Free Motion for Reconsideration - District Court of Arizona - Arizona

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Eric G. Slepian Bar # 017495 SLEPIAN LAW OFFICE 3737 N. 7th Street, Ste. 106 Phoenix, Arizona 85014 Telephone (602) 266-3111 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CAROL ANN WALLACE, Plaintiff, vs. INTEL CORPORATION as Administrator; INTEL CORPORATION LONG TERM DISABILITY BENEFIT PLAN; and MATRIX ABSENCE MANAGEMENT, INC., Defendants. MOTION FOR RECONSIDERATION OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT NO. CV-04-0492-PHX-RCB

PRELIMINARY STATEMENT The present action involves a dispute concerning Plaintiff Carol Ann Wallace's entitlement to Long Term Disability Benefits. The action is governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132. Both Plaintiff and Defendants agree that Ms. Wallace suffers from headaches which preclude her from performing substantial gainful activity (e.g. are disabling). See Plaintiff's Statement of Facts dated June 24, 2005 (hereinafter referred to as PSOF), Paragraph's 7-9 and the appendixes annexed thereto. The Defendants denied Ms. Wallace her Long Term disability benefits alleging that her disability is not substantiate by objective medical findings, a requirement under

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the Long Term Disability Plan. See PSOF, Paragraph 10. Plaintiff and Defendants both filed motions for Summary Judgment. On December 12, 2005 this Court granted Defendants Motion for Summary Judgment and denied Plaintiff's Motion for Summary Judgment, finding that it was not arbitrary and capricious for Defendant to conclude that there was a lack of objective medical evidence of disabling headaches. The Court found the Administrative record to be conflicted as to whether positive X-rays and MRI images are objective medical findings substantiating disability (Order, page 15). The Court reasoned that a conflict existed in the record because Plaintiff's treating physician, Dr. Hatrick, found that "none of the studies were able to provide a clue of the etiology of [Ms. Wallace's] head pain" Id. and that although Plaintiff had undergone MRI's, spinal taps, and other laboratory studies, Dr. Hatrick stated in his October 15, 2002 letter that

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"none of these studies were able to provide a clue of the etiology of her head pain". Plaintiff seeks reconsideration because, upon further examination, the Administrative record is not conflicted. Dr. Hatrick's observation that the etiology of the headaches is not known does not mean that there is a lack of objective findings. The etiology of an impairment, refers to the cause of same; while objective findings tend to objectively the

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diagnosis and treatment. Many impairments are quantified by objective findings, yet their etiology remains unknown (e.g., Arthritis, Bell's Palsy, Parkinson's disease, Alzheimer's disease, etc.). See Appendix 1. ARGUMENT Plaintiff and Defendants agree that Ms. Wallace suffers from disabling

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headaches. The only question on reconsideration is whether it was reasonable to

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conclude that Ms. Wallace's headaches are not supported by objective medical findings. Here, the Plan defines "objective medical finding" as: "a measurable abnormality which is evidenced by one or more standard medical diagnostic procedures including laboratory tests, physical examination findings, X-rays, MRI's, EEG's, "CT scans" or similar tests that support the existence of a disability or indicate a functional limitation ... . To be considered an abnormality, the test result must be clearly recognizable as out of the range of normal for a healthy population; the significance of the abnormality must be understood and accepted by the medical community". In the case at bar, the objective medical evidence was summarized by Plaintiff in her Statement of Facts. Objective abnormal findings consistent with headaches include: a) multiple musculoskeletal examinations documenting hypomobility and spasms in the upper cervical spine area; b) X-ray evidence of cervical spondylosis with cervical thoracic arthritis at C2-C3, C5-C6 and C6-C7 which directly causes pressure on the

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spinal nerve roots; c) X-ray and MRI evidence of a straightening of the normal cervical lordosis; d) MRI findings positive for cervical spondylitic ridging of the ventral subarachnoid space and straightening of the normal cervical lordosis; e) X-ray evidence of muscle spasms; and f) etc. See PSOF, paragraphs 7-9. Treatment has included narcotic pain medications, facet injections, trigger point injections, and radio frequency

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oblation of the cervical facets. Contrary to the implication of the Court, Dr. Hatrick did not state that there is a lack of objective medical findings to support the diagnosis of headaches. In July, 2002, Dr. Hatrick notes that Ms. Wallace has a long history of intermittent severe headaches that do meet the HIS criteria for migraine. Dr. Hatrick finds no neurological cause for the headaches. See Dr. Hatrick's July, 2002 treatment

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note contained in Appendix 2 of PSOF. Although Dr. Hatrick concludes that the etiology of the headaches is unknown (Appendix 2 to PSOF, treatment note dated October 15,

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2002), On November 20, 2002 Dr. Hatrick specifically states that Ms. Wallace experiences muscle spasms and tightening (See PSOF, Appendix 2, treatment note dated November 20, 2002). Dr. Hatrick continually prescribed and/or recommended prescription strength muscle relaxants (e.g. Skelaxin) for the headaches (e.g. PSOF, Appendix 2, treatment records dated September 25, 2002, October 23, 2002, November 4, 2003, January 16, 2003, February 13, 2003, February 18, 2003, etc). Further, Dr. Hatrick provided care in conjunction with other treating physicians. Because Dr. Hatrick did not routinely perform physical examinations the absence of noted physical abnormalities in his treatment records do not correlate with a finding that there is no physical abnormality. The record must be viewed as a whole. This includes treatment records from the primary care physician, medical consultants, and radiologists. The

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objective evidence is summarized in a letter dated November 15, 2004 as follows (See PSOF, Appendix 5): 1. Medical records from Russell Walker, M.D., Scottsdale Headache and Pain Center A.K.A. Pain Management and Headache Center of Arizona A.K.A. Arizona Pain Treatment Center(Appendix 6). October 11, 2001: musculoskeletal examination shows that suboccipital muscle pressure on the left will reproduce the patient's headaches. There is hypomobility and spasm on the left side of the upper cervical spine. Impression: migraine without aura; possible chronic hemicranial headache; insomnia; and depression. For abortives she was given Vioxx and Celebrex samples and a prescription for Fioricet. She was also given Indocin and Verapamil. 2. Michael A. Castillo, M.D., Chronic Pain Management Specialty, Anesthesiologist, Desert Pain Institute (Appendix 3). A) February 5, 2003: clinical diagnoses include cervical spondylosis with cervical facet osteoarthritis at C2-C3, C5-C6 and C6-C7, which directly causes pressure on the spinal nerve roots. The pressure on these nerve roots cause severe muscle spasms that have resulted in the straightening of the normal cervical lordosis and cause chronic cervicogenic daily migraines. MRI of the cervical spine, dated November 17, 2001:
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... At C5-6 and C6-7 there is minimal osseous spondylitic ridging of the ventral subarachnoid space without significant associated canal or neural foraminal stenosis. Note is made of straightening of the normal cervical lordosis. This can be positional in nature or related to muscle spasm. Findings per Dr. Castillo: Image Sc5, FFE/M, SL7: slight bulge at C6-7 Image Sc3, FFE/M, SL2: joint arthritis at C2-3 Image Sc5, FFE/M, SL7: no lordosis from C2 through C7 due to muscle spasms C) Fluoroscopy image of cervical spine, dated January 9, 2003: Findings per Dr. Castillo: Cervical facet osteoarthritis at C2-C3, C6-C7. X-ray of cervical spine, dated August 16, 2000: Findings per Dr. Castillo: Cervical spondylosis with cervical facet osteoarthritis at C2-C3. X-ray of lumbar spine, dated August 23, 1999: Findings per radiologist's report: Facet joint osteoarthritis in the lower lumbar spine. Note made by Dr. Castillo: Supports existence of osteoarthritis in multiple areas of the spine. TMC Advanced Imaging-Chandler (Appendix 7).

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November 7, 2001: MRI of the cervical spine reveals straightening of the normal cervical lordosis. This can be seen with muscle spasm. At C5-6 there is minimal osseous spondylitic ridging of the ventral subarachnoid space. 4. A) Stuart Hetrick, D.O., Foothills Neurology (Appendix 2). May 27, 2003: history of severe, chronic, daily headaches; chronic neck pain secondary to spondylosis; and a history of dizziness with syncope. At her last visit it was decided to decrease the Nortriptyline, but upon decreasing the Nortriptyline her headaches have worsened. She has required 6 DHE injections and 4 Toradol injections. November 20, 2002: utilized the DHE-45 injections on 3 occasions and on 2 occasions she did proceed to the Toradol injections. She has continued to experience increased muscle spasms and tightening to the superior trapezius region and does wish to consider physical therapy as she feels this has been a trigger to her headache pattern. She has recently followed up with Dr. Robert William of biological psychiatry who has recommended Lithium to help augment the use of her Nortriptyline and Prozac for migraine medication. As she does experience some muscle spasms and

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tightening, we will try cranial sacral therapies to see if this would further reduce her spasms, and perhaps provide benefit in reducing her headache pattern. 5. A) B) C) D) E) F) G) H) I) J) K) James Adkins, D.C. (Appendix 8). December 28, 2001: muscle spasms in the upper cervical and thoracic regions. December 31, 2001: muscle spasm in the cervical region. January 2, 2002: muscle spasm in the cervical region with tenderness, adhesions, and fixation. January 7, 2002: cervical and thoracic muscle spasm. January 9, 2002: significant cervical hypomobility. Restricted cervical range of motion. Cervical and thoracic muscle spasm. January 10, 2002: significant hypomobility. F.C. induced headache. Cervical and thoracic muscle spasm. January 16, 2002: cervical and thoracic muscle tenderness. January 17, 2002: cervical spine muscle spasm. January 23, 2002: cervical spine muscle spasm. January 25, 2002: cervical and thoracic muscle spasm. January 28, 2002: cervical and thoracic muscle spasm; adhesions.

Additionally, Ms. Wallace has been prescribed multiple medications for her disabling migraine headaches. These medications include, but are not limited to Toradol injections, Pamelor, Dextromethophan, Effexor, Nortriptyline, Klonopin, Skelaxin, Oxycodone, Neurontin, Fioricet, Loestrin, Prozac, Trazodone, Verapamil, Axert, Celebrex, Midrin, Indocin, and Naprosyn. Objectively, these medications are expected to cause, and do cause, side effects that would prevent the performance of substantial gainful activity on a regular and continuous basis. ... A) Robert A. Williams, M.D., Biological Psychiatric Institute (Appendix 9).

November 7, 2002: patient evaluated for migraines in relationship to sleep and mood. Because of her family history of bipolar disorder and the cyclical nature of her depression, she has been prescribed Lithium to augment the Prozac and Nortriptyline. B) Merle Turner, D.O., Warner Family Practice (Appendix 10). September 20, 2001: cervical headaches. Plan: MRI of the brain; Lortab; and infectious disease referral. September 27, 2001: headaches. Midrin trial. October 4, 2001: headaches. Trial of Fiorcet. October 10, 2001: headaches.

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C)

William M. Marsh, M.D. (Appendix 11).

September 22, 2003: migraine-intractable and uncontrolled. It is severe and chronic. ... October 7, 2003 laboratory report: sedimentation rate 24 H (0-20 mm/hr). Urea nitrogen (BUN), serum 26 H (8-25 mg/dL). Alkaline phosphatase, serum 177 H (39-117 IU/L). TSH 6.89 H (0.40-5.20 Mu/L). D) Banner Regional Sleep Disorders Program- Desert Samaritan, Paul Barnard, M.D. (Appendix 12).

April 17, 2002: polysomnography report: sleep disordered breathing, mild, consistent predominately of central apneas. The sleep disorder is positional, suggesting more of an obstructive problem. She demonstrates minimal oxygen desaturation and intermittent arousal associated with sleep disordered breathing events. Clinical correlation is necessary. Central apnea in younger patients is often related to nasal obstruction. E) Mesa Lutheran Medical Center (M. Castillo, M.D.) (Appendix 13).

June 27, 2002: patient underwent left C2 ganglion block, under fluoroscopy, with IV sedation. May 31, 2002: patient underwent radio frequency denervation of the right cervical facets C4, C5, C6, and C7 under fluoroscopy. Preoperative diagnosis: migraine and occipital headaches; and cervical spondylosis. April 5, 2002: patient underwent left cervical facet injections at C2, C3, C4, and C5, under fluoroscopy with IV sedation. Postoperative diagnosis: cervical spondylosis with cervical facet arthrosis causing cervicogenic headaches. March 18, 2002: patient underwent facet injections at C4, C5, C6, and C7 on the right; and left cervical facet injections at C4, C5, C6, and C7, under fluoroscopy with IV sedation. February 27, 2002: patient underwent facet blocks at C2-C3, C3-C4, and C4-C5 under fluoroscopy with IV sedation. Postoperative diagnosis: C2C3 and C3-C4 facet syndrome causing tension headaches and left trapezius pain. Migraine headaches/ possible occipital neuritis/ C2 ganglion neuritis. (Surginet) F) Russell Walker, M.D., Scottsdale Headache and Pain Center A.K.A. Pain Management and Headache Center of Arizona A.K.A. Arizona Pain Treatment Center (Appendix 6).
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April 1, 2002: transform migraine. She has been in the ER 6 times in the last month. She has been given a prescription for Toradol injections that she may administer at home to avoid ER visits. December 28, 2001: current diagnosis is intractable daily headache. There are objective findings- range of motion deficit, cervical spasm, and facet joint hypomobility. December 17, 2001: migraine without aura, intractable; cervicogenic headache; and depression. She is given a prescription for Phenergan and a refill for OxyIR. ... November 5, 2001: current medications include: Fioricet, Provera, Loestrin, Prozac, Trazodone, Klonopin, Verapamil, Axert, Celebrex, Midrin, Indocin, Naprosyn, and Hydrocodone. Assessment: migraine without aura, intractable; possible chronic hemicranial headache; cervicogenic headache; insomnia, improved; and depression. The patient is given samples of Skelaxin to use as a muscle relaxer as it is felt that she is possibly having cervical spasms, which may be triggering her headaches. . .. G) Stuart Hetrick, D.O., Foothills Neurology (Appendix 2). ...

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May 27, 2004: she has been experiencing paresthesias to the upper extremities and a subsequent NCS was performed. This did reveal a moderate degree of carpal tunnel entrapment bilaterally for which she underwent a carpal tunnel injection on the right. She did use 3 DHE-45 injections and 4 Toradol injections. She does find Zofran beneficial if her headache is associated with nausea. She has continued with the use of Nexium, Dextromethorphan, Clonazepam, Folic Acid, Synthroid, Albuterol and CPAP machine. April 28, 2004: SLR is positive at about 50 degrees on the right and negative to 90 on the left in the lower extremities. Impression: carpal tunnel syndrome; and cervical/ lumbar radiculopathy. Solu-Medrol 50 mg was injected into the right carpal tunnel without complication. April 22, 2004: NCS (nerve conduction study report): this is an abnormal nerve conduction study revealing evidence of moderate to severe carpal tunnel syndrome in both the left and right upper extremities. ...

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June 24, 2003: since the patient's last visit she has undergone radio frequency oblation on the right cervical facets. She indicates that at this point, it is difficult to determine how helpful this has been as she is still sore from the procedure itself. Over the past month, she has required 7 DHE injections, 4 Toradol injections. May 1, 2003: the patient used 2 DHE injections and 2 Toradol injections for 4 headaches over the past month. She had a syncopal episode. Apparently, she fainted, fell and broke her leg. ... February 13, 2003: patient states that, on average, she will spend 12-14 hours a day in bed. Her husband who accompanies her today for a visit verifies this. She has been seeing Dr. Wojcik for percutaneous electrical nerve stimulation, nutrition counseling, and management of her hypothyroid disease. She has seen an anesthesiologist, Dr. Castillo who recently performed a C2 facet block on the left, which provided some transient improvement. She is scheduled for radio frequency oblation of the upper cervical facets on February 26, 2003. At this point, the patient has been essentially disabled due to her headaches. She is not even able to perform normal daily activities. ... December 18, 2002: recently encouraged by her psychiatrist to initiate Lithium to augment her Nortriptyline and Prozac, which are currently being used for migraine prophylaxis. She had been advised at her last visit that Lithium is more beneficial for cluster headaches than it is for migraine or chronic daily headaches. ... October 15, 2002: the patient has been unable to work over the past year due to the severity of the headaches. She was forced to go on medical leave on October 15, 2001 and has not been able to return to work in the interim. Impression: chronic migraine headache has not had any significant improvement over the past year despite extensive evaluation and treatment. The patient failed cervical epidurals, cervical facet blocks, radio frequency denervation of facet joints, cervical ganglion blocks, and cervical manipulation under anesthesia. She has been on multiple medications, had extensive physical therapy, and still remains extremely disabled due to the chronic headaches. Dr. opines patient is unable to return to any meaningful employment at this time. She is unable to perform her normal or similar duties, and she is even unable to perform less demanding tasks at this time. Dr. does not see that she will have any substantial improvement over the next year, will continue to work with her and manage her head pain in order to reduce the intensity of the headache as much as possible, however, the medication does interfere with her ability to function.

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... August 20, 2002: Long Term Disability Claim Physician's Statement Form: patient's symptoms are chronic daily headaches. Patient is unable to work, she is often unable to carry out normal functions at home and will need to remain on bed rest frequently. Her prognosis for recovery is poor. She has not achieved maximum medical improvement. ... July 11, 2002: longstanding history of intermittent severe headaches that do meet the HIS criteria for migraine. H) Michael A. Castillo, M.D., Chronic Pain Management Specialty, Anesthesiologist, Desert Pain Institute (Appendix 3).

Dr. Castillo opines that the objective medical findings are severe enough to render this patient disabled from performing any occupation. The condition of cervical spondylosis with cervical facet osteoarthritis can cause debilitating pain, as seen in this patient. Activity in the affected facet joints causes an increase in inflammation and muscle spasms. The facet joints will be under pressure anytime the patient is not in a neutral position. Simple extension, flexion, or lateral rotation of the head puts pressure on the spinal facet joint nerve root, which causes an increase in pain. This patient states, that lying in bed reduces her pain, while increased activity exacerbates her pain. The subjective description of this patient's pain pattern is supported by the objective medical findings. ... February 16, 2003: Physical Capacities Assessment Form: sit, stand, walk, drive 1 hour total in an 8 hour workday. Lift/carry up to 10 pounds occasionally. Unable to crawl, balance, twist, and reach. Unable to use right or left hand for firm grasping, fine manipulation, and pushing and pulling. Unable to use feet for repetitive movement as in operating foot controls. Patient has difficulties with talking, hearing, and vision. She has restriction from activities involving exposure to cold, heat, wet, or humidity; noise; vibration; and exposure to fumes, odors, chemicals, gases, or dust. She is not able to work. October 20, 2002: patient has a chronic migraine headache type pattern, which is mostly cervicogenic in foundation. I) Candace Lew, M.D., Contemporary Care for Women (Appendix 14).

March 27, 2002: she is on Oxycontin 40 mg every 12 hours and Oxycodone for intermittent relief as well as Neurontin. She has also recently been diagnosed with hypothyroidism and is on Levoxyl.

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J)

Richard Snider, M.D., Kimberly R. Stone, M.D., Philip L. Lu, M.D. (Appendix 15).

March 6, 2002: fatigue; migraine; depression. March 7, 2002: physical exam shows positive maxillary sinus tenderness and fluid behind left tm. Patient suffers sinusitis; fatigue; and polyuria. April 2, 2002: appears ill, fatigued. There is positive maxillary tenderness. Assessment is sinusitis, Z-pak; GERD, Prevacid; dysphagia. April 25, 2002: sad, tearful. + BS, mild mid-epigastric pain. Assessment GERD; abdominal pain; and right foot pain. June 25, 2002: left palate ulceration, five days with symptoms; migraines, on medications; chronic pain, Neurontin; and depression, increase Fluoxetine 20 mg. September 12, 2002: moderate tenderness lower back. K) St. Luke's Barrow Heart ­ Lung Center Sleep Laboratory (Appendix 16).

February 14, 2004: split polysomnography: severe obstructive sleep disordered breathing is present. In addition, Defendants physician confirms in his deposition that Ms. Wallace's impairment meets the objective requirement stated in the Plan. See Plaintiff's Memorandum of Law, page 11, and PSOF Appendix 18, noting that Dr. Nachmanson testified:

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At page 12: Q: A: Q: Q: A: ... what type of headaches did you diagnose? She has chronic daily intractable headaches. Okay. These headaches could be caused by tension; is that right? ... Muscle spasms, physical tension? They can be - - part of having tension headaches is that the belief is that you have increased muscle tone that can be triggered from a number of different reasons. Some of which could be related to a neck strain or neck

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Q: A:

spasm. Some of which could be related to emotional issues. Some of which could be related - - or have no specific reason for happening. ... Can a doctor feel muscle spasms? If it severe enough, he can.

At page 16: Q: ... What about a radiologist [who] writes that [there is] straightening of the normal cervical lordosis and [that] this can be positional in nature or related to muscle spasm? I would think that is objective. I said that if you could - - but the problem is that he is saying he can't tell whether it is a true muscle spasm or not. Okay. But if there were physician records documenting muscle spasms, that would be clinical correlation, true. That would be correct.

A: Q: A:

At page 17: Q: A: ... cervical osteoarthritis can cause or contribute to tension headaches; is that correct? They can be associated with cervicogenic headaches.

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At page 17: Q: A: Q: A: Q: A: ... do you know what a SED rate is? Yes. Okay. And my understanding is that [the SED rate] can be used as a diagnostic tool; is that correct? Yes. And it can be indicative of arthritis and inflammation; is that right? Yes. 1

At page 19: Q: A: Q: A: Has there been any correlation with obstructive sleep disorder and headaches? Yes, there has. Could you tell me about that. Patients with sleep apnea, especially patients who have desaturation of oxygen during sleep, often will have headaches. Typically their morning headaches tend to get better as they get... as they go on longer during the day. Often patients who have severe sleep apnea, if their sleep apnea is treated, the headaches [will] improve.

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Ms. Wallace's SED rate was elevated to 24. The neurologist indicates that the elevation is not significant.

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Q:

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If an individual who suffered from intractable chronic headaches, who also underwent a split polysomnography demonstrating severe obstructive sleep disorder breathing - Yes. - - Could that also be contributing to headaches? Yes. And I take it that the sleep study would be objective. Sleep studies are objective.

At page 20: Q: ... Is repeated and consistent documentation of muscle spasms considered to be outside of what I would call a finding for a normal healthy person? THE WITNESS: Persistent muscle spasm would be aberrant. ... With respect to straightening of the cervical lordosis secondary to muscle spasm, is that considered to be a finding outside of a normal healthy population? If someone had a cervical spine X-ray which the radiologist read as an abnormal straightening of the spinal curve related to muscle spasm, yes, that's abnormal.

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At page 21: Q: If there is a polysomnography report showing a severe obstructive breathing disorder, is that outside of a normal healthy population finding. Yes.

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A:

There is not a single treating or examining physician that has concluded there are no objective findings; and the only physician who apparently opined to the contrary (a non-examining consulting physician) does not state that there is no objective medical findings to support the impairment, but rather writes that he does not believe the

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medical findings to be significant enough to support the impairments. PSOF, Appendix 10. The non-treating, non-examining physician does not explain the conclusion, which is contrary to the medical records. THE ETIOLOGY OF HEADACHES IS NOT RELEVANT

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Dr. Hatrick's statement that the etiology of Ms. Wallace's headaches is unknown is not evidence of a lack of objective findings. Etiology is defined in Webster's New World Steadman's concise Medical Dictionary as the science and study of the causes of disease and their mode of operation. There are many diseases substantiated by objective medical findings for which the etiology is unknown. For example, Alzheimer's disease is a progressive neurodegenerative disorder. Pathologically, the brain is reduced in size. Objective findings include brain atrophy. However, the etiology of Alzheimer's is unknown. See Appendix 1, page 7 of 73. Similarly, Primary Osteoarthritis, a common rheumatological disorder is of unknown etiology. See Appendix 1, page 53 of 73. The diagnosis of Osteoarthritis is based on clinical examination. Radiographic findings and laboratory results do not always correlate with

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symptoms. Id. Sarcoidosis is a multisystemic disorder of unknown etiology. However, patients with sarcoidosis frequently present with skin lesions, and distinctive laboratory abnormalities, See http://www.emedicine.com\med\topic2063.htm. Parkinson's disease is another disease whose etiology remains unknown. Nevertheless, there are clinical findings such as motor problems which substitute the diagnosis. Appendix 1, page 58.

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Similarly, Bells palsy or facial paralysis is diagnosed by an examination of facial muscles, with abnormal responses to stimuli and or loss of control of facial muscles. The etiology of Bell's palsy is unknown. The same holds true for cervicogenic headaches (a/k/a muscle contraction headaches). These headaches are quantified by objective medical evidence of muscle tension including X-rays, MRI's and physical

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examination findings. The fact that the etiology of Ms. Wallace's headaches is unknown does not detract from her claim for disability benefits. This is because muscle

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contraction headaches are evidenced by nerve compression in the neck such as the intervertebral foraminal, or the spinal canal. Impairment of free movement at the joints, discs or ligaments may lead to irritation of sensitive structures of the joints and soft tissues of the neck, causing headaches Tension headaches are the result of sustained muscle contractions which produce both irritation at muscle insertion points and ischemic pain of the muscle itself. Common sources of irritation are the degenerative changes associated with osteophytes. As a degenerative process progresses, the spinal canal decreases in all diameters causing pressure on the longest ending and descending tracts as well as the cervical nerve roots. The most frequent complaint of the patient with cervical spondylosis is cervical, occipital or atypical facial pain due to irritation of the C2, C3 and C4 nerve roots. The continued irritation of these roots as

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they exit from the intervertebral foramen produces an inflammatory response in the root with secondary edema. As the greater and lesser occipital nerves pierce the trapezoid at the base of the skull they are subject to pressure by cervical muscles and spasm. The result, an occipital neuralgia, producing further cervical muscle spasms, leading to a perpetuation of occipital pain. Appendix 2.

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CONCLUSION Based on the aforementioned, it is respectfully requested that this Court reconsider it's Order denying Plaintiff's Motion for Summary Judgment and granting Defendant's Motion for Summary Judgment; and upon such reconsideration, find in favor of Plaintiff Carol Ann Wallace.

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Respectfully submitted this 27th day of December, 2005.

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_s/Eric G. Slepian____________ ERIC G. SLEPIAN

CERTIFICATE OF SERVICE

I hereby certify that on December 27, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Joseph E. Lambert, Esq. 1930 S. Alma School Road, Ste. A-115 Mesa, AZ 85210

s/ Genesia Conover SLEPIAN LAW OFFICE

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