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Trista Dawn Abeloe v. Michael J. Astrue

January 22, 2013


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI, respectively, of the Social Security Act (the "Act"). 42 U.S.C. §§ 401 et seq. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1970, has completed a general education equivalency certificate ("GED") as well as some college classes, and previously worked as a lab technician and a certified nurse assistant ("CNA"). (Administrative Record ("AR") 33, 157.) Plaintiff contends that her ability to work is precluded by chronic fatigue, immune dysfunction syndrome, fibromyalgia, depression, and anxiety. (AR 156.)

A. Medical Evidence

Plaintiff sought treatment at the Family HealthCare Network between 2002 and 2009 for a variety of conditions. (AR 475-557.) Plaintiff frequently was seen for chronic pain and was treated by numerous physicians and medical professionals at the Family HealthCare Network. (See, e.g., AR 452, 454, 479, 485, 494, 499.)

On November 3, 2007, Plaintiff was examined by state agency physician James A. Nowlan, Jr., M.D. (AR 407-10.) In discussing Plaintiff's medical records that Dr. Nowlan reviewed, Dr. Nowlan indicated that, although a diagnosis of interstitial cystitis was made, there was nothing that showed why the diagnosis was made. (AR 407.) Similarly, although the medical records showed a diagnosis for fibromyalgia, there was nothing to indicate the basis for the diagnosis. (AR 407.)

Plaintiff reported to Dr. Nowlan that she experiences pain all over her body, which began after receiving a hepatitis vaccine. (AR 407.) Although the intensity of her pain varies, the pain increases upon activity. (AR 407.) Plaintiff is tired all the time "and can hardly do anything." (AR 407.) She runs a fever every day, but if she lies down for a while her temperature returns to normal. (AR 407.)

On examination, Plaintiff's coordination, station, and gate were found to be normal, and she was negative on the straight-leg raise test in both a seated and supine position. (AR 408-09.) Her motor strength was 5/5 throughout in the bilateral upper and lower extremities. (AR 409.) Dr. Nowlan recorded that "[s]he was obese. There were no painful responses to movement of her extremities throughout all the range of motion, or from getting off and on the table or walking down the hall, although she walked slowly." (AR 409.) Dr. Nowlan's functional assessment of Plaintiff is as follows:

There is nothing in the physical exam to document that she is having pain. We had no thermometer to take her temperature with. Range of motion of her hip was done, without any painful response whatsoever.

She could stand and walk for six hours in an eight-hour day. If there were any limits they would be produced by the obesity.

Sitting would be unlimited. She needed no assistive devices. She could lift 20 pounds frequently and 40 pounds occasionally. There were no postural or manipulative limitations.

(AR 410.)

On November 17, 2007, Plaintiff was seen by Greg Hirokawa, Ph.D., for a psychiatric evaluation. (AR 411-16.) Plaintiff reported to Dr. Hirokawa that she felt depressed and anxious, she slept poorly, she was frustrated and irritable, she experienced memory problems and mood swings, she was withdrawn and experienced a loss of interest in things, and she had difficulty concentrating. (AR 411.) She reported a long history of depression and anxiety and described her childhood as dysfunctional. (AR 411.) Plaintiff noted that her anxiety had worsened due to her physical problems, financial issues, and not being able to work and do the things she enjoys. (AR 411.)

Plaintiff also reported that she did some cooking and light household chores, but primarily she stays home and cares for her children. (AR 414.) Dr. Hirokawa discussed Plaintiff's prognosis as follows:

The claimant's symptoms of depression and anxiety appear to be within the mild range and primarily due to her physical problems and the associated limitations. The claimant's overall communication skills were fair.

The claimant is currently prescribed psychotropic medication by her primary care physician. Response to treatment has been fair. The likelihood of the claimant's mental condition improving within the next 12 months is fair.

The claimant has had a positive work history consisting of maintaining a steady job for an extended period of time. She also appears to have a personality disorder.

(AR 415.)

Dr. Hirokawa also offered his opinions as to Plaintiff's mental functional abilities: The claimant's ability to remember locations and work-like procedures is mildly to moderately limited. The claimant's ability to understand and remember very short and simple instructions is mildly limited. The claimant's ability to understand and remember detailed instructions is mildly to moderately limited.

The claimant's ability to carry out very short and simple instructions is mildly to moderately limited. The claimant's ability to maintain attention and concentration for extended periods is mildly to moderately limited.

The claimant's ability to accept instructions from supervisors and respond appropriately to criticism is mildly to moderately limited. The claimant's social judgment and awareness of socially appropriate behavior was mildly to moderately limited.

The claimant's ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances is mildly to moderately limited. The claimant's ability to function independently and sustain an ordinary routine without special supervision is mildly to moderately limited.

The claimant's ability to complete a normal workday/workweek without interruption from psychologically based symptoms and perform at a consistent pace is mildly to moderately limited.

The claimant's ability to interact with co-workers and the general public is mildly to moderately limited. The claimant's ability to withstand the stress of a routine workday and deal with various changes in the work setting is mildly to moderately limited.

The likelihood of the claimant emotionally deteriorating in a work environment is minimal to moderate.

(AR 415-16.)

In December 2007, consultative state-agency physician, James V. Glaser, M.D., reviewed Plaintiff's medical records and determined that Plaintiff could lift and carry up to 50 pounds occasionally and 25 pounds frequently and could sit, stand, or walk about six hours in an eight-hour day. (AR 418.) Dr. Glaser determined that Plaintiff had no postural limitations. (AR 418-19.) Dr. Glaser also noted that there were no examination findings identifying tender points as to fibromyalgia. (AR 423.)

On December 6, 2007, consultative state-agency physician Evangeline A. Murillo, M.D., completed a mental functional capacity assessment. (AR 447-49.) She concluded that Plaintiff was able to perform simple, repetitive tasks on a sustained basis and that Plaintiff was able to relate and adapt to work changes. (AR 449.)

On March 14, 2008, consultative state-agency physician Achimedes Garcia, M.D., reviewed Plaintiff's medical records and affirmed Dr. Murillo's findings. (AR 473-74.)

On August 7, 2009, Plaintiff's treating physician, Narwhals Mating, M.D., completed a fibromyalgia residual functional questionnaire. (AR 552-57.) Dr. Mating diagnosed Plaintiff with fibromyalgia, chronic fatigue syndrome, and trigeminal neuralgia. (AR 552.) In identifying the clinical findings, laboratory, and test results establishing Plaintiff's conditions, Dr. Mating ostensibly reported Plaintiff's subjective complaint that it "hurts everywhere especially arms [and] legs." (AR 552.) Dr. Mating checked boxes on the form indicating that Plaintiff had multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness, irritable bowel syndrome, depression, multiple trigger points, numbness and tingling, dysmenorrhea, anxiety, and frequent severe headaches. (AR 553.) It was also noted that Plaintiff suffered from pain in her cervical and thoracic spine, as well as in her left shoulder, arms, hands/fingers, hips, legs, and feet. (AR 553.) Dr. Mating opined that Plaintiff would be able to concentrate for no more than five minutes at one time, and that she was incapable of working at a "low-stress" job. (AR 555.) Dr. Mating further opined that Plaintiff could walk half a city block without pain, and she could sit or stand for no more than 15 minutes at any one time. (AR 555.) Plaintiff was able to walk for five minutes out of every 15 minutes. (AR 555-56.) Plaintiff could rarely lift 10 pounds, and could never lift more than 20 pounds. (AR 556.)

B. Third Party Non-Expert Testimony

On September 8, 2007, Plaintiff's husband, Stephen Abeloe, completed a Third Party Adult Function report stating his observations of Plaintiff's condition. (AR 186-93.) According to Mr. Abeloe, Plaintiff spends her day by making breakfast for her children, resting until lunchtime, making lunch for the children, and taking a nap in the afternoon until dinner time. (AR 186.) Following dinner, Plaintiff goes back to bed. (AR 186.) Plaintiff is unable to perform the cooking, cleaning, and shopping, and she does not drive a car. (AR 187.) Plaintiff needs reminders to take her medication and perform other tasks so that she will not forget. (AR 188.) Plaintiff does a load of laundry approximately once a week, but she cannot stand or walk for very long to perform house or yard work. (AR 189.) Further, she does not go out alone because she experiences dizziness and "needs help." (AR 189.) Plaintiff reads and makes cards as a hobby, but she cannot perform these activities for very long. (AR 190.) In terms of social activities, Plaintiff spends time talking on the phone with others, particularly her mother, about once a week. (AR 190.)

Plaintiff's functional abilities are also limited, according to Mr. Abeloe. While Plaintiff can lift 10 pounds, she requires rest after walking approximately 50 feet. (AR 191.) Her concentration is limited and Plaintiff can only focus for five to 10 minutes. (AR 191.) She uses a cane when walking. Plaintiff breaks down ...

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