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Deborah A. Alesia v. Michael J. Astrue

May 24, 2011


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Deborah A. Alesia ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner") denying Claimant's application for Disability Insurance Benefits ("DIB"). In support of her motion for summary judgment, Claimant raises the following issues: (1) whether the administrative law judge properly weighed the medical evidence when finding that Claimant's depression was non-severe; (2) whether the ALJ adequately considered whether Claimant's combined impairments medically equal a listed impairment; (3) whether the ALJ properly determined Claimant's residual functional capacity; and (4) whether the ALJ validly found Claimant could perform her past relevant work. In response, Defendant has filed a cross-motion for summary judgment requesting that the Court affirm the Commissioner's decision. For the following reasons, the Court grants Claimant's motion for summary judgment, denies the Defendant's cross-motion for summary judgment and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant initially applied for DIB on December 4, 2006, alleging a disability onset date of November 3, 2006. R. 133--39. The Social Security Administration ("SSA") denied her application on April 27, 2007. R. 64--68. Claimant then filed a request for reconsideration, which the SSA denied on September 4, 2007. R. 69--72. Shortly thereafter, Claimant requested a hearing before an Administrative Law Judge. R 73--74.

On July 14, 2009, Administrative Law Judge Joel G. Fina (the "ALJ") presided over a hearing at which Claimant appeared with her attorney, Barbara Rodecki. R. 27--61. Claimant and Thomas Gresik, a vocational expert, testified at the hearing. On September 2, 2009, the ALJ rendered a decision finding Claimant not disabled under the Social Security Act. R. 11--26. Specifically, the ALJ found Claimant has the residual functional capacity to perform sedentary work and can perform her past relevant work as a claims auditor or claims examiner. R. 19--23.

Claimant then requested review of the ALJ's decision by the Appeals Council. R. 10. The Appeals Council denied Claimant's request on April 28, 2010. R. 1--3. Therefore, the ALJ's decision became the final decision of the Commissioner. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - July 14, 2009

1. Deborah Alesia - Claimant

At the time of the hearing, Claimant was fifty-one years old, married, and living with her husband and her brother, who moved in six months before the hearing to "give [Claimant] a hand." R. 33--34, 42. She attended approximately two years of college and her past work includes over twenty years of experience as a claims adjudicator and internal auditor for Blue Cross and Blue Shield. R. 34--35. Claimant's financial disclosures reveal that her earnings peaked at nearly $60,000 in 2004. R. 153. In October 2006, however, Claimant quit her job with Blue Cross "because [she] could no longer get to work or function at [her] job." R. 34. She made attempts to obtain other work-from-home employment opportunities, but was unable to do so. R. 35, 45--46.

During the hearing, Claimant described the extent of her physical limitations caused mainly by her fibromyalgia.*fn1 She has trouble keeping her balance and frequently falls or bumps into things. R. 43. She can only stand for five minutes before she needs to sit. R. 37. Even when sitting down, Claimant needs to shift positions because she gets stiff sitting in one position. R. 38, 51. She lies down eighty-five to ninety percent of the day. R. 51. Because of her difficulty with stairs, Claimant sometimes sleeps on a couch rather than her second-story bedroom. R. 39--41. Additionally, she has difficulty reaching more than a foot in front of her and can only lift a few pounds. R. 43, 46--47 . She requires assistance caring for personal needs including showering and getting dressed. R. 35--36, 43, 47. She also requires assistance with most household chores; the only household chore she performs is dusting.

R. 37--38. She has problems driving safely because she has difficulty moving her arms or turning her head. R. 36.

Claimant also explained the extent of her medical treatments. The Fibromyalgia Treatment Centers of America treated her with drugs, antidepressants, painkillers, physical therapy, and trigger point injections. R. 50. Additionally, she received injections into the herniated disks in her lower spine. R. 48. Despite on-going treatment, nothing provided her with lasting relief, and although some days are better than others, for the most part she is never without pain. R. 44, 50--51. After quitting her job in 2006, Claimant purchased COBRA health insurance for about six months, but could no longer afford it once her husband lost his job. R. 45. Currently, she is uninsured and cannot afford injections or fibromyalgia medications. R. 44--45, 48. The only medications Claimant now takes are Armor Thyroid for hypothyroidism and Premarin for a hysterectomy she had ten years ago, which cost $4 each per month. R. 44--45. When asked if she had any mental impairments, Claimant testified that she did not. R. 48.

2. Thomas Gresik - Vocational Expert

Thomas Gresik testified as the vocational expert ("VE"). R. 53. The VE stated that Claimant's prior positions as a claims auditor and a claims examiner are sedentary skilled work. Id. The ALJ then posited a hypothetical person with Claimant's age, education, and work experience. Among other things, the hypothetical person could participate in light work and frequently balance. R. 53--54. The VE testified that such a person could perform Claimant's past relevant work. R. 54. The ALJ then modified the hypothetical by reducing the exertional level from light to sedentary work, and then modified it again to sedentary work with the option to sit or stand at will. R. 54--55. In response to both modifications, the VE testified that the hypothetical person could perform Claimant's past relevant work. Id. Next, the ALJ added a restriction to simple, routine, and repetitive tasks. R. 55. The VE testified that this person could not perform Claimant's past work but that if the person were under age fifty, the individual could obtain other positions that exist in the regional and national economy. R. 55--56.

Finally, the ALJ hypothesized a person who, due to a combination of medical conditions and associated pain, cannot engage in sustained work activity on a regular and continuing basis for eight hours a day, five days a week, for a forty-hour work week. R. 56. The VE replied that this person would be precluded from full-time competitive work regardless of exertional level. R. 56. Employers customarily provide employees up to two fifteen-minute rest periods and one thirty-minute lunch break during an eight-hour work day.

R. 56--57. They normally allow a worker to be absent one-half day per month, or six days per year in non-collective bargaining positions, and one day per month, or twelve days per year for collective bargaining positions. R. 57. If an employee exceeds these allotted absences on a regular basis, she can no longer secure competitive employment. Id. Finally, the VE stated that employers do not allow employees to lay down at work, regardless of exertional level. R. 58.

C. Medical Evidence

1. Fibromyalgia Treatment Centers of America

Even before the alleged onset date in November 2006, Claimant was treated for fibromyalgia at the Fibromyalgia Treatment Centers of America from September 2003 until July of 2006. R. 415--585. During that time, she attended regular check-up appointments, participated in controlled exercises and trigger point therapy, and received various medications as part of treatment for her ongoing symptoms. In April 2005, Claimant's doctor, Dr. Michael McNett, requested that Claimant work from home at least three days per week. R. 282--83. In June and July 2005, her progress notes indicated her pain and depression getting worse. R. 427--30, 433--36. By September 2005, however, Claimant indicated her tremors were less frequent and depression was greatly reduced. R. 423--24. In February 2006, Claimant reported feeling better. R. 292. In a July 12, 2006 letter to Dr. Patel of WellGroup Health, Dr. McNett, reported Claimant to have a Zung Depression Score of 0.39, a normal rating, and a mild to moderate fibromyalgia questionnaire score of a 39.R. 289--90.

2. Dr. Daniel J. Grzegorek, M.D. and Dr. Sunil A. Patel, M.D.-WellGroup Health

In combination with her treatment from Fibromyalgia Treatment Centers of America, from January 2003 until November 2006, Claimant also received medical care from Dr. Daniel Grzegorek and Dr. Sunil Patel. R. 598--609. During that time, Claimant received examinations and treatment for numerous medical conditions including fatigue, irritable bowel syndrome, chronic depression, Herpes simplex, fibromyalgia, Gastro Esophageal Reflux Disease, allergies, and hypoglycemia. R. 601--09.

3. Dr. John Hong, M.D.-Treating Physician

In September 2006, just before the alleged onset date, Claimant began seeing Dr. John Hong to treat her fibromyalgia. R. 618. At that time, Claimant received trigger point injections and was advised to begin physical therapy three times per week. Id. As of October 2010, Dr. Hong noted that Claimant had delayed starting physical therapy because she had attempted to start a new business. R. 615. In addition to trigger point injections, Claimant also began practicing yoga and seeing a chiropractor for spinal adjustments. R. 614. Claimant continued to see Dr. Hong monthly to receive trigger point injections. Id. Dr. Hong's progress notes from December 7, 2006 noted that Claimant was "much improved." Id. Dr. Hong's evaluation of Claimant remained consistent throughout January and February of 2007, including notes that Claimant experienced significant relief for almost two weeks following trigger point injections. R. 620--622.

On April 2, 2007 Dr. Hong wrote a letter to the Bureau of Disability Determination Services. R. 610--11. He reported that Claimant had a long history of fibromyalgia characterized by "diffuse pain, numerous ...

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