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Harris v. Astrue

October 26, 2009


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Lavonda Harris ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for Supplemental Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.


Plaintiff filed an application for SSI on July 8, 2004 (Administrative Record ("AR") 798), alleging, as a consequence of a car accident, disability due to blackouts, migraines, lower back pain, muscle spasms, and depression. (AR 828, 829).*fn1 She alleged a disability onset date of January 1, 1997. (AR 798).

The Agency denied Plaintiff's claim for SSI initially on October 20, 2004. (AR 748). This denial was upheld upon reconsideration. (Id.). On August 16, 2006, the ALJ conducted a hearing to review Plaintiff's claim. (AR 1030). The ALJ denied benefits on December 15, 2006. (AR 745). Plaintiff sought review of the ALJ's decision before the Appeals Council, which granted review on October 9, 2008. (AR 741). The Appeals Council denied benefits on January 9, 2009. (AR 734). Plaintiff commenced the instant action on March 3, 2009.


Plaintiff was born on July 31, 1954 and was fifty-two years old at the time of the hearing. (AR 750, 798). She has a twelfth grade education. (AR 750). She has past work experience as a cashier. (Id.).

A. Plaintiff's Medical History

Plaintiff's injury occurred in 1997 when a truck rear-ended the car she was driving. (AR 1048). Between June 1998 and April 2003, she sought treatment for lower back pain. (See AR 854-55, 859, 860, 862, 863, 864, 868, 871, 872, 874, 880, 882). In September 1998, Dr. Jonathan R. Greer evaluated her functional capacity and assessed that she could perform limited lifting of twenty pounds and repeated lifting of ten pounds and could walk and sit up to six hours. (AR 875-76). She received physical therapy for lumbar strain in March 1999. (AR 851-52). In July 2000, Dr. Deborah Small noted that Plaintiff could ambulate without assistance, had a normal gait, and could walk on her toes with no discomfort and walk on her heels with mild discomfort. (AR 864). Dr. Small diagnosed Plaintiff with acute muscle spasm with sciatic nerve involvement. (Id.). In August 2001, Dr. Small made a similar assessment and wrote Plaintiff a prescription for a cane. (AR 861). During the same period, Plaintiff also sought treatment for headaches, for which she was prescribed medication. (See AR 872, 876, 880, 882). She further received treatment for depression. (See AR 865, 867, 868). Plaintiff's doctors regularly refilled or changed prescriptions to treat these complaints. (See AR 859, 862, 863, 864, 865, 867, 868, 872, 874, 876, 879, 881, 882). Plaintiff also attended health maintenance appointments, including appointments for mammography. (AR 850, 857, 860-61, 868, 873). In December 2002, Plaintiff complained of blackouts. (AR 855).

In February 2004, after undergoing diagnostic imaging of the cervical spine, Plaintiff was diagnosed with degenerative arthritis at C5 through C7 with no significant neural foramen encroachment. (AR 969). A CT Scan performed in July 2004 showed no brain abnormalities. (AR 1015). X-ray films taken in May 2005 showed mild degenerative disease of the cervical, thoracic, and lumbar spine. (AR 1017, 1019, 1022). Plaintiff began complaining about pain and numbness in her upper extremities in June 2005. (AR 983). In December 2005, nerve conduction tests failed to show evidence of peripheral nerve entrapment or generalized neuropathy. (AR 1013). A January 2006 EMG of Petitioner's upper extremities showed no evidence of cervical radiculopathy. (AR 1012). In August 2006, Dr. Montri D. Wongworawat assessed that Plaintiff's gait was normal and that her other symptoms were "consistent with an ulnar nerve compression of her left hand and a carpal tunnel syndrome on her right." (AR 980, 981). During this period, Plaintiff also received treatment for hypertension, which was controlled with medication. (See, e.g., AR 939).

B. Consultative Examinations

Dr. Lyle B. Forehand, Jr., a psychiatrist, examined Plaintiff and issued his report on September 17, 2004. (AR 890). He found no evidence of psychiatric impairment. (AR 895). He noted that she "may have a post-concussive syndrome" but that it was "impossible to assess" because she was "either exaggerating her symptoms or just flat out making them up." (Id.) He was similarly unable to make a functional assessment because Plaintiff "has so obscured any impairment she may or may not have as to [make it] impossible to assess." (Id.)

Dr. Rocely Ella-Tamayo, an internist, issued her report on September 27, 2004. (AR 898). She noted that Plaintiff's gait was "slow but normal . . . without the use of a cane." (AR 902). She also noted Plaintiff's "chronic back pain with mild limitation of motion of the back without evidence of peripheral neuropathy" and "history of carpal tunnel syndrome with sensory impairment on the left hand." (AR 903). Dr. Ella-Tamayo's functional assessment was that Plaintiff is restricted in pushing, pulling, lifting, and carrying to about 50 pounds occasionally, and about 25 pounds frequently. Sitting is unrestricted . . . . [T]he patient is able to stand and walk 6 hours out of an 8-hour workday with normal breaks. She might need an assistive device for prolonged ambulation. She is able to kneel and squat occasionally. There is no functional impairment observed on both hands.


Dr. Joseph Hartman performed a Residual Functional Capacity Assessment on October 15, 2004. (AR 914). He found Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently; stand and/or walk with normal breaks for six hours of an eight-hour workday; and sit with normal breaks for six hours out of an eight-hour workday. (AR 908). Pushing and/or pulling was unlimited. (Id.). As to postural limitations, Dr. Hartman found Plaintiff could climb, balance, stoop, kneel, crouch, and crawl frequently. (AR 909). Her gait was normal and there was no need for cane use. (AR 912). Dr. Hartman asserted that Plaintiff's symptoms were credible, but that her reports regarding the persistence, intensity, and functional limitations of her symptoms were not fully credible. (Id.). Based on his assessment, he assigned Plaintiff a residual functional capacity of medium work. (AR 914).

Dr. Sarah L. Maze reported the results of Plaintiff's neurological examination on February 22, 2005. (AR 971, 975). In the mental status portion of the report, Dr. Maze found Plaintiff was alert, able to concentrate, and functioning intellectually in the normal range. (AR 973). Her general fund of knowledge was fair, although she gave "some very unusual responses to questions." (Id.). Dr. Maze reported that Plaintiff was "very poorly cooperative" and that "[h]er effort during mental status testing appears suboptimal." (Id.). Dr. Maze found "very prominent give-away testing of the left arm" and "very poor claimant effort" on testing of grip strength. (Id.). Reflexes and coordination were normal. (AR 974). Gait was normal without an assistive device and Plaintiff was able to stand on heels and toes. (Id.). There was no tenderness to palpation of the cervical or thoracolumbar spine, and no muscle spasm. (Id.). The range of motion was full. (Id.). In the Comments section, Dr. Maze again noted that Plaintiff's effort throughout the exam "appeared very poor." (Id.). Dr. Maze stated that the complaints of hand numbness were "atypical for carpal tunnel" and that the Plaintiff's descriptions of blackouts were "so very vague that the cause . . . cannot be determined." (Id.). Plaintiff did "not present with any objective findings to explain her chronic complaints of head pain." (AR 975). Exertional limitations were congruent with Dr. Hartman's residual functional capacity assessment: occasional lifting of fifty pounds, frequent lifting of twenty-five pounds, and the ability to sit, stand, and walk for six hours out of an eight-hour workday. (Id.).

C. Plaintiff's Testimony

On August 16, 2006, Plaintiff appeared at a hearing before the ALJ. (AR 1028). She testified that she has a high school education. (AR 1044). She lives with her infant grandson and a roommate. (AR 1036-37). Her roommate and a neighbor help her take care of the child (AR 1037-38), whom she cannot lift. (AR 1042). She stated that she had not worked since June 17, 2004. (AR 1040). She asserted that her income amounts to $555.00 per month, from public assistance programs. (AR 1045).

Plaintiff testified that her injuries were caused by a 1997 car accident in which she was rear-ended. (AR 1048). She has muscle spasms on her right side, numbness in her arm and hands, and headaches. (AR 1040, 1050-52). She also has chronic back pain, for which she ...

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