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Kent v. Astrue

June 23, 2010


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 16, 2009 (Doc. 12) and Defendant's Motion for Summary Affirmance, filed on February 1, 2009 (Doc. 16). Also pending is Plaintiff's Motion for the Entire Record to be Included. (Doc. 13). As the August 21, 2006 decision of the Administrative Law Judge is already a part of the record at Tr. 441-53, the Motion is denied as moot. 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 April 25, 2005, Plaintiff Carol Marie Kent applied for disability insurance benefits and supplemental security income, claiming she became disabled and unable to work on April 1, 2005. (Tr. 89-98). The agency denied her application initially, and also upon reconsideration. (Tr. 54-58, 60-63). Plaintiff subsequently requested a hearing on November 8, 2005, which was granted on December 21, 2005. (Tr. 66, 83-88). The hearing was held on June 6, 2006; the Administrative Law Judge's (ALJ) denial of benefits followed shortly after on August 21, 2006. (Tr. 540-578, 441-453).

On August 25, 2006, Plaintiff filed a timely request for review to the Appeals Council. (Tr. 456-462). On June 1, 2007, the Appeals Council remanded the case to the ALJ, finding the ALJ's assessment of Plaintiff's residual functional capacity in the written decision inconsistent with remarks made at the hearing. (Tr. 39). The Appeals Council further noted that while the ALJ's written decision stated that Plaintiff could perform past relevant work, testimony from the vocational expert at the hearing indicated otherwise. (Tr. 40). The ALJ was thus instructed to "give further consideration to the claimant's maximum residual functional capacity," and to revisit and clarify, with a vocational expert, the effects of assessed limitations on past relevant work. (Tr. 40). The ALJ was also instructed to enter into the record additional medical evidence submitted by Plaintiff's attorney. (Tr. 40).

The second hearing was held on November 29, 2007; the ALJ's decision to deny benefits was issued on December 28, 2007. (Tr. 832-877, 19-36). A timely request for review was filed, and subsequently denied by the Appeals Council on January 1, 2008. (Tr. 18A-B, 9-12). The ALJ's decision was therefore the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. The request for judicial review was filed at this Court pursuant to 42 U.S.C. § 406 (g) (2000).

Medical History

In June 2004, Plaintiff was hospitalized in connection with a bout of herpes simplex meningitis encephalitis. (Tr. 208). Plaintiff contracted bacterial meningitis the first time in 1997, while her herpes infection arose when she was sixteen. (Tr. 205).

Following the June hospitalization, Plaintiff complained of memory loss and overall decreased cognitive function. As a result, Dr. Shanna Kurth, Ph.D., performed a neuropsychological evaluation on August 13, 2004. See (Tr. 315-317). Dr. Kurth indicated "mild/moderate memory impairment and mild visuo-spatial processing deficits." (Tr. 316). Dr. Kurth further noted that the "prognosis for significant improvement is difficult to project." (Tr. 316). Rehabilitative services were recommended. (Tr. 316).

In May 2005, Dr. McCalla, Plaintiff's primary care physician at the time, ordered an MRI and EEG in response to her continued complaints of memory loss, migraines, and loss of other cognitive functions. The results were noted as "normal and unremarkable." (Tr. 241).

Dr. Baljit Singh, M.D., performed a psychiatric evaluation on June 8, 2005, following a referral from Dr. McCalla. See (Tr. 244-248). Dr. McCalla, in her referral, noted symptoms such as lightheadedness, decreased concentration, anxiety, crying spells, difficulty sleeping, joint and muscular pain, depression, and migraine headaches. (Tr. 241). Dr. Singh noted that Plaintiff was stable on current medication, though mild depression persisted. (Tr. 246). Plaintiff scored a 3/3 on a memory test given at the evaluation, and Dr. Singh noted her Global Assessment of Functioning (GAF) as 60. (Tr. 246). Plaintiff's mood, thought process, physical functioning, and cognition were all noted as normal. (Tr. 246).

On July 13, 2005, Disability Determination Services (DDS) performed a Residual Functioning Capacity Assessment physical on Plaintiff. See (Tr. 263-270). The results stated that Plaintiff could occasionally lift 20 pounds, and frequently lift 10 pounds. (Tr. 264). Furthermore, the report noted that Plaintiff could stand/walk for a total of at least two hours in an eight-hour workday, and sit for six hours. (Tr. 264). Plaintiff's ability to push/pull was found to be unlimited. (Tr. 264). All postural limitations -- climbing, balancing, stooping, kneeling, crouching, and crawling -- were found to be occasionally limited. (Tr. 265). The only environmental limitation found was for hazards; the report noted that Plaintiff could withstand unlimited exposure to all other environmental considerations. (Tr. 267). Additional comments on the report stated Plaintiff's "muscle strength is 5/5 and gait is normal." (Tr. 270). The comments further asserted that though Plaintiff complains of pain and exhaustion, "this can be expected to improve with continuing medication." (Tr. 270). The report concluded that Plaintiff retains the capacity to perform work related activities, even with pain and exhaustion considered in the assessment. (Tr. 270).

On May 11, 2006 Dr. Rogers submitted a letter on behalf of Plaintiff. (Tr. 418). Dr. Rogers replaced Dr. McCalla as her primary care provider. In the letter, Dr. Rogers stated Plaintiff suffered from numerous conditions, including "generalized anxiety disorder with depression, hypertension, fibromyalgia, chronic allergic rhinitis with nasal polyps and a history of migraine headaches which were worsened by a bout of herpes simplex meningo-encephalitis in the summer of 2004." (Tr. 418). Dr. Rogers further noted, "At this point there does not seem to be a cure for her various problems," and "the conditions have not been optimally controlled in a consistent manner." (Tr. 418).

Another letter from Dr. Rogers, dated September 5, 2006 stated Plaintiff's conditions "appear to be stable" but she "remains in pain the majority of the time," and "continue[s] to have sleep disturbance, decreased energy, feelings of guilt and worthlessness, and also difficulty concentrating." (Tr. 668). Dr. Rogers further noted Plaintiff "continues to have difficulty remembering what she has done in the last few hours to few days." (Tr. 270). "She has been known to leave her stove on with a pot on it when leaving the house and also forgetting to pick a child up from school when it was her responsibility to do so." (Tr. 270). Dr. Rogers concluded by saying that Plaintiff "appears to be persistently disabled by the above problems." (Tr. 270).

Dr. Rogers' final letter, dated January 1, 2007, stated Plaintiff suffers from "a chronic headache disorder and fibromyalgia." (Tr. 660). Dr. Rogers noted Plaintiff would need to continue taking Darvocet N100 indefinitely, as she did not find adequate pain relief with nonsteroidal anti-inflammatory drugs and is allergic to other narcotics. (Tr. 600).

On April 17, 2007, Jane Valez, Ph.D. and licensed clinical psychologist, performed a psychological evaluation at the request of the Agency. See (Tr. 701-02).

Dr. Valez noted Plaintiff's attentional capacity was adequate, and there was no evidence of delusions or hallucinations. (Tr. 702). However, Dr. Valez further noted that Plaintiff was positive for suicidal ideation, and diagnosed her with severe depressive disorder and dementia due to encephalitis. (Tr. 702). Plaintiff's short-term and long-term memory were found "mildly impaired." (Tr. 702). Her GAF was noted as 40. (Tr. 702). Dr. Valez also concluded that claimant could manage her own funds if granted disability. (Tr. 702).

On April 26, 2007, state-agency psychologist Dr. Patricia Beers, Ph.D., performed a Mental Residual Functional Capacity Assessment. See (Tr. 747-64). Dr. Beers noted Plaintiff was moderately limited in five categories, including her ability to understand and remember detailed instructions; ability to maintain attention and concentration for extended periods; ability to work in coordination or proximity to others without being distracted by them; ability to respond appropriately to changes in the work setting; and the ability to travel in unfamiliar places or use public transportation. (Tr. 747-748). She diagnosed Plaintiff with an organic mental disorder, mild dementia due to encephalitis, and an affective disorder, major depression. (Tr. 751-754). These resulted in moderate restriction of activities of daily living, and mild restrictions in the areas of social functioning and concentration, persistence, or pace. (Tr. 761). Dr. Beers stated Plaintiff "demonstrates the cognitive abilities needed to understand, recall and execute simple one-to-two step instructions and to carry out more complex routine tasks. Her social skills are adequate. Adaptive capacities vary with mood and pain.

Capable of SGA." (Tr. 749). Dr. Beers indicated plaintiff experienced one or two episodes of decompensation of extended duration (Tr. 761).

On May 17, 2007 Dr. Phillip Budzenski performed an internal medicine consultative exam at the request of the Agency. (Tr. 704-08). Dr. Budzenski noted that Plaintiff's "memory for recent and remote medical events is preserved," and her "intellectual function is grossly normal." (Tr. 705). Plaintiff was able to "walk on toes, walk on heels, and tandem walk," as well as "stand on either leg alone, and. perform a full squat maneuver without difficulty." (Tr. 708.) Dr. Budzenski found no evidence of degenerative disc disease and no evidence of fibromyalgia, as "claimant had no repeatable tender points on today's examination." (Tr. 708). He further opined that Plaintiff "should be able to perform light work with occasional medium work eight hours a day." (Tr. 708). In regards to depression, Dr. Budzenski noted that Plaintiff "appears to continue to have depressive symptomatology." (Tr. 708). He recommended a psychological evaluation for further workplace recommendations. (Tr. 708).

On November 16, 2007 Dr. Rogers completed an Ability to Do Work-Related Activities form, assessing Plaintiff's physical limitations. See (Tr. 771-778). Dr. Rogers indicated Plaintiff could occasionally lift 10 lbs; could stand/walk less than two hours in an eight-hour day; and that Plaintiff needs the option to sit, stand, or lie down for pain control. (Tr. 771). He further noted that pushing and pulling is limited in both upper and lower extremities, as "generalized muscle pain and tenderness [are] worsened by activities." (Tr. 772). Dr. Rogers also indicated that Plaintiff could never climb, kneel, crouch or crawl, and could only occasionally balance and stoop in the course of an eight-hour day. (Tr. 772). Furthermore, Plaintiff could frequently feel and finger, but only occasionally reach and handle. (Tr. 772). Plaintiff also was found to have limited ability to tolerate temperature extremes, noise, vibration, hazards, and heights. (Tr. 773). Due to "the fluctuating nature of her conditions," Dr. Rogers opined that Plaintiff would likely miss more than 3 days of work per month. (Tr. 773). Dr. Rogers ultimately concluded that the patient is disabled due to the "combination of her memory problems and chronic central pain," and thus unable to be gainfully employed. (Tr. 773-774).

On November 16, 2007 Dr. Rogers also assessed Plaintiff's mental limitations on an Ability to Do Work-Related Activities form. See (Tr. 775-778). He indicated moderate limitations in: following work rules, relating to co-workers, dealing with the public, and using judgment. (Tr. 775). Dr. Rogers also noted marked limitations in dealing with stress, functioning independently, and maintaining concentration. (Tr. 775). All of these limitations were due to memory impairment. (Tr. 775). Dr. Rogers next indicated further marked limitations in Plaintiff's ability to understand, remember, and carry out complex job instructions; understand, remember, and carry out detailed, but not complex, job instructions; and ability to understand, remember, and carry out simple job instructions. (Tr. 776). Again, this was due to Plaintiff's memory impairment. (Tr. 776). Dr. Rogers also indicated slight limitations in Plaintiff's ability to behave in an emotionally stable manner and relate predictability in social situations. (Tr. 776). Plaintiff's ability to demonstrate reliability was indicated as moderately impaired. (Tr. 776.) Dr. Rogers ultimately concluded that Plaintiff was totally disabled and unable to work in any capacity. (Tr. 777).

Hearing Testimony

The first hearing was held on June 6, 2006. Plaintiff, 41 years old at the time, appeared before the ALJ accompanied by her attorney. She testified that she lived in a home with her husband, two twin daughters, and her stepson. (Tr. 547). Plaintiff stated she completed two years of college, receiving a certificate for phlebotomy. (Tr. 548). Plaintiff stated she drove occasionally, and worked full time at Family Medical Center in Peoria until March 2005. (Tr. 549). Plaintiff held that position for five years; prior work was in hospital labs drawing blood. (Tr. 549) In total, Plaintiff estimated she worked for six years as a phlebotomist; prior work was in fast food or at Wal-Mart. (Tr. 550).

The ALJ next inquired into Plaintiff's current medical condition. In the last twelve months, Plaintiff stated she made approximately five visits to either Dr. McCalla's office or Dr. Rogers' office. Plaintiff was treated primarily by a nurse practitioner. Dr. McCalla, who was replaced by Dr. Rogers, also ordered a psychiatric evaluation, which resulted in no change of medications. (Tr. 552).

Plaintiff testified her most disabling impairment was memory loss. (Tr. 554). Specific examples included leaving the stove on, getting lost driving, and a poor concept of time. (Tr. 555). Upon examination by her attorney, Plaintiff further stated that body pains, migraine headaches, and bouts of shingles also impair her daily activities. (Tr. 561). Plaintiff stated that while her kids are at school, she is alone at home, though her husband "could be in and out, he works in sales." (Tr. 555). Plaintiff noted, however, that her husband does occasionally leave town on business for one to two days. (Tr. 556).

Plaintiff noted that her days are occupied by light housework, such as laundry, as well as occasional recreational painting, and television. (Tr. 556-60). Plaintiff noted that all activities were subject to her pain level on a given day, and in fact, much of her day was spent lying down in her bedroom. (Tr. 560).

Plaintiff's husband, Douglas Kent (Mr. Kent), testified that Plaintiff's activity level has changed considerably since the onset date. (Tr. 564). He further stated that Plaintiff is irritable, has memory issues, and frequently is in pain. (Tr. 564-566). Upon cross-examination by the ALJ, Mr. Kent noted that Plaintiff forgot to pick up the kids "probably twice." (Tr. 567). He also noted ...

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