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Donald Foster v. Michael J. Astrue

September 27, 2012


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Donald Foster ("Foster") seeks judicial review pursuant to the Social Security Act ("Act"),*fn1 more specifically Sections 405(g) and 1383(c)(3), of the final decision of Commissioner of Social Security Michael J. Astrue ("Commissioner") denying Foster's claim for supplemental security income ("SSI") disability benefits. Both Foster and Commissioner have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Foster's motion is denied, Commissioner's motion is granted and this action is dismissed.

Procedural Background*fn2

Foster filed an application for disability insurance benefits and SSI on October 4, 2006 (R. 10), alleging a disability onset date of March 15, 2006 (id.). Foster's claims were initially denied on January 4, 2007 and denied again upon reconsideration on July 5, 2007 (id.).

After Foster filed a written request for a hearing on July 5, 2007 (id.), a hearing took place before Administrative Law Judge Percival Harmon ("ALJ Harmon") on July 28, 2009. On December 17, 2009 ALJ Harmon found that Foster was not disabled because he could still perform a significant number of jobs in the national economy (R. 7-23). Next the Appeals Council denied Foster's request for review, so that ALJ Harmon's decision became Commissioner's final decision

(R. 1-6). Lastly, Foster filed this action on December 2, 2011. General Background Foster was born in December 1967 and was 41 years old on the date ALJ Harmon issued his decision (R. 29, 157).Foster has a high school education and has completed a robotics training program (R. 34). He has previously worked in several jobs, including assembly line worker, delivery person, forklift driver/machine operator, package handler and robotic welder operator/programmer

(R. 185, 190).

But Foster has not worked since April 2006 (R. 37). He asserts that he is unable to work due to asthma and the presence of polyps in his head and sinus passages (R. 184).

Medical Evidence

Dr. Jerome Antony, Foster's treating physician, treated him for a variety of conditions, including asthma, over the span of more than 10 years (R. 241-44, 274-95). In May 2009 Dr. Antony completed a "Pulmonary Residual Functional Capacity Questionnaire," reporting that Foster suffered from asthma and often had wheezing, shortness of breath and asthma attacks (R. 297-300). Dr. Antony stated that Foster had asthma attacks 2 to 3 times per month and was incapacitated for approximately 5 to 7 days during an average attack (R. 298). Dr. Antony also stated that Foster could sit, stand or walk less than 2 hours per day.

Back in December 2006 Dr. M. S. Patil had performed a consultative evaluation of Foster and diagnosed chronic bronchial asthma and a history of recurrent nasal polyps (R. 247). Dr. Patil made multiple findings, some regarding Foster's asthma and some regarding other topics.

Also in December 2006 Dr. Frank Jimenez, a state agency physician, had reviewed the record evidence and concluded that Foster could lift or carry 50 pounds occasionally and 25 pounds frequently and could sit, stand or walk about 6 hours in an 8 hour day (R. 249-56). Dr. Jimenez also indicated that Foster should avoid concentrated exposure to fumes, odors, dusts, gases and poor ventilation (R. 253). Dr. Young-Ja Kim -- another state agency physician -- had affirmed Dr. Jimenez's assessment after reviewing the record evidence in June 2007 (R. 267-69).

Medical Testimony at the Hearing

Dr. John Cavanagh*fn3 reviewed the record evidence and testified as a medical expert at the administrative hearing. Dr. Cavanagh confirmed "the presence of bronchial asthma since 1990" (R. 63), but he ultimately concluded that Foster's condition did not meet a listing (R. 64). To support his conclusion Dr. Cavanagh discussed Foster's medical records from Drs. Antony and Patil and noted that Foster had been to the emergency room 23 times in the preceding 11 year period, an average of only two to three visits per year (R. 63). Dr. Cavanagh further noted that despite those "occasional ER visits," there was no record of hospitalization, a pulmonary function test or the need for ambulatory oxygen (id.). Based on the medical records, Dr. Cavanagh concluded that Foster could exert a "medium level of activity" and should avoid "even moderate exposure to respiratory irritants and temperature extremes" (R. 64).

Foster's Hearing Testimony

Foster offered testimony about his condition and its effects at the administrative hearing. Foster said that he suffers from asthma and polyps in his sinus passages, which cause difficulty in breathing (R. 30). Foster added that although he had not been hospitalized for his asthma in 2008 or 2009, he had received emergency room treatment for the condition (R. 47). When asked about the frequency of his asthma attacks, Foster said that he had them "a lot . . . . maybe three or four times, maybe three times a month, or maybe two times a month that I would actually go to the doctor's" (R. 49), but he added that he would not always go to the doctor in the event of an attack (id.). Foster stated that it took him 4 to 5 days of "relaxing and taking medicine like crazy" to recover from an attack (R. 59). He also discussed his recurrent nasal polyps and the multiple surgeries that have been performed to treat them (R. 46).

According to his testimony, Foster is able to cook but not engage in household chores that require more exertion, nor can he exercise (R. 47-49). His sleep is disrupted frequently when he wakes up to cough, and he frequently coughs to clear his chest, in addition to which he wheezes and has pain and tightness in his chest

(R. 49-54). Foster is able to stand for at least 30 minutes, sit for an hour or longer, walk almost a whole block without resting and lift "maybe 15 or 20 pounds" in a job setting (but not repeatedly) (R. 54-55, 58).

Foster further testified that he held multiple jobs over the years in various fields, but none of those jobs involved heavy lifting (R. 38-45). Foster also opined on his most recent job as a meat packer, stating that he had to leave the job after 7 months because he started having asthma attacks while on the job and was asked to leave because his attacks "scared" his employer (R. 39). Though he attempted to give his employer a note from his doctor saying that he needed to be absent from work for "a few days," his employer " had a very low tolerance with attendance"

(R. 39). This was not the first time Foster's employment was terminated due to his asthma and its effects on his attendance: He also testified that he was let go from ...

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