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Eakin v. Astrue

July 15, 2010


The opinion of the court was delivered by: Young B. Kim U.S. Magistrate Judge

Magistrate Judge Young B. Kim


Before the court are the parties' cross-motions for summary judgment. Plaintiff Margrit Eakin ("Eakin") seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423(d)(2). Eakin asks the court to reverse the Commissioner's decision and award benefits, or in the alternative, remand the decision for further proceedings. The Commissioner seeks an order affirming the decision. For the following reasons, Eakin's motion for summary judgment is denied and the Commissioner's motion for summary judgment is granted:

Procedural History

Eakin applied for DIB on January 19, 2006, alleging that she became disabled on August 31, 2004, due to severe arthritis and pain in her left hip. (Administrative Record ("A.R.") 113-15, 131.) Her application was denied initially on April 27, 2006, and again on reconsideration on September 8, 2006. (Id. at 62-65, 69-73.) Thereafter, Eakin filed a timely request for a hearing on September 29, 2006. (Id. at 74.)

An administrative law judge ("ALJ") held a hearing on November 14, 2007. (A.R. 15-59.) Eakin appeared and testified at the hearing. (Id. at 17-43.) James Radkey ("Radkey"), a vocational expert ("VE"), also appeared and testified at the hearing. (Id. at 43-59.) On November 4, 2008, the ALJ issued a decision finding Eakin not disabled. (Id. at 8-14.) Eakin then filed a request for review of the ALJ's decision but, on March 20, 2009, the Appeals Council denied her request, making the ALJ's decision the final decision of the Commissioner. (A.R. 1-3.) Pursuant to 42 U.S.C. § 405(g), Eakin initiated this civil action for judicial review on May 7, 2009.


Eakin was born on March 18, 1946, and was 61 years old at the time of the administrative hearing. (A.R. 21-22.) She went to school in Germany, where she completed the eighth grade and attended business college for one year.*fn1 (Id. at 22-23.) Eakin also completed two years of school in the United States, but she does not have a high school diploma or general equivalency degree. (Id.) Eakin was most recently employed as a waitress, and stopped working on August 31, 2004. (Id. at 23-24, 131-32.)

A. Medical Evidence

On May 20, 2005, Eakin sought treatment from Dr. Joanna Sala, a family physician, for high blood pressure and knee pain. (A.R. 193-94.) Eakin's blood pressure was 130/80 and she weighed 209.5 pounds. (Id. at 193.) Dr. Sala prescribed her Mobic and Celebrex, non-steroidal anti-inflammatory medications, for her knee pain. (Id. at 194.) Dr. Sala again treated Eakin on June 9, 2005, at which time she complained of left knee pain, and exhibited crepitation (grinding or creaking) on range of motion. (Id. at 195-96.) She was assessed with left knee pain and referred to an orthopedic surgeon. (Id. at 196.)

Eakin saw Dr. Dennis Mess, an orthopedic surgeon, on June 15, 2005. (A.R. 213.) She told Dr. Mess that she had fallen on her left side one month earlier and was experiencing left hip and thigh pain. (Id.) Dr. Mess noted that Eakin walked with an antalgic left limp and had a negative 10 degree extension of her left hip, but otherwise had a full range of motion in her left hip joint. (Id.) He reported x-ray evidence of severe degenerative joint disease of Eakin's left hip, and prescribed Voltaren, a non-steroidal anti-inflammatory medication. (Id. at 213, 215.)

Eakin returned to Dr. Mess on August 1, 2005, reporting that her symptoms had improved with Voltaren, but other medications had been more effective. (A.R. 213.) Treatment notes indicate that she was "not ready for surgery" and that she was prescribed Mobic. (Id. at 213, 214.) About six months later, on January 19, 2006, Eakin applied for disability benefits. (Id. at 113-15.)

Eakin attended a consultative examination on April 18, 2006, with Dr. Liana Palacci, an osteopathic physician. (A.R. 197-200.) She complained she had left hip pain that radiated to her anterior thigh and knee for the past six years. (Id. at 197.) She explained that she had morning stiffness that lasts for about an hour and then improved with activity, and that sitting and walking for prolonged periods exacerbated her pain. (Id.) Eakin stated that her hip pain was worse with rainy weather and she had difficulty bending. (Id.) She gets left leg weakness and trips occasionally and, as a result, uses a cane for balance. (Id.) Eakin has difficulty climbing stairs and needs to take one step at a time. (Id.) She said that surgery had not been offered as an option, and she took Voltaren and other medication to alleviate her pain. (Id.)

Dr. Palacci found that Eakin's range of motion in her left hip was reduced to 70/100 degrees on flexion and 10/30 degrees on extension with pain, and her range of motion in her lumbar spine was reduced to 70/90 degrees on flexion and 10/30 degrees on extension. (A.R. 199.) Eakin's gait was antalgic where she favored the left leg. (Id.) She was, however, able to do tandem gait, and her range of motion in her knees and ankles was normal. (Id.) She had difficulty with knee squats and was unable to heel/toe stand on her left leg. (Id.) Eakin's reflexes were decreased bilaterally at 1/4, and her left leg strength was reduced at 4/5. (Id.) Dr. Palacci noted Eakin had difficulty getting on to the examination table, but had no difficulty rising from a chair. (Id.) Eakin did not need a cane to ambulate 50 feet. (Id.)

Dr. Palacci diagnosed osteoarthritis of the left hip with decreased strength and range of motion, and poorly controlled hypertension. (Id. at 200.)

A week later, on April 25, 2006, Dr. Frank Jimenez, a state agency physician, reviewed Dr. Palacci's findings from the consultative examination and completed a Physical Residual Functional Capacity Assessment. (A.R. 201-08.) Dr. Jimenez opined that Eakin was capable of performing light work with certain postural limitations, which included no climbing and only occasional balancing, stooping, kneeling, crouching, and crawling. (Id. at 202-03.) The Commissioner denied Eakin's request for benefits on April 27, 2006. (Id. at 62-65.) On September 6, 2006, Dr. Charles Kenney, another state agency physician, reviewed Eakin's medical file and affirmed Dr. Jimenez's assessment. (Id. at 221-22.) Two days later, on September 8, 2006, the Commissioner denied Eakin's benefits on reconsideration. (Id. at 69-73.)

The following year, on September 21, 2007, Eakin complained to Dr. Mess that her left hip was slowly getting worse, but she wanted to continue taking medications and would consider having hip replacement surgery in 2008. (A.R. 225.) Dr. Mess noted that Eakin walked with a slight limp. (Id.)

Dr. Mess completed a Medical Report and Physical Capacities Assessment on November 14, 2007. (A.R. 226-29.) In the Medical Report, Dr. Mess diagnosed Eakin as having osteoarthritis of the left hip, with findings of limited and painful motion in her left hip. (Id. at 226.) He opined that her complaints of severe pain were credible and consistent with his findings. (Id. at 227.) Dr. Mess reported that Eakin's impairment would last indefinitely and that she needed a hip replacement. (Id.) Next, in assessing Eakin's ability to work in an eight-hour day on a sustained basis, Dr. Mess opined that she was able to sit for one hour, stand and/or walk for less than one hour, and occasionally lift up to ten pounds. (Id. at 228.) Dr. Mess opined further that Eakin was not able to use her feet for repetitive movements, and required complete freedom to rest frequently without restriction. (Id. at 229.)

B. Eakin's Testimony

Eakin testified that she last worked in 2004, as a waitress in a restaurant. (A.R. 23.) She worked as a waitress for four years where she carried trays weighing 25 pounds and was on her feet all of the time. (Id. at 23-24.) Eakin stopped working as a waitress because she could not move and was always in pain. (Id. at 29.) At that time, she took a lot of aspirin just to get through the day, and she did not know what was wrong with her. (Id. at 29-30.)

She explained that most of her previous jobs had been waitress jobs, but she also worked as a cashier at a currency exchange and a stocker at a retail store. (A.R. 24-25.) As a cashier, her duties included cashing checks, sending faxes, wiring money, putting away large boxes of coins in a safe, balancing the books, cleaning, and washing floors. (Id. at 26.) While working as a cashier, Eakin would alternate between sitting for about half of each hour and standing for the other half. (Id.) Even in the intervals where she sat, she was constantly getting up and down to complete various tasks. (Id. at 27.)

Eakin stated that she could no longer work in her former position as a cashier because it takes her too long to stand up and balance on her legs. (A.R. 27.) She testified that walking to the fax machine would be difficult without holding on to anything, and standing waiting for a fax would take too long and she would need to sit down, but there would be nowhere to sit. (Id.) Eakin said that she would no longer be ...

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