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Franklin v. Commissioner of Social Security

September 28, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Docs. 19 & 20).


Plaintiff applied for social security benefits in June 2005.*fn1 In the application, plaintiff claims that disability began on December 17, 2004, though she alleges in her motion for summary judgment that she did not become disabled until November 23, 2005. In her motion for summary judgment, plaintiff claims that disability is caused by a combination of chronic pulmonary obstructive disease ("COPD"), asthma, chronic knee pain and swelling due to arthritis, and chronic low back pain radiating into her leg as a result of an auto accident on November 23, 2005. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on June 26, 2007, before Administrative Law Judge ("ALJ") Alan K. Goldhammer. In an October 19, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The prior decision does not have preclusive effect because plaintiff's knee impairment arose after the prior decision was issued;

2. Plaintiff's severe impairments include: COPD, asthma, and bilateral knee osteoarthritis;

3. No severe low back impairment or mental impairment is established;

4. Plaintiff's severe impairments do not meet or medically equal an impairment set forth in the regulations;

5. Plaintiff retains the following residual functional capacity: she can perform sedentary work with limited bending, stooping, and crouching; no exposure to atmospheric irritants, such as fumes, dusts, and noxious gases;

6. No other non-exertional limitations are established and plaintiff's symptom allegations to the contrary are not credible; and

7. Based on plaintiff's residual functional capacity, and in light of vocational expert testimony, the claimant is able to perform her past relevant work as a receptionist/greeter and telemarketer.

After the Appeals Council declined review on March 21, 2008, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized below. Because plaintiff's motion for summary judgment focuses only on COPD, knee arthritis, and low back problems, the court will only summarize evidence relating to those specific impairments. In particular, plaintiff does not raise any arguments concerning mental impairments.

A. Plaintiff's Summary

Regarding, COPD/asthma, plaintiff provides the following summary:

Ms. Franklin has a long history of shortness of breath with periodic asthma attacks. See, e.g., AR, pp. 170, 200, 248. Measurements of the degree to which she gets enough oxygen, her oximetry scores, are sometimes slightly below normal at 96%. AR, pp. 170, 188. Serial x-rays show hyper-expansion of the lungs with coarseness of interstitial markings consistent with chronic pulmonary disease. AR, pp. 219, 255, 257. Ms. Franklin uses albuterol, Atrovent, Azmacort, and Q-var for her pulmonary problems, and they generally keep her out of the emergency room, although she was seen there in January 2006. AR, pp. 234, 272.

Plaintiff summarizes the evidence relating to her knee problems as follows:

In March 2005 Ms. Franklin began complaining of knee pain. AR, p. 190. The pain continued, and in July 2005 she was noted to have swelling in the right knee. AR, pp. 179, 181. Her physician at Highland Hospital observed swelling and warmth of the right knee, and he drained fluid from the joint. AR, pp. 242-243. An x-ray from November 2005 showed effusions (swelling) in both knees. AR, p. 148. Social Security's consultative examiner, Dr. Dang, reported diminished range of motion on the right knee, mild effusions, and mild-moderate tenderness along the anterior aspect of the joint. AR, pp. 141-142. Dr. Dang diagnosed arthritis of the right knee, possibly due to degenerative joint disease. AR, p. 142. Ms. Franklin used Vicodin, Naprosyn, and Motrin for pain. AR, pp. 234-234, 339. Even with frequent use of her medication, she has minimal pain control. AR, p. 339.

Regarding low back pain, plaintiff provides the following summary of the evidence:

On November 23, 2005, a car rear-ended Ms. Franklin twice while she was waiting for a light to change. AR, p. 292. Shortly thereafter she was examined by a chiropractor who noted diminished lumbar range of motion, myospasm of the right lumbar musculature, and a moderate amount of lumbosacral and sacroiliac joint pain. Id. In December 2005 Ms. Franklin continued to complain of low back pain. AR, pp. 238, 290. She went to the emergency room in January 2006 for low back pain and paralumbar muscle spasm. AR, pp. 260-261. In November 2006 Ms. Franklin had demonstrable weakness in her lower extremities and hips.

AR, p. 279. She underwent an MRI of the lumbar spine in November 2006 that revealed 304 mm of spondylolisthesis (slippage of one vertebra relative to another) of L5 on S1 and minimal desiccation of the L5-S1 disc. AR, p. 277. Her physicians at Highland Hospital diagnosed right lumbar radiculopathy. AR, pp. 279, 281. Throughout 2006 and 2007 she continued to complain of back pain with radicular symptoms. See, e.g. AR, 00. 263, 272, 275, 276, 279. As noted above, she frequently takes pain medications, including Vicodin, with limited benefit. AR, p. 339.

Dr. Boakye, the treating physician at Highland Hospital, concluded that Ms. Franklin is unable to persist at full-time work because of her chronic pain problem. AR, pp. 225, 274. Similarly, Dr. Bhatega at the Newark Heath Center concluded that Ms. Franklin could only tolerate part-time work due to her asthma and knee pain. AR, p. 177.

B. Chronological Summary

May 17, 2004 -- Plaintiff reported to the emergency room at Highland Hospital incident to an "asthma attack" which began a week earlier. (CAR 252). Plaintiff reported relief with inhalers and, on physical ...

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