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Anna Lisa Peterson v. Michael J. Astrue

July 3, 2012

ANNA LISA PETERSON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Anna Lisa Peterson, by her attorneys, Christenson Law Firm, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2011. On October 16, 2007, Plaintiff filed for disability insurance benefits, alleging disability beginning October 9, 2007. Her claim was initially denied on November 15, 2007, and upon reconsideration on June 13, 2008. Plaintiff appeared and testified at a hearing on October 5, 2009. On November 27, 2009, Administrative Law Judge Michael J. Kopicki denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review on February 22, 2011.

B. Agency Record

Plaintiff (born September 6, 1960) retired on medical disability from her prior work as a dispatcher clerk at Porterville Developmental Center. She had held the same job for fifteen years. Plaintiff testified that, as a dispatcher clerk, she used the telephone to dispatch police, medical services, ambulances, and other emergency care. She responded to distress calls from the Center's staff regarding client health emergencies and similar distress calls. She was also required assist clients at her counter if they experienced physical or mental health crises, or had come to express anger against Center administration. As she dealt with these situations, Plaintiff's blood pressure frequently became dangerously elevated. Eventually, her cardiologist, Dr. Behl, recommended that she retire from her position since the stress of the position was detrimental to her health. On January 11, 2008, the California Public Employees' Retirement System approved Plaintiff's application for disability retirement. Since leaving the Center, Plaintiff's blood pressure is "a lot more calm." AR 35.

Plaintiff left her position when her employer proposed transferring her from the day shift to the night shift. In her Disability Report, Plaintiff stated that she could not accept the night shift since she would have had to work alone, and that she "can't be alone due to [her] medical condition." AR 167. At the hearing, however, Plaintiff testified that the proposed shift change was irrelevant to her decision and that she would have then retired on disability even if she had been slated to continue on the day shift.

Plaintiff has congestive heart failure which has been treated with an implanted pacemaker and defibrillator to address her periodic arrythmias. As Plaintiff begins to be stressed, she was able to feel the device charging in preparation for a shock from the defibrillator. If she was able to calm down, the device did not deliver a shock.

She was also treated with multiple prescription medications: Amiodarone (heart function), Lotrel (blood pressure), Thyroxine or Synthroid (thyroid), Digoxin (heart), Furosemide (diuretic), Xanax (anxiety), Pristiq (depression), Ibuprofen (leg and foot pain), Carvedilol (heart), Naproxen (leg and foot pain), and Soma (leg and foot pain). Plaintiff reported many side effects including prickly hives, sensitivity to sun light, frequent urination, and the need to avoid grapefruit products.

Plaintiff testified that she was not permitted to lift more than ten pounds. She could not stand more than an hour. After walking a block, she became short of breath. She could sit for a long time, but needed to move after about an hour and a half to avoid numbness in her legs. In a typical day, Plaintiff rested for thirty minutes about four times. She fatigued easily. On some days, she lacked the energy to do anything at all.

Plaintiff completed high school and attended a psych-tech training program until her development of carpal tunnel syndrome rendered that occupation inappropriate. She did not know how to type and had never learned to use a computer. She was able to drive.

Plaintiff lived with her husband and an adult daughter. On a typical day, she woke, washed up, ate a little breakfast, and took her pills. She fed her dog. She might straighten the living room, wipe off tables, vacuum,*fn1 or do a load of laundry. Although she tried not to fix meals, she still did so. Because of an inability to concentrate and carpal tunnel syndrome, she had given up her former hobbies of crocheting and sewing. She liked reading but it put her to sleep. Her memory was impaired.

Plaintiff attended church regularly. She shopped twice a week with her husband, who would assist with heavy items. Since family gatherings tired her, they were usually celebrated at her home.

Carpal tunnel syndrome. Plaintiff's carpel tunnel syndrome was first identified in October 1991, after she had been employed as a food service worker at the Center for about ten years. She was put on light duty work and began studying to be a psychiatric technician (psych-tech). On January 20, 1994, orthopedist Mark L. Tindall, M.D., reported to the State Compensation Insurance Fund that Plaintiff's hand symptoms were increasing, exacerbated by her job as a student psych-tech. Dr. Tyndall recommended that Plaintiff be reassigned as a psych-tech intern in an ambulatory unit.*fn2 In summer 1994, Plaintiff began to work full time as a psych-tech, which required significantly less use of her hands. In October 1994, she began working as a telephone operator.

In January 1995, orthopedist Sergio D. Ilic, M.D., evaluated Plaintiff's occupational injuries. Plaintiff complained of constant aching pain in both hands, aggravated by writing and housework. She also experienced headaches and neck pain. Plaintiff reported depression and stress at work, reporting that she was unhappy that she was not being assigned to work days.

Dr. Wadhwani. Suneel Wadhwani, M.D., was Plaintiff's primary care physician. His records reflect treatment of heart disease, minor injuries, allergies, and bronchitis. Dr. Wadhwani noted that, after he prescribed Pristiq for Plaintiff's depression, she had more energy.

On September 16, 2009, Dr. Wadhwani completed a residual functional capacity questionnaire for Plaintiff's attorney. Wadhwani diagnosed sleep apnea and congestive heart failure with fair prognosis. Plaintiff experienced fatigue, depression, dizziness, and leg pain due to varicose veins. Depression contributed to Plaintiff's symptoms and functional limitations. Although she occasionally experienced pain, fatigue, or other symptoms severe enough to interfere with attention and concentration, Plaintiff could maintain attention for more than two hours at a time. She was capable of low stress jobs. Plaintiff could walk about four city blocks without rest or severe pain; could sit more than two hours; could stand 45 minutes at a time; could stand and walk four hours in an eight-hour workday; need not include periods of walking in her workday; needed to be able to change positions at will. Plaintiff required four 30-minute breaks in an eight-hour workday. She required no assistive device. Plaintiff could never lift more than ten pounds and could lift less than ten pounds rarely; could frequently look down, turn head from right or left, look up, and hold head in static position; could never climb ladders or stairs; and could occasionally twist, stoop, and crouch. Plaintiff could only use her hands and fingers to reach, handle, or finger for fifty percent of an eight-hour work day.

Dr. Behl. Cardiologist Ashok Behl, M.D., monitored Plaintiff's cardiac health and her pacemaker beginning in 2001. He diagnosed Plaintiff as having uncontrolled hypertension, chronic congestive heart failure, congestive cardiomyopathy, and hypothyroidism.

In a report dated January 5, 2001, Dr. Behl recounted that Jasvir Sidhu, M.D., had diagnosed Plaintiff with congestive cardiomyopathy in August 1997, after a syncopal spell led to her hospitalization. Dr. Behl consulted with Dr. Sidhu, and concurred in the plan to treat Plaintiff conservatively with multiple medications. Thereafter, Plaintiff improved. Dr. Sidhu provided continuing care. X-rays taken in March 1999 showed Plaintiff's heart to be of normal size without signs of heart failure or active lung process. In late December 2000, Dr. Sidhu began treating Plaintiff for coughing and shortness of breath, which was first diagnosed as bronchitis.

Behl again treated Plaintiff on January 5, 2001, after Plaintiff experienced generalized convulsions in Dr. Sidhu's office and became unconscious. Plaintiff was transferred to the Sierra View District Hospital emergency room, where she again had convulsions and was found to be in atrial fibrillation. Plaintiff was treated in the cardiac intensive care unit. Dr. Behl opined that if an acute coronary incident was ruled out, Plaintiff should be considered for an implantable ventricular defibrillator.

On January 8, 2001, Dr. Behl performed cardiac bypass surgery. He continued to recommend implantation of a ventricular defibrillator. By January 30, 2001, the defibrillator had been implanted.

On June 25, 2002, Dr. Behl provided a letter requesting that Plaintiff permanently be removed from jury duty due to her need to avoid stressful situations.

Behl's examinations of Plaintiff consistently found no anginal chest symptoms and fair breathing. Except for the examination on February 22, 2007, when she felt dizzy and faint, Plaintiff consistently denied any skipped beats, palpitation, dizziness, syncopal spell, or defibrillator shocks. (On February 22, 2007, Plaintiff had not eaten breakfast.) The doctor frequently noted high blood pressure. Dr. Behl consistently recommended that Plaintiff stay on a low-salt, low-cholesterol, weight-reducing diet, but Plaintiff's weight stayed the same or increased during her course of treatment, ranging from 172 to 184 pounds. (Plaintiff is five feet, five inches tall.)

On March 28, 2005, Plaintiff was seen in the emergency room after hearing a beeping sound from her defibrillator. The defibrillator again beeped on March 29, 2005. Behl suggested that the defibrillator had been unable to check the atrial lead impedance. On June 27, 2005, Plaintiff was treated in the emergency room after being shocked by the defibrillator. Dr. Behl performed surgery to replace the generator on January 11, 2006.

On October 12, 2007, Dr. Behl wrote the following letter "To whom it may concern": [Plaintiff] is a patient of mine with, hypothyroidism, hypertension, congestive cardiomyopathy, AICD implantation for ventricular disarrythmia and congestive heart failure.

She has tried to carry her current shift and her symptoms have not been well controlled for her medical condition, due to these circumstances she will be permanently medically disabled.

AR 383.

On October 28, 2007, Dr. Behl completed a Physician's Report on Disability required as part of Plaintiff's application for disability retirement from her position at the Center. He reported Plaintiff's subjective complaints as exertional fatigue and dyspnea, and diagnosed chronic cardiomyopathy, chronic hypertension, and UICD implantation for malignant vesticular illegible]. In response to the request to provide specific work activities that Plaintiff was unable to perform, Behl responded, "Patient unable to perform duties. Plaintiff permanently disabled." AR 435.

On September 15, 2008, following a cardiac echodoppler study, Behl concluded: "Mild concentric left ventricular hypertrophy. Mild tricuspid regurgitation. Trace mitral ...


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