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Foster v. Astrue

December 15, 2009

VALERA REBECCA FOSTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in: 1) assessing her residual functional capacity; 2) rejecting a finding from a previous administrative decision that she suffered from a severe mental impairment; 3) discounting her testimony; and 4) failing to consider an Office of Personnel Management ("OPM") decision approving her application for disability retirement benefits. (Joint Stip. at 3, 11, 14, 20.) As explained below, because the Agency's decision is supported by substantial evidence, it is affirmed.

II. BACKGROUND

On April 27, 2006, Plaintiff protectively filed for DIB. (Administrative Record ("AR") 135-39.) The Agency denied the application. (AR 102-06.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 109, 113-19.) On January 9, 2008, Plaintiff appeared with counsel at the hearing and testified. (AR 33-78.) On March 12, 2008, the ALJ issued a decision denying benefits. (AR 14-23.) After the Appeals Council denied Plaintiff's request for review, (AR 1-4), she commenced this action.

III. ANALYSIS

A. The ALJ's Residual Functional Capacity Assessment

In her first claim of error, Plaintiff challenges the ALJ's residual functional capacity assessment, arguing that it did not account for work-related limitations found by treating physicians Vernon Williams and Drayton Graham. (Joint Stip. at 3-5.) There is no merit to this claim.

Dr. Williams, an orthopedist who saw Plaintiff at the Kerlan-Jobe Orthopaedic Clinic between August 2000 and March 2003, and for two follow-up evaluations in 2006, offered diagnoses and treatment recommendations that remained essentially unchanged throughout that period. (AR 251-61, 273-80, 283-310, 312-20.) After initially examining Plaintiff on August 29, 2000, he noted spasm, tenderness, and a decreased range of flexion and extension in Plaintiff's cervical area, and also noted MRI results that showed small central disc bulges and a possible small calcified extrusion in Plaintiff's cervical spine. (AR 275, 278-79.) He diagnosed cervical degenerative joint disease, cervical radiculitis, lumbar strain, and cervical myofascial pain. (AR 279.) Dr. Williams recommended physical therapy, "biobehavioral" treatment, Vicodin, and myofascial ointment. (AR 279.) He noted that trigger point injections might be helpful. (AR 280.) He made similar findings after additional examinations on May 10, July 16, and December 11, 2001, and February 28, 2002. (AR 290, 295, 299, 303.)

On December 11, 2001, Dr. Williams noted that the biobehavioral treatments had not been authorized by Plaintiff's insurance carrier, and stated that "I am reluctantly recommending that she have a functional capacity evaluation so that she can be made permanent and stationary." (AR 299-300.) Dr Williams conducted the functional evaluation on February 28, 2002, concluding that, "[e]ssentially, there is no significant interval changes from her initial evaluation." (AR 302.) He determined that Plaintiff would be limited to sedentary work "according to the U.S. Department of Labor standards based on an eight-hour day," adding that "she also complains of increase in pain with prolonged sitting so that she may require frequent breaks from sitting and ability to stand and stretch for three to four minutes at a time, every two to three hours."*fn1 (AR 304.)

Dr. Graham, an internal medicine specialist, was Plaintiff's primary care physician from at least March 1997. (AR 369-72.) On May 9, 2000, he diagnosed her with trapezius myofascitis and tension headaches. (AR 395.) In treatment records between May 2000 and September 2003, Dr. Graham noted tenderness of the trapezius and Plaintiff's complaints of pain, and prescribed Vicodin and Celebrex, among other medications. (AR 398-99, 403-06, 408, 410.)

On March 9, 2006, Dr. Graham completed a physical residual functional capacity assessment form, in which he noted that, from as early as July 15, 1998, Plaintiff could not lift or carry any weight; could stand or walk "less than" two hours in an eight-hour workday; could sit less than six hours in an eight-hour workday; would need a job that permitted shifting positions at will; would need to take "hourly breaks for 15 minutes" during a normal workday; and would be absent from work "more than three times a month" on average owing to her impairments. (AR 218, 221.) He also opined that Plaintiff was unable to pull with her arms without pain, could never climb, crouch, kneel, or crawl, and only occasionally balance, and needed to avoid breezes and cool temperatures. (AR 219.)

At the administrative hearing on January 9, 2008, medical expert Dr. Stephen Gerber testified that he gave "very heavy weight" to the opinion of Dr. Williams that Plaintiff could perform at a sedentary level of activity because his notes were very detailed and because he was an orthopedist. (AR 56-57.) Dr. Gerber assigned less weight to Dr. Graham's more restrictive functional assessment because Dr. Graham's notes were "far less detailed," he had made certain diagnoses, such as fibromyalgia syndrome, that were unsupported by any evidence, and he was not a specialist in the relevant field. (AR 57-58.) Based on his review of the medical record, Dr. Gerber opined that, as of December 2003, Plaintiff could stand and walk at least two hours in an eight-hour workday, but was unlimited in her ability to sit; could lift and carry at least ten pounds; and was restricted to only occasional overhead reaching and pushing and pulling using her arms. (AR 58.)

In his decision, the ALJ determined that Plaintiff had the residual functional capacity to perform sedentary work, except that she could only occasionally perform "postural activities, overhead reaching, and pushing/pulling." (AR 17.) The ALJ noted that this determination was consistent with Dr. Williams' February 2002 functional evaluation. (AR 20.) The ALJ also noted that, according to the vocational expert, Plaintiff could perform her past work as it is generally performed even with the requirement that she needed to stand and ...


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