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Tenhet v. Astrue

March 23, 2009

NANCY TENHET, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Nancy Tenhet ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for a period of disability and disability insurance benefits Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her initial application in June 2004, alleging disability since May 21, 2004, due to Lyme disease, pain, memory loss, fibromyalgia, diabetes, nausea, numbness in her fingers, a limp, loss of vision, and sensitivity to bright light and noise. AR 76-79, 118-125. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 42-46, 49-53, 57. On October 17, 2006, ALJ James Berry held a hearing. AR 523-574. ALJ Berry denied benefits on December 11, 2006. AR 324-334. The Appeals Council granted Plaintiff's request for review on June 4, 2007, and the ALJ's decision was vacated and the action was remanded. AR 338-341.

ALJ Bert C. Hoffman held a second hearing on October 2, 2007. AR 523-574. Plaintiff amended her claim to seek a closed period of disability from May 21, 2004, through February 1, 2007, the date she returned to work. AR 16, 531. ALJ Hoffman issued an order denying benefits on November 26, 2007. AR 13-22. On April 21, 2008, the Appeals Council denied review. AR 8-11.

Hearing Testimony

ALJ Hoffman held a hearing on October 2, 2007, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. AR 523.

Plaintiff testified that she was 59 years old at the time of the hearing. She was not married. Plaintiff weighed 170 pounds and was 5 feet, 4 inches tall. AR 526. She has a driver's license and drives to her current job, which is five miles away, three days a week. She also drives to the grocery store. AR 527. There was a period, however, beginning in May 2004 and lasting through February 2007, when she was not driving because of the "brain fog" caused by her illness. AR 528.

Plaintiff completed the ninth grade and then received her GED. She also had a "couple" of college units. AR 528. She began working again in February 2007, performing telephone marketing. She works 15 hours a week and has special accommodations that allow her to delay her workday if she wakes feeling unwell. She can also work at home if she needs to. AR 529-530. Her workdays are not regular and she's not sure if she'll be able to continue. AR 531.

Plaintiff testified that during the closed period (May 21, 2004, through February 1, 2007), she could not work because she was sick everyday and had constant joint pain, muscle pain and memory problems. AR 539. She also has Lyme disease, fibromyalgia and is pre- diabetic. She has numbness in her hands when she wakes in the morning and has problems with her knees and muscles. When she gets overstressed, her vision becomes blurry. AR 540. She is also sensitive to very bright lights and has difficulty sitting in front of a computer for a "very, very long time." AR 540. She has concentration problems all the time and is "totally depressed." AR 541.

During the closed period, the pain was mostly in her feet, knees, legs, arms and neck. It affects her whole body, though, and can be worse in one area. She began experiencing "horrific brain fog" and pain in May 2004 and had to stop working. AR 542. She was on pain medication and a medication for nerve pain during the closed period. AR 543. The pain medication helped but did not take away the pain completely. It also made her drowsy and she had to lay down for an hour or so everyday, sometimes twice. AR 544-545.

She was diagnosed with Lyme disease in 1998 and by 2004, she was being treated for post Lyme disease syndrome, fibromyalgia, and joint pain. AR 547. Her tests for Epstein Barr virus have been positive since the early 1990s to the present. AR 548. She received chiropractic treatment but her symptoms have never gone away. She also had weakness in her knees. AR 568. During the closed period, she believed that she could sit for probably an hour before needing to get up and move around. AR 550. She thought she could stand for about 30 minutes and walk about 15 minutes. She thought she could lift less than 10 pounds. AR 551. She also could not use her arms on a continual basis, and thought her limit was about 30 minutes. AR 552.

Plaintiff's depression also affected her daily during the closed period. She had crying outbursts daily and did not want to be around people. The "brain fog" affected her ability to concentrate daily, and she could concentrate two to three hours a day, at most, for two hours at one time. AR 554-557. Her depression, for which she took medication, also affected her ability to concentrate. AR 558-559.

When questioned by her attorney, Plaintiff explained that she was not sleeping well but was able to shop and cook by herself. She could not clean because of fatigue. AR 560. She watched television for two to three hours, visited family and friends, and went out to lunch twice a month. AR 563.

Plaintiff explained that she went back to work when she first felt capable of working, in February 2007. AR 569, 571. She interviewed for the position in January 2007 and prepared prior to her first day. AR 572.

Medical Record

In February 2003, Plaintiff saw FNP Fontana and complained of feeling tired and aching muscles. She was diagnosed with chronic fatigue. AR 289.

In March 2003, Leonard Grabowski, M.D., noted that Plaintiff appeared to have signs and symptoms of fibromyalgia with no signs of acute inflammatory arthritis. He recommended a very conservative approach to treatment and hoped that Lexapro would help her cope with the symptoms. AR 162.

In October 2003, Plaintiff complained of increased fatigue and right ear pain. She was diagnosed with Lyme disease, right ear pain and Herpes I. AR 269. On October 28, 2003, FNP Fontana noted that she could go back to work. AR 269.

On January 27, 2004, Plaintiff was referred to Mary-Louise Scully, M.D., for an infectious disease consultation. Plaintiff complained of significant fibromyalgia and fatigue, as well as joint pain and ringing in her ear. Her physical examination was normal, although she was obese. Dr. Scully believed her symptoms were related to fibromyalgia and fatigue, along with a new diagnosis of Lyme disease. She was instructed to work on her diet and exercise because of her potential to develop diabetes. AR 152-154.

Plaintiff was referred to Charles J. Curatalo, M.D., on April 29, 2004, for evaluation of neurological symptoms. On examination, she appeared mentally sharp and fluent. Her overall neurological examination was benign. He diagnosed prior treatment for Lyme disease, neurological and medical symptoms (unlikely secondary to Lyme disease), possible obstructive sleep apnea and chronic fatigue syndrome. AR 146-148.

In May 2004, Plaintiff complained of pain in her ears, problems at work, low energy and interest and trouble concentrating. She also complained of numbness in her hands. Plaintiff was diagnosed with Lyme disease, tinnitis and depression. AR 255.

On May 20, 2004, Plaintiff saw Craig Calloway, M.D., for evaluation of tinnitis and sinus congestion. Her physical examination, including an examination of her ears and hearing, was essentially normal. Dr. Calloway diagnosed subjective tinnitis and abnormal auditory ...


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