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Fink v. Astrue

March 30, 2009


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


Dorothy Anna Fink seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c) of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act").

Ms. Fink has filed a request for review and the Commissioner has responded to it. For the reasons set forth below, the Commissioner's decision is affirmed. As to the claims that the ALJ improperly determined plaintiff does not meet listing 11.03, that the ALJ improperly rejected Dr. Azizi's opinion, and that the ALJ improperly assessed plaintiff's testimony, the plaintiff's objections will be overruled and the Magistrate Judge's Report and Recommendation will be adopted.*fn1 As to the plaintiff's claim that the ALJ improperly found plaintiff could perform her past relevant work, the defendant's objection will be sustained.


On October 24, 2005, Mrs. Fink protectively applied for DIB and SSI benefits alleging disability, since July 6, 2005, as a result of epileptic seizures. (R. 14). After benefits were denied initially, (R. 214-17), she requested and was granted an administrative hearing. (R. 35, 26).

On February 26, 2007, Mrs. Fink, unrepresented, appeared before Javier Arrastia, Administrative Law Judge ("ALJ"), for an administrative hearing; the hearing was continued to allow her the opportunity to obtain counsel. (R.232-35). On May 11, 2007, at a second administrative hearing before ALJ Arrastia, Mrs. Fink, represented by counsel, John Fink, her husband, Sharon Fink, her mother-in-law, and Nancy Harter, a vocational expert, testified. (R. 236-259). The ALJ, using the sequential evaluation process for disability,*fn3 issued an unfavorable decision on June 19, 2007. (R. 14-20). On January 16, 2008, the Appeals Council denied Mrs. Fink's request for review, rendering the ALJ's decision the final decision of the Commissioner. (R. 4-6). On October 14, 2008, I referred this case to the Honorable Carol Sandra Moore Wells, magistrate judge, for preparation of a report and recommendation, under the authority of 28 U.S.C. § 636(b)(1)(B). On March 17, 2009, the report and recommendation was filed.


A. Personal History

Mrs. Fink, born on September 1, 1982, was 24 years old at the time of the administrative hearing. (R. 205, 242). She has a high school education and past relevant work as a cashier. (R. 81, 88-89, 95-96, 245-46). She lives with her husband, John Fink, on the third floor of a home owned by Mr. Fink's grandmother. (R. 101).

B. Mrs. Fink's Testimony

At the administrative hearing, Mrs. Fink testified that a seizure and severe fall on July 2, 2005 rendered her unable to work. (R. 240, 249). She has no medical coverage and subsists on her husband's military disability income. (R. 243).

Mrs. Fink was diagnosed with a seizure disorder in 1996 (R. 248); medication controlled her seizures until 2005. (R. 249). She testified that she cannot work because daily seizures cause her to lose track of time and to suffer memory loss. (R. 247-48). She takes Depakote*fn4 (500 milligrams extended release dosage) three times daily and Tegretol*fn5 (250 milligrams) twice a day to treat her seizure disorder. (R. 250). These seizure medications induce drowsiness; Mrs. Fink sleeps up to eighteen hours a day. (R. 105).

Imbalance requires Mrs. Fink to have assistance bathing and climbing stairs. (R. 101-04). She does not ride public transportation alone, so her husband drives her around.

(R. 102, 243). She cannot cook on a stove, climb a ladder, or remain in environments with strobe lights. (R. 102-03).

C. John Fink's Testimony

John Fink has been married to Mrs. Fink for two years. He testified at the administrative hearing that he has observed Mrs. Fink during petit mal seizures. He reported that the seizures cause her to stop talking during conversations and stare ahead for ten to fifteen minutes. (R. 253). He stated that, after Mrs. Fink has a petit mal seizure, she has no memory of seizing. Id. He observed that during grand mal seizures Mrs. Fink makes a high-pitched scream, then convulses for three to ten minutes; her lips turn blue, she bites her tongue, and loses control of her bladder. (R. 253-54). Mr. Fink testified that she often emerges from a grand mal seizure disoriented, unable to recognize people, and appears to be in a fog for the next two to three days. (R. 254). From September 2006 through May 2007, Mr. Fink recorded Mrs. Fink's seizure activity onto a monthly calendar. (R. 254). He drew circles to indicate days she had petit mal seizures; he inscribed "grand mal" on the days she had grand mal seizures. (R. 255). Mr. Fink stated she often experienced more than one petit mal seizure on the days he circled. (R. 256).

D. State Agency Assessments

Robert Snyder, a lay examiner, evaluated Mrs. Fink on behalf of the state agency, without the benefit of her treating physicians' statements on February 14, 2006. (R. 192-203). He diagnosed Mrs. Fink with a seizure disorder and opined that her generalized seizure frequency failed to meet a medical listing. (R. 192, 203). No exertional, postural, manipulative, visual, or communicative limitations were found. (R. 193-95). He concluded that Mrs. Fink should avoid exposure to vibrations and hazards, including machinery and heights. (R. 195).

E. Vocational Testimony

The vocational expert ("VE") classified Mrs. Fink's past relevant cashier work at CompUSA as semi-skilled*fn6 medium*fn7 work. (R. 257). The ALJ asked the VE to consider whether a person who had to undergo seizure precautions, including not being exposed to heights, could perform Mrs. Fink's past relevant work. Id. The VE stated that cashier work could be performed as generally described in the DOT, notwithstanding seizure precautions. (R. 258).


After the administrative hearing, the ALJ issued the following ...

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