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Perry v. Barnhart

October 27, 2005

CHERI R. PERRY, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

Plaintiff Cheri R. Perry moves for summary judgment or remand. Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration, opposes the motion and cross-moves for summary judgment. Having considered all of the papers filed by the parties, the Court DENIES Plaintiff's motion and GRANTS Defendant's cross-motion for summary judgment.

BACKGROUND

I. Procedural History

On January 21, 1998, Plaintiff protectively filed an application for Supplemental Security Income (SSI) Benefits under section 1614(a)(3)(A) of the Social Security Act and on February 2, 1998, she filed an application for Disability Insurance Benefits (DIB) under section 216(i) and 223 of the Act, alleging disability since September 6, 1996*fn1 , due to upper extremity problems, stress, anxiety and depression. Plaintiff's claims for SSI Benefits and DIB were denied initially on June 18, 1998 and upon reconsideration on September 21, 1998. Plaintiff filed a timely request for hearing on November 20, 1998. A hearing was held on May 4, 1999 before ALJ Catherine R. Lazuran. Plaintiff appeared, waived her right to representation, and testified on her own behalf. On November 24, 1999, ALJ Lazuran issued a decision concluding Plaintiff was not disabled. On January 24, 2000, Plaintiff filed a request for review of the unfavorable ALJ decision. On February 6, 2001, the Appeals Council denied Plaintiff's request for review. Plaintiff did not appeal.

On March 17, 2003, Plaintiff re-applied for DIB under Title II of the Social Security Act, alleging disability due to the same impairments and the same onset date of September 6, 1996. Plaintiff's date last insured (DLI) is December 31, 2001. Plaintiff's application was denied initially on May 20, 2003, and was denied upon reconsideration on September 18, 2003 on the ground that the medical evidence was insufficient to show disability on or before the DLI. Plaintiff requested review by an ALJ, but she waived her right to appear at the hearing. On April 16, 2004, ALJ Richard D. Wurdeman issued a decision in which he found that Plaintiff was not disabled. On August 30, 2004, the Appeals Council denied Plaintiff's request for review. Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

II. Factual History

A. Plaintiff's Education and Work Experience

Plaintiff was born on June 26, 1964. (Tr. 67.) She completed high school in 1982. (Id.) From 1982 to 1985, Plaintiff was employed as a fast food assistant manager. (Tr. 95.) From 1985 to September, 1996, she worked as a production trainer for an optical manufacturer called Sola Optical, training employees to inspect lenses and to assemble and dissemble glass molds. (Tr. 63.) From May, 2001 to September, 2002, Plaintiff was enrolled in a vocational rehabilitation program to become a legal assistant. (Tr. 128-35.) After completing the program, Plaintiff worked part-time, from mid-January until February, 2003, but claimed she could not continue because of extreme pain in her right arm. (Tr. 67.) Plaintiff has not engaged in substantial gainful activity since September 6, 1996. (Tr. 63.)

B. Medical Evidence Submitted at 1999 Hearing

Plaintiff first felt the pain in her upper extremities in April, 1996 (Tr. 63), and started to see her primary physician, Judith Heiler, M.D., in July, 1996. (Tr. 65.) On October 18, 1996, Plaintiff was referred to an orthopedic surgeon, Gary P. McCarthy, M.D. (Tr. 120.) On November 13, 1996, Dr. McCarthy referred Plaintiff to Wayne Souza, Pharm. D., for acupuncture (Tr. 114), and Plaintiff "showed a slow, steady improvement in her symptoms and [felt] that her pain [had] gone from a 10 to a 5." (Tr. 111.) On February 26, 1997, Dr. McCarthy examined Plaintiff "for the purpose of issuing a treating physician's final medical-legal evaluation." (Tr. 120.) Dr. McCarthy diagnosed Plaintiff with: "1. Overuse syndrome, upper extremities, with lateral epicondylitis.*fn2 2. DeQuervain's.*fn3 3. Intermittent cubital tunnel syndrome.*fn4 4. Flexor tendon tendinitis."*fn5 (Tr. 124.) Dr. McCarthy opined that Plaintiff had "sustained a disability to her upper extremities precluding heavy lifting, torque-like motions and prolonged fine dexterity motions as well as repetitive forceful gripping." (Tr. 125.)

C. 1999 ALJ Decision

In her November 24, 1999, unfavorable decision, ALJ Lazuran relied on Dr. McCarthy's examination for medical evidence of Plaintiff's condition. (Tr. 26.) ALJ Lazuran found that Plaintiff had bilateral upper extremity overuse syndrome and an adjustment disorder, impairments that in combination were severe but did not meet or equal the criteria of any of the impairments listed in Appendix 1 of the Regulations (20 C.F.R, Part 404, Subpart P, Appendix 1.) (Tr. 29.) The ALJ also found that Plaintiff's complaints were not fully credible in light of the discrepancies between Plaintiff's assertions and the medical history on record. (Id.) The ALJ found that Plaintiff retained the residual functional capacity (RFC) for light work that does not require prolonged manipulation or repetitive forceful gripping. (Id.)

ALJ Lazuran solicited testimony from a vocational expert (VE). (Tr. 28.) In response to the ALJ's hypothetical about an individual with Plaintiff's RFC for light work who must avoid prolonged fine dexterity motions or repetitive forceful gripping, the VE identified several sedentary jobs such an individual could perform, including charge account clerk, telephone quotation clerk and surveillance monitor positions. (Tr. 228-30.) The VE testified that 550,000 sedentary jobs existed in the national economy and 11,000 existed in the Bay Area. (Tr. 228-29.) Based on the VE's testimony, the ALJ found that Plaintiff would be able to return to her past work as a fast food assistant manager. (Tr. 28.)

D. Post-November 24, 1999 Medical Evidence

From November 25, 1999 through March 13, 2003, Plaintiff's treating physician, Dr. Heiler, examined Plaintiff at least ten times. (Tr. 137-154.) The visits between November 25, 1999 and November 27, 2000 were unrelated to Plaintiff's disabling injuries and were instead regular annual physical and "Female" examinations. (Tr. 137-143.) From November 27, 2000 to March 13, 2003, only three of Plaintiff's visits with Dr. Heiler pertained to her disabling injuries: November 27, 2000; December 17, 2001; and March 13, 2003 visits.*fn6 (Tr. 143-154.) On November 27, 2000, Dr. Heiler diagnosed Plaintiff with "Tendonitis with chronic pain syndrome, stemming from injury in 4/96." (Tr. 142.) At this visit, Dr. Heiler advised Plaintiff to continue her meditation and exercise regime and referred Plaintiff to Dr. Susan Ahart, a psychiatrist Plaintiff had seen immediately following her injury in April, 1996. (Id.) There is no record that Plaintiff made an appointment with Doctor ...


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