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Yerk v. Astrue

January 26, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


I. Introduction

Pending now before the court are cross-motions for summary judgment based on the administrative record: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 8) and PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Document No. 10).

Plaintiff, Sherri L. Yerk, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final determination of the Commissioner of Social Security (Commissioner) which denied her application for disability insurance benefits (DIB) and supplemental security income (SSI).

II. Background

A. Facts

Plaintiff, Ms. Yerk, was born on July 7, 1964, and is classified as a "younger individual" pursuant to 20 C.F.R. §§ 404.1563, 416.953. (R. 17, 24). She has a ninth grade education, and her relevant work history as a nurse's assistant, cashier, store laborer, and companion is characterized as a combination of unskilled and semi-skilled, and of light, medium, and heavy exertion levels. (R. 24, 204). Her last day of work was December 11, 2003, and her earnings record reveals that she has acquired sufficient coverage to remain insured through at least December 31, 2008. (R. 23). Plaintiff alleges disability as of December 11, 2003 due to problems with her heart and thyroid, shortness of breath, shaking, constant muscle pains, migraines multiple times per week, and sleep disturbance with consequent fatigue. (R. 56-57).

On February 14, 2005, Plaintiff underwent a thyroid ultrasound at Mercy Jeanette Hospital, which revealed a small hypoechoic nodule on the left side of her thyroid. (R. 123). On May 25, 2005, an endocrinologist, Dr. Stephan Kowalyk, examined Plaintiff in order to evaluate the status of her thyroid. (R. 108). Plaintiff had been referred to Dr. Kowalyk by her primary care physician, Dr. Joseph Mollura. Id. Dr. Kowalyk determined that Plaintiff's complaints were not likely related to her thyroid, but recommended followup in light of her minimally suppressed TSH level and the small thyroid nodule. (R. 109). Another ultrasound of Plaintiff's thyroid was conducted on Nov. 18, 2005, which again showed the small hypoechoic nodule on the left side of her thyroid. (R. 113). On December 7, 2005, Plaintiff returned to Dr. Kowalyk for a follow-up evaluation and he assured Plaintiff that her symptoms of generalized muscle aches, headaches, and sleep disturbance were not related to her thyroid, but also noted that her thyroid condition would require long-term followup in case her condition progressed to thyrotoxicosis. (R. 130).

An echocardiogram performed at Mercy Jeanette Hospital on October 7, 2005 showed left ventricular dysfunction with an ejection fraction of about 50%, as well as trace mitral and mild tricuspid regurgitation. (R. 117). A myocardial perfusion stress test conducted at Mercy Jeanette Hospital on Oct. 26, 2005 showed exercise-induced ischemic EKG changes without angina or arrhythmia; fair exercise tolerance; and normal blood pressure response. (R. 115). Further analysis of the stress test results determined that there was no reversible ischemia and that left ventricular function was normal. (R. 116).

On February 3, 2006, a state agency physician, Dr. Nghia Tran, completed a physical residual functional capacity ("RFC") assessment, concluding that Plaintiff was capable of working at a medium exertion level, subject to the restriction that she must avoid even moderate exposure to extreme cold. (R. 135-141). This assessment was based on a review of records from Mercy Jeanette Hospital including the echocardiogram, the myocardial perfusion stress test, and the thyroid ultrasounds, as well as Dr. Kowalyk's reports. (R. 19-20, 140). Dr. Tran did not personally examine Plaintiff, and appears to have neither considered nor requested any records from Dr. Mollura.

An MRI of Plaintiff's brain was conducted at Jeanette OpenMRI on Jan. 20, 2005, the results of which were "unremarkable." (R. 134). On July 26, 2005, Plaintiff's lumbosacral spine was examined by x-ray at Mercy Jeanette Hospital and by MRI at Jeanette OpenMRI; the results of both examinations were normal. (R. 126, 133). An additional MRI of Plaintiff's lumbosacral spine, conducted at Jeanette OpenMRI on Dec. 15, 2005, reflected two possible very mild disc bulges. (R. 132).

On March 14, 2006, Plaintiff visited a neurologist, Dr. Louis W. Catalano, as referred by Dr. Mollura. (R. 142). Dr. Catalano reviewed Plaintiff's complaints, medications, the MRI of Plaintiff's brain, and the first MRI of her spine. (R. 143). His impression at the time of this initial visit was that Plaintiff suffered from leg and arm pain and paresthesia, restless leg syndrome, chronic pain syndrome / fibromyalgia, benign essential tremor, and sleep and mood disorder. (R. 144). He recommended blood work, electromyography and nerve conduction studies, and modification of Plaintiff's medications, including an increased dosage of "Requip" to address her restless leg syndrome. Id. He also stated that Plaintiff "[m]ay return to work." Id.

Nerve conduction and electromyography tests were performed on May 15 and 22, 2006 with normal results. (R. 150-53). On June 20, 2006, Plaintiff returned to Dr. Catalano's office for a followup. (R. 149). He noted that Requip had "helped tremendously" with Plaintiff's restless leg syndrome. Id. However, Plaintiff was still reporting, inter alia, shortness of breath, three to four severe headaches per week, stiffness, back pain, and fatigue. Id. Dr. Catalano found that Plaintiff's mental status, strength, sensations, and gait were all normal, and that her cranial nerves were intact; however, he also found that she had a flattened affect with a component of anxiety, and that she exhibited diffuse myofacial pain with multiple tender trigger points upon palpation. Id. He diagnosed her as suffering from leg and arm pain with paresthesias, restless leg syndrome, chronic pain syndrome / fibromyalgia, benign essential tremor, and sleep and mood disorder. Id. He recommended nerve block injections, as well as further alteration of her medications. Id.

The nerve block injections were administered at Dr. Catalano's office on June 23, 2006 by a physician's assistant, David M. Reglla, P.A.-C. (R. 148). Plaintiff returned for a followup with Dr. Catalano on August 15, 2006. (R. 147). Plaintiff reported that she was still in pain, was suffering 7-8 fairly severe headaches each month, and was fatigued all the time; that the nerve block injections provided some pain relief, but that it was short-lived; that Requip helped with her restless leg syndrome, but that she still occasionally got "jerky" at night; that one of her pain medications was simply ineffective, and that another medication helped with her pain but also made her tired. Id. Dr. Catalano found that Plaintiff's cranial nerves, muscle strength and tone, sensory exam, reflexes, and gait were all normal, but again noted that she exhibited diffuse myofacial pain with multiple tender trigger points, as well as mild finger-nose tremor. His diagnosis was the same as it had been on June 20, with an additional tentative diagnosis of irritable bowel syndrome. His treatment recommendations included a new medication for Plaintiff's headaches, and continued nerve block injections.

Although no medical records or reports from Dr. Mollura appear in the administrative record, he is recognized as Plaintiff's primary care physician, See, e.g. R. 182; Pl. Br. at 7; Def. Br. at 4, and his continual involvement in Plaintiff's treatment is evident throughout the record. The dates of several of Plaintiff's appointments with him appear on administrative forms. See R. 59, 90. He has prescribed or recommended numerous medications to treat Plaintiff's symptoms.R. 61, 91. Much of the medical testing performed on Plaintiff was conducted at his referral. R. 59-61. Each of Dr. Kowalyk's reports were directed to his attention. R. 108, 130. The reports from Dr. Catalano on March 16, June 20, and August 15, 2006 are all directed to Dr. Mollura, and the record from the nerve block injections on June 23 lists him as Plaintiff's "Family Physician." R. 142, 147-49. The notices of disapproved claims that were sent to Plaintiff on February 8, 2006 each list a report from Dr. Mollura, received by the Social Security Administration (SSA) on 12/15/05, as one of the six documents considered in the initial denial of benefits. R. 35, 159. The report referred to in these notices does not itself appear in the administrative record.

On the request-for-hearing form, Plaintiff states that her reason for seeking the administrative hearing is that "I have been told by my doctor that I should not work because of my fibromyalgia.." R. at 33. A memo from Plaintiff's attorney, apparently offered and received into the record at the hearing, states in bold text that "Dr. Mollura...assessed the claimant as being disabled.beginning in January of 2005 (Dr. Mollura 12/05/05)." R. at 92.

At the October 24, 2006 hearing before the ALJ, Plaintiff testified regarding the alleged impairment caused by her pain. Her claims included the following: that she is able to do only one load of laundry per day, and relies on her teenage daughter to actually carry the laundry up and down stairs; that she has trouble cooking due to difficulty standing in the kitchen long enough; that she is unable to do dishes because the pain in her arms, legs, and back become too severe; that she cannot dust a single room all at once because it triggers pain in her arms, causes her hands and fingers to start tingling, and causes her to lose grip in her hands; that she requires the assistance of her 16 yr. old daughter to grocery shop; that she is unable to carry anything weighing over ten pounds more than a short distance, because doing so causes her arms to begin shaking severely; that the shaking impairs fine motor skills to the extent that she becomes unable to, e.g.,write her name; that she must alternate sitting and standing when engaged in personal care activities like showering, drying her hair, dressing; that pain from keeping her arms raised makes it difficult for her to brush her hair, or put on small amounts make-up or jewelry; that she is capable of occasionally mopping her kitchen, but that the standing and arm strain cause pain; that she is unable to vacuum, because the pain in her arms from pushing and pulling becomes too intense; that kneeling, crouching, stooping, and crawling quickly become very painful, and that she needs to support herself on something to get back up; that sitting for more than 30 minutes at a time becomes too painful, requiring her to get up and move about for at least 20 minutes*fn1 ;that lying prone becomes painful, causing her to get out of bed every hour or two at night, and stay up for as much as 30 or 40 minutes each time; and that this frequent interruption prevents her from getting recuperative sleep. R. 188-194. She further testified that she suffers migraine headaches two to four days per week, lasting two to four days each, and that when they occur she is "down," needing to shut out light and noise because they "barrel[] through [her]." R. 195 She stated that her prescribed pain medications "don't help with the pain....they just take the edge off the intensity." R. 194.

B. Procedural History

Plaintiff protectively filed applications for DIB and SSI on October 13, 2005, in which she alleges disability since December 11, 2003. Her claims were denied on February 8, 2006. At Plaintiff's request, a hearing was held before an administrative law judge (ALJ) on October 24, 2006. Plaintiff testified at the hearing and was represented by counsel. Mitchell Schmidt, a vocational expert, also testified at the hearing.

On December 21, 2006, the ALJ rendered a decision denying Plaintiff's claim for benefits. (R. 25). Plaintiff's heart condition, thyroid condition, and restless leg syndrome were found to be non-severe impairments. (R. 19, 23). Plaintiff's chronic pain syndrome / fibromyalgia / myofacial pain syndrome, headaches, and mood disorder were found to be severe impairments, but not sufficient to meet or equal any listing-level impairment. Id. The ALJ's discussion of Plaintiff's subjective complaints of pain consisted of the following: an assertion that Plaintiff's complaints were evaluated in accordance with the requirements of Social Security Ruling 96-7p and 20 CFR ยงยง 404.1529 & 416.929; a list of the factors identified in those regulations for evaluating claimant's subjective symptoms; and the conclusion that "[w]hen so evaluated, Claimant's subjective complaints are found to be exaggerated and inconsistent with the totality of the evidence, including with the clinical and objective findings of record." R. 20-21. The ALJ determined that Plaintiff is unable to return to her past employment, but that she retained the residual functional capacity to perform light work, with some modifications. R. 22. In response to a hypothetical based on this RFC and Plaintiff's age, education, and work experience, the vocational expert identified several light-work and sedentary jobs that such an individual could perform, which exist in significant numbers both locally and in the national economy. Id. Plaintiff's counsel posed additional hypotheticals, one of which incorporated Plaintiff's claim that her headaches would cause her to be absent from work two-to-three days per week. The VE responded that an individual suffering two to three absences per week due to migraines would be unable to sustain employment. (R. 210). The ALJ rejected this latter hypothetical, stating that "[a] review of the record does not indicate that ...

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