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Buckner v. Astrue

January 13, 2010

SHEILA BUCKNER PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Claimant Sheila Buckner ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). Claimant raises the following issues in support of her motion: (1) whether the ALJ properly considered evidence of Claimant's treating physicians' opinions and combined effects of her impairments in his finding of Claimant's residual functional capacity; (2) whether the ALJ's credibility finding regarding Claimant's testimony was improper; and (3) whether the ALJ properly posed a complete hypothetical to the vocational expert. For the following reasons, the Court grants Claimant's motion for reversal or remand and remands the case to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially filed for DIB on April 11, 2006, alleging a disability onset date of April 10, 2006. R. 53. The Social Security Administration ("SSA") denied her application on September 8, 2006. R. 57-61. Claimant then filed a request for reconsideration, which the SSA denied on November 9, 2006. R. 62-65. Shortly thereafter, Claimant requested a hearing before an ALJ. R. 67.

On April 10, 2008, Administrate Law Judge John S. Pope ("ALJ") presided over a hearing at which Claimant appeared with her attorney, Sean Perry. R. 19-52. Claimant and Grace Gianforte, a vocational expert, testified at the hearing. No medical expert testified. On November 4, 2008, the ALJ rendered a decision finding Claimant was not disabled under the Social Security Act. R. 8-18. Specifically, the ALJ found Claimant had the "residual functional capacity to perform light work . . . except occasional climbing, balancing, stooping, kneeling, crouching and crawling" and that "the claimant is capable of performing past relevant work as a billing clerk and medical secretary." R. 14-17.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 7. On February 25, 2009, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - April 10, 2008

1. Sheila Buckner - Claimant

At the time of the hearing, Claimant was 62 years old, married, and living with her husband. R. 25. Claimant completed education through the 10th grade and has past relevant work experience as a medical biller. R. 26. In addition to billing, Claimant's prior work experience included reception work, cleaning and other clerical tasks. R. 27. Claimant has not worked since April 10, 2006, her alleged disability onset date. R. 26. Claimant testified that she resigned from her job because she had a "meltdown" and could no longer deal with pain and chronic fatigue. Id.

During the hearing, Claimant explained that fibromyalgia, chronic fatigue syndrome and spinal stenosis of the entire spine prevent her from working. R. 28-29. Additionally, she claimed she was in a constant state of pain and fatigue, which made it difficult for her to stand, sit, walk, lift and carry. Id. Claimant stated that the pain became so severe and constant her doctor suggested she have an MRI, which revealed a herniated disc. R. 32. Subsequently, on October 4, 2006, Dr. Abdul Amine performed surgery on Claimant's lower back. R. 32-33. Claimant stated that among others, she has taken Lyrica, Fentanyl, Zoloft and various vitamins and supplements to alleviate the pain caused by fibromylagia, chronic fatigue and spinal stenosis. R. 30, 34-35. Even with pain medications, Claimant asserts she is never "completely pain free" and frequently has problems with concentration, crying spells and, on "bad days," cannot muster the energy to get out of bed. R. 35-40. Claimant also alleged she has up to four "bad days" per week, where she may not leave her bed. R. 40.

However, Claimant reported that on a "good day" she is able to perform simple household chores such as cleaning, cooking and laundry. R. 37-40.

Claimant also testified she suffers from depression and stress, which she declared would prevent her from handling the stress of a work environment. R. 42. Additionally, Claimant stated that although she interacts with her husband and children several times a week, she does not see her friends or participate in her former activities. R. 42-43. When the ALJ asked her if she had "problems getting along with people," Claimant responded "oh, no." R. 43.

2. Grace Gianforte - Vocational Expert ("VE")

The Vocational Expert, Grace Gianforte, described Claimant's past relevant work as a billing clerk and medical secretary, which she categorized as semi-skilled to skilled. R. 49-50. While questioning the VE, the ALJ asked whether a 62-year old with a 10th grade education and the same past relevant work experience as Claimant, limited to only sedentary or light work with occasional climbing, balancing, stooping, kneeling, crouching and crawling, could perform Claimant's past relevant work. Id. The VE responded affirmatively to the ALJ's hypothetical question. Id. However, the VE did not have an opinion as to whether there would be jobs available for Claimant if the ALJ found her totally credible and all alleged impairments were supported by the medical evidence.R. 50. Finally, the VE stated that a worker who had to lie down two to four hours in an eight-hour day would be inconsistent with the Department of Labor's definition of full-time, competitive employment, which requires at least 32 hours of work per week. R. 51.

C. Medical Evidence

1. Dr. Augusto N. Pareja - Claimant's Treating Physician

Claimant sought treatment from Dr. Augusto N. Pareja ("Dr. Pareja") from April 2005 to February 2007. R. 284-337. Dr. Pareja diagnosed Claimant with degenerative joint disease, pain symptoms, and chronic fatigue. R. 284-337; 376-459; 528-651. On June 27, 2006, Dr. Pareja ordered spinal MRIs which revealed a mild chronic compression fracture and herniated discs in the lumbar spine, minor degenerative changes in the thoracic spine, and near alignment of the cervical spine. R. 385-390.

Dr. Pareja treated Claimant weekly for her conditions, but after nearly two years of ineffective treatment, on February 16, 2007, Dr. Pareja opined that Claimant's fibromyalgia, chronic fatigue and spinal stenosis caused her to be permanently disabled. R. 722. However, he also noted in a February 2007 assessment that Claimant had "worked multiple jobs despite her pain/fatigue," but "she cannot work." R. 704. On March 5, 2007, Dr. Pareja completed a multiple impairment questionnaire where he concluded that Claimant could not sit, stand or walk for more than one hour. R. 711. Dr. Pareja also determined that Claimant could not lift more than five pounds and exhibited limited use of her upper extremities to grasp, manipulate and reach objects. R. 712-13.

2. Dr. Abdul Amine - Claimant's Treating Surgeon

On September 16, 2006, Dr. Abdul Amine ("Dr. Amine") examined Claimant and discovered she suffered from left sciatica, herniated disc at L3-4, bladder dysfunction and myelopathy. R. 734. On October 4, 2006, Dr. Amine performed lumbar surgery on Claimant to repair her herniated L3-4 discs. R. 734-35. One week after surgery, Dr. Amine deemed Claimant "pain-free." R. 735. Several months later in January 2007, Claimant returned to Dr. Amine complaining of lower back pain, but, upon ...


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