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Marcia G. Mackay v. Michael J. Astrue

December 22, 2011


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


Claimant Marcia Mackay ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent 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 the parties' cross-motions for summary judgment or remand [Dkt.#19, 26]. Claimant argues that the Administrative Law Judge's ("ALJ") decision denying her application for disability insurance benefits should be reversed and/or that the case should be remanded for further proceedings. Claimant raises the following issues in support of her motion: (1) whether the ALJ sufficiently considered and properly weighed the evidence and the testimony of the medical experts; (2) whether the ALJ properly analyzed Claimant's credibility; and (3) whether the ALJ erred in not properly analyzing date of Claimant's onset of disability pursuant to Social Security Ruling ("SSR") 83-20.

For the reasons set forth herein, Claimant's motion for summary judgment [Dkt.#19] is denied. Respondent Michael Astrue's motion for summary judgment [Dkt.#26] is granted, and the decision of the Commissioner of Social Security is affirmed.


A. Procedural History

Claimant filed an application for disability benefits on August 19, 2008, alleging a disability onset date of May 1990.*fn1 R.73, 172-179. Claimant's date last insured was December 31, 1991.*fn2 R. 73. The Social Security Administration ("SSA") initially denied her application on September 22, 2008. R.73, 84-88. Claimant then filed a request for reconsideration, which the SSA denied on December 17, 2008. R.73, 89-91. Shortly thereafter on January 12, 2009, Claimant requested a hearing before an ALJ. R.73, 96-97.

On February 22, 2010, Claimant appeared with her attorney Kristin Kobayashi and testified at a hearing before ALJ Cynthia Bretthauer. R.73. Vocational expert Susan Entenberg appeared and testified at the hearing. R.73. Ronald Devere M.D., a medical expert, also participated in the hearing and testified via telephone. R.73

On March 24, 2010, the ALJ rendered her decision finding that Claimant was not disabled under the Social Security Act. R.73-80. Specifically, the ALJ determined that Claimant "was not under a disability with in the meaning of the Social Security Act from May 1990 through the date last insured." R.73. On May 4, 2010, Claimant then filed a request for review of the ALJ's decision to the Appeals Council. R.9-12.

On November 19, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R.1-4. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- February 22, 2010

1. Claimant Marcia Mackay

At the time of the hearing, Claimant was living in Maryhaven Nursing Home where she requires full assistance with her daily activities. R.19. Claimant is a college graduate and has past relevant work experience as a benefits manager and pension coordinator. R.21. Claimant stopped working in 1986 when she had her first child -- not because of any symptoms or impairments she had at the time. R.22, 188, 189.

During the time period in question -- May 1990 through December 31, 1991 -- Claimant suffered from relapsing remitting multiple sclerosis. R.32. At that time, Claimant testified that she cared for her two young children. R.20. One child was in nursery school and the younger child was at home with Claimant. R.20. Claimant testified that she drove her older child to school and that there were no restrictions on her driving license. R.19-20. Claimant testified that she had a babysitter two times per week but otherwise she was the sole caretaker for the children during the day with some assistance from her husband. R.21.

Claimant testified that prior to stopping work to care for her young children, she was a pension manager or benefits manager at a few different companies. R.21. Claimant testified that during the time period in question, she could not have performed any of her previous jobs because of the fatigue she suffered. R.23. She testified that the fatigue "was incredible, very great" (R.30), that she could not walk very far without needing to rest, that she was having "a little trouble" with her eyesight, and that she had bladder problems and could not lift (R.23).

Claimant acknowledged at the hearing that her medical records at the time indicate that she was doing well, that she was not disabled by her condition and that she was able to function and complete her activities of daily living. R.25. Claimant also acknowledged that her medical records indicate that she had only one episode of mild incontinence at the time; however, she testified that she was "too proud to talk about bladder incontinence at the time." R.25. Claimant acknowledged that her medical records show that she was able to walk without any assistance at the time in question, but Claimant testified that she used her husband's hand sometimes. R.26-27. Claimant testified that she did not recall when she began using a cane and that she did not begin to use a wheelchair until 1998. R.27. Claimant testified that she had difficulty walking for long periods of time and that she had difficulty going up and downstairs because her fatigue was so great. R.30. She testified that she had fatigue with walking or moving her hands repeatedly. R.30. Claimant, however, stated that she did not have any limitation with sitting. R.33. Although Claimant earlier in her testimony stated that she could not lift (R.23), she subsequently testified that she could lift 15 pounds. R.34.

When describing a typical day during the time period May 1990 through December 31, 1991, Claimant testified that she often times woke up later than her husband who helped with the children, but that she changed diapers, took care of the children, including preparing their lunch. R.34. Although not all of the time, Claimant testified that she was able to wash the dishes and cook some meals. R.34-35. Claimant testified that she did not clean the house -- either her husband cleaned or she hired a cleaning service. R.35. Claimant testified that she was able to do the laundry. R.35. She testified that she was able to bathe and dress herself -- although maybe she had some help with dressing. R.35. Claimant testified that she helped part-time with the grocery shopping. R.35.

During that time period, Claimant testified that she enjoyed art and reading as hobbies. R.36. Claimant testified that she took her children to the library and to the pool but that she always looked for a parking spot close to the door and that if the heat was too much, she had to leave the pool. R.36. Claimant also testified that she was able to go out to dinner and to the movies. R.37.

Claimant testified that she was not hospitalized and did not require any emergency room visits for her multiple sclerosis during the period from May 1990 through December 31, 1991. R.31. Claimant testified that she was hospitalized either in 1993 or 1994, and it was after that hospitalization that her multiple sclerosis diagnosis changed from relapsing remitting to secondary progressive. R.32.

2. Vocational Expert Susan Entenberg

Susan Entenberg testified at the hearing as a vocational expert ("VE"). She described Claimant's past relevant work as benefits manager or pension manager. R.62. She testified that Claimant's past relevant work would be categorized as sedentary and skilled. R.62. Assuming an individual who was 33 to 36 years old with the same education and past relevant work experience as Claimant (i.e., sedentary or light work), the ALJ inquired whether an individual could perform the same or similar past relevant work as Claimant with the following limitations: sitting for six to eight hours of the day; standing and walking at least two hours of the day; lifting and carrying, both frequently and occasionally up to ten pounds, with no other restrictions or limitations. R.63. The VE testified that based on the hypothetical given by the ALJ, an individual with the limitations described could perform Claimant's past relevant work. R.63.

3. Medical Expert Ronald Devere M.D.

Dr. Devere testified at the hearing via telephone. Based on his review of Claimant's medical records and listening to the testimony offered by Claimant at the hearing, Dr. Devere testified that Claimant suffered from multiple sclerosis prior to her date last insured. R.43 Dr. Devere also testified that Claimant was "quite impaired" at the time of the hearing. R.42. Dr. Devere, however, opined that her condition as of her date last insured did not meet any of the Social Security listing requirements in 11.04B, 11.09, 12.02 A and B based on the medical examinations and her complaints at that time.

R.42, 44-46.

During the period in question, Dr. Devere testified that Claimant suffered some impairments, including fatigue, mild gauge trouble with her eyes, some numbness and balance issues with slight unsteadiness, and some numbness and slight coordination issues with her hands. R.43. However, based on his review of Claimant's medical records, Dr. Devere opined that Claimant suffered no visual, mental or cognitive limitations during the period in question. R.50. Notwithstanding Claimant's fatigue, which Dr. Devere acknowledged was a serious complaint, Dr. Devere opined that Claimant during 1990 and 1991 had the functional capacity to perform at least sedentary work and possibly light work with limitations for occasional lifting. R.42-44, 47-48.

C. Medical Evidence

1. Treating ...

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