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Lisa M. White v. Michael J. Astrue

October 24, 2011

LISA M. WHITE, CLAIMANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Claimant Lisa M. White ("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") and Supplemental Security Income ("SSI"). Claimant raises the following issues in support of her motion: (1) whether the ALJ fully accounted for limitations from Claimant's mental impairments in the Residual Functional Capacity assessment; (2) whether the ALJ gave sufficient weight to the opinion of Dr. Anwar, Claimant's treating psychiatrist; and (3) whether the ALJ properly evaluated the credibility of Claimant's allegations according to the requirements of SSR 96-7p. For the following reasons, the Court grants Claimant's motion for summary judgment, denies the Commissioner's motion to affirm the Commissioner's decision, and remands the case to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. Procedural History

Claimant filed for DIB and SSI in January 2009, alleging a disability onset date of January 9, 2008. R. 120-26. Claimant later amended her application to allege an onset date of January 9, 2009. R. 147. The Social Security Administration ("SSA") denied both applications on May 13, 2009. R. 62-70. Claimant then filed a request for reconsideration, which was denied on September 10, 2009. R. 71-76. Thereafter, Claimant requested a hearing before an Administrative Law Judge ("ALJ"). R. 81.

On January 26, 2010, ALJ Janice M. Bruning presided over a hearing at which Claimant appeared with her attorney, Andrew A. Barone. R. 26-56. Claimant and Aimee Mowery, a vocational expert ("VE"), testified. On March 10, 2010, the ALJ rendered a decision finding Claimant not disabled under the Social Security Act. R. 10-21. Specifically, the ALJ found that Claimant has "the residual functional capacity to perform light work . . . with only occasional climbing, balancing, stooping, crouching, kneeling or crawling; avoiding concentrated exposure to lung irritants; no contact with the general public and only occasional contact with co-workers or supervisors; and involving simple repetitive tasks." R. 17.

Claimant then filed for review of the ALJ's decision to the Appeals Council. R. 8-9. On July 16, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - January 26, 2010

1. Lisa White - Claimant

At the time of the hearing, Claimant was forty-seven years old, single, and rented a room in a house. R. 29-30, 59. Claimant's highest educational level is a GED. R. 29. Claimant's most recent employment as a limo driver ended January 8, 2009, when she stopped working "because it was becoming too stressful and . . . I was fearing a lot." R. 31. Claimant testified that she was being asked to work more hours than her doctors recommended. R. 32. Since quitting that job, she has been "looking for jobs all over the place" and at the time of the hearing she anticipated enrolling in college courses in September 2010. R. 30-31.

Claimant testified she can walk a couple of blocks before getting tired and her breathing becomes difficult. R. 38. She can stand in one spot for approximately five minutes before needing to move around and she can sit for 15-20 minutes before needing to stand. R. 38-39. Claimant has difficulty climbing stairs and when she does climb stairs to do her laundry she has to stop and rest. R. 39. Lifting 20 pounds causes pain in her neck. Id. She is sometimes "not . . . able to coordinate [her] brain to [her] hands." R. 40. As a result of self-treatment she has been able to use her hands with only some numbness in her pinkies when she types. Id. Claimant has difficulty bending, stooping, crouching, crawling, and kneeling because of previous broken bones and occasionally has trouble with balance. Id. Claimant drives daily, does not cook often, washes dishes, and does household chores such as laundry and taking the garbage out. R. 40-41. Claimant testified that she attends church, volunteers at her church, participates in weekly Bible studies, uses a computer, attends AA meetings, and cares for her two cats. R. 43-44.

Claimant previously saw a chiropractor and took medication for back pain. R 33. The only side effect was some fatigue. Id. Claimant testified that if she has to reach forward or extend her hands upwards, a shooting pain travels along her shoulders. Id. Stress triggers her back and neck pain. R. 34-35. At the time of the hearing, Claimant was taking medication for bipolar disorder, asthma, anxiety, and pain. R. 34.

Claimant testified that she has difficulty thinking, concentrating, and focusing. R. 35. She has trouble remembering dates and responsibilities and will go days without remembering to brush her teeth. Id. Claimant has crying spells at least once per week. R. 36. Claimant stated that she is often afraid and her friends tell her she "[sees] things that are happening and [her friends] don't see them and they tell [Claimant] that [she] is paranoid." R. 37. Claimant described a history of thoughts of harming herself. Id. At the time of the hearing, she had "fleeting thoughts [of harming myself] not nearly like they used to be"; when she does have those thoughts, she stays home and cries. Id.

At the time of the hearing, Claimant was in remission from alcohol dependency and had maintained sobriety for approximately thirteen months. R. 45. Claimant testified that she has "tremendous ups and downs and mood swings." Id. Claimant stated she would not be able to work in the coming year because of the "fear, the stress, [and] the anxiety." R. 47. When questioned about her decision to leave her job at the limousine company, Claimant explained that she quit because she "felt like she was at the end of [her] rope." R. 49. Finally, when asked about the type of work she believed she could perform, she testified she would like to work some place where she could be by herself, not be required to perform a lot of physical labor, and not have someone "cracking a whip" over her back. R. 52.

2. Aimee Mowery - Vocational Expert ("VE")

The Vocational Expert, Aimee Mowery, described Claimant's most recent previous work experience as chauffeur/driver which was categorized by the Dictionary of Occupational Titles as a medium work, semi-skilled position with a Specific Vocational Preparation ("SVP") level of three. R. 54. Claimant has previous work experience as a forklift operator which is a medium work, semi-skilled job with a SVP of two. Id. She also worked as a production worker, which is an unskilled, light work position with a SVP of two. Id.

The ALJ asked the VE whether jobs exist that could be performed by a person of Claimant's age, education and work experience with the following limitations: only lift 20 pounds occasionally and 10 pounds frequently; stand or walk a total of six hours during an eight hour work day; sit at least six hours during an eight hour workday; avoid concentrated exposure to lung irritants; only occasionally climb, balance, stoop, crouch, kneel, and crawl; avoid contact with the public and have only occasional contact with supervisors and co-workers; be restricted to limited repetitive tasks; and have a production quota. R. 54. The VE answered that there are not any jobs based on the production quota limitation.*fn1 Id. When the ALJ removed the production quota limitation from the hypothetical, the VE responded that positions such as assembler (9538), hand packager (3733), and cleaner (10,140) are available in the region and an individual as described in the hypothetical would be able to perform those jobs. R. 54-55. The ALJ then asked "What if the individual would miss work or be off task about 20 percent of the time?" R. 55. The VE answered "No, Your Honor, those three occupations would not - ." Id.

C. Medical Evidence

The ALJ's decision regarding Claimant's physical impairments is supported by substantial evidence. The focus of the disagreement in this case is on Claimant's mental impairments. Thus, the Court will provide a brief review of the medical evidence supporting Claimant's physical limitations and then review the medical evidence regarding her mental impairments in more detail.

1. Physical Impairments

Beginning on January 30, 2009, Claimant received treatment from Dr. Chris Gruber at Provena St. Joseph Hospital for left neck and shoulder pain. R. 260. Dr. Gruber diagnosed a cervical neck strain (whiplash). R. 264. On February 5, 2009, Claimant saw Dr. Christopher Cascino, neurosurgeon. R. 276. The neurological exam was "completely normal." Id. An MRI was performed on February 6, 2009, with normal results. R. 275. X-rays of the cervical spine showed mild spondylosis (degenerative arthritis).Id. Dr. Cascino diagnosed Claimant's neck and shoulder pain as arthritic and stated that the condition "is not helped by surgery and these symptoms tend to wax and wane over time regardless of therapy." Id.

Claimant was seen by Dr. Roopa Karri on February 26, 2009 for an independent consultative examination. R. 279-82. Claimant climbed on and off the examination table and walked 50 feet without support. R. 280. Dr. Karri noted a history of asthma, COPD with wheezing during the exam, and a mildly decreased range of motion in the neck and shoulder. Id.

OnApril 2, 2009, state agency reviewing physician Dr. Calixto Aquino assessed the following functional limitations: she can occasionally lift 20 pounds and frequently lift 10 pounds; stand, walk and sit for about six hours in an eight hour work day; and she should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation.R. 288-95. Dr. Charles Kenney reviewed and affirmed this assessment on September 9, 2009. R. 376-78.

Claimant treated with Dr. John Johnson, a chiropractor, from May 5, 2009 through October 2, 2009. R. 381-84. Over the course of treatment Claimant's neck pain varied from "quite intense" to "overall feeling quite a bit better" by her last visit. R. 381-84. Dr. Johnson completed a spinal disorders form in July 2009 in which he indicated that Claimant has neck, upper back and head pain, suboccipital and cervical tenderness, and facial numbness. R. 373. Ambulation is normal with limited range of motion of the cervical spine. R. 374. Dr. Johnson stated Claimant can only lift ten ...


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