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SMITH v. BARNHART

January 26, 2004.

JEANETTE SMITH, Plaintiff
v.
P. Michael Mahoney JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant



The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Jeanette Smith ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. § 405(g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for Disability Insurance Benefits ("DIB") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381 (a). This matter is before the Magistrate Judge pursuant to consents filed by both parties on July 15, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

  Plaintiff filed for DIB on June 21, 2000, alleging disability on February 5, 1999. (Tr. 72). Plaintiff's application for benefits was denied on November 4, 2000. (Tr. 36). On February 12, 2001, Plaintiff filed a request for reconsideration. (Tr. 40). Plaintiff's request for reconsideration was denied on May 17, 2001. (Tr. 44). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on July 29, 2001. (Tr. 50). Plaintiff appeared, with counsel, before an ALJ on July 22, 2002. (Tr. 18). In a decision dated January 27, 2003, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 17). On February 3, 2003, Plaintiff requested a review of the Page 2 ALJ's decision by the Appeals Council. (Tr. 7). On April 18, 2003, the Appeals Council denied Plaintiff's request for review, (Tr. 4).

 II. FACTS

  Plaintiff was born on May 2, 1940 and was sixty-two at the time of her July 22, 2002 hearing. (Tr. 18). Plaintiff graduated from high school. (Tr. 68). At the time of her hearing, Plaintiff was married and living with her husband. (Tr. 21). Plaintiff suffers from pain associated with her cervical disc disease, bilateral carpal tunnel syndrome, diffuse arthritis, and benign positional vertigo. (Tr. 68). It is for these reasons that Plaintiff claims to be disabled.

  From 1980 to 1999, Plaintiff worked for Joseph Behr & Sons ("Joseph Behr"), a recycling company. (Tr. 22). At Joseph Behr, Plaintiff worked in the precious metals division performing general clerical work such as inventory control, accounts receivable and payable accounting, occasional telephone answering, and general office filing. (Tr. 23). Plaintiff testified that during her tenure at Joseph Behr, the precious metals division closed down and, although it appears Plaintiff did not move to another division, Plaintiff remained an employee even though she was unable to perform manual labor. (Id.). Plaintiff testified that Joseph Behr kept her "for her brain." (Id.). In 1999, Plaintiff's employment at Joseph Behr ended and she received a severance package based on her eighteen years of service. (Id.).

  After her employment at Joseph Behr, Plaintiff testified that she attempted to find another job. (Tr. 24). Specifically, Plaintiff looked for clerical work that was not demanding. However, Plaintiff was unable to find a job because most of the clerical jobs she found required use of a typewriter, computer or calculator, which Plaintiff apparently could not operate. After looking for a job, Plaintiff filed for unemployment and received unemployment compensation from February Page 3 1999 until August 1999. (Id.).

  At the hearing, Plaintiff was wearing a soft cervical collar and a splint on both arms. Plaintiff testified she wears the soft cervical collar when her neck is "aching more and seems to be cracking more." (Tr. 27). Plaintiff testified she wears the arms splints "only when the base of [her] thumbs and the wrists are aching." (Id.). Plaintiff also stated she wears them at night. It appears that Plaintiff wears the arm splints, at least on her right hand and arm, because in 1987 Plaintiff had bilateral carpal tunnel surgery. (Tr. 28).

  In closing, Plaintiff testified that she does not believe she can perform any sit down jobs because of her dexterity problems with her hands and the fact that, after holding her head in one position too long, the pain is "excruciating." (Tr. 29). Additionally, Plaintiff stated that the feeling in her fingers are such that she cannot turn pages in a book and filing is impossible. (Id.). Plaintiff's hand problems also prevent her from operating a mouse for a computer. (Tr. 30).

 III. MEDICAL HISTORY

  The earliest medical record available to this court is dated May 4, 1998, (Tr. 177). On that date, Dr. Margaret A. Myslek, of Roxbury Family Medicine, reported that physically, Plaintiff was in good health, except that Plaintiff had arthritis, mostly osteo in her knees and in her ankles. (Id.). Emotionally, Dr. Myslek reported, Plaintiff was not doing too well. Plaintiff's mother had died in January 1998 and Plaintiff's husband's health condition had worsened. (Id.). Dr. Myslek prescribed 80 mg once a day of Diovan. (Id.).

  Plaintiff saw Dr. Myslek again on June 8, 1998. (Tr. 178). Dr. Myslek again reported that Plaintiff was doing well physically (except for some jitteriness from the Diovan). Dr. Myslek also reported that Plaintiff had improved emotionally due to her husband's improved health. (Id.). Dr. Page 4 Myslek's ultimate assessment of Plaintiff was that she was a postmenopausal female with osteoporosis risk factors. (Id.). Dr. Myslek also started Plaintiff on 5 mgs of Ziac. (Id.).

  Plaintiff worsened physically. On August 31, 1998, Plaintiff again saw Dr. Myslek. (Tr. 179). Plaintiff complained that she was having more tenderness in both of her hands over the joints and was experiencing numbness in her fingers. (Id.). Dr. Myslek also reported that Plaintiff's blood pressure was not constant and, at times, was high. (Id.).

  On September 17, 1998, a bilateral mammogram was performed on Plaintiff. (Tr. 190). The mammogram revealed some developing clustered microcalcification in the medial inferior aspect of Plaintiff's left breast. (Id.). A microscopic diagnosis was performed on October 12, 1998. (Tr. 183). The microscopic diagnosis revealed sclerosing adenosis associated with microcalcifications and apocrine metaplasia in fragments of benign breast tissue. (Id.).

  Plaintiff continued to see Dr. Myslek in 1999 and early 2000, but there are no medical records of any substance until May 16, 2000. (Tr. 126). On that date, Dr. Myslek reported Plaintiff had neck pain and significant stiffness in both arms, neck and her lower back. (Id.). Additionally, Dr. Myslek noted Plaintiff again was experiencing numbness and tingling in her arms and joints. (Id.). Plaintiff indicated that her arm grip had weakened due to the numbness and tingling. (Id.). An objective medical assessment of Plaintiff revealed that she had tenderness over the neck involving the C3, C4, C5 & C6. (Id.). Plaintiff had restricted ROM to approximately 45 degrees to each side on rotation, Dr. Myslek reported Plaintiff's arms revealed normal sensation with an arm grip of approximately "2/5 bil." (Id.). Some tenderness over Plaintiff's lumbar vertebrae was noted. (Id.). A neck x-ray revealed discongenic disease and partial anklylosing at C5 thru C7 with mild subluxation at C4 & C5. (Id.). Page 5

  Also on May 16, 2000, Dr. James J. Langan, of the Camelot Radiology Associates, performed x-rays on Plaintiff's right hand, left hand, and cervical spin, (Tr. 128-130). Dr Langan reported that the x-ray of Plaintiff's right hand revealed that the bone density was normal, no fracture, dislocation or significant arthritic involvement was noted, but that a minimal osteophyte formation was seen in the distal interphalangeal joints. (Tr. 128). An x-ray of Plaintiff's left hand revealed exactly the same thing as the x-ray of Plaintiff's right hand, according to Dr. Langan. (Tr. 129). The x-ray of Plaintiff's cervical spine revealed disk space narrowing at the C5-6 and C6-7 levels where partial ankylosis was noted. (Tr. 130). Additionally, Dr. Langan reported that there was atherosclerosis involving the right carotid artery. (Id.). Ultimately, based on all three x-rays, Dr. ...


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