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Laurie Thacker v. Commissioner of Social Security

May 31, 2012


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge



Plaintiff Laurie Thacker ("Plaintiff") seeks judicial review of an administrative decision denying her claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (the "Act"). Pending before the Court is Plaintiff's motion for summary judgment and the cross-motion for summary judgment of defendant Commissioner of Social Security ("Commissioner"). Plaintiff filed her complaint on April 15, 2011. (Doc. 1.) Plaintiff filed her summary judgment motion on November 21, 2011. ( Doc. 15.) The Commissioner filed his summary judgment cross-motion and opposition on March 23, 2011. (Doc. 16.) Plaintiff filed her Reply Brief on January 5, 2012. (Doc. 17.) The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to United States Magistrate Judge Barbara A. McAuliffe for findings and recommendations to United States District Judge Lawrence J. O'Neill.


A. Overview of Administrative Proceedings

On February 4, 2002, Plaintiff filed an application for disability benefits under Title II of the Act. (AR at 59.) After the agency denied her application initially and on reconsideration, an Administrative Law Judge ("ALJ") issued an unfavorable decision on February 27, 2003. (AR at 59-64.)

On April 30, 2007, Plaintiff filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Act, alleging disability since December 1, 2006. (AR at 129-139.) On October 24, 2007, Plaintiff's claims were denied initially, and on March 10, 2008, Plaintiff's claims were denied on reconsideration. (AR at 86-90, 95-99.) On April 22, 2008, Plaintiff requested a hearing before an ALJ. (AR at 104-05.) On October 22, 2009, the ALJ issued a written decision finding the Plaintiff not disabled. (AR at 18-25.)

This became the final decision of the Commissioner of Social Security when the Appeals Council declined relief. (AR at 1-5.) Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

B. Plaintiff's Background

Plaintiff was born on October 10, 1957. (AR at 29.) Plaintiff completed her twelfth grade education and took some college classes. (AR at 32.) Plaintiff additionally went to school to become a truck driver, and also went to school to become a paramedic. (AR at 32.) Plaintiff previously worked as a truck driver, paramedic, nursing assistant, tow truck dispatcher, housekeeper and waitress. (AR at 32, 53.)

In July of 2008, Plaintiff overdosed on her medication in an attempt to commit suicide. (AR at 30.) Plaintiff alleges this caused her to ruin all the nerves and muscles in her right leg, because she remained in the same position for approximately 11 hours. (AR at 30.)

Plaintiff alleges disability beginning December 1, 2006, due to a combination of the following impairments: (1) vision loss; (2) bipolar disorder; (3) depression; (4) fibromyalgia; and (5) neck, shoulder and back pain. (AR at 37, 41.)

C. Plaintiff's Testimony At the Administrative Hearing

On May 12, 2009, Plaintiff testified before the ALJ regarding her claim for disability. (AR at 26-57.) Plaintiff was represented by counsel. David M. Dettmer, an impartial vocational expert (the "VE"), also appeared at the hearing. *fn1 Id.

Plaintiff is unmarried, and currently lives in an apartment with her boyfriend. (AR at 33.) Plaintiff arrived at the hearing in a wheelchair, wearing sunglasses. (AR at 29-30.) Plaintiff testified she needed the sunglasses because light, even fluorescent lighting, forces Plaintiff to close her eyes. Id. Plaintiff testified she requires use of the wheelchair due to the damage in her sciatic nerve as a result of her July 2008 suicide attempt. (AR at 30). The wheelchair was prescribed by Dr. Borquest - Plaintiff's treating physician of approximately one year - following the suicide attempt. (AR at 31.) Plaintiff does not currently have a driver's license, and has not driven a car since December of 2006. (AR at 34.)

Plaintiff testified that her fibromyalgia causes pain and stiffening in her neck, shoulders, arms, back, hips and legs. (AR at 37.) Plaintiff testified she could not stand long enough to take a shower. (AR at 49-50.) Plaintiff testified the fibromyalgia in her shoulders would cause her to have problems reaching forward. (AR at 40-41.)

Plaintiff has bipolar disorder, which causes highs and lows. (AR at 41-43.) The highs are characterized by sleeplessness and exhaustion. Id. The down times leave her unable to do anything. Id. Plaintiff is embarrassed and forgetful going out in public and does not tolerate other people well. (AR at 45.) Plaintiff testified she could only concentrate for a half an hour at a time. (AR at 41, 46.)

D. Medical History

The entire medical record was reviewed by the Court. (AR at 197-685.) The medical evidence will be referenced below to the extent it is necessary to the Court's decision.

1. Medical Evidence Provided By Plaintiff's Treating Physician, Dr. Warren O. Borgquist

The Record contains medical evidence from Plaintiff's treating physician, Dr. Warren Borgquist, from 2008-2010. On April 15, 2008, Dr. Borgquist wrote that Plaintiff complained of generalized pain all over her body that she called fibromyalgia. (AR at 635.) Dr. Borgquist found Plaintiff's story relating to her visual impairments "very strange." (AR at 635.) Plaintiff told Dr. Borgquist that one morning "her eyes popped out." (AR at 635.) Plaintiff went to the local ophthalmologist who accused her of putting some chemical in her eyes to inflame them. (AR at 635.) Plaintiff had ulcerations on her cornea, was seen by multiple ophthalmologists, all of whom could not identify a medical reason for her visual problems. (AR at 635.) The swelling in Plaintiff's eyes "apparently spontaneously resolved." (AR at 635.) Dr. Borgquist noted that Plaintiff's photophobia was so severe that he couldn't shine a light in her eye. (AR at 635-6.) With respect to Plaintiff's physical complaints, Dr. Borgquist noted that while Plaintiff was tender to all muscle groups upon palpation, because Plaintiff said it felt good rather than painful, the tenderness may be autoimmune and not fibromyalgia. (AR at 636.)

On May 13, 2008, May 27, 2008, and July 8, 2008, Dr. Borgquist diagnosed Plaintiff with Bipolar mood disorder. (AR at 624, 625, 627.) In October 2008, Dr. Borgquist found Plaintiff to be tender all over from her fibromyalgia, including around the neck, but not in her arms. (AR at 617.) Dr. Borgquist stated Plaintiff had some neck stiffness and pain. (AR at 617.) Dr. Borgquist also diagnosed Plaintiff with right leg palsy and nerve damage from her drug overdose in July of 2008. (Ar at 617.) Dr. Borgquist, however, observed that Plaintiff moved around and was able to walk. (AR at 617.)

In December 2008, Dr. Borgquist stated that mediation fairly controlled her sciatic nerve palsy. (AR at 614-616.) Dr. Borgquist also noted Plaintiff was "quite stable" with her moods using mediation. (AR at 614-616.) As of February 2009, Plaintiff's nerve in her right leg was growing back. (AR at 615.)

In March 2009, Dr. Borgquist filled out a questionnaire opining as follows: (1) Plaintiff's medically determinable impairments precluded her from performing any full-time work at any exertional level; and (2) Plaintiff needed to change positions regularly and needed to lie down or elevate her legs 1-3 hours a day. (AR at 673.)

In August of 2009, Dr. Borgquist opined Plaintiff was disabled from her pain and mood disorder. (AR at 676-670.) Dr. Borgquist opined that Plaintiff would continue to be disabled even if her mood disorder was later controlled, due to her continuing fibromyalgia pain. (AR at 679.)

In September of 2009, Dr. Borgquist noted Plaintiff demonstrated tenderness in all muscle groups from the elbows and knees up, however, not in her calves and forearms. (AR at 674.) Plaintiff was also tender along the spine. (AR at 674.) Dr. Borgquist determined Plaintiff had fibromyalgia. (AR at 674.) Dr. Borgquist opined Plaintiff was unable to work due to the combination of mood disorder and fibromyalgia pain. (AR at 674-5.)

In May of 2010, Dr. Borgquist noted Plaintiff was tender in all of the fibromyalgia spots required for the diagnosis, however, Plaintiff had adequate control of her multiple muscle pain disorder. (AR at 683.) Dr. Borgquist also noted that Plaintiff was "doing better than she has ever done with her mood swings," and ...

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