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Cheryl Spencer v. Michael J. Astrue

March 2, 2011

CHERYL SPENCER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER The plaintiff, Cheryl Spencer, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). Ms. Spencer asks the court to reverse and remand the Commissioner's decision.

I. PROCEDURAL HISTORY Ms. Spencer applied for DIB on March 20, 2006, alleging that she had become disabled on April 1, 2005, due to the after-effects of a stroke, including forgetfulness and difficulty concentrating. (Administrative Record ("R.") 111-13, 133). Her application was denied initially and upon reconsideration. (R. 59-65, 67-70). Ms. Spencer continued pursuit of her claim by filing a timely request for hearing. (R. 72).

An administrative law judge ("ALJ") convened a hearing on March 31, 2009, at which Ms. Spencer, represented by counsel, appeared and testified. (R. 21-58). In addition, Ed Pagello testified as a vocational expert. (R. 21, 48-56). On July 15, 2009, the ALJ issued a decision finding that Ms. Spencer was not disabled because she retained the capacity to perform jobs that exist in significant numbers in the national economy.

(R. 9-19). This became the final decision of the Commissioner when the Appeals Council denied Ms. Spencer' request for review of the decision on October 2, 2009. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Spencer has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II. EVIDENCE OF RECORD

A. The Vocational Evidence Ms. Spencer was born on February 5, 1959, making her fifty years old at the time of the ALJ's decision. (R. 154). She quit high school her junior year, but has a GED and completed one year of college. (R. 139). For fifteen years prior to her alleged onset of disability in April 2005, she worked as a social services director in a nursing home. It was essentially an administrative-type, desk job, although it did involve 2.5 hours of standing and walking each day. (R. 134).

B. Medical Evidence In June of 2004, Ms. Spencer suffered a cerebral vascular accident. She went to the local emergency room complaining of confusion; she had a facial droop, slurred speech, and mild weakness and unsteadiness on her feet. CT scan confirmed a right basal ganglia infarct. (R. 183). Ms. Spencer was hospitalized for testing and treatment for three days: June 27th to the 30th. (R. 183). She was discharged home in stable condition when she had been symptom-free for two days. (R. 183-262). She was a heavy smoker (R. 184) and was advised to quit. (R. 183). Ms. Spencer began prescriptions for Sinemet (used to treat Parkinson's-like symptoms), Klonopin (for seizure control), Plavix (for prevention of strokes), Advicor (high cholesterol), and Claritin (antihistimine). (R. 183).

Ms. Spencer followed up with Dr. Matt Talarico. Early in her treatment, on July 12, 2004, she reported trouble with focus, concentration, and forgetfulness. (R. 291). There was also significant left extremity weakness. (R. 291). Ms. Spencer apparently had a history of sinus problems; she said tat had been pretty good. (R. 291). She had quit smoking. (R 291). On July 23, 2004, Dr. Talarico wrote to Ms. Spencer's employer and said she was showing steady improvement but still had equilibrium problems. (R. 289). She was actively participating in physical therapy and the doctor thought she would return to work shortly. (R. 291).

By September, overall, Ms. Spencer was doing better. (R. 287). She was still disorganized and was easily overwhelmed, but was working half-days. (R. 287). She had no problems driving. (R. 287). Her sinuses were good. (R. 287). In October, Dr. Talarico again reported she was "[d]oing better overall." (R. 286). She was having trouble multi-tasking, but was increasing to six-hour work days. (R. 286).

On November 23, 2004, Ms. Spencer reported that she had started smoking again. (R. 285). She was still doing well -- she said she was "doing a little better all the time with 6hr days" -- but, still, there was the problem with multi-tasking. (R. 285). She reported being fatigued and feeling "crummy" due to nasal congestion. (R. 285). In light of her history of stroke, she was again strongly advised to quit smoking. (R. 285). The doctor anticipated an increase to full days in the near future. (R. 285).

On December 20, 2004, Dr. Talarico reported that Ms. Spencer had pulled an abdominal muscle. (R. 283). This was apparently from coughing a lot. (R. 283). Through March of 2005, Ms. Spencer's complaints were confined to her sinus and coughing troubles. (R. 280-82). Other than that, she continued to do "better overall." (R. 282).

On that positive note, it appears Ms. Spencer left Dr. Talarico and was treating with Dr. Ushasri Koganti. Her treatment notes are a jumble of hand-written jottings in no particular order with many duplicates. (R. 326-427). In the main, they consist of treatment for sinus complaints and sore throats, and prescription refills. There is a mention of sadness and depression on March 1, 2007. (R. 363, 411). On March 22, 2007, Dr. Koganti reported that Ms. Spencer was making wedding plans and was feeling better. (R. 367). There does not appear to be any treatment for complaints stemming from Ms. Spencer's stroke -- i.e., memory loss or concentration difficulties.

On May 17, 2006, Dr. Koganti filled out a neurological disability report regarding her treatment of Ms. Spencer. She noted that there had been no motor, sensory, or reflex changes due to the stroke. (R. 306). There was some muscle fatigue after activity, reduction to either 3/5 or 4/5 -- the doctor wrote one first and wrote over it with the other.

(R. 306). There were no manipulation or dexterity problems. (R. 307). Mental state was normal. (R. 307). There was no indication of aphasia or difficulty communicating. (R. 307). Dr. Koganti said that Ms. Spencer had memory problems, difficulty concentrating, and was easily distracted. (R. 307). She would forget instructions. (R. 308). The doctor also said that she had not performed any psychological testing. (R. 308). In a second report that same day -- a psychiatric report -- the doctor wrote that Ms. Spencer could remember five numbers out of five forward and backward. She could remember what she did the previous day and the route she took to the office. She remembered the past few presidents and her date of birth. She could name five large cities. She was able to subtract serial sevens from one hundred. (R. 311). She also wrote that her ability to talk was sometimes impaired. (R. 310). Dr. Koganti said that Ms. Spencer could not remember and carry out instructions or keep up with her work. (R. 312). She had taken a leave of absence because of this. (R. 309).

On March 2, 2007, Dr. Koganti wrote a letter in support of Ms. Spencer's claim for disability benefits. She said she had treated her since 2003. She indicated that Ms. Spencer was taking "Allegra, Cingular [sic], Sinimet, and Vytoren [sic]." (R. 365). The first three are for allergy and sinus problems, the fourth is for high cholesterol. Dr. Koganti said Ms. Spencer had not worked since April 2005, due to poor memory and dizziness from her allergies and medications. She limited her driving to short trips. The doctor said that, as a result of these two problems, Ms. Spencer was disabled and "[u]nemployable indefinitely." (R. 365).

Dr. Koganti wrote again at the end of the month that since her stroke, Ms. Spencer's memory had gotten worse. The doctor said she quit her job due to this, was not able to function in a job situation as a ...


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