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Nelson v. Astrue

February 17, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Nancy K. Nelson filed a complaint on December 13, 2007, seeking review of the Commissioner's decision denying her application for disability benefits. The Commissioner answered the complaint on April 28, 2008, and the parties filed a joint stipulation on June 3, 2008.



On February 5, 2004 (protective filing date), plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since January 1, 2004, due to chronic fatigue immune dysfunction syndrome, fibromyalgia, and mitral valve prolapse. Certified Administrative Record ("A.R.") 57-60, 70. The plaintiff's application was initially denied on May 22, 2004, and was denied again on September 13, 2004, following reconsideration. A.R. 43-52. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Barry S. Brown ("the ALJ") on June 9, 2005, and February 9, 2006. A.R. 53, 374-419. On September 28, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 10-19. The plaintiff appealed this decision to the Appeals Council, which denied review on October 30, 2007. A.R. 5-9.


The plaintiff, who was born on July 22, 1944, is currently 64 years old. A.R. 58, 377, 393. She has a law school degree and has previously worked as an attorney. A.R. 71, 76, 97-100, 377, 394-97.

Between March 27, 2001, and September 6, 2005, Na'Imah D. Powell, M.D., treated plaintiff, whom he diagnosed with chronic fatigue syndrome*fn1 and fibromyalgia.*fn2 A.R. 249-65, 311-17, 332-33. Laboratory tests performed on plaintiff on March 27, 2001, September 9, 2002, and March 10, 2005, were positive for Epstein-Barr virus. A.R. 263-65, 359. On August 28, 2003, Dr. Powell certified plaintiff had chronic fatigue/fibromyalgia, A.R. 249, and on July 13, 2004, he reiterated those diagnoses. A.R. 317.

Between June 14, 2001, and March 15, 2005, Oscar Matthews, M.D., treated plaintiff, whom he diagnosed with symptomatic mitral valve prolapse*fn3 and a history of chronic fatigue syndrome. A.R. 267-93, 318-28. An echocardiograph performed on November 21, 2002, showed systolic mitral valve prolapse, but was otherwise normal, and a carotid duplex scan showed bilateral obstruction of the internal carotid arteries with mild plaque. A.R. 326-27. On March 17, 2003, Dr. Matthews decided not to treat plaintiff for mitral valve prolapse due to the rarity of the arrhythmias on Holter monitoring. A.R. 277. On April 22, 2003, plaintiff underwent a myocardial perfusion study, which was normal at rest, and which showed a modest change in the midanterolateral wall with exercise. A.R. 306. On June 3, 2003, plaintiff underwent noninvasive cardiac testing, which demonstrated minimally decreased resting ejection fraction of 44%,*fn4 increasing appropriately to 63% with global augmentation of wall motion with the exception of the lateral wall. A.R. 273. On April 13, 2004, plaintiff underwent: an echocardiograph, which showed possible borderline right ventricular enlargement and mild mitral valve prolapse; a carotid duplex scan, which was normal; and an electrocardiogram exercise test and a myocardial perfusion study, which were negative for ischemia. A.R. 321-25. Laboratory studies taken on April 29, 2004, were positive for Epstein-Barr nuclear antibodies. A.R. 286-87, 356-57.

On April 20, 2004, Steven E. Gerson, D.O., examined plaintiff and concluded she should be able to lift 10 pounds frequently and 20 pounds occasionally, stand and walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday. A.R. 139-43.

On August 24, 2004, Evelyn Mendoza, M.D., examined plaintiff and diagnosed her with most likely very mild benign cyclic neutropenia*fn5 for which she was then currently asymptomatic. A.R. 307-09.

On June 5-6, 2005, plaintiff was treated at the Inland Valley Medical Center, where she was diagnosed with atypical chest pain, gastroesophageal reflux disease, mitral valve prolapse, fibromyalgia/chronic fatigue immune dysfunction syndrome, and a history of osteoporosis. A.R. 334-73. Essentially, plaintiff was admitted with chest pain and found to have gastroesophageal reflux disease, which was treated. Chest x-rays showed no evidence of acute cardiopulmonary disease, and upper gastrointestinal x-rays revealed moderately severe gastroesophageal reflux disease with no evidence of a hiatal hernia. A.R. 340-41. A cardiac stress test showed no evidence of infarction or ischemia with an ejection fraction of 50%, and a carotid duplex test was normal. A.R. 341-43.

On June 23, 2005, medical expert Joselyn E. Bailey, M.D., opined:

[Plaintiff] has had a variety of non-specific complaints since 1999 such as dizziness, vomiting, salt craving, chest fluttering, [and] tremors of hands and muscles[,] all of which resolved,[ ]usually spontaneously and required no prolonged treatment. Blood tests, CT scan of the brain, Holter monitor, Stress test, heart study, radionuclide angiogram, exercise test and lab reports were all normal or unremarkable. [ΒΆ] Her physical exam 4/20/04 was normal. Her ongoing complaint was chronic fatigue 7/13/04. At that time the assessment of fibromyalgia was also made. There has been no objective documentation ...

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