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Tammy L. Voight v. Michael J. Astrue

December 12, 2011


The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge


Claimant Tammy L. Voight ("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 ("Commissioner"), in which the Commissioner denied Claimant's application for disability insurance benefits. This matter is before the Court on Claimant's motion to reverse the decision of the Commissioner (effectively a motion for summary judgment) [Dkt#18]. Claimant raises the following issues in support of her motion: (1) whether the Administrative Law Judge ("ALJ") properly discounted Claimant's credibility; (2) whether the ALJ misstated or misapprehended facts in the record in way that undermined her decision and was not harmless error; (3) whether the ALJ properly analyzed Claimant's mental impairments; and (4) whether the ALJ's decision to deny benefits should be reversed and benefits should be awarded to Claimant by this Court. For the reasons set forth below, the Claimant's motion is granted in part and denied in part. The decision of the ALJ is reversed and this matter is remanded to the Social Security Administration for further proceedings consistent with this opinion.


A.Procedural History

Claimant filed an application for disability benefits on September 25, 2007, alleging that she became unable to work due to her disability on August 23, 2007. R.23, 118. Claimant's attorney amended this date to September 15, 2007 in a letter to the Social Security Administration ("SSA") dated July 14, 2009. R.23, 45. Claimant's date last insured was June 30, 2009.*fn1 R.25. The SSA initially denied her application on March 25, 2008. R.66. Claimant then filed a request for reconsideration, which the SSA denied on May 23, 2008. R.74--76. Shortly thereafter on June 19, 2008, Claimant requested a hearing before an ALJ. R.77--82.

On July 7, 2009, Claimant appeared with her attorney and testified at a hearing before ALJ Janice Bruning. R.42. Vocational Expert Timothy Brubowski also testified at the hearing. Id. No medical expert testified at the hearing.

On January 6th, 2010, the ALJ rendered a decision finding that Claimant was not disabled under the Social Security Act. R.31. Specifically, the ALJ determined that Claimant "had the functional ability to perform at least sedentary work" and that she was capable of adjusting to performing unskilled work although she was no longer capable of performing her past work which was skilled or semi-skilled in nature. R.30--31.

On July 9, 2010, Claimant filed a request for review of the ALJ's decision which was denied by the Appeals Council on October 29, 2010. R.1--6. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B.Hearing Testimony - July 7, 2009

1.Claimant Tammy L. Voight

At the time of the hearing, Claimant was 42 years old and living with her husband and two children from a previous marriage, ages 5 and 8. R.27, 44, 120. Claimant finished the 12th grade and earned a vocational degree from a cosmetology school. R.27. While sitting for her cosmetology state board examinations when she was 18 or 19 years old (the record is equivocal about her age at the time), Claimant experienced a deep vein thrombosis and a pulmonary embolism in her left leg. R.45, 523.The resulting swelling, pain and circulatory impairment in her leg has caused her difficulty over the years. Claimant has additional health problems, principally osteopenia, depression, obesity, and endometriosis. R.25, 910. Claimant's prior work experience is varied and includes several clerical and billing positions in the insurance industry. R.120--127, 130--137.

Claimant testified that she had not worked since August 23, 2007, due to complications with her left leg. R.45.*fn2 According to her testimony, Claimant was diagnosed with a blood clot stemming from a genetic disorder, a condition she has treated with anti-coagulant medications and support stockings. R.45--46, 50. Claimant testified that the chronic pain she suffers as a result of her condition will not benefit from surgery. R.46. Claimant also testified that both standing and sitting cause her pain and that the swelling in her left leg is chronic. Id. According to Claimant, elevating her legs to a height of three feet while lying down ameliorates the pain and swelling, and she does this four times a day for 45 minutes to an hour. R.46, 56.

Claimant testified that she can walk as far as a city block with some difficulty. R.48. She can stand for about 15 minutes at a time and can sit for up to an hour, provided she can elevate her legs to a sufficient height. Id. Claimant stated that her chronic leg pain makes sleeping difficult. R.50.

Claimant testified that she is able to shower and dress herself and attend to personal hygiene. R.50. She stated that she drives her children to and from school and their other activities. R.50, 54.Claimant testified that she does household chores such as preparing family meals, doing laundry, making beds, and dusting. R. 51. She does the grocery shopping with her husband's assistance. Id. Claimant regularly attends church and special events at her children's school where she volunteers as an assistant during classroom parties. R.52--53. A typical day for Claimant includes getting her children ready for school, preparing the family dinner, and spending most of her free time at home reading the Bible and elevating her legs. R.55.

Claimant also testified that she receives treatment for depression and has trouble with concentration and memory. R.47. She attributes a portion of these mental impairments to her pain and concedes that the medication she is taking for depression is helpful. R.47--48.

2.Vocational Expert Timothy Brubowski

The Vocational Expert ("VE"), Timothy Brubowski, described Claimant's past relevant work as a collections clerk, administrative assistant, underwriting assistant, technical assistant and communications attendant, all of which he categorized as sedentary and either skilled or semi-skilled. R.57--58. The ALJ asked the VE what type of work, if any, an individual of the Claimant's age, education, and experience could perform with the following limitations: lifting no more than 20 pounds occasionally and no more than 10 pounds frequently; standing or walking no more than two hours during an eight-hour workday; sitting at least six hours during an eight-hour workday; requiring an option to sit/stand at will; inability to work at heights, move machinery, or climb ladders, rope or scaffolding; occasional ability to climb ramps and stairs and occasional balancing, stooping, crouching, kneeling, or crawling; and a need to elevate her left leg with a footstool. R.58. The VE testified that based on this hypothetical, an individual with the above limitations could perform the duties of a surveillance systems monitor or a general office clerk. R.58--59.

The ALJ then asked the VE a follow-up question modifying the hypothetical and adding an additional restriction that the individual would be "off-task 20 percent of the workday because of the need to lie down and elevate [her] leg." R.59. The VE responded that based on the revised hypothetical, such an individual would be unable to find work. Id.

C.Medical Evidence

1.Dr. Joseph Meschi -- Hematologist & Oncologist

From 2003 to 2006, Claimant was a patient of Dr. Joseph Meschi, a hematologist and oncologist affiliated with Rush Copley Medical Center. Claimant saw Dr. Meschi in connection with the circulatory problems in her legs which put her at risk for a thrombosis such as she experienced in approximately 1986 during her cosmetology state board exam. R.271, 310, 473.

In 2003, during her second pregnancy, Claimant tested positive for a Factor V Leiden mutation, an MTHFR mutation, and a possible Protein S deficiency, genetic disorders which elevate the risk of blood clots. R.310, 311, 315. In light of these results, Dr. Meschi placed Claimant on two anti-coagulant medications, Lovenox and Coumadin. R.310, 314. In his notes following an office visit on November 20, 2003, Dr. Meschi speculated that the deep vein thrombosis and pulmonary embolism Claimant experienced in 1986 may have been secondary to the birth control bills she was taking at the time. R.315. Dr. Meschi's notes state that Claimant was "feeling fine" and had "no complaints." Id. A subsequent study done on May 29, 2003 and likely ordered by Dr. Meschi confirmed the finding of a Factor V Leiden mutation. R.253. At a December 18, 2003 visit with Dr. Meschi, Claimant showed no signs of blood clotting or lower extremity swelling. R.316.

At a March 18, 2004 visit, Dr. Meschi advised Claimant not to take "fat burning pills" out of concern that they might interact with her Coumadin. R.317. At a September 17, 2004 visit, Claimant did not report any swelling in her legs and showed no evidence of a thrombosis.


Regarding a March 18, 2005 visit, Dr. Meschi's notes state that Claimant had no swelling

in her legs and displayed no evidence of a thrombosis. R.319.He recommended that Claimant continue to take anti-coagulant medication indefinitely and return for a follow-up in a year. Id. At a December 28, 2005 office visit, Claimant discussed with Dr. Meschi how her hypercoagulability would affect a tummy tuck operation she was undergoing on January 17, 2006. R.310. Dr. Meschi consulted with the surgeon about ways of modifying the surgery to minimize the risk of blood clots and the amount of time Claimant would be off anti-coagulants. Id. Dr. Meschi informed Claimant that the surgery would be high risk given her genetic predisposition for blood clots. Id. Claimant wanted to have the surgery despite the risk.*fn3 Id.

Claimant did not return to see Dr. Meschi until August 8, 2006. During that appointment, she complained of a worsening of the swelling in her left leg. R.318. Dr. Meschi's notes state that Claimant had stopped taking her Coumadin for several months because she was depressed about her divorce and her mother's recent death. Id. Dr. Meschi recommended that Claimant restart anti-coagulant medications. Id. Dr. Meschi had an ultrasound done on August 9, 2006 which showed no signs of blood clotting in Claimant's legs. R.304, 342.

2.Dr. Nicholas Zoretic -- Family Practitioner

In early 2007, Claimant was seen briefly by Dr. Nicholas Zoretic, who operates a family practice.*fn4 A February 19, 2007 ultrasound ordered by Dr. Zoretic showed no signs of blood clotting in Claimant's legs. R.344. On February 21, 2007, Dr. Zoretic referred Claimant to Dr. John Ayers, a hematologist, for treatment based on her history of deep vein thrombosis and hypercoagulability. R.354. On April 19, 2007, Dr. Zoretic referred Claimant to Dr. ...

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