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Barnett v. Astrue

November 25, 2008


The opinion of the court was delivered by: Conti, District Judge



Pending before this court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claims of Brenda Barnett ("plaintiff") for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381, et seq., and Disability Insurance Benefits ("DIB") under Title II of the SSA, 42 U.S.C. §§ 423, et seq. Plaintiff asserts that the decision of the administrative law judge ("ALJ") should be reversed because the decision is not supported by substantial evidence and that the case should be remanded for the ALJ to consider properly all the evidence as presented. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny plaintiff's motion and grant defendant's motion because the decision of the ALJ is supported by substantial evidence.

Procedural History

Plaintiff filed the application at issue in this appeal on a protective basis on March 30, 2005, asserting a disability since December 23, 2004 due to knee and elbow problems, head pain, and high blood pressure. (R. at 73, 290.) On May 26, 2005, plaintiff's claims were initially denied. (R. at 26-30, 298-302.) A timely written request for a hearing before an administrative law judge was filed by plaintiff, and the hearing was scheduled for February 27, 2006. (R. at 20, 31.) Plaintiff, who was then 46 years of age, appeared with counsel and testified at the hearing. (R. at 307-89.) She testified she had driven a school bus for 13 years (R. at 320) and prior to that employment she was a cook at a prison (R. at 325), a cook, server and cashier at a tavern (R. at 329) and a manager of a floral department of a grocery store. (R. at 323). A vocational expert ("VE") was also present at the hearing, but he did not testify. (R. at 307-89.) After the hearing, the VE on May 16, 2006, provided responses to interrogatories posed by the ALJ. (R. at 116-19, 382-83.)

In a decision dated August 23, 2006, the ALJ determined that plaintiff was not under a disability within the meaning of the SSA. (R. at 12.) The ALJ determined plaintiff had several severe and non-severe impairments; however, plaintiff had the residual functional capacity to perform light work activity. (R. at 14-15.) Plaintiff filed a timely request to review the ALJ's decision, which was denied by the Appeals Council on May 25, 2007. (R. at 5-7.) Plaintiff subsequently filed this present action seeking judicial review.

Plaintiff's Medical History

Dr. Witherite-Rieg The earliest medical evidence of record reflects that plaintiff was evaluated by Dr. Lisa Witherite-Rieg on February 17, 2004. (R. at 124.) At the time of the office visit, plaintiff stated that since December 2003 she had been having intermittent head colds and sinus pressure with a severe left sided temporal headache. (Id.) Dr. Witherite-Rieg's notes indicated plaintiff did not have a prior history of migraines, but did have a history of hypertension with medication noncompliance, and a history of uncontrolled blood pressure. (R. at 127.) Due to plaintiff's elevated blood pressure she was admitted to the intensive care unit to receive treatment for her high blood pressure and cephalgia. (R. at 124.) Five days later, plaintiff was discharged without a headache and controlled blood pressure. (Id.) The discharge summary stated plaintiff was stable with a good prognosis; however, Dr. Witherite-Rieg recommended that plaintiff should not return to her job as a school bus driver until after the follow-up exam the next week. (R. at 125.)

On March 2, 2004, plaintiff saw Dr. Witherite-Rieg for her follow-up. (R. at 216.) Plaintiff stated that since her hospital stay, the excruciating headache pain went away and she only suffered from some mild headache pain. (Id.) Dr. Witherite-Rieg noted that plaintiff's blood pressure was controlled. (Id.)

Plaintiff's next appointment with Dr. Witherite-Rieg occurred on March 17, 2004. (R. at 214.) Plaintiff stated that she continued to have headache pain around a level of four or five on a scale of ten. (Id.) Plaintiff also reported having vertigo and feeling lightheaded and dizzy. (Id.) Dr. Witherite-Rieg's diagnosis included hypertension, persistent cephalgia, and vertigo. (Id.)

Two weeks later on March 31, 2004, plaintiff again followed-up with Dr. Witherite-Rieg. (R. at 213.) At that time, plaintiff stated that she was feeling a lot of better, the vertigo was mostly gone, and the head pain was not severe. (Id.) Dr. Witherite-Rieg noted that the hypertension was better controlled, the cephalgia was improving, and the vertigo was resolved. (Id.)

On December 14, 2004, Dr. Witherite-Rieg examined plaintiff for her bus driver's physical. (R. at 212.) Dr. Witherite-Rieg noted that plaintiff missed her last appointment and that plaintiff stated she was having difficulty obtaining health care, since she lost her health insurance. (Id.) Plaintiff stated she was experiencing ongoing headaches, but Toradol*fn1 provided some relief. (Id.) Dr. Witherite-Rieg noted that due to plaintiff's uncontrolled blood pressure, she could not certify her for a school bus driver physical. (Id.)

Free Medical Clinic of Dubois

On January 14, 2005, plaintiff underwent several tests ordered by the Free Medical Clinic of DuBois ("Free Clinic"). A retroperitoneal ultrasound indicated that plaintiff's kidneys and aorta were in normal condition. (R. at 242.) X-rays of the chest showed normal findings of the heart and no acute pulmonary process. (R. at 243.) The pulmonary function test indication a moderate restrictive pulmonary process. (R. at 251.)

Plaintiff visited the Free Clinic five times during the months of January, February, and April 2005. (R. at 231-35.) During her visits plaintiff described to various nurses she was experiencing knee pain, neck pain, elbow pain, and numbness of the arms and hands. (Id.) On January 4, 2005, plaintiff reported that she experienced high blood pressure and headaches all the time, which were severe at times. (R. at 231.) On January 18, 2005, plaintiff reported that her headaches improved. (R. at 232.) Reports from the Free Clinic diagnosed plaintiff with degenerative joint disease of both knees, hypertension, hyperlipidemia, chronic headaches, high blood pressure, and arthritis. (R. at 231-35.)

Dr. Peck

On March 16, 2005, Dr. Eric Peck noted that plaintiff's hypertension was stable. (R. at 222.) Dr. Peck's notes indicate that plaintiff had experienced severe headaches, but the severity of her headaches had decreased with the decrease in her blood pressure. (R. at 221.) Plaintiff also stated that she was receiving health care at the Free Clinic due to a lack of health insurance. (Id.)

On September 22, 2005, Dr. Peck completed a physical residual functional capacity questionnaire. (R. at 272-75.) Dr. Peck responded that he had seen plaintiff on March 16, 2005, June 6, 2005, and July 18, 2005. (R. at 272.) The diagnoses included degenerative joint disease, fibromyalgia syndrome, headaches, hypertension, increased lipids, and temporomandibular joint disease. (Id.) Dr. Peck assessed that plaintiff experienced pain, which frequently interfered with her attention and concentration. (R. at 273.) He also related that based on plaintiff's impairments she could sit thirty minutes at a time and stand fifteen minutes at a time. (Id.) Overall during an eight-hour work day she could sit less than two hours and stand less than two hours. (Id.) Additionally, plaintiff would need to walk every thirty minutes for a period of five minutes, she required unscheduled breaks every thirty minutes, and could not perform any lifting. (R. at 273-74.)

Dr. Zeliger

Dr. Keith Zeliger, an orthopedic specialist, examined plaintiff on March 28, 2005, for pain in both knees. (R. at 224.) Dr. Zeliger's notes reflect that X-rays showed advanced Grade IV osteoarthritis of the left knee and Grade II in the right knee. (Id.) Dr. Zeliger recommended that plaintiff undergo hyaluronic acid injections in her knees. (Id.) If this ...

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