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Dixon v. Astrue

March 8, 2010

Q. C. DIXON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, Q. C. Dixon, commenced the instant action pursuant to 42 U.S.C. § 1383(c)(3), which incorporates 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383f. Plaintiff filed an application for SSI on February 10, 2004, alleging disability since May 12, 2003, due to asthma, right arm problems, and high blood pressure (Administrative Record, hereinafter "AR", 16; 92-94; 155-56). Her application was denied and she requested a hearing before an administrative law judge (hereinafter "ALJ") (AR 68-72; 65-67). Following a hearing held on October 12, 2006, the ALJ issued a decision on April 16, 2007, finding that Plaintiff was not entitled to supplemental security income under the Act (AR 13-24; 28-49). Plaintiff requested review by the Appeals Council and, after accepting and considering additional evidence, the Appeals Council denied her request for review (AR 11; 5-8), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, I will deny the motions and remand the case to the Commissioner for further consideration consistent with this opinion.

I. BACKGROUND

Plaintiff was born on October 11, 1957 and was forty-nine years old on the date of the ALJ's decision and forty-five at the time of her alleged disability onset date (AR 92; 13-24). She graduated from high school taking special education classes, and later had some training in cosmetology (AR 34; 160; 353-54). Plaintiff's work experience includes jobs as an office cleaner and as a babysitter (AR 35-36; 131; 136; 156). She also performed assembly work at a plastics factory after the alleged disability onset date, but the ALJ concluded that this employment did not constitute substantial gainful activity (AR 18, 36). At the time of the administrative hearing, Plaintiff was homeless but had been staying on and off with her sister, and was receiving welfare (AR 34; 40). She had lived alone for several years, however (AR 89; 93; 143; 166; 353).

Plaintiff was diagnosed with asthma at the age of seventeen (AR 40; 149). She has been prescribed Singulair and Advair, and uses an inhaler up to four times a day and a nebulizer at least three times a day (AR 41; 176; 204; 281-83).

On May 12, 2003, Plaintiff was a passenger in a cab that was involved in a motor vehicle accident (AR 270-71). Plaintiff reported to the Emergency Room stating she injured her head, neck, and right knee, and was experiencing pain in those areas (AR 270). A CT scan revealed no acute neck fracture and the right knee x-ray was negative (AR 271). Plaintiff was diagnosed with cervical strain and forehead and knee contusion and discharged with prescriptions for Motrin and Lortab as well as ACE wrap for the knee (Id.).

Plaintiff began treating with John Cassara, D.C., for several months subsequent to the accident (AR 232-65). Dr. Cassara's treatment regimen consisted of therapeutic massage, therapeutic exercise, electro-muscle stimulation, and spinal adjustments (AR 236-65). Throughout the treatment program, Plaintiff and Dr. Cassara both report improvement and progress of Plaintiff's condition (Id.). Dr. Cassara reduced the frequency of Plaintiff's treatments on October 8, 2003, because of her progress (AR 264).

A cervical spine MRI performed on October 6, 2003, revealed spondylosis with no significant central canal lateral recess or foraminal narrowing (AR 284). Lumbar spine x-rays performed on December 27, 2004, indicated disc space narrowing at L4-L5 without bony lesion or degenerative change (AR 404).

Plaintiff's right knee was also injured in the accident, and x-rays from that date indicated mild degenerative joint disease and large joint effusion (AR 273). Plaintiff was treated for her right knee pain following the accident by Anthony Ruffa, D.O., who gave her a steroid injection of June 30, 2003 (AR 280). A July 24, 2003, MRI of the right knee revealed a transverse tear in the posterior horn medial meniscus, an intact anterior cruciate ligament, a popliteal cyst, and mild degenerative change of the right patella (AR 289). Degenerative changes of the knee were noted in an x-ray report of March 31, 2005 (AR 399). Dr. Ruffa administered a steroid injection to Plaintiff's right knee on June 29, 2005, and referred her to Nick Stefanovski, M.D., for knee surgery (AR 410).

Plaintiff underwent right knee arthroscopic surgery with partial medial meniscectomy and debridement of the medial femoral condyle on August 5, 2005 (AR 373). Plaintiff was prescribed ibuprofen 600mg and Lortab following the surgery, and instructed to compress her knee with ice three to four times per day (AR 372). Plaintiff was still experiencing pain in her knee on September 13, 2005, and Dr. Stefanovski, administered a cortisone injection to help relieve the discomfort (Id.). He cleared Plaintiff to return to work the first week of October 2005 (Id.). Dr. Stefanovsky continued to treat Plaintiff's knee pain conservatively with injections and pain medication over the next several months (AR 369-71). On November 27, 2006, Plaintiff underwent right partial knee replacement surgery (AR 452-54).

Plaintiff also suffered right arm injuries in the accident, resulting in numbness in her right extremities, for which she endured subcutaneous anterior ulnar nerve transposition surgery (AR 266-74; 298-322). The procedure was reportedly successful in eliminating the numbness in her fingers (Id.).

Plaintiff injured her right foot in October 2005, and underwent surgery of the fifth metatarsal in March 2007 (AR 446-63). She reported continuing foot pain after the surgery (Id.).

The record also reveals a history of mental impairments. Plaintiff reports attending special education classes while in school (AR 34; 180). The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Plaintiff on August 16, 1997, in conjunction with a previous application for disability benefits (AR 182-85). That examination revealed a verbal IQ of 72, performance IQ of 80, and a full scale IQ of 75, plus or minus five, indicative of borderline intellectual functioning (AR 183-84). The Wide Range Achievement Test-III (WRAT-III) was also administered and Plaintiff's score indicated reading at the second grade level, spelling at the first grade level, and arithmetic at the fifth grade level (AR 184). The examiner noted that Plaintiff performed the tests with adequate effort and that the results were deemed a valid representation of her intellectual functioning (AR 183). The examiner concluded that Plaintiff could be as independent as others her age, could be socially responsible, and could understand and follow instructions and perform simple, repetitive tasks (AR 185).

On July 18, 2005, Plaintiff was evaluated by Samuel Trychin, Ph.D., at Stairways Behavioral Health Department of Educational and Psychological Services (AR 353-67). Dr. Trychin administered the WAIS-III and Plaintiff's results yielded a verbal IQ of 67, performance IQ of 70, and full scale IQ of 66, indicative of the borderline to mild mental retardation range of intellectual functioning (AR 355-56). Performance of the WRAT-R*fn1 test revealed that Plaintiff was reading and spelling at the second grade level and doing arithmetic at the fourth grade level (AR 356). Plaintiff was unable to complete the Wonderlic Personnel Test because the vocabulary was beyond her comprehension (AR 354). Dr. Trychin reported that the test data is ...


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