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BREWER v. CHATER

December 22, 1995

CONSTANCE BREWER, Plaintiff,
v.
SHIRLEY CHATER, Commissioner of the Social Security Administration,1 Defendant.



The opinion of the court was delivered by: BUCKLO

 Plaintiff, Constance Brewer, applied for a period of disability and Disability Insurance Benefits on February 12, 1992. Her claim was denied initially and upon reconsideration by state agency personnel. After a hearing, Administrative Law Judge ("ALJ") Donald C. Niersbach ruled that Ms. Brewer had a residual functional capacity for light work enabling her to perform her past work and other work existing in the economy. The Appeals Council denied Ms. Brewer's request for review. On December 22, 1994, Ms. Brewer brought the present action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Health and Human Services ("Commissioner"). Both parties have filed motions for summary judgment. For the reasons set forth below, the Commissioner's motion is granted, and Ms. Brewer's motion is denied.

 Facts

 At the time of the hearing before the ALJ, Ms. Brewer was sixty years old and lived with her daughter. Tr. 172, 209. Also living in the same household was another daughter and her two children. Tr. 199. Ms. Brewer completed high school as well as training with H & R Block to be a tax preparer. Tr. 172. Ms. Brewer opened a clothes cleaning business in 1965. Tr. 177. She managed the business, did the dry cleaning, handled the press machine, kept the books, operated the cash register and delegated certain tasks to a seamstress and her children. Tr. 176-78, 232. At the hearing, Ms. Brewer asserted that working at her dry cleaners required her to stand constantly and to lift 20-30 pounds. Tr. 179-80. *fn2" Ms. Brewer testified that she closed her business in April, 1992 because operating it became too strenuous for her. Tr. 173-74, 181, 215.

 Ms. Brewer testified that she was employed by H & R Block as a tax preparer three months a year from 1974 through 1979, for which she was paid $ 50 per week. Tr. 182, 213. From 1980 to the present, she has operated her own tax preparation business during tax season, completing short forms for customers and grossing $ 1000 annually. Tr. 182-84. Since April, 1992 when she shut down her laundry business, Ms. Brewer has not applied for any job or received any type of pension or unemployment compensation, and her daughter has paid her living expenses. Tr. 174-75, 202-03.

 Ms. Brewer is five feet tall and weighs two hundred pounds. Tr. 173. She testified that she first noticed pain in her chest approximately two years prior to the hearing date and felt a throbbing-like chest pain during the hearing. Tr. 185-86, 194, 202. Ms. Brewer does not experience chest pain while lying in bed, can sit without any problem and stand five to ten minutes at a time. Tr. 195. At one point in the hearing she said that she can walk about one and one-half blocks before becoming short of breath, and at another point she stated that she is able to walk about one-half block before wheezing. Tr. 185, 195.

 Ms. Brewer has full use of her hands most of the time but is not capable of lifting anything heavier than a gallon of milk. Tr. 196, 198. She has full use of her feet and can bend at the waist, climb about six steps at a time and reach over her head. Tr. 200-01. Ms. Brewer testified that she is diabetic and tests her blood sugar every morning. Tr. 203. Ms. Brewer's medications include nitroglycerine pads, Vaseretic 10/25, Nitrostat, DiaBeta, Theophylline and aspirin. Tr. 190-93, 196-97. *fn3" About five seconds after Ms. Brewer takes a Nitrostat tablet, her chest pain is relieved. Tr. 193-94. Ms. Brewer testified that she was hospitalized for two days in March 1993 at Holy Cross Hospital after falling while walking. Tr. 188.

 Ms. Brewer testified that she goes to bed around 10:00 p.m. and during the night occasionally wakes up and sometimes gets out of bed to use the bathroom. Tr. 203-04. Ms. Brewer does a little housecleaning each day, including dusting and making her bed, and prepares and eats three meals a day. Tr. 205-07. Ms. Brewer does not vacuum, sweep, mop or do outside work on her house. Tr. 207-08. She sometimes listens to the radio, seldom watches television and never reads. Tr. 205-06. Ms. Brewer drives without limitation, although she has disabled plates on her car, and shops for groceries. Tr. 196, 208. She attends church twice a week and acts as a missionary with some of the women in the congregation, which involves visiting ill people once a week. Tr. 207-08. Ms. Brewer's hobby is crocheting; and she does not do any regular exercise, smoke or drink alcohol. Tr. 209-10. Ms. Brewer's nephew drove her to the hearing, and she planned on taking the bus home. Tr. 210-11.

 In the Disability Report Ms. Brewer completed in February, 1992, she stated that she suffered from high blood pressure and a heart condition. Tr. 48-49. She wrote that she was unable to work seven hour days in her cleaners because her heart and pulse would beat quickly, she became tired and dizzy, she walked into things and lost her balance. Tr. 48. Operating the dry cleaners required Ms. Brewer to carry about two to three pounds of clothes at a time thirteen feet from the presser to the counter. Tr. 53. Moreover, the heaviest weight she lifted was ten pounds, and she frequently lifted ten pounds. Tr. 53. During a typical day, she engaged in constant reaching and frequent bending, sat for four hours, stood for six hours and walked for one hour. Tr. 53. Ms. Brewer noted that since June, 1982, Dr. Pranau Vaidya, an internal medicine specialist whose practice consists of direct patient care, has been her treating physician whom she visits one time each month. Tr. 49, 67. In August, 1992, Ms. Brewer supplemented her Disability Report, stating that she had become a diabetic for which she was taking Micronase, and that she was often drowsy and slept a lot.

 The medical records produced at the hearing indicate that Lee Behnke, a Disability Claims Examiner, had a telephone conference with Dr. Vaidya on March 25, 1992, a few days after Dr. Vaidya saw Ms. Brewer. Dr. Vaidya described Ms. Brewer as "somewhat obese" at five feet two inches tall and two hundred and eight pounds and diagnosed Ms. Brewer as having mild to moderate hypertension, angina and arthritis. Tr. 64-65. The arthritis mostly affected Ms. Brewer's lower back, but she had not lost any motion in this area. Ms. Brewer did not suffer from any end-organ damage, reflex abnormalities, sensory deficits or motor loss. Tr. 64. The angina caused Ms. Brewer to experience about once every two weeks retrosternal pain radiating to her left arm, which she characterized as a feeling of pressure. Tr. 64. This symptom was associated with exertion. Tr. 64. Ms. Brewer did not have a history of a myocardial infarction. Tr. 64. Dr. Vaidya stated that he had never performed a treadmill exercise test and did not have an EKG on her. Tr. 64. He informed Mr. Behnke that at the last visit Ms. Brewer's blood pressure reading was 140/96, and her previous two blood pressure readings were in the mild to moderate range. Tr. 64.

 In June, 1992, Young-Ja Kim, M.D., a state agency physician, completed a Residual Physical Functional Capacity Assessment of Ms. Brewer. Tr. 84-92. Jimenez Francisco, M.D., another agency physician, completed a second Residual Physical Functional Capacity Assessment in December, 1992. Tr. 100-108. Both doctors concluded that Ms. Brewer was capable of occasionally lifting and/or carrying fifty pounds and frequently lifting and/or carrying twenty-five pounds; standing and/or walking for a total of about six hours in an eight-hour workday; sitting for a total of about six hours in an eight-hour workday; and pushing and/or pulling in unlimited amounts. Tr. 85, 101. Ms. Brewer experienced no manipulative, visual, communicative or environmental limitations. Tr. 86, 89, 103-104. She was able to frequently climb ramps or stairs, balance, stoop, kneel, crouch and crawl but could never climb a ladder, rope or scaffolds. Tr. 87, 102. Dr. Kim noted that Ms. Brewer suffered from chest pain, or angina, as well as arthritis. Tr. 91. He also noted that Ms. Brewer did not experience any focal neuro deficits. Tr. 91. Dr. Francisco additionally commented that Ms. Brewer had hypertension. Tr. 107.

 Dr. Vaidya provided cardiac, arthritic and diabetic reports dated November 27, 1992. Tr. 94. As of that date, his most recent examination of Ms. Brewer was on October 29, 1992. Tr. 94. At that time, Dr. Vaidya's diagnosis of Ms. Brewer's condition was hypertension, arthritis and diabetes. Tr. 94. Ms. Brewer still did not suffer from end organ damage or myocardial infarction but experienced chest pain. Tr. 94. The chest pain, which now occurred three times per week, felt like a dull ache, was precordial, lasted a few seconds, was precipitated by walking or physical work and was relieved by rest and nitroglycerin or other vasodilators. Tr. 95.

 On February 19, 1993, Ms. Brewer was taken by paramedics to the emergency department of Holy Cross Hospital. Tr. 125. Dr. E. Cambry recorded that at approximately 5:00 p.m. that day, Ms. Brewer felt dizzy, was short of breath and nauseous, went to the bathroom and fell. Tr. 125. Ms. Brewer stated that she did not pass out and no one witnessed her fall. Tr. 125. Dr. Cambry noted Ms. Brewer's history of diabetes, asthma and hypertension and medications of Micronase, Theo-Dur and Vasotec. Tr. 125. Dr. Cambry assessed Ms. Brewer's condition as "dizziness rule out myocardial infarction" and admitted her to the telemetry unit for testing. Tr. 125. Among the tests completed were a chest x-ray, which did not show congestive heart failure or that Ms. Brewer's lungs had infiltrates, and a 24-hour Holter *fn4" report, which did not indicate any ventricular tachy-arrhythmias or brady arrhythmias. Tr. 129, 132. When Ms. Brewer was released on February 22, 1993, her condition was stable. Tr. 155.

 ALJ Niersbach also called upon Myer Klein, a vocational expert ("VE"), to testify at the hearing. Mr. Klein described Ms. Brewer's past work as the owner and operator of a laundry as requiring lifting from thirty to forty pounds, involving medium exertion and semi-skilled. Tr. 233. He categorized Ms. Brewer's work as a tax preparer as sedentary and semi-skilled. Tr. 233. Mr. Klein testified that Ms. Brewer is not qualified to work as a tax clerk or a county (most likely he meant accounting) clerk, but, from her past experiences as the operator of her own business and as a tax preparer at H & R Block, she possesses the skills to be a general clerical worker (3,000 jobs ...


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