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Spencer v. Astrue

March 29, 2010

PAULINE SPENCER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for further consideration.

BACKGROUND

Plaintiff, born April 17, 1951, applied for supplemental security income on October 22, 2204. Administrative Record ("AR") 54--64. Plaintiff alleged that she became unable to work on June 1, 2002, due to "lumbar stenosis, gout, copd [chronic obstructive pulmonary disease], arthritis." AR 54, 58.

At the November 29, 2006 hearing before administrative law judge ("ALJ") Mark C. Ramsey, plaintiff testified that she was 55 years of age and lived with her boyfriend and teenage daughter. AR 284-285, 288. Plaintiff testified that she completed high school, was a stay-at-home mom (her children were born in 1974, 1978, and 1991), and that her only work experience was providing in-home care to her father beginning 2001 until his death in 2002. AR 285-288.

Plaintiff testified that she has constant back pain that sometimes includes spasms bringing her pain level to an 8 (on an ascending scale of 0-10). AR 294. The pain and spasms are getting worse. AR 299-300. She testified that she experiences "real bad" lower back spasms, that can go around to her "front area," and that her calves hurt when she walks. AR 293. Plaintiff testified that she also has pain in her neck (pain scale of 5 to 6), shoulders, hips "real bad," and legs. AR 295-296. She also has pain in her shoulders, arms, hands and wrists, but does not know the cause. AR 296-297.

Plaintiff testified that she does some chores at home, including changing her sheets, light housework, vacuuming about once a week, preparing light meals four to five days a week, and grocery shopping twice a month for about 45 minutes to an hour. On a typical day, plaintiff will "[d]o light housework, watch a little T.V., [listen to the] radio or read." AR 291. Plaintiff's boyfriend or nephew take her grocery shopping and carry the groceries. Plaintiff's daughter helps with the laundry, does the mopping and cleans the bathroom. Plaintiff's boyfriend or nephew mows the lawn. AR 288-291, 293.

Plaintiff testified that she can sit for about half an hour before she needs to get up; can stand for 30 to 45 minutes before she needs to move; can walk for about 45 minutes at a time; and that she lies down a lot, "all the time" and "all day." AR 297-298.

Plaintiff takes Vicodin three times a day, and Baclofen (an antispasmodic) two to three times a day, to diminish and control her pain. AR 291-292, 294. Other treatment includes using a hot patch on the back of her neck and a TENS unit on her back and hip (two to three times a day, for one to two hours). AR 295.

Plaintiff testified that she is also depressed, withdrawn and paranoid, and has had anxiety or panic attacks, the most recent seven or eight months before the hearing. AR 298. Plaintiff takes Triavil to treat her depression and anxiety, and Ambien for sleep. AR 299. She quit taking Zoloft because she didn't find it helpful. Id.

Plaintiff takes Allopurinol to control her gout. AR 296. However, she still has symptoms of pain in her feet and ankles once or twice a month. AR 296-297.

At the hearing, plaintiff's attorney objected to the March 2005 consultative report of internist Jed L. Freeman, M.D., who found plaintiff's physical examination to be within normal limits but did not quantify plaintiff's limitations (AR 171-178). AR 283, 300-309, 134-135. The ALJ agreed to arrange for plaintiff to be seen by another consultative examiner, AR 304-309, 313, ultimately selecting orthopedic surgeon Dr. Philip Wirganowicz, M.D., AR 266-272.

The ALJ called a medical expert, Dr. Sidney Walters (specialty not provided) to testify. AR 281, 283, 310-313. Dr. Walters testified that plaintiff's symptoms did not meet the criteria for depression, largely because she had sought no therapy and stopped taking Zoloft; that plaintiff "did meet, at one time, the diagnosis for anxiety/panic attacks after the death of multiple family members within a short period of time, but was never treated for that." AR 310. As a result, opined Dr. Walters, neither condition qualifies as a severe mental disorder. With respect to plaintiff's mental residual functional capacity, Dr. Walters found that plaintiff's "limitations are in detailed instructions and carrying them out and understanding them (INAUDIBLE) moderate impairment. And work pressures would also be a moderate impairment. Otherwise, there are no other limitations mentally." AR 310-311. In response to questioning by the ALJ, Dr. Walters clarified that plaintiff can perform simple, unskilled work, and can perform detailed, complex work but with moderate limitations. AR 311. In response to questioning by plaintiff's counsel, Dr. Walters further clarified that plaintiff has moderate limitations (estimated at "about 15 to 25 percent of the time") in three areas: understanding and carrying out complex instructions, maintaining attention and concentration due to depressive symptoms, and responding to work pressures in a usual work setting. AR 312. Thus, opined Dr. Walters, "I would not recommend assembly like activities," and "try to avoid heavy assembly type of work." AR 312, 313.

The ALJ issued a decision on July 25, 2007, finding that plaintiff is not disabled.*fn1 AR. 12-17. The ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since October 22, 2004.

2. The medical evidence establishes that the claimant has spinal stenosis and depression, but she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

3. The claimant's subjective complaints are not fully credible and not supported by the evidence of record.

4. The claimant has the residual functional capacity to perform the basic mental demands of unskilled, medium work. There are no other limitations (20 CFR 416.945).

5. The claimant does not have past relevant work.

6. The claimant is 55 years old, which is defined as advanced age.

7. The claimant has a 12th grade education (20 CFR 404.964).

8. Given the claimant's limitations, the issue of transferable skills is not material (20 CFR 416.968).

9. Section 404.1569 of Regulations No. 4, and Rule 203.15, Appendix 2, Subpart P, Regulations No. 4, and Social Security Ruling 85-15, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, she is not disabled.

10. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision.

AR 16-17.

On November 8, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 5-7.

ISSUES PRESENTED

Plaintiff alleges that the ALJ erred in: (1) rejecting the opinion of plaintiff's treating physician regarding plaintiff's residual functional capacity; (2) discrediting plaintiff's testimony; and (3) utilizing the Medical Vocational ...


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