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Little v. Astrue

September 21, 2009

WANDA ANN LITTLE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge

Introduction

This is an appeal from the final decision of the Commissioner of Social Security ("Commissioner or "defendant") denying the claims of Wanda Ann Little ("plaintiff") for supplemental security income ("SSI") benefits under title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83 and for disability insurance benefits ("DIB") under title II of the SSA, 42 U.S.C.§§ 401-33. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that she is not disabled, and therefore not entitled to benefits, should be reversed and remanded because the decision is not supported by substantial evidence. 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. The court will deny plaintiff's motion and grant defendant's motion because the decision of the ALJ is supported by substantial evidence.

Procedural History

Plaintiff filed the applications for SSI and DIB at issue in this appeal on a protective basis on March 2, 2006, asserting a disability since February 27, 2006 due to plantar fasciitis, depression, anxiety, dizziness and fibromyalgia. (R. at 101, 109, 126.) On May 25, 2006, plaintiff's claims were initially denied. (R. at 69-72.) A timely written request for a hearing before an administrative law judge was filed by plaintiff, and the hearing was held on May 31, 2007. (R. at 25-65.) Plaintiff appeared with counsel and testified at the hearing. (Id.) A vocational expert (the "VE") also testified. (R. at 59-63.) In a decision dated July 13, 2007, the ALJ determined that plaintiff was not under a disability within the meaning of the SSA. (R. at 22.) Plaintiff filed a timely request to review the ALJ's decision, which was denied by the Appeals Council on June 10, 2008 (R. at 1-3.) Plaintiff filed this present action seeking judicial review.

Plaintiff's Background and Medical Evidence

Background

Plaintiff was forty-one years old at the time of the hearing before the ALJ. (R. at 29.0 She was living with her parents and thirteen-year-old son. (R. at 29.) Plaintiff graduated from school (R. at 29) and worked as a bar waitress, informal waitress and cook helper. (R. at 60.) She last worked on February 27, 2006. (R. at 31.) Plaintiff's activities included personal care which she reported as "[s]o far, so good." (R. at 140.) She does not mow the lawn. (Id.) She cooks as long as she is not too long on her feet. (R. at 38, 140.) She reads (R. at 40), house cleans, "I do what I can when I can" (R. at 141), gardens, but not on "all four" (R. at 140), grocery shops with pain, etc.

(R. at 141.) She drives, but becomes sleepy and does not go too far. (Id.)

At the time of the hearing before the ALJ, she was taking, among other medications, Fentanyl patch, oxycodone and Lexipro. (R. at 33-34.) She testified the side effects from the medication included blurred vision, light headiness, trouble thinking and sleepiness. (R. at 35.)

Medical Evidence Dr. Diana Metzger

Plaintiff was seen by Diana Metzger, M.D., on September 20, 2005. (R. at 165.) Plaintiff reported that she was having chest pain and tightness that had lasted for approximately two months. (Id.) Her pain went from her mid-chest to her left shoulder and it would come and go for no apparent reason. (Id.) Plaintiff had palpitations and had been experiencing anxiety attacks once or twice a week for the last one to two years. (Id.) Plaintiff reported to Dr. Metzger that she has smoked one pack of cigarettes a day for twenty-five years and she usually has one to two glasses of beer or shots of rum or vodka in a mixed drink a day. (R. at 165-66.) Occasionally, plaintiff will drink up to eight shots of rum or vodka in mixed drinks in a day. (R. at 166.) An exercise EKG was performed. It, however, was stopped due to ischemic EKG changes. (Id.) Plaintiff had intermittent symptoms that did not worsen during exercise and the EKG abnormalities quickly returned to normal. (Id.) Plaintiff returned to Dr. Metzger on October 6, 2005 for a follow-up visit. (R. at 164.) Plaintiff reported that she had symptoms mostly when she was relaxing or lying down. (Id.) Dr. Metzger reported that plaintiff did not have any perfusion defects and that her symptoms were very atypical. (Id.) Dr. Metzger stated that plaintiff's symptoms suggested esophageal reflux and she recommended Prilosec*fn1 to plaintiff. (Id.) Dr. Metzger noted that plaintiff had excellent pulses in her lower extremities and she suspected that Trental,*fn2 which was being taken by plaintiff for leg pain, would not be helpful. (Id.)

Dr. James Lapcevic

On February 2, 2005, plaintiff reported to James Lapcevic, D.O., her primary care physician, that her pain was a seven out of ten when it was the most severe. (R. at 172.) Plaintiff reported that the pain was in her leg and foot and that it interfered with daily living. (Id.) Dr. Lapcevic decided to continue the cold laser treatment for plaintiff's plantar fasciitis. (R. at 173.) Plaintiff was seen again on February 8, 2005, reporting foot pain that was five out of ten when it was most severe. (R. at 174.) Plaintiff reported mild anxiety and mild depression. (Id.)Dr. Lapcevic found plaintiff to have abnormal mood and affect, but her judgment, orientation, and memory were all intact. (R. at 175.) On March 1, 2005, plaintiff described her pain as nine out of ten and that she reported moderate insomnia. (R. at 178.) Dr. Lapcevic noted that plaintiff had an abnormal shuffling gait with moderate to severe head and neck movement and moderate to severe tenderness of thoracic, lumbar and sacral spine (R. at 179.) On March 16, 2005, plaintiff reported that her pain was two out of ten when most severe. (R. at 182.) On March 23, 2005 and again on March 30, 2005, plaintiff stated her pain was seven out of ten. (R. at 184, 186.) On April 8, 2005, plaintiff reported her pain was five out of ten and that she felt her feet had improved. (R. at 188-89.) On May 25, 2005, plaintiff stated that her pain was nine out of ten and that she had anxiety, stress, insomnia and depression. (R. at 197.) On August 29, 2005, plaintiff reported her pain to be ten out of ten and Dr. Lapcevic noted that plaintiff continued to have mild anxiety and moderate depression. (R. at 211-12.)

On January 4, 2006, plaintiff stated that her pain was four out of ten and Dr. Lapcevic found plaintiff's depression and anxiety to be mild. (R. at 246-47.) On January 30, 2006, plaintiff reported that her pain was getting worse, that it was stopping her from working and that it was ten out of ten when standing. (R. at 252.) On April 20, 2006, plaintiff reported her pain to be nine out of ten and that she continued to have anxiety, depression, stress and insomnia. (R. at 361-62.) Plaintiff was taking Lexapro,*fn3 ArmourThyroid*fn4 and Percocet.*fn5 (Id.) Dr. Lapcevic indicated that he had completed the employability assessment form for plaintiff. (R. at 363.) On July 25, 2006, plaintiff reported her pain to be a six out of ten and she also discussed with Dr. Lapcevic that the Subutex*fn6 she was taking was causing hangover, nightmares and panic anxiety. (R. at 342-44.) Dr. Lapcevic advised that plaintiff have a sleep lab evaluation and interview with a psychiatrist and rheumatologist. (R. at 344.) On August 8, 2006, plaintiff reported that Subutex was not working for her pain. (R. at 339.) On September 5, 2006 Dr. Lapcevic noted that plaintiff began taking Neurontin*fn7 at the ...


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