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Fulmer v. Astrue

October 16, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer


Plaintiff, Jennifer Fulmer ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security disability insurance benefits ("SSDI") and supplemental security income ("SSI"), under Titles II, and XVI, of the Social Security Act, 42 U.S.C. §§ 1614(a)(3)(A). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. (Docket Nos. 9 and 11). This matter requires the Court to determine whether the Administrative Law Judge ("ALJ") gave sufficient weight to the opinion of Plaintiff's treating physician and to Plaintiff's own characterization of her symptoms. The Court also must consider whether the Administrative Law Judge properly considered conflicting reports from the state agency physician and whether the ALJ properly assessed Plaintiff's Residual Functional Capacity. For the following reasons, Plaintiff's Motion for Summary Judgment [9] is DENIED and the Commissioner's Motion [11] is GRANTED, and the decision of the Administrative Law Judge denying SSDI and SSI is hereby affirmed.

I. Procedural History

Plaintiff filed concurrent applications for Title II and Title XVI disability benefits on June 1, 2004. (Docket No. 5, at 84-87) (Docket Nos. 5, 5-2 hereinafter, "R. at ___"). The applications were both denied on August 18, 2004. (R. at 64). Plaintiff subsequently filed new applications for DIB and SSI on January 19, 2005. (R. at 77-80). The second round of applications was then denied on April 11, 2005, and Plaintiff filed for a hearing on June 14, 2005. (R. at 63-65, 465-69). The hearing was conducted before an Administrative Law Judge, the Honorable Charles Boyer on March 22, 2007. (R. 16-27, 475). He issued an unfavorable decision on April 6, 2007, denying benefits. (Id.). Plaintiff appealed the unfavorable decision on June 7, 2007, and was denied a re-hearing by the Appeals Council on December 31, 2008. (R. at 13-15). Having exhausted all of her administrative remedies, Plaintiff filed this action on March 6, 2009, seeking judicial review of the Commissioner's decision. (Docket No. 1). Plaintiff filed her Motion for Summary Judgment and Brief in support on June 30, 2009 (Docket Nos. 9 and 10), and the Commissioner filed a Motion for Summary Judgment and Brief in support on July 21, 2009. (Docket Nos. 11 and 12).

The matter being fully briefed, it is now ripe for disposition.

II. Facts

A. General Background

Plaintiff was born on August 21, 1972. (R. at 279). Plaintiff was thirty-two years old on the date she filed her application for SSDI and SSI benefits, and was thirty-four at the time of her hearing before the Administrative Law Judge ("ALJ"). (R. at 19, 475, 479). Plaintiff completed fourteen years of education, including two and a half years of vocational training. (R. at 479).

The vocational training was in preparation for a flight attendant position and was never completed. (Id). Plaintiff's past relevant work can be generally classified as unskilled office and manufacturing labor. (R. at 102-107). Examples of plaintiff's job titles during this period include: production tech; laborer; secretary's aide; and cashier. (Id.). Starting in May of 2003, Plaintiff claims she was unable to continue working due to continuing "dizz[iness] and migraines." (R. at 481). Plaintiff has remained unemployed since May 6, 2003. (Id.). Plaintiff alleges the following symptoms preclude her from gainful employment: lightheadedness, dizziness, nausea, headaches, vertigo, and blurred vision. (Docket No. 10 ¶ 2).

B. Medical History

Plaintiff first complained of dizziness during a May 6, 2003 appointment with her primary care physician, Dr. Hugh Shearer, D.O. (R. at 248-46). During this appointment, Plaintiff stated that the dizziness "had been going on for about [two] weeks," but that the seriousness of symptoms had fluctuated during that period. (R. at 246). Dr. Shearer noted that lab work related to a previous appointment had returned normal results and diagnosed Plaintiff's condition as vertigo. (Id.). Dr. Shearer prescribed Antivert and planned for Plaintiff to undergo a CAT scan.*fn1 (Id.).

Plaintiff had a follow-up visit on May 14, 2003, during which Dr. Shearer noted that Plaintiff's CAT scan results were "abnormal" and planned for Plaintiff to undergo an MRI. (R. at 245). A second follow-up occurred on May 21, 2003, where Dr. Shearer stated that the results of Plaintiff's MRI, MRA, and blood work were all within normal limits and that he was referring Plaintiff to a neurologist. (R. at 244). Plaintiff visited Dr. Shearer on May 27th because she was reported to have had a "near syncopal episode."*fn2 After this appointment, Dr. Shearer forbade Plaintiff from driving or working until she saw a neurologist. (R. at 243).

Plaintiff saw a neurologist, Dr. Munir Elawar, on June 19, 2003. (R. at 151). During this consultation, Plaintiff reported daily lightheadedness, lack of balance, and a propensity to fall. (Id.). She also mentioned that she has difficulty driving. (Id.). After various tests, Dr. Elawar described Plaintiff's condition as "unremarkable," but referred her to an otolaryngologist due to Plaintiff's history of ear disease. (R. at 152).

Plaintiff again returned to Dr. Shearer on July 3, 2003, wherein he reviewed the report from Dr. Elawar and decided to complete further testing before referring Plaintiff to another specialist. (R. at 242). A second visit occurred on July 23, 2003, in which Plaintiff further elaborated on her "dizziness," stating that she has 3-4 episodes a day, and that they last from five minutes to an hour. (R. at 241). At this point, Dr. Shearer held off on further action pending the result of a "tilt table test."*fn3 (Id.).

On July 29, 2003, Plaintiff met with otolaryngologist, Dr. Keith Welker. (R. at 153). In his report, Dr. Welker noted that Plaintiff has a long history of middle ear disease and eustachian tube dysfunction. (Id.). Dr. Welker's exam revealed that Plaintiff had "mild to moderate mixed hearing loss," but that the results were "fairly normal." (Id.). Dr. Welker concluded that Plaintiff's symptoms were unrelated to her history of ear disease, but could be related to poor cerebral vascular flow, and that further cardiac evaluation was the appropriate approach going forward. (Id.).

After the otolaryngologist appointment, Plaintiff returned to Dr. Shearer for a series of appointments through December 2003. (R. at 237-40). On August 27, 2003, Dr. Shearer met with Plaintiff to discuss the results of her tilt table test. (R. at 240). Dr. Shearer noted that the test results were "mildly positive" and that Plaintiff believes that her allergy medications could be contributing to her dizziness. (Id.). Dr. Shearer recommended that Plaintiff remain well hydrated and avoid antihistamines. (Id.). On September 26, 2003, Plaintiff returned to Dr. Shearer to report that her dizziness continued and that she had abdominal pain. (R. at 239). Regarding the dizziness, the doctor urged Plaintiff to make an appointment with a cardiologist, while regarding the abdominal pain, the doctor scheduled Plaintiff for another CAT scan. (Id.). On October 23, 2003 Dr. Shearer followed up with the Plaintiff on her CAT scan results and prescribed Zyrtec for Plaintiff's allergies.*fn4 (R. at 238). On December 17, 2003, Plaintiff continued to complain of dizziness, but Dr. Shearer chose to not proceed further prior to Plaintiff seeing a cardiologist. (R. at 237). However, Dr. Shearer did sign a two-month disability form for Plaintiff. (Id.).

Plaintiff underwent further testing at the Hearing and Balance Center of Allegheny General Hospital on December 23, 2003, and met with a second otolaryngologist, Dr. Yael Raz at UPMC, on January 14, 2004. (R. at 24, 156-68, 188-89). Plaintiff reported to Dr. Raz symptoms of dizziness, vertigo, nausea, and migraines. (R. at 188). Plaintiff stated that these symptoms were often "triggered by worsening stress or increased activity" and "when she is tired or hungry." (Id.). Dr. Raz noted that Plaintiff's symptoms were most likely caused by vestibular migraines,*fn5 and that she would probably benefit from migraine prophylaxis and the use of Zoloft or Verapamil.*fn6 (R. at 24, 189).

Several weeks later, on January 28, 2004, Plaintiff followed up on the recommendations of Dr. Shearer, and Dr. Welker, and consulted Dr. Suad Ismail for a cardiac evaluation. (R. at 203-24). Dr. Ismail found her cardiac test results were not supportive of any cardiac ailments. (Id.). Dr. Ismail also opined that a follow-up on Plaintiff's cardiac status was not needed. (Id.).

After her appointments with Doctors Raz and Ismail, Plaintiff returned to Dr. Shearer's office for more follow-up visits. (R. at 235-36). The first of these visits was on February 5, 2004, where Dr. Shearer reported that Plaintiff had been examined by Dr. Ismail but the results were all negative. (R. at 236). Dr. Shearer stated that he did not yet have the report from the Balance Center but Plaintiff told him that she had been told that her headaches could be the cause of her dizziness; however, Plaintiff also told Dr. Shearer that her headaches and dizziness did not seem to coincide. (Id.). Dr. Shearer explained that there were few remaining medical options and suggested that Plaintiff may need to apply for SSI. (Id.). The second follow up occurred on February 16, 2004. (R. at 235). At this point, the test results from Plaintiff's ...

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