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Glover v. Astrue

March 30, 2009


The opinion of the court was delivered by: Honorable David H. Coar


An administrative law judge denied Plaintiff Mary Glover's request for Social Security Disability Insurance benefits (SSDI) and Supplemental Security Income disability benefits (SSI). Glover now asks the court to vacate the ALJ's decision, which she asserts is not supported by substantial evidence, nor in accordance with law. See Fed. R. Civ. P. 56; 42 U.S.C. §405(g). In the alternative, she seeks a remand for consideration of new and material evidence under 42 U.S.C. §405(g). Commissioner Michael Astrue, meanwhile, has filed a cross-motion for summary judgment, asking this court to affirm the ALJ's ruling. For the following reasons, the court DENIES Glover's motion and GRANTS Commissioner Astrue's motion.


Mary Glover applied for disability insurance benefits and for supplemental security income in 2003,*fn1 alleging a disability onset date of June 1, 2001. Her applications were denied initially and upon reconsideration. (AR 16.)

On March 7, 2006, Glover appeared with counsel at a hearing before an administrative law judge. (AR 17.) There, she argued that her asthma, obesity, back and knee pain, and depression limit her to sedentary work, for which she lacks appropriate skills. (AR 16, 575-76.) The ALJ heard testimony from medical experts Walter J. Miller, Jr., M.D., and Kathleen M. O'Brien, PhD; vocational expert James Breen; and Glover. (AR 571-626.)

Dr. Miller's Testimony

Dr. Miller testified that Glover did not have a "clear cut determinable impairment." (AR 579.) He opined that her asthma restricted her activity, but not severely. (AR 582-83.) He noted Glover's history of attacks and hospitalizations, but also explained that her air-exchange studies were normal. (AR 580.) And he judged that the condition was not permanent because Glover did not have an elevated carbon-dioxide level in her lungs, a feature typical of secondary scarring. (AR 580.) Dr. Miller acknowledged that Glover had somewhat decreased pulmonary function, but he did not consider the results of some of the pulmonary tests reliable because they showed a decreased forced expiratory volume after she used a bronchodilator-a result that Dr. Miller opined could occur only if the test was not properly administered, or if Glover had not cooperated. (AR 582-83.)

As for Glover's back pain, Dr. Miller opined that there was no evidence in the record that she was severely disabled or restricted by the condition, which he described as secondary arthritis. (AR 580-81.) Although her MRI showed some disc narrowing, Dr. Miller noted that there was neither a clear herniation nor pressure on the nerve roots that would result in pain. (AR 580.) Meanwhile, Dr. Miller judged Glover's knee condition to be osteoarthritis, although evidence of it was not very extensive. He noted that there was no MRI evidence showing any marked change of the cartilage or ligaments. (AR 581.)

In considering Glover's obesity, Dr. Miller noted that her listed weight of 220 pounds, because it was not 100 pounds more than normal weight, suggested that she is not morbidly obese. (AR 581.) (Dr. Miller did not revise this assessment after hearing Glover's testimony that she was 5'3" or 5'4" and weighed 257 lbs. (AR 608, 622.)) Dr. Miller added that Glover had no serious cardiovascular disease, had an asymptomatic brain lesion (cysticercosis), and that, although she had undergone multiple surgeries of the gallbladder and ovaries, the underlying abdominal conditions had been treated. (AR 580-81.)

Finally, Dr. Miller opined that Glover could stand and/or walk for at least six hours of an eight-hour workday. (AR 583.) He said that she could not do heavy work, and would be "somewhat limited," but could "get up and down at will" and wouldn't need to be restricted to sitting. (AR 583, 586.) When the ALJ pressed him on whether Glover could do that on a sustained basis, Dr. Miller noted that Glover's arthritic pain in her back and knee might be alleviated with more physical activity. (AR 587.) He acknowledged, however, that standing for six hours a day, every day, "might be more than she could handle, that's possible." "But," he added, "I think that would have to be tried out to see. So I know I'm sitting here at a hearing and I have to make a judgment so, you know, maybe she would be sedentary." (AR 588.)

Dr. O'Brien's Testimony

Dr. O'Brien, meanwhile, testified that Glover had a history of anxiety and depression that predated her alleged disability onset.*fn2 (AR 595.) She noted that Glover's primary-care physician had been treating those conditions since 1998, and that there was no evidence that she had been referred to a psychiatrist or psychologist, nor that Glover herself had sought psychiatric care. (AR 595-96.). Dr. O'Brien noted that, despite medication, Glover had not reported great relief of her symptoms, including her purported insomnia. (AR 596.) Dr. O'Brien said she had considered a disability evaluation from 2004 that described Glover's capabilities as inadequate in activities of daily living, social functioning, concentration, persistence, and pace, with one or two episodes of decompensation. (AR 598-99.) But she noted that another evaluation from that same year said Glover had been "very appropriate, alert, oriented... cooperative, serious, polite," had not shown memory or concentration difficulties, and displayed "appropriate hygiene and dress[.]" (AR 599.) Considering the medical evidence in the record, Dr. O'Brien opined that there was no evidence that Glover's psychological symptoms would affect her ability to perform "the universe of work-related activities." (AR 599.)

Glover's Testimony

Glover testified that she had a seventh-grade education; she said she had lied in her application about having a GED out of embarrassment. (AR 602.) Glover testified that she had trained to be a certified nursing assistant, but that she did not take a final examination. She admitted that she falsified a certificate so that she could work as a nursing assistant. (AR 603-06.) Glover further testified that she had worked at a video store in 2001 but quit after two weeks because she could not stand long enough to perform the job. (AR 607-08.) She said she had also held a job packing boxes, and in 2002 she provided patient care for a month. (AR 612.)

Glover testified that, since her application, she had gained 37 pounds, which she attributed to eating late at night because she could not sleep. (AR 609.) Glover said her asthma caused shortness of breath when she climbed stairs or did chores around the house (like vacuuming, or carrying laundry up and downstairs). (AR 614, 619.) She said she would have to rest for 5-10 minutes after walking halfway up the stairs in her home. (AR 615.) Glover said she could wash dishes, cook breakfast, and shop, but that she could stand only for 15-30 minutes before having to sit down. (AR 619.) She testified that she would then have to rest for 45-60 minutes before getting up again. (AR 619.)

Glover testified that she lived with her son and his family, had no income or health insurance, and was supported by her son. (AR 608.) She did not have a driver's license, did not use public transportation, and relied on her son if she needed to go somewhere by car. (AR 610-11.) She left the house about two or three times a week-usually to see a doctor or go to church. (AR 620.) She said she could walk a half block before her legs hurt. (AR 619.) Glover testified that both of her knees bothered her, the left moreso than the right. (AR 616.)

Glover testified that she had trouble sleeping, had been hearing voices for 3-4 years, and had nightmares about her childhood. She testified that she had received psychiatric treatment for approximately six months in 2005, but stopped because she did not feel it was helping. She said she began seeing a psychiatrist again in 2006 because her symptoms worsened, and that she was currently seeing a psychiatrist and taking psychotropic medication. (AR 609-10.)

Glover testified that her treating physician, Judith Sherman, M.D., had prescribed medication for asthma, acid reflux, and her knee and leg problems. (AR 612-13.) She said her pain medication eased, but did not eliminate, the pain. (AR 617.) Glover testified that she had an asthma attack every two to three months, and that she would go to Dr. Sherman for a nebulizer treatment when she had attacks. (AR 613-14.) Glover also said she had been on medication for hypertension. (AR 614.) And she testified that Dr. Caruso, an ...

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