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Westrick v. Astrue

May 4, 2010


The opinion of the court was delivered by: Charles H. Evans, U.S. Magistrate Judge


Plaintiff Daniel T. Westrick appeals from the Defendant Commissioner's final decision to deny his application for Disability Insurance Benefits (Disability Benefits). 42 U.S.C. §§ 416(i) & 423. The parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference (d/e 14). The Plaintiff has filed a Brief. Brief in Support of Complaint (d/e 16). The Defendant Commissioner has filed a motion for summary judgment. Motion for Summary Affirmance (d/e 17). This Court has jurisdiction to hear this appeal. 42 U.S.C. § 405(g). For the reasons set forth below, the Court affirms the Commissioner's decision and allows the Commissioner's Motion for Summary Affirmance.


Westrick was born on October 25, 1962. He graduated from high school and completed two years of college in business accounting. Answer (d/e 12), attached Certified Record of Proceedings Before the Social Security Administration (R.), at 38. He worked as a billing clerk, a night stocker, and a meat cutter. R. 65-66. He alleged that he became disabled on April 1, 2005.

In 1999, Westrick was diagnosed with single vessel coronary artery disease and had a stent put into a blood vessel in his heart. R. 213. He had no further problems with his heart until 2004, when he started experiencing heart palpitations and chest pains. On May 29, 2004, Westrick went to the emergency room with chest pains. The test results were normal. He was given a prescription for nitroglycerin. R. 256. He saw James C. Mullin, M.D., on August 16, 2004, complaining of chest pains. Dr. Mullin adjusted Westrick's blood pressure medicine. R. 213-18.

Westrick went to the emergency room on January 11, 2005, complaining of rapid heart rate and shortness of breath. Test results were normal. R. 239.

On March 27, 2005, Westrick went to the emergency room complaining of back pain. He was diagnosed with back spasms and received a prescription for Vicodin for pain. R. 235-36. On May 18, 2005, Westrick went to see John A. Peterson, M.D., for low back pain and leg numbness. R. 304-05. Dr. Peterson recommended an MRI. R. 305. On May 19, 2005, Westrick saw a physical therapist. R. 222. On May 24, 2005, Westrick went to the emergency room with chest pain. The test results were normal. R. 228.

On June 2, 2005, Westrick saw Dr. Peterson again for back pain. Dr. Peterson scheduled an MRI. On June 7, 2005, Westrick underwent an MRI of his back. The test showed disc degeneration in the lumbar spine and mild osteoarthritic changes. R. 226. On August 11, 2005, Dr. Peterson referred Westrick for epidural injections and an EMG study. On August 25, 2005, Claude Fortin, M.D., conducted the EMG study. He diagnosed radiculopathy on the right side of Westrick's lumbar spine. R. 265.

On September 1, 2005, Westrick saw Dr. Peterson again for back pain. Dr. Peterson restricted him to five-hour work days with a lifting restriction. Dr. Peterson switched Westrick's pain medication from Vicodin to Tylenol 3. R. 299. On September 27, 2005, Westrick saw an orthopedist, Timothy VanFleet, M.D. Dr. VanFleet's notes indicate that Westrick could move his hips and knees without pain and that he had full strength, sensation, and reflexes in all extremities. R. 312. Dr. VanFleet ordered a discogram. R. 313. The discogram was performed on October 5, 2005. The test showed some annular disruptions in the lumbar spine, but no pain responses during the test. R. 315.

That same day, October, 5, 2005, after undergoing the discogram, Westrick went to the emergency room with heart palpitations. The test results at that time were normal. R. 336. Westrick was released and instructed to continue his usual medications. R. 336.

On November 7, 2005, a state agency reviewer, Paul Smalley, M.D., completed a physical residual functional capacity (RFC) assessment. Dr. Smalley opined that Westrick's medical records showed degenerative disc disease, but no diagnosis related to his heart. Dr. Smalley opined that Westrick could lift 20 pounds occasionally, lift 10 pounds frequently, stand, walk or sit for six hours in an eight-hour work day, climb ramps and stairs frequently, occasionally balance, stoop, kneel, crouch or crawl, but could never climb ladders, ropes, or scaffolds, or be exposed to hazards. R. 320-23.

On November 18, 2005, Westrick went to the emergency room with complaints of chest pain. The test results were normal. R. 330. On January 5, 2006, Westrick went to see Dr. Mullin again. Dr. Mullin noted that Westrick's cardiac test results were normal. Dr. Mullin diagnosed atypical chest pain symptoms. R. 360-63. On February 6, 2006, Stephen Mayer, M.D., performed a cardiac catheterization. R. 348-50. The test revealed mild coronary disease that did not require intervention. R. 343-44, 371-72. Dr. Mayer recommended that Westrick restart statin medications for high cholesterol.

On May 11, 2006, Westrick went to see Dr. Mullin again. Westrick reported that he still had heart palpitations. Westrick said that the palpitations were no more frequent or bothersome than they had been for several years. R. 364-65. Dr. Mullin concluded that Westrick's heart condition was controlled with medication. R. 367. Dr. Mullin noted that Westrick reported that he could mow the lawn with a push mower. Dr. Mullin opined that Westrick should be able to walk twenty to thirty minutes at a time. R. 367.

Westrick underwent physical therapy for his back in July 2006. Westrick reported to the therapist that he made his back condition worse in August 2006 while remodeling his home. Westrick was unloading drywall for the remodeling project. R. 448.

On September 20, 2006,Westrick went to the emergency room with heart palpitations. The tests were normal. R. 422-23, 430-41.

On May 25, 2007, Westrick saw Dr. VanFleet for back pain. Dr. VanFleet found Westrick's back, neck, and waist flexion, strength, reflexes, and sensation were all normal. R. 407. X-rays of the back showed normal disc spacing. Dr. VanFleet diagnosed chronic pain syndrome. R. 407. Dr. VanFleet recommended that Westrick continue with stretching and strengthening exercises. R. 408.

On June 12, 2007, Westrick went to see a psychologist, Russell Taylor, Ph.D. Westrick reported feelings of depression and anxiety. Westrick had no suicidal thoughts or crying spells. His memory and concentration were intact. R. 545. He said that his left hand shook, but Dr. Taylor did not observe any tremor. R. 545. Dr. Taylor assigned Westrick a Global Assessment of Functioning (GAF) score of 55. R. 545. Dr. Taylor diagnosed mild to moderate depressive disorder secondary to Westrick's medical conditions, and anxiety disorder secondary to Westrick's physical limitations and financial stressors. R. 545.

Westrick saw Dr. Taylor again on July 17, 2007. Westrick described his daily activities as getting up around 5:00 a.m., cleaning, driving, going shopping, and paying bills. R. 547. He reported that he was considering volunteering, but was worried about his disability application. He reported taking Tylenol 3 once or twice a week. R. 547. Dr. Taylor noted some improvement in Westrick's condition. R. 547. On July 31, 2007, Westrick went to see Dr. Peterson for depression and anxiety. R. 530. Dr. Peterson prescribed Zoloft and recommended seeing Dr. Taylor again. R. 531.

On September 17, 2007, Dr. Peterson completed a medial source statement regarding Westrick's condition. Dr. Peterson opined that Westrick could lift and carry ten pounds occasionally and less than ten pounds frequently, could stand and/or walk for less than two hours in an eight-hour day, occasionally balance, could perform limited pushing and pulling, but could never climb, kneel, crouch, crawl, stoop, or be exposed to hazards, including heights or ladders. R. 550-53. Dr. Peterson further opined that Westrick had no limitations on sitting and no impairment in his ability to perform manipulations with his hands, but noted a right-hand tremor. R. 551. Dr. Peterson stated that the limitations were based on Westrick's complaints of pain rather than medical test findings. R. 551.

The Administrative Law Judge (ALJ) conducted a hearing on September 19, 2007. R. 30-83. Westrick appeared at the hearing with his attorney. Vocational expert Bonnie Gladden was also ...

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