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Phillips v. Astrue

March 6, 2009


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Margaret Phillips ("Claimant") seeks reversal or remand of the final decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), partially denying Claimant's application for Disability Insurance Benefits ("DIB"). The case presents the following issues: (1) whether the Administrative Law Judge ("ALJ") erred by not crediting all of Claimant's testimony concerning the extent and severity of her symptoms, despite finding Claimant credible; (2) whether the ALJ was required to obtain an x-ray before concluding Claimant's degenerative joint disease was not a severe impairment, or failed to analyze how non-severe impairments affected Claimant's ability to perform full-time work; and (3) whether the ALJ erroneously ignored testimony from the Vocational Expert ("VE") that certain of Claimant's alleged limitations would preclude gainful employment. For the following reasons, the Court grants Claimant's motion for summary judgment and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant applied for DIB on September 20, 2004, alleging a disability onset date of November 25, 2003. R. 127-31. She was denied initially and on reconsideration, and requested a hearing. R. 96-103. On September 21, 2006, ALJ Dennis R. Green ("ALJ Green") presided over this hearing. R. 375. ALJ Green issued an unfavorable decision on September 25, 2006. R. 79-88. Claimant successfully appealed to the Appeals Council, which remanded the case for further proceedings. R. 116, 119.

Pursuant to the Appeals Council's remand order, ALJ Denise McDuffie Martin (the "ALJ" or "ALJ Martin") conducted a second hearing on August 28, 2007. R. 437. Claimant, Medical Expert Ernest Mond, and Vocational Expert Michelle Peters testified at the hearing.

R. 441-471. ALJ Martin issued a partially favorable decision. R. 16-18, 20-31. Specifically, the ALJ found Claimant was disabled from November 25, 2003 until June 30, 2005, but that as of July 1, 2005, Claimant had the residual functional capacity ("RFC") to perform a limited range of medium work. R. 30-31. On April 15, 2008, the Appeals Council denied Claimant's request for review. R. 6-8. Claimant appeals to this Court, which now reviews the ALJ's decision pursuant to 42 U.S.C. § 405(g).*fn1

B. Hearing Testimony - August 28, 2007

1. Margaret Phillips - Claimant

Claimant was 52 years old, five feet four and one-half inches tall, and weighed 202 pounds at the time of the hearing. R. 441. She had not worked since 2003, when she experienced a seizure on the job. R. 442. Before that seizure, she worked full-time as a bagger on an assembly line for twelve years. R. 442-43. Her duties entailed unskilled work placing manufactured objects into plastic bags, stamping and placing the bags into boxes, lifting those boxes onto skids, and then wrapping the skid. Id. The job required her to lift boxes weighing thirty to fifty pounds and to remain standing while working. R. 443.

Claimant experienced occasional seizures. R. 444. She suffered two seizures in the three months prior to the hearing, which she believed they were triggered by stress. Id. Claimant does not drive due to the risk of seizures. R. 447.

Claimant testified she suffered severe migraine headaches on a daily basis. R. 445, 448-49. To recover from a headache, Claimant lies down in the dark for one half hour to one hour. R. 445. Bright lights aggravate her headaches. R. 448-49. Claimant said that she begins to feel discomfort after thirty minutes of exposure to bright light. R. 449.

Claimant's medicine makes her feel groggy and uncomfortable, and causes her to nod off when watching television or reading a book. R. 443, 452. Claimant's typical day involves watching television, talking with her sister, and performing light household chores such as cooking, cleaning, and laundry. R. 446-47. She occasionally takes walks of two to three blocks. R. 446. A weekly church service and Bible study are her only regular social activities. R. 447. At church, Claimant cannot stand up for thirty minutes. R. 448. When she carries groceries up the stairs to her apartment, she stops to rest every five steps. R. 450. Although Claimant testified she can lift twenty pounds, she was uncertain what constitutes twenty pounds. Id.

2. Dr. Ernest Mond - Medical Expert

The Medical Expert, Dr. Ernest Mond ("ME"), opined Claimant had hypertension and Type II diabetes, both of which were under control from medication. R. 454. He noted the Claimant was overweight but had lost approximately forty pounds on the advice of her doctors. Id. The ME also noted "mild findings" of neuropathy*fn2 in the medical record, but found this was "in no way disabling or significant." Id.

According to his review of the medical records, the ME explained Claimant had at least a twenty-five year history of complex partial seizures. R. 454-55. However, he emphasized that the records from her consultative neurological examination showed she had suffered only two recent seizures, one in 2002 and one in 2005. Id. The ME testified this reflected "exemplary" control of Claimant's seizure condition, and highlighted a note from Claimant's doctor, dated June 2005, R. 296, which gave her permission to drive. R. 455.

The ME opined that pseudotumor cerebri*fn3 caused Claimant's headaches. Id. He noted records showing Claimant's headaches improved after she underwent a lumbar puncture to remove spinal fluid, followed with prescription medication. R. 456.

The ME opined that none of Claimant's conditions met or medically equaled a listed impairment. R. 456-57. In his view, the headaches were incapacitating prior to March 2005.

R. 463. He agreed with the state agency physician's RFC assessment that Claimant could perform medium work, but noted the seizure disorder would prevent Claimant from working on scaffolds, ropes, ladders, hazardous machinery, or at unprotected heights. R. 457-58. Asked if he would discount Claimant's testimony that she needed to lie down for one to one and a half hours a day to recover from a headache, the ME replied that he would not discount her testimony, but explained he could find no evidence of medical conditions to would cause such symptoms. R. 458.

3. Michelle Peters - Vocational Expert

Vocational Expert Michelle Peters ("VE") testified that Claimant had previously worked in a machine tender unloading position, classified as unskilled with medium physical demand. R. 465-66. The ALJ asked the VE a hypothetical question about what type of work a person with Claimant's limitations would be able to perform. R. 466. The VE was asked to assume:

[A]n individual of the claimant's age, education, and work experience. . . . We would be limited to medium work, and no climbing of ladders, ropes, or scaffolds. Occasional climbing of ramps and stairs with occasional balance and stooping, kneeling, crouching, and crawling. The hypothetical person should avoid unprotected heights or dangerous or moving machinery, and it should be an unskilled low stress type of job.

R. 466. The VE explained these restrictions eliminated past relevant work. R. 466. The VE opined, however, that the hypothetical person could perform other work with these limitations, including packaging, assembly, or clerking positions. Id. Claimant's attorney then asked the VE whether employers in the stated occupations would be able to accommodate a sensitivity to fluorescent lighting or allow the individual to lie down for one or two hours each day. R. 468. The VE stated competitive employment in the mentioned occupations would not permit a person to lie down for an hour. Id.

C. Medical Evidence

Claimant appeals only the ALJ's finding that Claimant was not disabled after July 1, 2005. For this reason, medical evidence prior to this date is only discussed to the extent it is relevant as context for post-July 1, 2005 medical conditions.

1. Dr. Li Zhang - Treating Neurologist

Neurologist Dr. Li Zhang ("Dr. Zhang") and other Neuromed Clinic physicians treated Claimant from 2002 to August 2006. R. 232-251, 288-316. Neuromed Clinic records show Claimant consistently reported seizures, daily headaches, obesity, sleep apnea, and hypertension. R. 232-251, 290-313. Dr. Zhang noted Claimant complained of blurred vision with headaches on February 7, 2005. R. 232. On March 2, 2005, Dr. Zhang performed a lumbar puncture to relieve pressure. R. 305. Approximately three weeks later, Claimant reported she felt much better and she had not had a headache in two weeks. R. 303. At that time, Dr. Zhang noted the lumbar puncture procedure established that Claimant had pseudotumor cerebri. Id. Claimant underwent a sleep study in August 2005. R. 332. She was diagnosed with moderate obstructive sleep apnea*fn4 . R. 333.

During a December 2005 checkup, Claimant reported she felt better until two months earlier, when her headaches began recurring on an "almost daily" basis. R. 293. The doctor prescribed Acetazolamide and Vicodin, and encouraged Claimant to lose weight. Id. Over the next three months, Claimant experienced only a "few" non-severe headaches, exercised daily, and lost some weight. R. 289. In August 2006, Dr. Zhang again noted daily headaches aggravated by exposure to light, but wrote "[M]otrin helped her," and "[s]he remains to have normal activities, she is doing more regular exercise." R. 288. By that date Claimant had lost thirty-five pounds. R. 288.

2. Treatment by Westside Medical Associates

Claimant was also treated at Westside Medical Associates, Ltd. ("Westside") during the relevant period. R. 320-22, 334-47. Westside records show Claimant complained of fatigue and headaches on October 21, 2005. R. 336. On January 3, 2006, Claimant came to Westside with muscle pain in her neck, shoulder, and right arm. R. 339. At that time and again later on February 16, 2006, the doctors noted tenderness in her clavicle and trapezium muscles, and recommended Claimant take ibuprofen. R. 339-40. In July 2006, Westside physicians noted diabetes, sleep apnea, a worsening eye condition, and hypertension. R. 344. The ...

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