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Sylvia E. Branch v. Michael J. Astrue

September 29, 2011


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Sylvia E. Branch ("Branch") seeks judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.*fn1 Branch has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking a judgment reversing or remanding the Commissioner's final decision. The Commissioner has filed a cross-motion for summary judgment and requests that we affirm his final decision. For the reasons set forth below, Branch's motion for summary judgment is granted [dkt. 19] and the Commissioner's motion for summary judgment is denied [dkt. 24].

I. Procedural History

On January 4, 2007, Branch filed an application for SSI, alleging that she had been disabled since February 12, 2007.*fn2 That claim was denied on February 7, 2007.*fn3 Upon reconsideration,Branch's claim was again denied by notice dated June 7, 2007.*fn4 Thereafter, Branch filed a request for a hearing before an Administrative Law Judge ("ALJ").*fn5

On April 27, 2009, an administrative video hearing was held before ALJ Mona Ahmed, with the ALJ seated in Orland Park, Illinois and Branch located in Gary, Indiana.*fn6 Following the hearing, the ALJ issued an unfavorable opinion dated August 17, 2009, finding that Branch was not disabled under the Social Security Act.*fn7 Branch then filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council.*fn8 On July 30, 2010, the Appeals Council denied the request for review, making the ALJ's August 17, 2009 decision the final administrative determination of the Commissioner.*fn9 On October 4, 2010, Branch filed this action.*fn10

II. Medical Evidence

Medical evidence in the record documents that Branch received treatment for physical injuries - including back and shoulder pain - and depression. We will briefly summarize the medical evidence related to these conditions as it pertains to the cross-motions for summary judgment.

A. Physical Injuries

Documents show that Branch complained of back pain dating back to 1991.*fn11 In January 2007, Neurosurgeon Geoffrey Dixon, M.D. performed an L5-S1 laminectomy and L4-S1 lumbar interbody fusion with screw instrumentation in an attempt to relieve Branch's back pain. *fn12 However, at a follow-up exam with Dr. Dixon in January 2007, Branch continued to complain of pain.*fn13

Branch told Dr. Dixon that her back pain prevented her from sleeping.*fn14 Dr. Dixon noted that Branch was possibly suffering from muscle spasms.*fn15 He prescribed Norflex and a sleep medication, and he recommended physical therapy.*fn16 In March 2007, Branch continued to complain to Dr. Dixon that she had low back pain radiating to her left leg.*fn17 However, she told Dr. Dixon that she was doing better.*fn18 In a May 2007 follow-up with Dr. Dixon, Branch again complained of pain, numbness, and tingling in her left leg.*fn19 Dr. Dixon prescribed anti-inflammatory medication and advised that Branch begin physical therapy immediately.*fn20

Subsequently, Branch, underwent physical therapy from September through December 2007.*fn21 Therapy notes also show that she underwent therapy in February 2008.*fn22

On May 30, 2007, the state disability determination service conducted a consultative examination.*fn23 During that exam, Branch stated that her back pain had worsened since her surgery.*fn24 To help her walk, she stated that she used a cane that was prescribed by her physician.*fn25 It was noted that her spine was tender and her lumbar range of motion was limited.*fn26 But she had full range of motion in all extremities.*fn27 It was further noted that she had a limping gate, used a cane, and had difficulty stooping and squatting.*fn28

In February and June 2007, state agency medical consultants reviewed the medical evidence and made assessments about what activities Branch could complete.*fn29 They concluded that Branch could lift twenty pounds occasionally and ten pounds frequently.*fn30 She could stand and walk for about six hours and sit for six hours in an eight-hour day.*fn31 The consultants opined that Branch could never climb ladders, ropes, or scaffolds.*fn32 They also concluded that she could occasionally perform all other postural activities.*fn33 Finally, the consultants found that Branch did not need a cane to walk.*fn34

In October and November 2007, Branch continued to receive treatment for her back pain and two additional MRIs were taken of her lumbar area.*fn35 MRI reports diagnosed Branch with lumber spondylolisthesis at L5-S1 but stated that her lumbar area was "otherwise normal."*fn36

In August 2008, Branch complained of left shoulder pain, so a magnetic resonance imaging test ("MRI") was taken of the area.*fn37 It did not show definitive evidence of a rotator cuff tear.*fn38 However, minimal osteoarthritic changes were present.*fn39

B. Depression

Medical evidence in the record also showed that Branch had a history of depression. In March 2007, she attended a mental health session at Edgewater Systems for Balanced Living ("Edgewater").*fn40 It was noted that she was late to that session because she stated that her ride never came and, therefore, she was forced to walk over a mile to get to the session.*fn41 Anxiety was noted and there were problems with her mood and affect.*fn42 However, her orientation, appearance, cognition, memory, and concentration were normal.*fn43 Weekly therapy was recommended and Cymbalta was prescribed.*fn44 Also, she was assigned a global assessment functioning ("GAF") score of 49.*fn45 Mental health professionals use the GAF scale to convey an individual's psychological, social, and occupational functioning on a spectrum in which scores between 41-50 indicate serious, 51-60 indicate moderate, and 61-70 indicate mild symptoms.*fn46

On May 14, 2007, she attended a consultative examination with Raymond Bucur, Ph.D.*fn47

Dr. Bucur observed that Branch was angry and frustrated.*fn48 Branch's conversation with Dr. Bucur included "belligerent complaints."*fn49 Dr. Bucur tested Branch's mental cognition and noted that Branch failed to complete some calculations and answered "I don't know" to many questions.*fn50 Dr. Bucur also observed that Branch was "reluctantly cooperative" and that she did not put forth a full effort.*fn51 He ultimately opined that Branch was "obviously quite depressed."and diagnosed Branch with severe major depressive disorder.*fn52 Dr. Bucur assigned Branch a GAF of 50.*fn53

III. Hearing Testimony

Branch, who was accompanied by an attorney, and Vocational Expert Edward Pagella ("VE") testified at the administrative hearing.

First, Branch testified that she was thirty-nine years old, that she has four children, and that she is not married.*fn54 She stated that she did not have a drivers license, rarely took the train or bus, and could not walk very far.*fn55 Branch testified that her only recent job was working as an assistant in a school.*fn56 But she said she can no longer work because of her back pain.*fn57 The ALJ asked Branch about earnings records that indicated she had worked as a hair dresser in 1997.*fn58 However,

Branch denied that she ever styled hair and stated that these earnings were incorrectly reported because someone else had been using her Social Security Number.*fn59

When asked to describe her daily activities, Branch testified that she laid in bed the majority of the day, and would periodically stand on the porch and talk to her neighbors.*fn60 The remainder of her day was spent with her daughters as they helped her around the house.*fn61 She might try to cook something to eat.*fn62 However, she stated that she ...

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