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Fisher v. Astrue

March 31, 2009

DIANE FISHER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Diane Fisher ("Plaintiff"), brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433, 1381-1383f. The parties have filed cross motions for summary judgment, and the record has been developed at the administrative level.

II. PROCEDURAL HISTORY

Plaintiff filed applications for DIB and SSI benefits on June 6, 2005, alleging disability since May 19, 2005, due to chest pain, left arm pain, high blood pressure, depression, stress, and headaches. R. 57-59, 85, 412-414. Plaintiff's claims were initially denied, and she filed a timely request for an administrative hearing. R. 34-37, 38, 418-22. A hearing was held on March 20, 2007, in Johnstown, Pennsylvania, before Administrative Law Judge Patricia C. Henry ("ALJ").

R. 426-60. Plaintiff was represented by counsel, David J. Flowers, and an impartial Vocational Expert ("VE"), Timothy Mahler, also appeared and testified. Id. The ALJ issued an unfavorable decision on March 29, 2007, finding that the Plaintiff was "not disabled" within the meaning of the Social Security Act. R. 13-27. The ALJ's decision became the Commissioner's final decision when, on August 9, 2007, the Appeals Council denied Plaintiff's request for review. R. 5-8.

Plaintiff's administrative remedies thus being exhausted, she now brings the instant action seeking review of the Commissioner's final decision, and the matter is before this Court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

III. STATEMENT OF THE CASE*fn1

Plaintiff was born on May 24, 1965. R. 57. She is currently forty-three (43) years old, making her forty (40) years old at the time of application for benefits and forty-one (41) years old at the time of the administrative hearing. Id. Under the Commissioner's regulations, applicants under the age of 50 are considered "younger individuals" and their age is not considered a significant impediment in their ability to acclimate to unfamiliar occupational circumstances. 20 C.F.R. § 416.963.

Plaintiff has a "limited education," having only completed the ninth grade, and her employment history reveals engaging in "semi-skilled" work as a home nursing attendant, nursing home assistant, and babysitter. R. 82, 103-09, 456-57. Plaintiff discontinued working in May 2005 because she had a mini-stroke and the patient to whom she was providing care made the final transition. R. 432. Plaintiff did not attempt to secure employment thereafter. Id.

Plaintiff began treating with her primary care physician, Cresencio W. Umali, M.D. ("Dr. Umali"), on July 18, 2001, when she presented with syncope and chest pain and epigastric pain.

R. 156. Dr. Umali also noted Plaintiff's medical history was significant for rheumatic fever. Id. The record for this visit does not indicate that Plaintiff suffers from migraine headaches. Id. The first time Plaintiff reported a migraine headache to Dr. Umali was on August 22, 2001, when she indicated pain on the right side of the body with some ora noted, occasional neck pain but no blurring of vision, and no numbness or weakness of the arms or legs. R. 154. The pain is described as being persistent, severe, and nonradiating. Id. No other photophobia was noted and Plaintiff was advised to take Motrin and Advil for relief. Id. Subsequently, Plaintiff reported migraine headaches to Dr. Umali on September 14, 2001, and December 17, 2001. R. 151, 153. On January 19, 2004, Plaintiff informed Dr. Umali that she has had some relief from her migraines with ibuprofen. R.144. The next time she reported a headache to Dr. Umali was on April 11, 2005, which she reported she had for the past three days. R.141.

Plaintiff presented to the Emergency Room of Indiana Regional Medical Center on May 9, 2005, complaining of a headache that had been persisting for three days. R. 133. Plaintiff denied neck or facial pain, and described the maximum severity of pain as moderate. Id. A CT scan of Plaintiff's head revealed no acute disease. R. 134. Plaintiff was instructed not to work that day. Id. During subsequent emergency room treatments Plaintiff reported a prior history of headaches or denied ...


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