treatment, including bed rest, muscle relaxants, and oral analgesics. Id. Plaintiff did not respond well to that therapy. Tr. 222-24. A computerized tomography ("CT") scan on November 22, 1985 showed bulging discs diffusely at L3-4, L4-5, and L5-S1, along with interarticular part defects at L5 but no disc herniation. Tr. 225, 227.

By January 22, 1986, plaintiff was still unable to work. Id. Dr. Stites recommended she not return to her present employment, which involved heavy lifting, but instead be retrained for a more sedentary position that did not require any lifting, stooping, or bending. Id. He also recommended a back brace and physical therapy. Id. Although plaintiff occasionally showed some signs of improvement, with decreasing pain and increased mobility, on the whole her condition continued to deteriorate. Tr. 230-31.

On March 17, 1986, plaintiff filed for Title II disability benefits. She reported pain from sitting or standing too long, and that lifting and pushing caused pain to run down her leg. Tr. 148. The SSA employee who interviewed plaintiff noted she "seems to be in some pain after sitting in one position very long." Tr. 155. On May 12, 1986, Dr. Stites noted plaintiff "still continues to do quite poorly," and proposed cortisone treatment. Tr. 231. Dr. Stites subsequently referred plaintiff to Dr. Patrick Herz, an orthopedic back specialist. Id. Dr. Herz noted plaintiff suffered from significant limitations on motion, chronic pain, some numbness and muscle weakness. Tr. 236, 356-57. A myelogram and CT scan were negative for any impingement syndromes, nerve compressions, disc problems or stenosis. Tr. 233, 238-40. Dr. Herz diagnosed a Grade I spondylolysis¹ and spondylolisthesis² at L5-S1 and recommended surgery. Tr. 233, 236. Dr. Stites concurred. Tr. 243.

In August, 1986, plaintiff underwent an L5-S1 fusion, decompression, removal of loose fragments of bone, and nerve root exploration. Tr. 233, 251-53. While plaintiff was in the hospital undergoing spinal fusion surgery, the Secretary denied her application for disability benefits on grounds she was responding well to conservative treatment. Tr. 118-25. The Secretary also completed a Residual Functional Capacity Assessment ("RFC") stating plaintiff had unlimited capacity to lift weights, stoop, crawl, stand, walk, or sit. Tr. 121.

Plaintiff requested reconsideration, stating she was in a body cast, no longer able to make a bed, cook, lift pots or pans, dress herself, or drive, and was tired all the time. Tr. 159. The Secretary again denied her claim, this time on grounds the surgery had gone well and her condition was showing significant improvement. Tr. 133, 138. The Secretary revised the RFC to restrict the amount of weight she could lift, but otherwise deemed her capacity for work unrestricted. Tr. 133, 135. None of the doctors who approved the Secretary's original findings or the findings on reconsideration actually examined plaintiff. Plaintiff did not appeal the Secretary's decision.

Plaintiff initially responded well to the surgery. Her pre-operative back pain and numbness were largely gone, though she was still suffering pain at the bone graft site and anterior thigh pain secondary to nerve root irritation and swelling. Tr. 233. Shortly thereafter, plaintiff re-injured her back while trying to move an appliance in her home. Tr. 358. X-rays showed the spinal fusion was healing properly, and Dr. Herz initially diagnosed a simple muscle strain. Id. However, the pain persisted, and plaintiff reported shooting pains in her left leg. Id. Dr. Herz suggested an MRI, but the test was terminated after plaintiff suffered an acute claustrophobic episode. Tr. 359.

In February, 1987, another CT scan was performed. The results were essentially negative, with no sign of disc herniation, or nerve root impingement, or other explanation for her leg pains. Tr. 359. Dr. Herz concluded her symptoms were continuing pain from her spondylolisthesis. Id. His notes show plaintiff was very frustrated that her back and leg pains were persisting after the surgery. Id. In March, 1987, plaintiff reported considerable improvement in her condition. Tr. 359. In late July, plaintiff's condition deteriorated again. She suffered severe attacks of sciatica which caused her to seek treatment at the hospital emergency room. Tr. 360. Her back pains also became chronic. Id. She complained of chronic back pain, sciatica, and back spasms throughout 1987. Id. CT scans showed no evidence of nerve root impingement. Tr. 256, 361. Dr. Herz suspected the pain was being caused by an internal derangement of the lumbosacral disc, anteriorly, which could only be remedied by an anterior lumbar interbody fusion. Tr. 360. Dr. Herz recommended monitoring the situation for the time being, with further surgery being a last resort. Tr. 360-61.

In March, 1988, a discography³ was performed in an effort to verify Dr. Herz's tentative diagnosis. The test was inconclusive because doctors were unable to insert a needle containing the contrast medium into the 5-1 interspace. Tr. 260, 362. A pain management program was suggested as a possible alternative to surgery. Plaintiff agreed to participate, but her insurance carrier reportedly balked at paying. Id.

Plaintiff did not often see a physician for her back problems in the ensuing months, though she apparently continued to take medication previously prescribed.⁴ She did see Dr. Herz once in October, 1988. Tr. 362. Plaintiff also saw a Dr. Phillip Middleton from February 1988 through November 1988. Tr. 344. Dr. Middleton's complete report is not in the...