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CLEMONS v. BARNHART

October 13, 2004.

DOROTHY CLEMONS, Plaintiff,
v.
JO ANNE BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

This case arises out of the final decision of the Commissioner of Social Security (hereinafter, the "Commissioner") denying Plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI") under 42 U.S.C. §§ 416(i), 423, and § 1382(c)(3)(A). Before the Court is Plaintiff's motion to reverse the final decision of the Commissioner and Defendant's motion for summary judgment. The Court treats Defendant's motion as a motion for an order affirming the Commissioner's decision. For the following reasons, the Court denies Plaintiff's motion and grants Defendant's motion.

I. BACKGROUND

  Plaintiff Dorothy Clemons applied for DIB and SSI on March 9, 2000, alleging disability that began on June 8, 1995. Plaintiff's claims were denied initially on October 10, 2000. Plaintiff's application for reconsideration was denied on March 23, 2001. Subsequently, Plaintiff was granted a hearing before an Administrative Law Judge (the "ALJ") on April 12, 2002. The ALJ conducted a de novo review of Plaintiff's claim and issued a written opinion denying Plaintiff's application for DIB and SSI on February 11, 2003. The Appeals Council declined Plaintiff's request for review. Consequently, the ALJ's decision became final and Plaintiff filed the instant action seeking judicial review.

  A. Vocational and Medical History

  Plaintiff has ten years of education. She has not worked since 1995, but was previously employed as a packer (roper) at a meat packing company from 1977 to 1995. Plaintiff also worked as a cashier and stocker in a shoe store.

  On November 10, 1995, Plaintiff was involved in a motor vehicle accident and went to the emergency room for pain in her right thigh, knee, back and buttocks. (R. 146-49). Plaintiff's C-spine and neurology examination were normal, but she was diagnosed with a knee and finger contusion.

  Since the accident in 1995, Plaintiff has frequently sought medical attention for a variety of alleged medical ailments, primarily relating to pulmonary infections and back and hand pain. On January 10, 2000, Plaintiff was seen for chills and a sore throat. She was not taking any medications at the time. Her physician indicated that she was not obese, and described her as a woman who "enjoyed general good health with a history of pneumonia approximately three years ago." (R. 154, 159). Plaintiff was diagnosed with right upper lobe pneumonia, nonspecific bronchial hyperactivity, influenza and arthritis in her left knee. In late January, tests revealed that Plaintiff had a minimal obstructive lung defect and a mild decrease in diffusing capacity. Plaintiff said she felt better in a follow-up visit.

  On May 10, 2000, at the request of the Bureau of Disability Determination Services (the "DDS"), Plaintiff was examined by Dr. Roopa Karri. (R. 194-97). Plaintiff complained to Dr. Karri that she had arthritis of the knees and hands for the past 7 years. After examining Plaintiff, Dr. Karri reported that "the claimant has no problems with dressing, cleaning or toileting. She drives and shops rarely. She cooks quick meals. She can stand and sit. She cannot walk even a block without getting short of breath. She can go up 3-4 stairs at a time. She can pick up a coin from the ground." (R. 195). Dr. Karri determined that Plaintiff could "walk 50 feet without support. She can stand on his [sic] heals and toes and squat. She can get off and on the table with no problem . . . Hips, ankles, cervical spine, knees, lumbar spine; normal." (R. 196). Although Dr. Karri indicated that Plaintiff's grip strength was reduced to 4/5 in right hand, he determined that she didn't need an assistive device because she is left-handed. Dr. Karri also concluded that her neurologic and mental status examinations were normal, and there were "no signs of depression, agitation, irritability or anxiety." Id. Dr. Karri's Clinical Impressions were as follows: "Problem #1: Asthma and emphysema; Problem #2: Arthritis of the knees, wrists and hands; Problem #3: Hypertension; Problem #4: History of recent pneumonia." Id.

  On July 17, 2000, Dr. Virgilio Pilapil prepared a Physical Residual Function Capacity Assessment for Plaintiff. This report concluded that Plaintiff's exertional limitations were lifting twenty pounds occasionally, ten pounds frequently, standing and/or walking and/or sitting for six hours in an eight-hour day, and unlimited pushing and pulling. Her postural limitations were that she should only occasionally climb, kneel, or crawl, but that she could frequently balance, stoop, and crouch. Plaintiff's environmental limitations were unlimited except for the avoidance of fumes, odors, dusts, gases and poor ventilation. (R. 211, 213).

  In August, Plaintiff was seen for a follow-up visit where she reported that she had no chest pain, cough, palpitations or edema. Plaintiff's chest x-ray was within normal limits. (R. 205). On May 2, 2001, Dr. Liske diagnosed Plaintiff with acute bronchitis. Her asthma was controlled. (R. 227). Dr. Liske continued to examine Plaintiff throughout 2002. On January 9, 2002, Plaintiff had a Spirometry test that revealed a mild obstruction with small airway response but no air trapping. (R. 230). On January 14, 2002, she was diagnosed with a cough and bronchitis. On March 18, 2002, Plaintiff was seen by the doctor for complaints of back pain. On April 10, 2002, two days before the hearing, Plaintiff had an MRI, which revealed mild back problems. Specifically, the MRI revealed . . . "mild disc bulging with possible tiny central disc protrusion and mild facet degenerative . . . caus[ing] mild central stenosis and minimal, if any, left sided neural foraminal narrowing . . . asymmetric left side disc bulging . . . that does not cause significant stenosis . . . disc desiccation . . . without herniation." (R. 231-232).

  B. ALJ Hearing

  The ALJ conducted a hearing on April 12, 2002 to review Plaintiff's application for DIB and SSI. The ALJ questioned Plaintiff at length regarding her various health-related complaints, which primarily consisted of asthma, and knee, back and hand pain. Plaintiff testified that she had not been hospitalized for her asthma and had not had many asthma flare-ups because she was prescribed medicine. She testified that, despite telling her doctor otherwise, she smokes four cigarettes a day. She indicated her knee was in constant pain and it grew worse in cold weather. Plaintiff testified that her back pain has become worse over the past year and she takes any available pain medicine to relieve her back pain. Plaintiff does not use a cane for either her back or knee pain. Plaintiff, who is left-handed, testified that she had right-hand pain, but she told the ALJ that such pain did not prevent her from using her hand (R. 42). Plaintiff estimated that she could walk about two hundred feet, stand for about thirty minutes, sit for about twenty minutes, and reach over head with her right arm. (R. 45). Plaintiff testified that she cooks, washes dishes, cleans, dusts, does laundry, talks on the phone, does personal grooming, visits with people, attends church, and goes out to eat. (R. 45-48).

  The ALJ also interviewed William Schweihs, a vocational expert (the "VE"). The VE testified about Plaintiff's previous work experience, classifying her roper-work as heavy and her cashier-work as light. The ALJ asked the VE:
Q. . . . Let's assume we had a person the same age, education, and work experience as the claimant and that person had residual functional capacity for light work with the following restrictions. They could only occasionally climb anything, kneel or crawl, and they would have to avoid concentrated, prolonged exposure to pulmonary irritants, fumes, odors . . . Would that person be capable of performing claimant's past work? (Tr. 59).
  The VE testified that such a person could perform other packing positions and other industrial positions, as well as cashier work at a light level, which are all unskilled jobs. The VE estimated that there were 7,000 roping (packing) jobs at the light-level and in excess of 10,000 cashier jobs ...

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