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Ray v. Astrue

January 7, 2009


The opinion of the court was delivered by: Yohn, J.


Plaintiff, Theresa Ray, appeals the decision of the Social Security Commissioner ("Commissioner") that denied Ray's application for widow's insurance benefits ("WIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 301 et seq. (2006). The Commissioner determined that Ray was capable of employment in the national economy, thus not disabled, and not entitled to WIB or SSI. Ray appealed, and the court referred the matter to a magistrate judge, who issued a Report and Recommendation ("R&R") in favor of granting in part and denying in part Ray's appeal and remanding the case for further review. The Commissioner objects to the R&R. For the following reasons, the court will adopt in part the conclusions of the magistrate judge and remand the case for further decisions consistent with this memorandum.

I. Facts and Procedural History

On September 22, 2005, Ray applied for WIB and SSI claiming that she had a disability beginning on or about January 1, 2004. (R. 13, 44-55, 118-20; R&R 1.) Ray claimed she suffered from high blood pressure, arthritis, and a swollen stomach. (R. 13, 56; R&R 1.)

Following a disability determination report from a state adjudicator, the Social Security Administration denied both applications, but later granted Ray, who obtained representation, a hearing to appeal both decisions. (R. 25-43, 121-25; R&R 1.) Eleven days after her April 12, 2007 hearing, where only Ray and a Vocational Expert ("VE") testified, the presiding administrative law judge ("ALJ") denied Ray's appeal because he found that given Ray's condition she could obtain employment in the national economy and thus did not qualify as disabled. (R. 10-24, R&R 2.) When the Social Security Appeals Council denied Ray's request for review on August 17, 2007, the ALJ's findings became the final decision of the Commissioner. (R. 6-11; R&R 2.)

To reach the final decision denying Ray disability benefits, the Commissioner relied on information about Ray from a variety of sources: Ray's application for disability benefits, Ray's medical records, the state disability examiner's report, a report from Dr. Nicholas Diamond, and testimony from Ray and the VE. (R. 13-24; R&R 2-6.)

A. Ray's Application Materials

In her application materials,*fn1 Ray, born September 18, 1955, claimed that she had a twelfth grade education, lived with her daughter, and never previously worked. (R. 16, 19, 44, 60, 118; R&R 2.) Ray is five and one-half feet tall and weighs approximately 210 pounds.*fn2 Ray complained of her joints "locking" and of constant and unbearable pain throughout her body, particularly in her joints, including her hands, back, knees, and feet. (R. 73-79.) This pain gives her trouble sleeping, and medicine provides no relief. (R. 19, 70, 73-79.) Ray reported that she cannot cook or clean, but sometimes can do laundry; as a result, she sometimes relies on help from her daughter. (R. 19, 73-79.) She stated that she cannot carry anything weighing more than eggs and bread. (R. 73-79.) She also stated that she cannot shower standing up or dress herself and cannot go up stairs more than once per day. (Id.) In response to an application question about prolonged sitting, she responded that she is "comfortable sitting." (R. 75.) Ray cannot walk any farther than about a city block before her knee and back pain cause her to stop. (R. 78.) Ray reported taking these medications: Imitrex*fn3 (for headaches), Celebrex*fn4 (for arthritis), and Avalide*fn5 (for high blood pressure). (R. 68.) Ray applied for WIB through her husband, a commercial vehicle driver, who passed away on May 4, 1997. (R. 13, 44.) She applied for SSI benefits on behalf of herself. (R. 118-20.)

B. Ray's Medical Records

Ray's medical records consist mostly of one page filled-in forms of treatment notes for each of her apparently bi-monthly visits to a Delaware Valley Community Health clinic ("clinic") from October 24, 2004 to September 18, 2006. (R. 19, 80-109; R&R 3.) These forms do not list a particular physician's name, but at least two different signatures appear on the forms included in the record. (Compare R. 80-83, 109-09 with R. 84-93.) Each form contains both a completed checklist form of physical symptoms and a diagnosis of the patient's condition. (R. 19, 80-109.) Every form includes a notation about Ray's high blood pressure, but only some forms refer to Ray's joint pain or related diagnoses. (R. 19, 80-109; R&R 3.) The treatment notes also contain at least one of each of these diagnoses: arthritis*fn6 (October 8, 2005; August 17, 2004); fibromyalgia*fn7 (September 3, 2004); arthralgia*fn8 (October 24, 2005; August 8, 2005); bilateral carpal tunnel syndrome*fn9 (February 7, 2005; December 7, 2004; October 21, 2004); and back pain (June 19, 2006). (R. 19, 80, 81, 83, 86-90, 107; R&R 4.) On two other occasions, Ray reported back pain and arthritis pain. (R. 107, 109; R&R 4.)

On several occasions, the notes include a diagnosis of arthritis or a similar condition, but not a check in the appropriate box on the form to indicate a musculoskeletal abnormality. (See, e.g., R. 80, 81, 83, 88, 107.) Other times the diagnosis of arthritis and the physical exam checklist correspond. (See, e.g., R. 85-87, 90.) Ray reported rating her pain as at least a five, on a scale of one to ten, at all but two clinic visits from September 3, 2004 through March 21, 2006.

(R. 80-89, 108-09.) At two visits, December 7, 2004 and February 7, 2005, the treating physician recommended that Ray have an electromyography*fn10 and a nerve conduction velocity test,*fn11 once Ray obtained insurance. (R. 86, 87.) Throughout the course of her treatment, Ray received several prescriptions for pain medication: Percoset*fn12 (June 19, 2006); Celebrex (October 24, 2005; August 8, 2005); Vicodin and Skelaxin*fn13 (October 24, 2004); and Bextra*fn14 (August 17, 2004). (R. 80, 83, 88, 90, 107; R&R 4.)

C. Review by State Disability Examiner

On November 1, 2005, state disability examiner Joseph Saita determined that Ray did not have a disability based on his assessment of Ray's work-related abilities, also called her residual functional capacity ("RFC"), but he did diagnose Ray as having hypertension and arthralgia. (R. 22, 26, 100-05, 121; R&R 5.) On a checklist form of exertional imitations, Saita noted that Ray could: occasionally lift up to fifty pounds; frequently carry up to twenty-five pounds; and stand, walk, or sit for up to six hours of an eight hour workday. (R. 22, 101; R&R 5.) He noted no other limitations. (R. 102-04.) Based on the "character and nature" of Ray's symptoms, Ray's "unremarkable" physical exam, the "routine and conservative" treatment Ray received, and Ray's range of motion, which was "within normal limits," Saita found Ray's claims of disability "partially credible." (R. 105.)

D. Review by Dr. Nicholas Diamond

At the advice of her attorney, Ray received a disability evaluation, including a medical source statement, from Dr. Nicholas Diamond on March 30, 2007. (R. 20, 110-17; R&R 4.) Dr. Diamond conducted range of motion and other testing for all of Ray's major joints. (R. 20, 110-117; R&R 4.) Following this exam, Dr. Diamond presented his findings in a detailed, written assessment and completed a checklist of Ray's work-related physical abilities, essentially her RFC. (R. 20, 110-17; R&R 4.) Dr. Diamond observed that Ray walked with a limp, occasionally used a cane, and had trouble with heel and toe walking, but had no trouble getting on and off the examination table. (R. 20, 113; R&R 4.) Dr. Diamond noted that Ray had limited mobility and pain in her spine, shoulders, left hip, knees, and left wrist. (R. 20, 114-15; R&R 4.) Although in her right hand Ray had no abnormalities or decreased functionality, in her dominant left-hand she had tenderness and markedly reduced grip strength. (Id.) The left hand also suffered from deQuervain's Syndrome,*fn15 a condition marked by pain in the wrist and thumb from certain movements. (R. 20, 114-15; R&R 4-5); see also Beers, supra note 9, at 336 (describing deQuervain's Syndrome). Dr. Diamond noted that although Ray's sitting root test was negative, Ray's straight leg raise was positive past sixty and thirty degrees of motion in the right and left legs respectively. (R. 20, 114.) This testing meant Ray had some sciatic or lumbar nerve pain.*fn16

Dr. Diamond found an abnormal inward angling of both of Ray's knees,*fn17 but no weakness or damage to Ray's medial collateral ligament.*fn18 (R. 20, 115.) Nevertheless, Dr. Diamond observed that Ray had "difficulty squatting or kneeling." (Id.)

Dr. Diamond diagnosed Ray with: post-traumatic osteoarthritis, non-traumatic polyarthralgias, chronic pain syndrome, left index trigger finger, type II diabetes mellitus, and hypertension. (R. 20, 116; R&R 5.) He considered Ray's prognosis poor. (Id.) According to his assessment of Ray's RFC, Ray could: lift or carry no more than two to three pounds occasionally; stand or walk for no more than one to two hours of an eight hour workday; and sit for no more than three hours of an eight hour workday. (Id.) Dr. Diamond also determined that Ray could not perform any bending, kneeling, stooping, crouching, balancing, or climbing. (R. 111; R&R 5.) He found Ray had limited capability for reaching, handing, fingering, and feeling. (Id.)

E. Ray's Testimony at the Hearing Before the ALJ

At her hearing, Ray testified in response to questions from the ALJ and her attorney. (R. 137-54; R&R 3.) Ray attributed her inability to work to: her arthritis, her lack of education, her back, her occasional inability to walk, the occasional failure of her knees, and her inability to use her left hand-especially to lift items. (R. 19, 142-44; R&R 3.) To justify her disability claim, Ray discussed her medical condition and her daily living conditions. (R. 137-54; R&R 3.)

Ray stated that medication controls her hypertension, but her diabetes fluctuates, despite medication. (R. 17, 141; R&R 3.) For her physical pain from arthritis, headaches, and other conditions, Ray testified that she only takes Tylenol because she does not "want to mix too many medicines." (R. 140, 144, 149.) Ray testified that she visits the Delaware Valley Community Health clinic once per month to obtain her medications, but does not receive a physical examination at every visit. (R. 140, 148.) She also said the clinic often fails to produce a complete written record of every visit. (R. 140, 143, 148, 150.) Ray stated that the clinic wanted to conduct diagnostic tests related to her joint and arthritic pain, but could not do so because Ray lacked insurance. (R. 144, 148.)

Ray also testified about her physical limitations. Ray does not cook or clean, but does her own laundry. (R. 19, 146; R&R 3.) Ray stated that because of her back, she cannot sit too long and needs to get up for five minutes after every fifteen to twenty minutes of sitting. (R. 145-47; R&R 3.) Ray testified she needs a cane to walk, but she did not have it with her when she testified. (R. 139.) Even so, she said she cannot walk more than a block. (R. 147; R&R 3.) Ray claimed she can lift no more than five pounds. (R. 19, 143, 144-45.) About twice per week, Ray suffers from a severe headache that requires her to lie down with a cold towel on her head. (R. 17, 148, 150; R&R 3.) Ray spends her days seated in bed or on her recliner watching television, and she only ventures out of her home with her daughters. (R. 19, 149; R&R 3.)

F. Vocational Expert Testimony

A vocational expert testified about Ray's ability to work in the national economy. The VE assumed Ray has the RFC for light unskilled work,*fn19 and based on her education, age, and work experience, the VE identified several jobs in the national economy that Ray could perform: cashier, locker room attendant, and office helper. (R. 23, 150-51; R&R 5-6.) The VE conceded that if Ray had an RFC for only sedentary work,*fn20 Ray would not be capable of any type of full-time work. (R. 23, 151; R&R 6.)

III. Administrative Law Judge's Findings

Following the hearing, the ALJ determined that Ray satisfied the preliminary, non-disability requirements for obtaining both WIB and SSI benefits. As to Ray's disability status, the ALJ made these relevant findings:

4. Claimant has the following severe combination of medically determinable impairments: osteoarthritis of the back, knees, and left wrist; polyarthralgias; chronic pain syndrome; and obesity (20 CFR 404.1520(c) and 416.920(c)).

5. Claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

6. After careful consideration of the entire record, the undersigned finds that claimant has the residual functional capacity to perform light exertional work, including lifting/carrying or pushing/pulling up to 10 pounds frequently and 20 pounds occasionally, and sitting, standing and/or walking about 6 hours per 8-hour workday with normal breaks. She is limited to occasional postural activities (climbing, balancing, stooping, kneeling, crouching, or crawling), but has no other non-exertional limitations.

8. Claimant was born on September 18, 1955, and attained age 50, i.e., an individual closely approaching advanced ...

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