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Gavalian v. Astrue

May 1, 2009


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issue:

1. Whether the Appeals Council erred in failing to remand in light of new material evidence submitted to it.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.


Plaintiff filed a claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, alleging disability based on, "asthma, breathing problems & cough, arthritis, bones pain, legs pain, numbness in my hands; nervous condition." (AR 92.) In an Exertional Daily Activities Questionnaire, Plaintiff asserted that she has terrible and severe headaches accompanied by vomiting and blurred vision, dizziness and numbness of fingers and toes. Further, she asserted that when she stands too long her knees give out and her feet and legs get shaky. (AR 88.)

The record contains medical information from Plaintiff's treating facility, All For Health, Health For All, for the period March 30, 2007 through November 14, 2007. (AR 106-204.) These records indicate that Plaintiff sometimes complained of discomfort in her neck and back, with back pain across her mid-back, radiating to her anterior chest on the left side. (See, e.g., AR 122, Report of May 10, 2007 office visit.) On that date, a musculoskeletal examination indicated that Plaintiff had mild pain with motion. (AR 123.) On April 16, 2007, Plaintiff complained to her treating facility that she had back pain with acute exacerbation. (AR 125.) At that time, she received a musculoskeletal examination which revealed normal musculature, no skeletal tenderness or joint deformity. (AR 126.)

A March 30, 2007 office visit reflects complaints of back pain. A musculoskeletal examination on that date indicated tenderness and weakness with mild pain upon motion in the cervical spine, tenderness in the lumbar spine with moderate pain upon motion; left shoulder tenderness with moderate pain on motion; left elbow tenderness with mildly reduced range of motion; foot pain in her right foot, burning sensations in the foot; left foot with pain, and a burning sensation in the feet. (AR 127.)

Plaintiff's treating physician, Dr. Janoian, completed a Physical Residual Functional Capacity Questionnaire dated October 3, 2007, in which he described persistent pain in the lower back and knees, and numbness in the hands making it difficult for Plaintiff to hold or lift objects. (AR 138.) Dr. Janoian indicated moderate limitations in repetitive reaching, handling or fingering, and moderate limitations due to pain and numbness in the upper extremities. (AR 140.) Plaintiff received a prescription of Motrin and Benedril for low back pain. (AR 143.)

Plaintiff received a complete internal medicine consultative examination ("CE") at the request of the Department of Social Services on April 3, 2007 from Dr. Saeid. (AR 171-175.) Plaintiff complained of back and chest pain, and numbness and pain in her legs and arms, in addition to chronic headache. (AR 171.) Upon examination, Dr. Saeid indicated his neck examination revealed some tenderness, but the neck was supple, and there was a normal range of motion. He found some tenderness in her midline and paraspinal back area of the mid to lower lumbar region, but the straight leg raising test was negative, both sitting and supine, and the range of motion of the back was within normal limits. (AR 174.) With regard to the upper extremities, the shoulders, elbows, wrists and hands indicated a normal range of motion, and there was no evidence of tenderness to palpation of the wrists. (AR 174.) Upon examination, the lower extremities also revealed a normal range of motion. (Id.) Dr. Saeid concluded after his examination that Plaintiff is capable of carrying 50 pounds occasionally and 25 pounds frequently, can stand and walk for six hours in eight-hour day, and can sit for six hours in an eight-hour day. (AR 175.)

At the hearing before the ALJ, testimony was taken from Dr. Maxwell, a medical expert ("ME"), regarding Plaintiff's physical issues. He described her complaints of back pain, joint pain, headache and dizziness. He testified there was no underlying pathology which explains her complaints of bodily pain and dizziness. (AR 305.)

In his decision, the ALJ found severe impairments in combination which consisted of hypertension, obesity, allergic rhinitis, a history of asthma, depressive disorder, NOS, and anxiety disorder, NOS. (AR 20.) The ALJ found that although Plaintiff complained of back pain, joint pain and dizziness there was no objective evidence to support these allegations; rather, he considered them to be symptoms. (AR 20.) In evaluating Plaintiff's subjective pain, the ALJ found some lack of credibility because Plaintiff's activities of daily living ("ADL") were inconsistent with the alleged degree of pain and impairment. (AR 26.)

Plaintiff's counsel (the same law firm which presently represents her in this action) submitted additional documentation to the Appeals Council, only two pages of which are relevant to this case. The first is a January 18, 2008 report of a left shoulder x-ray examination, which found calcific tendinitis at the critical zone of the insertion of the supraspinatus tendon, and mild degenerative changes of the acromioclavicular joint. (AR 286.) On the same date, a cervical ...

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