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BOYD v. BARNHART

July 22, 2004.

DONNA F. BOYD, Plaintiff,
v.
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

Donna F. Boyd ("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 October 27, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

I. BACKGROUND

  Plaintiff filed for DIB on October 16, 2000, alleging disability on January 31, 1995. (Tr. 89-91). Plaintiff's application for benefits was denied on January 18, 2001. (Tr. 53). On March 7, 2001, Plaintiff filed a request for reconsideration. (Tr. 57). Plaintiff's request for reconsideration was denied on April 23, 2001. (Tr. 59). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") on May 17, 2001. (Tr. 62). Plaintiff appeared, with counsel, before an ALJ on October 4, 2001. (Tr. 14). In a decision dated February 22, 2002, the ALJ found that Plaintiff was not entitled to DIB. (Tr. 81). On February 27, 2002, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 12). On July 25, 2003, the Appeals Council denied Plaintiff's request for review. (Tr. 6).

  II. FACTS

  A. Background

  Plaintiff's date of birth is December 5, 1956 and was forty-seven as of this writing. (Tr. 20). At the time of her hearing in October 2001, Plaintiff lived at a recovery house and had lived there for approximately ten months. (Tr. 19). At the recovery house, Plaintiff had a bedroom and shared kitchen and bathroom facilities with other residents. (Tr. 20). Her assigned chore in the house was to do the dishes. (Tr. 37). Plaintiff received a GED and was enrolled in two community college courses at the time of her hearing. (Tr. 29-30). She does not have a car nor does she have a driver's license. (Tr. 33). She uses the bus for transportation. (Id.). Plaintiff claims to be disabled as a result of the following impairments: hepatitis C, arthritis in the lumbar spine, scoliosis, dysthymia, varicose veins in the left leg, and a history of drug and alcohol abuse in sustained remission.

  B. Work History

  Plaintiff worked as a gum packer at Warner-Lambert from 1998 to 1999. (Tr. 108). The gum packing job consisted of sitting at a conveyer belt, packing gum coming off the conveyer belt into boxes, and sliding the boxes along another conveyer belt. (Tr. 22-23). Plaintiff was only required to lift the gum but not the boxes. (Id.). Because Plaintiff had to stand intermittently throughout the day, she could not keep up with the flow of the gum and interrupted the packing process as a result. (Id.). Additionally, Plaintiff had trained others to perform the job and was still using illegal drugs during this period of her employment. (Id.).

  For a two week period, Plaintiff worked as a food preparer in a fast food restaurant. (Tr. 23). She was making sandwiches and deep frying french fries but stated the job only lasted two weeks because she repeatedly burned her hands on a deep frier. (Id.).

  C. Physical Ailment Testimony

  Plaintiff testified her orthopedic doctor prescribed a cane that she had at the hearing. (Tr. 23-24). She indicated she had bad pain in her lower back above the tail bone that was always present but worse in the winter. (Tr. 24-25). Plaintiff said she was paralyzed when she was younger and had six plastic vertebrae. (Id.). She also stated her spine was curved. (Id.).

  Plaintiff stated she had no sensation in her right hand and arm and up to her right ear with the exception of some sensation above her right elbow. (Tr. 25-27). She testified these impairments resulted from a domestic violence situation six years prior and were permanent. (Id.). Plaintiff can use her right hand to pick things up but has to monitor her hand when she does because she forgets she is holding things and often drops things. (Id.).

  When asked if she had any pain in her neck, Plaintiff responded that she has an itching pain inside of her head. (Tr. 27-28). She indicated that a doctor told her the itching was related to scar tissue from the abuse and that the only remedy is to apply a cold compress. (Id.).

  Plaintiff testified she has problems sleeping. (Tr. 28). She uses a blanket to prop up her neck instead of a pillow and has problems both getting to sleep and waking after falling asleep. (Id.). She indicated she gets approximately four hours of uninterrupted sleep per night. (Id.).

  Plaintiff can only walk roughly half a block before her legs give out and can only stand for roughly ten minutes before her back begins to hurt. (Tr. 28-29). She also can sit for approximately ten minutes before her back pain sets in. (Id.).

  Plaintiff indicated she had hepatitis and was depressed. (Tr. 30-31). She claimed to be fatigued as a result of the hepatitis but got no relief from the fatigue after resting. (Id.). She also indicated she was taking anti-depressant medication and had access to counseling through her recovery program. (Id.). Plaintiff did not partake in any social activities outside of attending school and counseling sessions. (Id.). She was visibly teary at the hearing. (Tr. 33).

  Plaintiff further testified she had swelling in her legs most of the time and her left leg was an inch and a half larger than her right. (Tr. 32-34). She claimed part of her ankle bone was removed when she was younger and her circulation was impaired as a result of the surgery. (Id.). Plaintiff's legs gave out approximately nine times in the last year when she was walking, and she has scarring on her legs from the falls. (Id.). Additionally, she has constant pain in both knees that gets worse when she walks more than half a block and in humid or cold weather. (Tr. 38-39). Her orthopedic doctor has administered cortisone shots in both knees. (Id.). Plaintiff ...


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