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Renee T. Brenner v. Michael J. Astrue

April 18, 2012


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


Claimant Renee T. Brenner ("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"), denying Claimant's application for disability insurance benefits. This matter is before the Court on the parties' cross-motions for summary judgment [Dkt.# 15, 22]. Claimant argues that the Administrative Law Judge's ("ALJ") decision denying her application for disability insurance benefits should be reversed or, alternatively, that the order of the ALJ should be vacated and remanded to the Social Security Administration ("SSA") for further proceedings. Respondent contends the Commissioner's decision should be sustained.

Claimant raises the following issues in support of her motion: (1) whether there is substantial evidence to support the ALJ's finding that Claimant performed substantial gainful activity ("SGA") after November 1, 2006; (2) whether the ALJ gave insufficient weight to the findings of a functional capacity evaluation ordered by a treating physician; (3) whether the ALJ properly analyzed Claimant's credibility; and (4) whether the ALJ failed to adequately consider the effects of Claimant's medication. For the reasons set forth below, Claimant's motion for summary judgment [Dkt.#22] is denied, Respondent's Motion [Dkt.#15] is granted, and the decision of the Commissioner is affirmed.


A. Procedural History

Claimant filed an application for disability benefits on May 5, 2008. R. 101-02. She alleged a disability onset date of November 1, 2006. R. 110, 10. Claimant was last insured on March 31, 2008. R. 110. The SSA initially denied her application on July 11, 2008. R. 54. Claimant then filed a request for reconsideration on August 16, 2008, which the SSA denied on September 26, 2008. R. 63, 66. On October 13, 2008, Claimant requested a hearing by an ALJ. R. 69.

On September 23, 2009, Claimant appeared with her attorney George G. Weber and testified at a hearing before ALJ Joel G. Fina. R. 26. Vocational expert Thomas Guslof also appeared and testified at the hearing. R. 26. No medical expert testified at the hearing.

On November 6, 2009, the ALJ rendered a decision finding that Claimant was not disabled under the Social Security Act from the alleged time of onset through March 31, 2008, the date she was last insured. R. 14--19. Specifically, the ALJ found that Claimant had performed SGA after the claimed date of disability onset, had the ability to perform her former work as bookkeeper from 2006 until the time of the decision, and "had the ability to perform a full range of sedentary work at all times relevant to [the] decision."

R. 18.

On January 8, 2010, Claimant filed a request for review of the ALJ's decision to the Appeals Council. R. 6. On October 7, 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. § 406(g).

B. Hearing Testimony -- September 23, 2009

1. Claimant Renee T. Brenner

At the time of the hearing, Claimant was 59 years old, divorced, and living with her teenage son. R. 29. Claimant is a high school graduate and completed one and a half years of college. R. 30.

Claimant testified that she was last employed as a bookkeeper for her exhusband's dental practice. R. 30. She continued this employment through either November or December 2006 when she became too ill to continue.*fn1 R. 30. As a bookkeeper, Claimant maintained a ledger of operating costs on a computer program, paid bills, and created reports to be given to an accountant for tax purposes. R. 32. Claimant testified she worked approximately 200 hours a year and received $11,000 in 2005 and 2006. R. 17, 33. In a pre-hearing statement, however, Claimant said she spent no more than two work days a year on her bookkeeping job. R. 117. She has not made any attempt to find work since the end of her bookkeeping job due to her illness. R. 33. At the time of the hearing, Claimant's only sources of income were maintenance and child support from her ex-husband. R. 36.

Claimant testified that she suffers from colitic arthritis, rheumatoid arthritis, primary sclerosing cholangitis, cirrhosis, sciatica, and ulcerative colitis. R. 35, 38-40. She further testified that she suffers from constant pain in her knees, foot, shoulder, and hip.

R. 37. Claimant also frequently feels nauseous, feverish, and tired. R. 41. She testified that her conditions would prevent her from working as a bookkeeper eight hours a day, five days a week because she cannot sit for extended periods and has to take frequent, lengthy bathroom breaks. R. 40-41.

Claimant testified that she is able to care for her personal needs but only with difficulty. R. 36. She needs to take medication in order to be able to get out of bed. R. 42. She needs to lie down after taking a shower. R. 42. She has trouble grocery shopping and is only able to get to the store some days. R.37. She testified that she could only walk two blocks without having to stop to rest. R.37. Claimant is able to attend her son's football games where she sits in the bleachers for two and a half hours. R. 42. However, she felt the need to resign her position as treasurer of the Parent Teacher Organization at her son's school due to her illness. R. 43.

Claimant stated that she is taking Prednisone for her colitis and Advil for her pain. R. 39, 41. She did not note any side effects of these medications.

2. Vocational Expert Thomas Guslof

Thomas Guslof testified at the hearing as a vocational expert ("VE"). He described Claimant's past work as a bookkeeper. R. 47. He testified that her past work would be categorized as sedentary and skilled. R. 47. He stated that jobs similar to Claimant's past work as a bookkeeper were available in the national economy even if an individual could only work ten hours a month. R. 47--48.

The VE noted that an individual who had to miss two days per week of work due to illness would not be able to perform even flexible hours employment as customarily performed in the national economy because an employee might be required to work on specific days. R. 50--51. The VE testified, however, that an individual with that limitation would be able to perform such a job as actually performed by Claimant during her time as a bookkeeper. R. 50--51.

The VE further testified that a hypothetical person of the same age, education, work experience, and skillset as Claimant would be able to perform the work of a bookkeeper as Claimant previously performed it. R. 48.

C. Medical Evidence

1. Gastrointestinal Health ...

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