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Wiggers v. Astrue

May 10, 2010

MADELENE WIGGERS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, Madelene Wiggers, ("Plaintiff"), commenced the instant action 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 claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq, and § 1381 et seq. Plaintiff filed applications for DIB and SSI on July 24, 2006, alleging disability since October 25, 2005 due to a ruptured disc in her back, hepatitis C and bipolar disorder (Administrative Record, hereinafter "AR", 80-90; 131). Her applications were denied and she requested a hearing before an administrative law judge ("ALJ") (AR 60-69; 71-72). A hearing was held before an administrative law judge ("ALJ") on November 18, 2008 and following this hearing, the ALJ concluded that the Plaintiff was not entitled to a period of disability, DIB or SSI under the Act (AR 12-44). Her request for review by the Appeals Council was denied (AR 1-4), 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 both motions and the matter will be remanded to the Commissioner for further proceedings.

I. BACKGROUND

Plaintiff was thirty-four years old on the date of the ALJ's decision (AR 21). She did not finish high school but earned a General Educational Development ("GED") diploma, and has past relevant work experience as a clerk and clerk/assistant manager at a convenience store (AR 21). Plaintiff claims an inability to work due to both mental and physical impairments.

Mental Impairments

Plaintiff was evaluated by Helen Kohn, M.D., at Stairways Behavioral Health Outpatient Clinic on March 13, 2006 upon referral by her social worker (AR 159-162). Plaintiff reported that she lived in a shelter with her six year old son (AR 159). She stated she was suffering from depression and had negative "racing" thoughts (AR 159). Plaintiff described a history of aggressive behavior, a history of being a victim of domestic violence and had two previous suicide attempts (AR 160). She additionally reported a history of drug and alcohol abuse, but claimed she been abstinent since July 1, 2005 (AR 160-161). Plaintiff indicated that she quit her job as a cashier for Wal-Mart due to back problems (AR 160).

On mental status examination, Dr. Kohn reported that her affect was appropriate throughout the evaluation, except when she became tearful upon recalling being teased in school (AR 161). She was cooperative, alert, exhibited good eye contact, was appropriately groomed and showed no unusual mannerisms (AR 161). Dr. Kohn found her speech spontaneous, her thought processes organized and relevant and she exhibited average cognitive function (AR 161-162). Dr. Kohn diagnosed her with major depressive disorder, recurring, moderate; polysubstance dependence in early remission; rule out borderline personality disorder; and assigned her a Global Assessment of Functioning ("GAF") score of 50 (AR 162).*fn1 She referred the Plaintiff to individual counseling and started her on Lamictal for mood stabilization (AR 162).

Progress notes from Stairways reflect that in April 2006, the Plaintiff complained that the Lamictal was causing insomnia (AR 158). In July 2006, the Plaintiff complained of insomnia, "racing thoughts," anxiety and irritability (AR 157). She denied any suicidal/homicidal thoughts, and her medications were adjusted (AR 157).

Plaintiff was psychiatrically evaluated by Ann McDonald, M.D., pursuant to the request of the Commissioner on October 13, 2006 (AR 175-181). Plaintiff reported that she was currently sober, but relayed an extensive history of substance abuse starting at age five (AR 175). On mental status examination, Dr. McDonald noted that the Plaintiff was labile with thoughts of self harm, but she denied suffering from any hallucinations or delusions (AR 177). Although she could name the current president, she was unable to discuss current events (AR 177). Dr. McDonald found her thinking "quite concrete" when interpreting proverbs and she had difficulty performing serial 7's (AR 177). Dr. McDonald estimated her IQ to be in the 90 to 100 range, but noted that self-control and concentration were "issue[s] for her" (AR 177). She diagnosed the Plaintiff with atypical bipolar disorder; post-traumatic stress disorder; polysubstance addiction; borderline personality disorder; and assigned her a GAF of 35 to 40 (AR 178-179).*fn2

Dr. McDonald opined that the Plaintiff was slightly impaired in her ability to understand, remember and carry out short, simple instructions; slightly to moderately limited in her ability to make judgments on simple work-related decisions; moderately impaired in her ability to interact appropriately with the public and co-workers, and respond appropriately to work pressures and changes in a routine work setting; and moderately to markedly limited in her ability to understand, remember and carry out detailed instructions and interact appropriately with supervisors (AR 178; 180).

On February 6, 2007, Roger Glover, Ph.D., a state agency reviewing psychologist, completed a Mental Residual Functional Capacity Assessment form, and found that the Plaintiff was not significantly limited in a number of areas, but was moderately limited in her ability to understand, remember and carry out detailed instructions; maintain attention and concentration for extended periods; and perform activities within a schedule, maintain regular attendance and maintain punctuality (AR 206). She was also moderately limited in her ability to interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others (AR 207). On a Psychiatric Review Technique form completed the same date, Dr. Glover concluded that the Plaintiff had a mild restriction of activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace; and had no repeated episodes of decompensation of extended duration (AR 220).

According to Dr. Glover, the Plaintiff remained capable of understanding and remembering instructions, concentrating, interacting appropriately with people and adapting to changing activities within the workplace (AR 208). She would be able to maintain regular attendance and be punctual, was capable of asking simple questions and accepting instructions, and could function in production oriented jobs requiring little independent decision-making (AR 208). Dr. Glover found that Dr. McDonald's assessment of the Plaintiff's functional abilities was inconsistent with the other evidence of record rendering it "less persuasive" (AR 208). He concluded that the Plaintiff could "meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment" (AR 208).

On December 29, 2008, Gloria Swietlik Kieffer, M.A., a Licensed Psychologist, reported that she provided outpatient counseling to the Plaintiff beginning in September 2008 (AR 242). Ms. Kieffer indicated that the Plaintiff "carries a long term diagnosis of Bipolar Disorder and a Polysubstance Abuse history" (AR 242). She reported that the Plaintiff's symptoms of depression and manic traits were "usually" in the moderate range with a GAF score from 50 "at wors[t]" to 65 "at best" (AR 242).*fn3 Ms. Kieffer noted that the Plaintiff suffered from low self-esteem but that her effort at treatment was "very good" (AR 242).

Physical Impairments

On December 30, 2005, Plaintiff was seen at Community Health Net for complaints of back pain exacerbated by prolonged standing and sitting (AR 151). Plaintiff reported that she had not consumed alcohol for the previous six months (AR 151). Plaintiff further reported she had hepatitis C (AR 151). On physical examination, her straight leg raise test was negative, and she was prescribed Naprosyn and Flexeril (AR 151).

On September 28, 2006, Plaintiff was evaluated by Ramin Sassani, D.O., a consulting examiner, pursuant to the request of the Commissioner for her complaints of low back pain, bipolar disorder and hepatitis C (AR 166-174). Plaintiff reported that her back pain began in 2001 while she was doing push-ups with her child on her back (AR 166). She indicated that she was being treated at Stairways for her bipolar disorder, but was not compliant with her medication (AR 166). She claimed she had not been abusing alcohol or drugs for the previous fourteen months (AR 167). On physical examination, Dr. Sassani found the Plaintiff was pleasant, fully oriented and in no acute distress (AR 168). Dr. Sassani noted that the Plaintiff was "positive" for arthritis and muscle pain, but reported that her gait was normal, she had no trouble ambulating, and had no motor or sensory deficits (AR 168-169). Her straight leg raise test was negative bilaterally in both the supine and sitting position, she was able to walk on her heels and toes, and she exhibited a full range of motion throughout (AR 169; 173-174). Dr. Sassini recommended MRI studies since her physical examination did not reveal any abnormality (AR 169). Unable to rule out spinal stenosis or an "early disc issue," Dr. Sassini formed an impression of possible degenerative joint disease, as well as hepatitis C (AR 169). He recommended that the Plaintiff be compliant with her bipolar medications and noted that she was not a candidate for hepatitis C therapy due to her bipolar disorder (AR 169).

Dr. Sassani completed a Medical Source Statement relative to the Plaintiff's ability to perform work-related physical activities (AR 171-172). On this form, Dr. Sassani checked off findings indicating that the Plaintiff could occasionally lift and carry twenty pounds; stand and/or walk up to one hour and sit for less than six hours in an eight-hour day; was limited in her pushing and pulling ability in her lower extremities; and was limited to bending only occasionally (AR 171-172).

Plaintiff was examined by Ron Bonfiglio, M.D., on October 31, 2006 for her complaints of low back pain radiating into her leg (AR 182-185). Plaintiff complained of a combination of aching and stabbing pain in her lower back, as well as constant numbness in her right leg and foot (AR 182). Dr. Bonfiglio noted that Plaintiff's MRI dated September 7, 2006 showed a moderately large disc herniation at the L4-L5 level (AR 182). Physical examination revealed that the Plaintiff had a mildly antalgic and stiff gait but with a good base of support and good cadence (AR 184). No significant back tenderness was found, but she had some increased right-sided back pain on straight leg raise testing that was tolerated to 90 degrees bilaterally (AR 184). Dr. Bonfiglio also found she had ...


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