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Tichon v. Astrue

April 29, 2009

JUDY ANN TICHON, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANTS



The opinion of the court was delivered by: Hay, Magistrate Judge

MEMORANDUM OPINION

Acting pursuant to 42 U.S.C. § 405(g), Judy Tichon ("Tichon" or "the claimant") appeals from a November 17, 2007 decision of the Commissioner denying her application for disability insurance and supplemental security income benefits. Cross Motions for Summary Judgment are pending. The Motion filed by Tichon (Doc. 10) will be denied, and the Motion filed by the Commissioner (Doc. 13) will be granted.

Procedural Background

On December 13, 2004, Tichon filed her application for disability insurance and supplemental security income benefits, alleging that she had been disabled since January 1, 2000. She described the conditions precluding her from engaging in substantial gainful activity as swelling in the legs, shortness of breath, atopic dermatitis, and a cardiovascular condition.

(R. 95). Following an initial denial of benefits on February 24, 2005 (R. 43), Tichon requested a hearing.

The hearing on Tichon's application took place on April 25, 2006 before an administrative law judge ("ALJ") in Pittsburgh, Pennsylvania. (R. 29). Tichon, who was represented by counsel, and a vocational expert offered testimony. At the time of the hearing, Tichon was a forty-eight year old married high school graduate with work history as a cashier.

(R. 42). When questioned about her skin condition, Tichon testified that she has suffered from eczema since she was a child, and that this condition causes her skin to redden, itch, and blister.

(R.480). If she scratches her skin, it becomes infected, sticks to her clothes, and bleeds.

(R. 481). She says that when she uses a topical ointment and rests, the rash heals. No doctor has ever told her that rest is essential to the healing process. (Id.). She told the ALJ that although no doctor had ever told her this either, she "knew" that her own perspiration was the cause of the rash. (Id.). Wetting and soiling herself exacerbated the rash in certain areas. (R. 490). The claimant told the ALJ that she cannot shower because she is "allergic to water." (R. 490). Consequently, she has not showered since 1986, and has used baby wipes since that time to clean her body and wash her hair. (Id.) The record does not contain medical evidence substantiating the existence of such an allergy.

Tichon also described shortness of breath which began when she was five. (R. 486). She has difficulty sleeping because of the need to elevate her back and the need to change her diaper. (Id.). She attributed her urinary and bowel incontinence to medication, but admitted that this had never been communicated to her by a physician. (R. 487). She stated that she is able to drive and go shopping with her husband, but cannot perform any household chores. (R. 486). She is up about one hour of the day between naps. (R. 491). She testified that she could not lift a gallon of milk because of back pain, shortness of breath, and shaking. She cannot walk for more than a block or stand for more than five minutes without back pain and shaking in her legs. (R. 490). She is able to sit for forty minutes before perspiration and itching in her genital area causes her to have to stand and walk around. (R. 491). Last, she stated that she was under treatment for depression. (Id.).

Standard of Review

The Act limits judicial review of the Commissioner's final decision regarding benefits to whether the factual findings are supported by substantial evidence, Brown v. Brown, 845 F.2d 1211, 1213 (3d Cir. 1988), and whether the correct law was applied. Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984).

The ALJ's Opinion

The ALJ arrived at his finding that Tichon was not disabled within the meaning of the Social Security Act ("the Act") by applying the sequential five step analysis articulated at 20 C.F.R. §§ 404.1520(a) and 416.9020(a).*fn1 The claimant bears the burden of proof at the first four steps, and the Commissioner bears the burden at the fifth. ...


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