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Beverly L. Gibson v. Michael J. Astrue

April 22, 2011

BEVERLY L. GIBSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff, Beverly L. Gibson, seeks judicial review of a final decision by the Commissioner of the Social Security Administration, denying her disability insurance benefits and supplemental security income under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), and 1614(a)(3)(A). The parties have filed cross-motions for summary judgment. R. 19, 21.*fn1 For the reasons stated below, Defendant's motion for summary judgment is granted [R. 21], and Plaintiff's motion is denied [R. 19].

I.

In July 2005, Gibson applied for disability insurance benefits and supplemental security income, alleging that she was disabled since November 30, 2003. Tr. 256.*fn2

The SSA denied Gibson's application both initially and upon reconsideration. Tr. 249-52. In May 2006, Gibson filed a timely written request for a hearing before an administrative law judge (ALJ). Tr. 256. On February 15, 2007, Gibson, represented by counsel, appeared and testified before the ALJ. Tr. 185. A vocational expert was the only other witness who testified. Tr. 186. On October 30, 2007, the ALJ issued a written decision denying Gibson's claim for benefits. Tr. 268. The SSA's Appeals Council denied Gibson's request for review of the ALJ's decision on May 10, 2008, making the ALJ's decision the final decision of the Commissioner under 42 U.S.C. §§ 405(g), 1383(c)(3). Tr. 1-3; 20 C.F.R. § 404.981. Gibson filed this case in July 2008, and the case was reassigned to this Court in January 2011.

II.

A.

Gibson was born in 1967, and was 36 years old at the time of her alleged disability onset date. Tr. 267. She has four children and is separated from her husband. Tr. 318. Gibson completed high school and around two years of college. Tr. 194. She worked as a data entry clerk from January 1995 to November 2003. Tr. 195-96, 383. In November 2004, Gibson worked for a few months as a customer service representative at a telephone sales company. Tr. 383. In 2005, Gibson became a store manager at a telephone sales company and was also self-employed as a babysitter. Tr. 195, 383.

B.

Gibson, represented by counsel, appeared and testified before the ALJ. Tr. 185. Gibson testified that she was let go from her job as a store manager in 2005 because she was sick too often. Tr. 195. Before moving to Chicago in 2005, she worked for various agencies in New York as a temporary secretary and data entry clerk. Tr. 195-96. However, Gibson stated that she can no longer do this type of work because she would get sick on the job. Tr. 196. She has not looked for any type of employment since 2005. Tr. 197.

The ALJ asked Gibson about her physical pains and symptoms. Tr. 208. Gibson testified that she experiences numbness in her hands every day and it makes sleeping at night difficult. Tr. 208, 219. Gibson testified that the pain travels up and down her arms. Tr. 209. Gibson's physician never explained the cause of the numbness, but he prescribed Gabapentin to treat it. Tr. 208. She stated that she has never had any testing done on her hands, nor has she ever worn wrist braces. Tr. 209. Gibson also experiences sharp, stabbing pain in her lower back "most of the time." Tr. 209-10. She stated that the pain travels down to the backs of her legs. Tr. 210. Gibson testified that she also has "straining pains" and weakness in her legs, such that it is difficult for her to climb multiple flights of stairs. Id. She has headaches twice per week and they typically last for a few days. Tr. 211. Gibson stated that she takes Ibuprofen to treat the headaches. Id.

Beginning in 2005, Gibson testified that she saw a neurology specialist, Dr. Skias, every three months. Tr. 200-02. She testified that part of the reason she moved from Georgia to Chicago was to be closer to a neurologist. Tr. 222. Gibson's sister, who lived in Chicago, noticed Gibson's depression during one of Gibson's visits and urged Gibson to stay in Chicago and see a neurologist. Id. Gibson agreed, and relocated to Chicago in May 2005. Tr. 221. Gibson testified that Dr. Skias admitted her to the hospital in July 2006, where she stayed for five days. Tr. 200. Gibson testified that Dr. Skias was not treating her for a seizure disorder and that she had not spoken to any doctor about seizures for some time. Tr. 207. She stated that she typically has one to two seizures per year and the last one occurred in October 2006. Tr. 208. Gibson testified that she does not know what causes the seizures; some of them occur while she is sleeping. Tr. 207-08.

Regarding her mental health, Gibson testified that her depression makes it hard for her to go out and talk to people. Tr. 211. She frequently has suicidal thoughts and cries for no reason almost every day. Tr. 211-12, 221. She stated that she attempted suicide twice -- once in 1989 and once in 1997. Tr. 220. Gibson testified that she had an alcohol problem and used to drink at least five times per week, having four to five drinks each time. Tr. 214-15. She stated that she cut back her drinking around the end of 2005, when she started having more suicidal thoughts. Tr. 215. Gibson testified that she drank a little bit on special occasions in 2006. Id. Specifically, she stated that she had three glasses of wine for her sister's birthday in June 2006, one glass of wine on Christmas, and one glass of wine on New Year's Eve. Id. Gibson testified that she often feels confused and has trouble concentrating or remembering things. Tr. 219-21. She stated that she will sometimes go several weeks without sleeping and days without eating. Tr. 220-21.

Gibson testified that she began receiving mental health treatment at the University of Illinois at Chicago (UIC) in September 2005. Tr. 202. She stated that she saw a psychiatrist, Dr. Mark Johnson, twice per month. Id. Gibson testified, however, that she missed two or three appointments and was referred out of UIC in October 2006. Tr. 203. At the time of the hearing, she had not seen Dr. Johnson or any other psychiatrist since October 2006. Id.

Gibson testified that, in January 2007, she went to see her primary care physician, Dr. Anjum Hussaini, located at the UIC medical campus. Tr. 198. She stated that she felt very weak and her physician decided to admit her to UIC's hospital. Id. Upon being discharged from UIC, the physicians advised Gibson to follow-up with her neurologist. Tr. 198-99. As of February 15, 2007, the date of her hearing, she had not followed this advice. Id.

Gibson testified that she was admitted to the hospital again on February 5, 2007, a few weeks before her hearing. Tr. 197. She stated that she went to the hospital -- this time Evanston Hospital -- because she could not walk or do anything around her house. Id. At Evanston Hospital, Gibson had magnetic resource imaging (MRI) done on her back, neck, and lumbar. Tr. 205-06. She testified that the physicians at Evanston reported that she has a disc disease and a split disc in her lower spine. Tr. 197-98, 206. They referred her to come back and see the spine surgeon and neurologist. Id. Gibson had not scheduled any appointments as of the date of her hearing. Id. The Evanston physicians also referred Gibson to outpatient physical therapy. Tr. 198, 205. Again, Gibson had not yet scheduled these follow-up appointments as of February 15. Id. Gibson testified that the Evanston physicians gave her a walker to use and help alleviate the pain in her leg and nerve. Tr. 205. She brought the walker to the hearing, but did not know how long she would need it for. Id.

Before her February 2007 hospitalization, Gibson testified, she could only walk 100 feet before getting tired. Tr. 213. She stated that she could only stand for five minutes a time because the "sharp straining pain" in her back prevented her from standing any longer. Id. Gibson estimated that she could only sit for one hour before her back would start hurting. Id. She testified that she could only lift five pounds. Id. Gibson stated that she has trouble grabbing and holding on to things, especially with her left hand. Tr. 214. However, she testified that she is able to do certain tasks, such as pick up coins off of a table and button a blouse. Id. Gibson admitted that none of her doctors imposed limitations on her physical abilities. Tr. 213.

At the time of the hearing, Gibson was taking several medications including Bisoprolol and Depakote. Tr. 203. She also stated that she recently started taking pain medication that was prescribed during her February 2007 hospitalization. Tr. 204. Gibson testified that she has never taken medication for multiple sclerosis. Tr. 205. The medications she does take cause some side effects, including nausea, vomiting and diarrhea. Tr. 212.

The ALJ also asked Gibson about her lifestyle. Gibson testified that her daughter typically drives her places because Gibson's driver's license is expired. Tr. 194-95. She occasionally takes public transportation. Tr. 195. On a typical day, Gibson mostly sleeps or watches television. Tr. 216. She does not grocery shop, cook meals, wash dishes, or do laundry. Id. Gibson stated that her daughter does all of those chores. Id. Occasionally, Gibson will do some cleaning around the house, but the numbness in her hands prevents her from doing the dishes. Id. She stated that she cannot do laundry because she is unable to lift the laundry bags and her back pain makes it difficult for her to bend over and get to the machines. Tr. 216-17. Gibson testified that she is able to bathe and dress herself when she is not in pain. Tr. 217. For exercise, Gibson stated that she occasionally walks, does leg lifts, and bends over to touch her toes. Id. Gibson testified that she rarely leaves the house and has not left the City of Chicago since she moved there. Tr. 218. She does not visit with friends or family. Id.

C.

Medical documentation in the administrative record covers the period between 2001 and 2007. In 2001, Gibson was seen at Jamaica Hospital in New York, where she had an MRI of her brain. Tr. 449. The MRI results showed a multiple bilateral cerebral lesion and "[t]he differential diagnosis include[d] a lacunar infarcts, parasitic infestation, and less likely a MS." Id. In 2004, Gibson left New York and moved to Georgia for a short period of time. There she sought treatment from Dr. Robert Jones for complaints of headaches, dizziness, and high blood pressure. Tr. 261, 439-48. Dr. Jones treated Gibson from November 2004 through March 2005. Id. In addition to prescribing anti-hypertensive medication for elevated blood pressure, Dr. Jones prescribed antidepressant medication for complaints of fatigue, anhedonia, and crying spells. Tr. 261.

Gibson moved to Chicago in 2005. On July 5, 2005, Gibson went to Evanston Hospital and complained of chest pain. R. 452. She acknowledged that she had not taken her blood pressure or antidepressant medication in a month and explained that she had been off and on these medications for a couple of years. Tr. 453. Gibson stated that her family members reported absence-type seizures. Tr. 454. Her chest computerized tomography (CT) scan and electrocardiograph (ECG) were normal. Tr. 460-61. Gibson was discharged in good condition and instructed to make a follow-up appointment as needed. Tr. 457.

In August 2005, a state agency medical consultant, Dr. Richard Bilinsky, assessed Gibson's physical residual functional capacity (RFC). Tr. 472-79. He found that she did not have any limitations, as a recent physical exam was largely unremarkable. Id. Dr. Bilinsky also noted that Gibson was neurologically intact and "[o]ther than the precautions associated with a seizure disorder, she is not physically limited." Tr. 479. Dr. Bilinsky's assessment was affirmed by another state agency medical consultant on March 20, 2006. Tr. 541-43.

Because Gibson complained of affective disorder on her Social Security application, and because Gibson had not noted on the application any formal mental health treatment, the SSA arranged a psychological consultative examination for Gibson on September 13, 2005. Tr. 262, 467. Dr. Norton Knopf performed the evaluation. Tr. 467. Gibson told Dr. Knopf that the depression she experienced for the past two years had adversely affected her work performance and personal relationships. Id. She reported feelings of guilt, fatigue, anxiety, and insomnia. Tr. 468. Gibson stated that she was prescribed Zoloft for her depression. Tr. 469. Gibson also admitted to drinking alcohol for about four years and that her last drink was one week before her consultation. Tr. 468. Dr. Knopf noted that Gibson's pattern of alcohol abuse is marked by binge drinking. Tr. 469-70. Dr. Knopf observed that Gibson's attention and concentration skills were normal and that she was fully oriented. Tr. 469. He noted that Gibson's mood was depressed, but there were no indications that she was not competent to manage her own affairs. Tr. 471. Dr. Knopf diagnosed Gibson with major depressive disorder and alcohol abuse. Id.

On September 30, 2005, Dr. Taylor Russell, a state agency medical consultant, reviewed Gibson's file and concluded that she "retains the capacity to understand, remember and carry out simple tasks and perform [substantial gainful activity]." Tr. 482. Dr. Russell's mental RFC assessment noted some areas where Gibson was moderately limited including, for instance, her ability to understand and remember detailed instructions. Tr. 480. Other moderate limitations included Gibson's ability to work in coordination with or proximity to others without being distracted by them and her ability to get along with co-workers. Tr. 481-82. Thus, Dr. Russell opined that Gibson "would benefit from a work ...


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