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Voigt v. Astrue

March 28, 2008

NADINE VOIGT, PLAINTIFF,
v.
MICHAEL J. ASTRUE*FN1 , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Plaintiff Nadine R. Becker Voigt contends that her physical and mental impairments have rendered her disabled since January 10, 2003. However, the Social Security Administration, relying on the decision of Administrative Law Judge (ALJ) Robert G. O'Blennis, found plaintiff capable of performing work at the light exertional level (albeit with certain limitations), including her past work as a legal secretary. Accordingly, plaintiff was denied Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423, or even a Period of Disability (POD) pursuant to 42 U.S.C. § 416(i). In accordance with 42 U.S.C. § 405(g), plaintiff, represented by counsel, is before the Court seeking review of the final decision of the Social Security Administration denying her benefits. (Doc. 2). In addition to submitting the administrative record (R.), plaintiff and defendant have fully briefed their positions. (Docs. 21 and 24).

Plaintiff argues:

1. ALJ O'Blennis failed to properly discuss and analyze whether plaintiff's condition met or equaled one of the presumptively disabling impairments in 20 C.F.R. Pt. 404, Subpt. P., App. 1, Pt. A;

2. ALJ O'Blennis failed to consider both plaintiff's severe and non-severe impairments when determining plaintiff's residual functional capacity; and

3. Improper weight was given to the opinion of a non-examining medical expert Dr. Vincent Francis.*fn3

The General Scope of Review

The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 1382, et seq., and 20 C.F.R. pt. 404. This Court reviews the decision denying plaintiff benefits to ensure that the ALJ's decision is supported by substantial evidence, and that no mistakes of law were made. See 42 U.S.C. § 405(g).

To qualify for DIB a claimant must be "disabled." "Disabled" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A "'physical or mental impairment' is an impairment resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3). "Substantial gainful activity" is work activity that involves doing significant physical or mental activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.

Social Security regulations set forth a sequential five-step inquiry to determine whether a claimant is disabled. In essence, it must be determined (1) whether the claimant is presently employed; (2) whether the claimant has an impairment or combination of impairments that is severe; (3) whether the impairments meet or equal one of the listed impairments acknowledged to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable of performing any work within the economy, given his or her age, education and work experience. See Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992); see also 20 C.F.R. §§ 404.1520(b-f).

"The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). Thus, the Court must determine not whether plaintiff is, in fact, disabled, but whether the ALJ's findings were supported by substantial evidence; and, of course, whether any errors of law were made. See Books v. Chater, 91 F.3d 972, 977-978 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir.1995)). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971).

In reviewing for "substantial evidence" the entire administrative record is taken into consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). Furthermore, an ALJ may not disregard evidence when there is no contradictory evidence. Sample v. Shalala, 999 F.2d 1138, 1143 (7th Cir. 1993).

A negative answer at any point in the five step analytical process, other than at the third step, stops the inquiry and leads to a determination that the claimant is not disabled. Garfield v. Schweiker, 732 F.2d 605 (7th Cir. 1984). If a claimant has satisfied steps one and two, he or she will automatically be found disabled if he or she suffers from a listed impairment (step three). If the claimant does not have a listed impairment but cannot perform his or her past work, the burden shifts to the Secretary at step four to show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984).

Relevant Procedural History and Synopsis of the Facts

Plaintiff Voigt was born in February 1958; she has a GED. (R. 405-406). Plaintiff applied for Disability Insurance Benefits October 7, 2004, alleging the onset of disability January 10, 2003, when she ceased working as a legal secretary. (R.58-60). By plaintiff's own account, that job entailed typing, walking one hour and standing one hour per eight-hour day, sitting for four hours, and lifting and carrying files (20 lbs. maximum/less than 10 lbs. frequently) a distance of 50 feet, two or three time per day. (R. 105 and 118). According to plaintiff, her last position-- while she held it-- better accommodated her back pain, in that it was less physically stressful and required less typing than other similar legal secretary positions she had held. (R. 104 and 430). According to vocational expert James Israel, based on plaintiff's description, plaintiff's job should be characterized as highly skilled, light work. (R. 449-450). Israel further explained that the Dictionary of Occupational Titles indicates legal secretarial positions can be performed at the light and sedentary levels. (R. 453). The skills used as a legal secretary are also considered transferable to general secretarial and clerical work. (R. 450).

Plaintiff's relevant medical history begins well before the alleged January 2003 onset date. In February 1995, a right carpal tunnel release procedure was performed; in March 1998, a left carpal tunnel release procedure was performed; and in April 1998, a right re-release was performed. (R. 170, 225-226 and 235-236). With respect to plaintiff's carpal tunnel issues, she was released to full duty in June 1998. (See R. 239). In January 1999, Dr. Susan E. MacKinnon concluded plaintiff, who is right hand dominant, had sustained impairment of 6% in both her right hand and upper extremity, 0% in her right wrist, 6% in her left hand and wrist, and 1% in her left upper extremity. (R. 249).

In 1995, based on plaintiff's complaints, cervical radiculopathy was suspected, but nerve conduction studies showed no cervical radiculopathy on either side. (R. 185).

In 1995, x-rays revealed curvature of plaintiff's lumbosacral spine, as well as severely narrowed disc space at L5-S1 and degenerative disc disease. (R. 199). In January 1998, a total laminectomy at L4-L5 was performed, with excision of the nucleus pulposis and Ray cage interbody fusion. (R. 206-208). According toDr. Harlan Hunter, although plaintiff continued to have muscle spasms in her lower back and was slated for a nerve block, she had achieved maximum medical improvement and was released to work in May 1998. (R. 265). Dr. Hunter's final treatment note in July 1998 indicated plaintiff experienced mild paraesthesia in her right lower calf; nevertheless, plaintiff was released from treatment. (R. 266).

In June 2000, based on a record review in apparent connection with a Workers' Compensation claim, Dr. Bruce Schlafly, M.D., opined that plaintiff had 35% permanent, partial disability of her body as a whole, due to the combined effect of her lower back and upper extremity impairments. (R. 292). Dr. Schlafly deemed plaintiff "best suited for work that does not require heavy typing as well as work that permits her to frequently change positions. She has a very guarded prognosis with regard to her low back and upper extremities." (R. 292).

In November 2002, plaintiff was taken to the emergency room after experiencing chest pain. (R. 316-318). Tests at that time suggested some obstructive airways disease. (R. 347). Plaintiff attributed the whole incident to acid reflux caused by taking too much Ibuprofen. (R. 429-430). In 2003, plaintiff consulted Dr. David T. Waldon, M.D.,regarding chronic abdominal discomfort. (R. 362-363). Ultrasound imaging showed no abnormal abdominal findings, including gallstones. (R. 355). Dr. Waldon thought plaintiff could possibly have Irritable Bowel Syndrome (IBS). (R. 360 and 362-363).

According to plaintiff's testimony, she left work in January 2003 because the one hour commute was too hard on her back. (R. 407). In addition, plaintiff explained that her hands, elbows and neck hurt, and she experienced headaches-- the pain was too bad for her to work. (R. 431). At the time of her application, in November 2004, plaintiff indicated she could sit for 20-30 minutes at a time due to pain and stiffness in her lower back and leg, but she had to shift her weight as she sat. (R. 126). At that time, plaintiff was capable of cleaning her house, but she had to take frequent rest breaks. (R. 126). Plaintiff also continued to do some yard work, including weeding flowers. (R. 127).

In November 2004, plaintiff's chiropractor, Dr. Joy Carr, D.C., noted that plaintiff complained of pain in her inner thighs and problems with bladder urgency, both of which Dr. Carr linked to the L3-L4 nerve root. (R. 370). Dr. Carr diagnosed plaintiff as having sciatica neuralgia, cervical neuralgia, with pain in her lumbar spine, pelvis and thighs. (R. 366).

Plaintiff was specifically described as having vertebral ankylosis at L5-S1. (R. 367). No weakness or sensory loss was reported, but muscle spasms though her spine were noted, as well as nerve root compression. (R. 366). Plaintiff's ambulation was normal and without the use of any assistive device; plaintiff was deemed capable of standing or walking for one hour. (R. 366-267). Plaintiff had to change positions every 15-30 minutes for relief. (R. 367). Plaintiff was considered capable of lifting and carrying 10 pounds with her upper extremities. (R. 367).

In December 2004, based on a record review and exam, Dr. Raymond Leung, M.D., observed that plaintiff took slightly shortened strides, but she walked 50 feet unassisted. (R. 374). Plaintiff could heel walk, toe walk, squat, and she had no difficulty getting on and off the exam table, and no paralumbar spasms were perceived. (R. 374). Her arm and grip strength were normal, and plaintiff's neck was not tender and had full range of motion. (R. 374). However, plaintiff's forward flexion of the lumbar spine was limited to 85N, and her leg strength was slightly decreased at 4. (R.374; see also 375-376). Plaintiff had no muscle atrophy, intact reflexes, and normal sensory function. (R. 374). Dr. Leung's impressions were a history of cage placement at L4-5 for a herniated disc with a current herniated disc at L3-4, and a natural fusion at L5-S1. (R. 374).

In January 2005, Dr. Vincent Francis, an agency medical consultant, reviewed plaintiff's medical records and offered a residual functional capacity assessment indicating plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk for six hours out of an eight hour day; sit for six hours out of an eight hour day, and perform unlimited pushing and pulling. (R. 378). Due to a history of vertigo, plaintiff was prohibited from climbing ladders, rope and scaffolds, and she had to avoid exposure to hazards such as machinery and heights. (R. 379-380). No limits to manipulation were noted. (R. 380). Plaintiff's history of cervical and lumbar impairments was appreciated, along with continued radiating pain and lumbar range of motion was limited to 85N, but plaintiff could still ambulate unassisted, albeit with short strides. (R. 384).

In April 2005, plaintiff reported she could sit and/or perform any activity for only 20 minutes, due to pain, fatigue and weakness. (R. 143). Her only reported ...


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