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Ross v. Commissioner of Social Security

March 10, 2010


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


Plaintiff, Wendie Ross, commenced the instant action on December 5, 2008, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §401 et seq. Plaintiff filed an application for DIB on June 28, 2004, alleging disability since May 28, 1995, which was later amended to an onset date of September 22, 2001 (Administrative Record, hereinafter "AR", at 18; 66-68; 621-622). Her application was initially denied, and she requested a hearing before an administrative law judge ("ALJ") (AR 46). A hearing was held on January 19, 2007, and following this hearing, the ALJ found that the Plaintiff was not disabled at any time through the date of the decision, and therefore, was not eligible for DIB benefits (AR 18-28).

Plaintiff's subsequent request for review by the Appeals Council was granted (AR 13A-13D). On August 8, 2008 the Appeals Council issued a decision adopting the ALJ's decision in part, and concluded that the Plaintiff was not disabled under the Act (AR 10-13). The instant action challenges these decision, and presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, the Plaintiff's motion will be denied and the Defendant's motion will be granted.


Plaintiff was forty-eight (48) years old on the date last insured (AR 13; 27). She has a Bachelor of Arts degree, with past relevant work experience as an income maintenance caseworker for the Pennsylvania Department of Public Welfare (AR 95; 83; 117; 624). Plaintiff was previously awarded DIB benefits due to myelofibrosis on September 1, 1995, but those benefits were terminated in December of 1999 upon a finding of medical improvement in her condition (AR 18; 86).

Plaintiff completed a Daily Activities Questionnaire and indicated that she was able to wash dishes, fold clothes and clean the kitchen, dining and family rooms (AR 73). She went grocery shopping once a week and cooked for herself and husband several days a week (AR 73). She reported that she was able to care for her personal needs without assistance, watch television, use the computer, read magazines and novels, manage money and pay bills and drive approximately 80 miles a month (AR 74). She claimed an inability to climb stairs such as to ride a bus and stated she had trouble getting in and out of the back seat of a car (AR 75). Plaintiff also reported she never slept through the night (AR 75).

Plaintiff noted that she was able to care for her two cats (AR 104). She was able to load and unload bags from the car, but needed to rest when shopping (AR 105). Plaintiff reported that she occasionally went out with a girlfriend and went for car rides with her husband (AR 106; 108). She stated that she could lift 40 pounds and carry 25 pounds a short distance (AR 106). Plaintiff claimed she had trouble reading and comprehending instructions, and suffered from daily fatigue (AR 109-110). She claimed she suffered from constant pain and burning in her hips and legs, as well as pain in her joints, shoulders and back (AR 111).

Dr. Joseph Deimel

The record contains treatment notes from Dr. Joseph Deimel from March 1996 (AR 121). These treatment notes reflect that the Plaintiff had a history of myelofibrosis, hypertension, an old seizure disorder, diabetes, obesity and depression, as well as a "questionable" history of lupus (AR 121-124; 301). Plaintiff took Mysoline for her seizure disorder, however, Dr. Deimel repeatedly advised the Plaintiff to stop taking it since the dosage amount was not therapeutic (AR 121; 600). Dr. Deimel also has repeatedly advised the Plaintiff to lose weight and gain control of her diet, and was of the view that most of her health problems would cease if she lost 60 pounds (AR 298; 300; 600).

Dr. Philip Symes

Plaintiff has also been treated by Dr. Philip Symes since January of 1994 for anemia secondary to her myelofibrosis diagnosis (AR 399-407). His progress notes from January 31, 2000 through the Plaintiff's last insured date are essentially unremarkable (AR 302-304; 320; 417-419 ). Dr. Symes noted on January 31, 2000 that her principle problem seemed to be ongoing depression (AR 417). Treatment notes reflect that the Plaintiff's lowest hemoglobin*fn1 level during this period was 12.1, and Dr. Symes found that her myelofibrosis was in remission and her anemia had completely resolved (AR 303; 320).

Dr. Edward Engel

Plaintiff was seen by Dr. Edward Engel beginning on July 28, 2000 upon referral by Dr. Deimel (AR 339; 397). Plaintiff complained of knee, neck, shoulder and upper back pain, as well as weakness in her hands (AR 397). Dr. Engel noted that the Plaintiff's myelofibrosis had been in remission for three years, her diabetes was controlled with oral hypoglycemia and she had not had any seizures in a while (AR 396). Plaintiff's physical examination was unremarkable except for some puffiness of the fingers and some ligament laxity in the knees (AR 396). Dr. Engel prescribed Vioxx for her intermittent joint flare ups and ordered a serologic work up (AR 396).

In a follow up visit on January 26, 2001, Plaintiff reported that the Vioxx had "helped her joints pretty well" (AR 394). Plaintiff reported a past history of blood pressure problems and indicated that she had not taken her anti-hypertensive mediation that morning (AR 394). Her weight was recorded at 290 pounds and her blood pressure was 162/100 (AR 394). Dr. Engel assessed the Plaintiff with a history of lupus and recommended a trial of Plaquenil (AR 394).

On September 21, 2001, the Plaintiff reported to Dr. Engel that she was not feeling well and was having problems with her blood glucose (AR 393). She claimed she felt more depressed and had trouble sleeping (AR 393). Dr. Engel assessed her with a history of lupus, although no ulcerations were found on examination; visual problems related to diabetic retinopathy;*fn2 and leg ulcers (AR 393). On December 20, 2001, Plaintiff complained of leg aches and right arm pain (AR 391). Dr. Engel found no definite synovitis on examination and reported that her hips, knees and ankles "move[d] well" (AR 391). He indicated that it was unclear whether her musculoskeletal pain was due to inflamation (AR 391).

In a follow up visit on March 19, 2002, Plaintiff complained of "having a lot of aches and pains" but was "mostly bothered" by gastritis and reflux problems (AR 325). Dr. Engel recorded the Plaintiff's weight at 282 pounds and her blood pressure was 112/64 (AR 325). She was assessed with an elevated sedimentation rate of "unclear etiology", diabetes and history of myelofibrosis (AR 325). Dr. Engel was of the opinion that the Plaintiff needed "general conditioning, aerobic exercise, [and] weight loss" to improve her energy level (AR 325).

Plaintiff returned to Dr. Engel on December 10, 2002, who found no definite synovitis on examination (AR 389). Her shoulder range of motion was limited on external rotation, but was otherwise reasonably full (AR 389). Dr. Engel found no local joint warmth, her knees had some crepitus on passive motion, and her hips were symmetric on rotation (AR 389). Plaintiff complained to Dr. Engel on June 10, 2003, that she was having knee and wrist pain, and had some cognitive dysfunction (AR 388). He assessed her with a history of lupus, recommended an x-ray for her knee symptoms, and discussed weight loss (AR 388).

On July 1, 2003, Plaintiff returned to Dr. Engel, who noted that her x-rays failed to show significant degenerative changes in her knee (AR 387). Plaintiff received a Synvisc injection in her right knee, and Dr. Engel assessed her with mild osteoarthritis limiting her activities of daily living (AR 387). Plaintiff reported on July 7, 2003, that the injection "seemed to help some" and Dr. Engel administered a second injection (AR 386). Plaintiff also complained of headaches and that medications were not effective (AR 386). Plaintiff received a third injection on July 15, 2003, and Dr. Engel noted her achiness was mild and her lupus was "reasonably stable" (AR 385).

On July 30, 2003, Dr. Engel completed a Medical Report on a State Employees' Retirement System form (AR 426-427). Dr. Engel reported that the Plaintiff had a history of lupus, knee pain due to osteoarthritis, myelofibrosis, diabetes mellitus and GERD (AR 427). Dr. Engel found that the Plaintiff's ability to ...

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