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Wislon v. Astrue

March 24, 2009

NANCY L. WISLON, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

MEMORANDUM OPINION

I. Introduction

Pending before the court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claim of Nancy L. Wilson ("plaintiff") for disability insurance benefits ("DIB") under Title II of the Social Security Act ("SSA" or the "Act"), 42 U.S.C. §§ 404, et seq., and supplemental social security income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Plaintiff asserts that the decision of the administrative law judge (the "ALJ") that she has not been disabled since March 14, 2003, and therefore not entitled to benefits should be reversed, because the ALJ's decision is not supported by substantial evidence. If not reversed, plaintiff asserts that her case should be remanded for a new hearing before a different ALJ, because a credibility determination by the same ALJ would preclude plaintiff from rehabilitating her own credibility. 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. After review of the ALJ's decision, the submissions of the parties, and the record before the court, the court will deny the motions of summary judgment of defendant and plaintiff and will grant plaintiff's motion for remand for further proceedings by the ALJ: 1) to address the severity of plaintiff's mental impairments, including plaintiff's diagnoses of dysthymic disorder, personality disorder and anxiety and the side effects of her medications, 2) to correct factual errors with respect to plaintiff's daily activities, 3) to consider plaintiff's credibility and the weight given to the medical opinions in light of the corrected factual errors and severity determinations, 4) to address whether the medium exertional weight lifting limitation was an appropriate limitation, and 5) to include all credible medical limitations in a revised hypothetical.

II. Procedural History

On January 19, 2006, plaintiff applied for DIB and SSI alleging disability since March 14, 2003, with a protective filing date of January 4, 2006. (R. at 16, 292.) Plaintiff's claims were denied initially by defendant on May 3, 2006. (R. at 292.) On June 20, 2006, plaintiff timely requested a hearing before an administrative law judge. (R. at 40.) The ALJ held a hearing on March 7, 2007. (R. at 287-348.) Plaintiff, represented by counsel, testified at the hearing along with a vocational expert (the "VE"). (R. at 16, 287-348.) On May 14, 2007, the ALJ issued a decision finding that plaintiff retained the residual functional capacity (the "RFC") to perform her past relevant work and was not "disabled," as defined in 20 C.F.R. §§ 404.1520(g), 416.920(g), from March 14, 2003 through the date of his decision. (R. at 16-27.) On July 13, 2007, plaintiff filed a request for review of the ALJ's determination. (R. at 12.) On December 18, 2007, the Appeals Council denied plaintiff's request for review (R. at 6-9), making the ALJ's decision the final ruling of the Commissioner. (R. at 7.) Plaintiff now seeks judicial review of defendant's final determination that she is not disabled.

III. Factual Background

A. Plaintiff's Background

Plaintiff was forty-seven years old when she filed for DIB and SSI, alleging that her low back pain secondary to a 1999 motor vehicle accident, neck pain, arm and hand numbness, arthritis in her hand, left lateral epicondylitis, asthma, hearing loss, jaw bone injury, and mental health issues related to depression and anxiety limited her ability to work. (R. at 95, 129, 144-55, 202, 210, 212, 218, 222-21, 224-27, 232, 234, 236, 238-39, 242, 246-50, 252-54, 258-59, 262-65, 268-69.) Plaintiff is literate and completed a general education diploma in 1983. (R. at 292.) Plaintiff testified that she lived in her friend's trailer with him and pets that depended upon her for care. (R. at 69, 293.) Her source of income was public assistance. (R. at 56, 294.) She did not receive food stamps. (R. at 56, 294.) Plaintiff would have to reimburse the state if she received DIB or SSI. (R. at 295.)

Plaintiff 's work experience includes primarily temporary part-time positions she obtained through a temporary employment agency including: a residential home cleaner from 1987 to 1990; a dispatcher and a laborer in a bakery for four to five months in 1993; a warehouse laborer in different businesses, on and off from 1997 until 2004; an auditor of retail grocery store inventory from January 2000 until April 2002; an inserter of paper goods from September 2002 until January 2003; a candy factory worker from January 2003 until she was laid off in the beginning of May 2003; and a telemarketing worker from January 2004 to July 2004. (R. at 56, 60, 295-300, 302, 304-05.)

For enjoyment, plaintiff noted that she read daily and went to karaoke or the movies every three months. (R. at 71.) Plaintiff reported that she was able to perform her own personal care, drive a car short distances, pay her bills, prepare meals in a microwave, use a vacuum cleaner, do laundry, and grocery shop, but that she depended on others to lift things that weigh forty pounds or more. (R. at 69-70, 72.)

She could climb about three flights of stairs before stopping to rest, walk about a quarter-mile without stopping, remain sitting for three to four hours at a time, and lift and carry between ten to twenty pounds. (R. at 71.) Without resting, plaintiff reported that she could dress herself, shower, change and make a bed. (Id.) Although plaintiff reported cramping in her fingers and lower arms after one-half hour of writing or printing, she commented that she was able to use a regular touch tone telephone, a standard size television remote control, a knife and a fork, and could tie her shoes and fasten buttons and snaps on clothing, except that she sometimes had difficulty with fastening buttons. (R. at 71-72.)

Plaintiff did not belong to any groups or clubs, but got along with her neighbors, and did not have problems dealing with people in authority. (R. at 73.) She reported that she was not able to start and complete projects or activities such as reading a book, putting a puzzle together, sewing, needlepoint or fixing things around the house, and she was not able to plan each day such as when to get up, start meals, finish household chores or go to appointments; although, she had no trouble waking as planned when she was employed. (Id.)

Plaintiff could follow instructions and directions, but at times, got confused, due to hearing loss in both ears, and needed to stop and think before carrying them out. (R. at 74.) Changes in plaintiff's daily schedule could overwhelm her, although she could "go with the flow" with respect to changes in her living arrangements and doctors. (Id.) When plaintiff felt that she was not sufficiently confident to make decisions on her own, she would seek reassurance from her daughter and friends. (Id.)

With respect to her prior work, plaintiff usually reported to work on time. She, however, reported that she had poor attendance due to breathing problems, viruses, and back pain. (Id.) She was not able to keep up with her work and was told that she was "slow." (Id.) With respect to her ability to concentrate on her prior work for extended periods of time, plaintiff reported problems with daydreaming and her inability to concentrate when someone was standing behind or over her. (R. at 75.)

Plaintiff reported that she did not need any help taking medications for her conditions which included prescriptions of one 100 mg tablet daily of Zoloft*fn1 for depression and one-half to one, 25 mg tablet every twelve hours, as needed, of alprazolam,*fn2 a generic form of Xanax, for anxiety. (R. at 74.)

Plaintiff's pain issues started in 2002 and became more noticeable in October 2004, when her "lower lumbar starting acting up" and she could not straighten up. She attributed the pain to riding in the back seat of a tractor for three hours the day before. She reported that her fingers and lower arms got tingly and her fingers and hands went numb with repetitious work. Her upper and lower back and neck tightened up such that she was unable to move her head to the left or to the right. (R. at 75). Plaintiff reported that her pain was not as severe as it had once been since she started seeing her chiropractor, Dr. Biss. She, however, still had pain in her neck muscles, shoulders, elbows, arms, wrists, hands, fingers, and lower back, when she sat or drove for prolonged periods of time. (Id.) Bending or climbing up and down ladders made her ache and lifting heavy objects made her pain spread to her upper back and through her arms. (Id.) Standing and temperature extremes also caused her pain, although walking seemed to give her relief. She indicated that her pain seems to be worse in the morning and at the end of the day. (Id.) Some days she felt pain free and other days her lower back, neck and hands would ache.

(R. at 76.) Plaintiff indicated that her pain does not disturb her sleep. She, however, regularly had sleep problems due to depression, shift work, and waking up due to tingling in her hands and fingers. (Id.) At times, her pain affected her ability to think and concentrate. (R. at 75.)

Plaintiff reported that she was able to relieve her pain with over-the-counter medications, i.e., two tablets of Aleve or Ibuprofen, without any side effects. (R. at 76.) Plaintiff denied using any devices such as a brace or TENS*fn3 to relieve her pain or assistive devices to walk. (R. at 76-77.) Alternative means plaintiff used to relieve pain included taking hot showers, walking, stretching and resting. (R. at 77.) She also reported attending physical therapy in 1996, after she was hospitalized for seven weeks when her fibula was used to replace her jaw bone. (Id.)

Plaintiff was seeing a psychologist for anxiety and depression due to loss of her job and not being able to receive work, after - despite interviewing - not receiving any calls. (Id.) Plaintiff commented that her impairments or pain limited her ability to continue to do factory, assembly line, or warehouse work, and anything to do with lifting or prolonged sitting or standing. She, however, could house-sit animals, walk dogs or cats, and drive, except for delivering heavy packages. (Id.)

B. Plaintiff's Medical Evidence

In 1989, plaintiff's problems included a diagnosis of a history of asthma since age three, low back pain, and hearing loss. (R. at 259.) On April 8, 2002, plaintiff presented at Mercy Family Health Associates, the clinic of her primary care physician (the "PCP"), Dr. Horner, with pain under her jaw and right anterior neck. (Id.) The progress notes of Dr. Delposen, indicated plaintiff's history of a fracture and surgery of the left mandible. There was right anterior cervical lymphadenopathy and tenderness with palpation of the right submandibular region. (R. at 229.)

On September 27, 2004, the consultation record from Hitson Family Chiropractic noted plaintiff's stiffness, fatigue and broken jaw. (R. at 95.) On November 12, 2004, Dr. Horner's treatment record noted that there was paravertabral muscle tenderness to palpation and a decrease in range of motion on both flexion and extension. The assessment was thoracic strain. (R. at 135.)

On February 10, 2005, Dr. Horner's assessment was depression, with clinical findings including a decrease in plaintiff's mood, poor self esteem, poor eye contact, and fair insight and judgment. (Id.) Dr. Horner referred plaintiff to a psychiatrist, Dr. Ryan, M.D., who examined plaintiff on July 1, 2005. (R. at 126.) Plaintiff described chronic back pain, an emotionally abusive male relationship during the past ten years, and week-end binge drinking with habitual use of marijuana. (Id.) Dr. Ryan noted a past medical history of a significant scoliosis*fn4 condition and asymmetric facial bones, and that plaintiff, at the time of the examination, was well oriented, alert and cooperative with no significant depression or anxiety symptoms. (Id.) Plaintiff's reality contact was excellent, and her speech pattern was rational and coherent. (Id.) She had no impairment of concentration, comprehension, or attention span. (Id.) Her response to Dr. Ryan was relevant with good eye contact. Rapport was easily maintained, her insight was good and her judgment was considered adequate. Dr. Ryan estimated plaintiff's cognitive ability to be low average. (Id.) Dr. Ryan's diagnosis was dysthymic disorder*fn5 and polysubstance abuse on Axis I, dependent personality disorder*fn6 at Axis II, pulmonary insufficiency and kypohscoliosis*fn7 at Axis III, moderate stress connected with present relationship and substance abuse problems at Axis III, and a Global Assessment of Functioning (the "GAF") estimate of 50*fn8 at Axis V. (Id., 27.)

On July 22, 2005, Dr. Horner diagnosed plaintiff with depression and prescribed Zoloft in the treatment of plaintiff's decreased mood and increased anxiety. (R. at 132.) On July 29, 2005, plaintiff 's counselor at the Comprehensive Counseling Center at Westmoreland Regional Hospital, Diane Muka, M.A. ("Muka") reported educating plaintiff on the topic of depression with notations related to becoming more assertive in genera. Plaintiff was administered the Zung depression scale*fn9 and scored in the mild range. Muka noted that plaintiff's PCP had resumed plaintiff's Zoloft prescription. (R. at 123.)

On August 25, 2005, Dr. Horner noted plaintiff's history of physical abuse, ongoing therapy, counseling, and continuing jaw dysfunction, back pain, arthritis, hand pain, anxiety and depression. (R. at 131.) On August 26, 2005, Muka's progress notes indicated plaintiff's report of continuing to decrease her usage of alcohol and marijuana and that her PCP had increased her Zoloft prescription to 100 mg. Plaintiff reported anxiety symptoms and Muka noted educating plaintiff on the topic of anxiety disorder. (R. at 122.)

On November 9, 2005, the assessment of plaintiff's chiropractor, Dr. Biss included cervicalgia, radiculitis (thoracic), and myofibrosis, with findings of palpation to tenderness, spasm and subluxations. Her prognosis was fair. (R. at 130.)

On December 5, 2005, Dr. Horner's treatment notes documented plaintiff's mood and tearful affect with an assessment of depression. (Id.) On December 23, 2005, Dr. Horner completed an employability assessment form for the purpose of plaintiff obtaining medical assistance (R. at 264) and opined that secondary to plaintiff's depression, domestic violence, jaw dysfunction and arthritis, plaintiff was precluded from any gainful employment until November, 2006. (Id.) Dr. Horner's assessment was based upon her physical examination of plaintiff and her review of plaintiff's medical records. Dr. Horner noted that plaintiff was seeing a therapist and not achieving the expected goals. (Id.)

On January 9, 2006, treatment notes of plaintiff's walk-in emergency room visit indicated symptoms of depression, hopelessness, sleep disturbance, anxiousness, irritability, tearfulness, mood swings, racing thoughts, paranoid ranting, and ineffective coping secondary to an argument with her daughter and boyfriend.*fn10 (R. at 144-54.) A treating physician, Dr. Wissinger, diagnosed plaintiff with an anxiety attack. (R. at 154.) Plaintiff was discharged with follow-up instructions to arrange comprehensive counseling in a partial hospitalization program. (Id., 155.) Plaintiff reported that her last use of marijuana was on January 8, 2006. (R. at 149.) Her blood tested positive for cannabinoids.*fn11 (R. at 156.)

On February 28, 2006, Dr. Horner added Xanax to plaintiff's medication regime. (R. at 129.) The treatment notes indicated asthma that was complicated by smoking, problems with depression and anxiety, and additional prescriptions of Advair and Zoloft. (Id.)

On March 2, 2006, case evaluation and recommendation notes from Hitson Family Chiropractic, indicate that plaintiff's major complaint precipitated from trauma related to car accidents and included numbness in both arms, neck pain, thyroid issues, and fatigue, with basic underlying chiropractic troubles of muscle spasms, loss of cervical curve, degenerative joint disease, and subluxation. (R. at 98.) On March 3, 2006, Dr. Biss reported that plaintiff's residual function capacity (the "RFC") was such that she could frequently lift or carry two to three pounds, could stand/walk one to two hours, could sit for eight hours with an alternating sit and stand option, was limited in upper extremity pushing or pulling, would exacerbate her cervical and thoracic regions with repetitive motion, could never stoop, crouch or balance, and was affected by reaching and handling in her impairments in that repetitive motion and reaching aggravated her condition. (R. at 113-44.)

On March 16, 2006, a licensed audiologist, Christopher Eckert, reported to Dr. Horner that an audiometric evaluation revealed a mild to moderate sensorineural hearing loss bilaterally and that speech discrimination scores at the conversational level were poor. (R. at 138.) On March 28, 2006, Dr. Horner diagnosed plaintiff with asthma, hearing loss and depression. (R. at 224.) On May 1, 2006, Dr. Horner reported that, based upon her assessment of plaintiff's clinical history and secondary to her diagnosis of depression, jaw dysfunction, and hearing loss, plaintiff was precluded from any gainful employment until May 2007. (R. at 263.)

On April 6, 2006, a psychologist, Dr. Perconte, examined plaintiff at the request of the Pennsylvania Bureau of Disability Determination. (R. at 158-71.) Dr. Perconte indicated that plaintiff was moderately impaired in her ability to make judgments on simple work-related decisions and moderately impaired in her ability to respond appropriately to work pressures and changes in a work setting. (R. at 160-61.) Dr. Perconte opined that plaintiff's grooming appeared marginal, her insights and judgment were limited, and that mild impairment in her capacity to understand, retain, and follow instructions may be further impaired by her poor motivation and characterilogical problems. (R. at 167, 169.) Dr. Perconte stated that plaintiff had a mild overall impairment in her capacity to sustain attention and to ...


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