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Moser v. Astrue

August 11, 2009


The opinion of the court was delivered by: Joe Billy McDADE United States District Judge


Before the Court are Plaintiff's Motion for Summary Judgment, filed on November 26, 2008 (Doc. 8), and Defendant's Motion for Summary Affirmance, filed on February 11, 2009 (Doc. 11). For the reasons stated below, Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Affirmance is GRANTED.


Procedural History On January 19, 2005, Plaintiff Andria Moser filed for disability insurance benefits under the Social Security Act, claiming to be under a disability since October, 21, 2004. (R. 75-80). Her claim was denied initially on April 18, 2005 and again on October 7, 2005 upon reconsideration. (R. 37-40, 43-47). Subsequently, on February 1, 2006, Plaintiff filed an untimely request for a hearing. An Administrative Law Judge (ALJ) dismissed Plaintiff's request on June 30, 2006, finding no good cause for the late hearing request. (R. 33-36). On August 17, 2006, Plaintiff filed a request for review of the ALJ's dismissal. (R. 58) The Appeals Council, on December 1, 2006, granted review and remanded the case to the ALJ for further proceedings.*fn1 (R.67-70).

On July 19, 2007, the ALJ held a hearing via video teleconference where the Plaintiff appeared and testified, represented by counsel Robert J. Engler.*fn2 (R. 26-30, 423-446). Also present at the hearing was Elizabeth M. Albrecht, who testified as an impartial vocational expert. Following this hearing, Plaintiff's counsel provided the ALJ with additional employment records indicating Plaintiff did work after October 21, 2004. (R. 108-54). As such, Plaintiff amended the onset date of disability to January 21, 2005. (R. 108).

On December 19, 2007, the ALJ denied Plaintiff's disability claim, concluding that she was able to perform her past relevant work and was, therefore, not disabled. (R. 12-25). Plaintiff then filed a request for review of the ALJ's decision with the Appeals Council. (R. 10-11, 420-22). On March 11, 2008, the Appeals Council denied review of the ALJ's decision. (R. 6-9). Accordingly, the ALJ's decision became the final decision of the Commissioner of Social Security. See 20 C.F.R. § 422.210(a). On May 13, 2008, Plaintiff filed a complaint seeking judicial review of the ALJ's decision in federal court pursuant to 42 U.S.C. § 405(g).*fn3

Relevant Medical History

Plaintiff represents that she has been disabled since January 21, 2005. Below is a review of medical records relevant to her disability claim.

Foot Pain

In March 2003, Plaintiff visited a treating physician, complaining of pain in her right foot near the heel; she indicated that this pain had "been going on for quite some time." (R. 316). The physician noted no known trauma to the foot. (R. 316). In November 2003, Plaintiff again complained of right foot pain, the severity of which depended upon the frequency she was on her feet. Her physician noted plantar fasciitis of the right foot. (R. 377). By June 1, 2004, medical records indicate that Plaintiff's right foot pain had "definitely improved" with a 10 mg daily dosage of Bextra (R. 373). The next month, however, Plaintiff's right heel/foot pain apparently returned. (R. 371).

In September 2004, Plaintiff saw podiatrist Dr. Ronald Lee, complaining of right heel pain which had been persisting for approximately one year. (R. 266). Dr. Lee noted plantar fasciitis of Plaintiff's right foot. (R. 266). A medical record by Dr. Lee indicates that, on September 15, 2004, Plaintiff refused a steroid injection and instead requested foot surgery. (R. 266). On October 21, 2004, Dr. Lee performed a successful endoscopic plantar fascial release on Plaintiff's right foot. (R. 267). In January 2005, after showing signs of improvement in the first couple months after surgery, Plaintiff began to complain of burning and shooting pain over her entire right foot. (R. 265-66). On January 25, 2005, Plaintiff indicated to Dr. Lee that she planned to apply for disability benefits, on the advice of her chiropractor, Dr. Jeff Pence, due to neck and lower back problems. (R. 265).

On July 5, 2005, Dr. John Flint conducted an orthopedic exam on Plaintiff to investigate ongoing plantar fasciitis-type pain, "Morton's neuroma pain, and . . . lateral pain of her right mid foot." (R. 288). At that visit, Plaintiff reported moderate to severe pain in her foot which limited her daily activities. (R. 288-89). After an examination of Plaintiff's right foot, Dr. Flint noted mild arthritis in joints of the right foot and a small spur. (R. 290-91). However, he noted no significant ankle arthritis or subtalar arthritis. Dr. Flint could not precisely identify the root of Plaintiff's complaint of severe and limiting right foot pain. (R. 291). He ordered a CT exam to further evaluate arthritis and prescribed a Plastazote shoe insert. (R. 291).

On July 26, 2005, Dr. Flint again examined Plaintiff and reviewed the results of the previously-ordered CT scan of her right foot. (R. 286). Dr. Flint observed only minimal osteoarthritic (OA) changes in certain joints of the right foot -- no significant OA changes. (R. 286-87). Again, Dr. Flint could not identify the precise root of Plaintiff's complaint of severe right foot pain. He recommended a full course of physical therapy with shoe inserts. (R. 287). In addition, he recommended anti-inflammatory medications (as tolerated) and indicated that Plaintiff could "work as tolerated." (R. 287). Dr. Flint advised that Plaintiff "should be the manager of her activity level and follow the dictates of her pain and the condition of the foot." (R. 287). He noted, "We emphasized that she would not do further damage by bearing weight on this foot." (R. 287).

On November 1, 2005, Dr. Naomi Laird conducted an orthopedic exam on Plaintiff, who continued her complaint of right foot pain. (R. 319-320). Dr. Laird noted that Plaintiff had not undergone physical therapy as directed but was wearing the recommended foot inserts. (R. 319). Plaintiff told Dr. Laird that the foot inserts enabled her to "tolerate being on her feet for 4 hours per day for work."

(R. 319). Plaintiff reported shooting pain up her foot and heel but was not taking pain medications at that time. (R. 319). Dr. Laird noted plantar fasciitis and possible Morton's neuroma. She recommended night splinting, Achilles stretching exercises, formal physical therapy, and an adjustment to her shoe insert. (R. 319).


Dr. James Milani treated Plaintiff for, or noted, asthma on March 28, 2003, November 6, 2003, May 3, 2004, July 29, 2004, September 29, 2004, June 16, 2005, and March 31, 2006. (R. 379, 377, 374, 372, 371, 369, 363). In November 2003, Plaintiff reported asthma flare-ups related to certain smells. (R. 377). In June 2005, Dr. Milani noted that Plaintiff's asthma was "well controlled." (R. 369). In March 2006, however, Plaintiff was admitted to the hospital because of asthma. (R. 363).


Plaintiff has complained of chronic back and neck pain resulting from an auto accident in 1987 -- which caused whiplash but no fractures. (R. 322). In January 2004, an MRI of Plaintiff's cervical spine revealed "degenerative spurring of the cervical spine with disc degeneration and displacement." (R. 332-33). Based on this MRI, Plaintiff's treating chiropractor, Dr. Jeff Pence, suggested limiting work duties as follows: avoid lifting, carrying, pushing, or pulling more than ten pounds; avoid repeated overhead use of arms and shoulders; and avoid prolonged or repeated stooping, bending, or twisting of the trunk or lower back. (R. 332).

On July 20, 2005, Plaintiff visited Dr. Abernathey for a neurosurgical opinion related to her disability application (it appears she was referred to Abernathey by Dr. Pence). (R. 282). After reviewing an MRI of Plaintiff's cervical spine, Dr. Abernathey noted chronic spinal strain but did not recommend aggressive neurosurgical treatment "due to a paucity of clinical and radiographic findings." (R. 282).*fn4

On November 30, 2005, Plaintiff was examined by Dr. Ronald Fuller at the Radiology Group Imaging Center in Davenport, Iowa. (R. 334). Dr. Fuller performed an MRI of Plaintiff's lumbar spine, which revealed degenerative disc disease "with a small right paracentral dis[c] protrusion at L5-S1 and some neural foraminal dis[c] bulging at that same level into the right neural foramina, possibly causing some mild right neural foraminal stenosis." (R. 334). But he found no other significant disc bulges, disc protrusions, or central canal stenosis. (R. 334).


On October 3, 2005, Plaintiff visited Dr. Rebecca Tuetken, a rheumatologist with the University of Iowa Hospitals and Clinics, in regard to possible fibromyalgia. (R. 322-25). Plaintiff reported chronic pain and fatigue. (R. 322). A musculoskeletal exam revealed limited neck extension and flexion due to pain. (R. 323). Plaintiff's back showed "slight dextroscoliosis of the mid thoracolumbar spine." (R. 324). An upper extremity exam revealed full range of motion without swelling of joints. A lower extremity exam showed full hip, knee, ankle, and toe range of motion. (R. 324). Plaintiff was tender to palpation over multiple locations, especially her right foot. (R. 324). Her stance was normal; her gait was slightly antalgic due to foot pain. (R. 324). She had "breakaway weakness" in all four extremities, but intact sensation and reflexes within a normal range. (R. 324). Dr. Tuetken described Plaintiff's diffuse musculoskeletal pain and tenderness ...

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