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PICKERING v. CHATER

September 26, 1996

LINDA M. PICKERING, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: PECK

 ANDREW J. PECK, United States Magistrate Judge:

 Plaintiff Linda M. Pickering brings this action, pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny her disability benefits. Both parties have cross-moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, I recommend that the Court grant the Commissioner's motion for judgment on the pleadings and deny Pickering's cross-motion.

 PROCEDURAL BACKGROUND

 On April 3, 1991 and August 20, 1992, Pickering filed applications for Social Security Supplemental Security Income ("SSI") benefits. (Administrative Record filed by the Commissioner [hereafter, "R."], at 38-41.) The applications were denied initially (R. 52-54, 70-73) and on reconsideration (R. 58-60, 76, 87-90). Pickering subsequently requested a hearing before an administrative law judge ("ALJ"), which was conducted on April 12, 1994. (R. 17-37.) On June 23, 1994, the ALJ issued his decision finding that Pickering was not disabled. (R. 7-13.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Pickering's request for review on September 29, 1994. (R. 3-4.) This action followed. The issue before the Court is whether the Commissioner's decision that plaintiff Pickering was not disabled is supported by substantial evidence.

 FACTS

 Pickering's Testimony Before the ALJ

 At the hearing before the ALJ on April 12, 1994, Pickering was represented by the same counsel representing her in this case. (R. 17-19.) Pickering testified that she was born July 1, 1957 and was a high school graduate. (R. 23.) She also started a course in word-processing at Monroe Junior College, but failed to complete it due to health problems. (R. 27.)

 Pickering also testified as to her medical condition. She testified that she left the Post Office because her high "blood pressure was out of control" and she could have gotten hurt by the heavy machinery on the job. (R. 28.) Pickering further testified that she experienced asthma attacks two or three times a week, mainly at night while sleeping, during which she had chest tightness and shortness of breath. (R. 29-31.) She received treatment for her asthma at the HIP Center once a month. (R. 31.) In addition, Pickering testified that she suffered from pain when walking and sitting caused by phlebitis; she takes Coumadin to treat her phlebitis, but only when she experiences pain in her legs. (R. 33-34.)

 Pickering further testified that she can walk two blocks prior to experiencing leg pain or sit for 15 minutes before she would have to change positions to prevent leg pain. (R. 34.) Pickering appeared at the hearing carrying a seven pound baby, and was unsure whether she could lift anything heavier. (R. 35.) Pickering cared for the infant, her niece, with the help of her daughter. (R. 35.) On a typical day, she would cook, clean the house and go to the nearby store. (R. 35.) Pickering also attended church. (R. 35.) Her hobbies included reading, knitting and crocheting. (R. 35.)

 The Medical Evidence

 Records from New Rochelle Hospital show that Pickering was hospitalized in June 1989 "because of pain in her lower right extremity." (R. 127.) The doctor noted that "the pain was quite severe and she was admitted from the ER with a diagnosis of acute phlebitis." (R. 127.) Her blood pressure ranged from 110/80 to 150/110. (R. 127.) A doppler study of the lower extremity veins revealed no evidence of deep vein thrombosis. (R. 136.) The final diagnosis was phlebitis of the right extremity and benign hypertension. (R. 127.) Pickering was released 10 days later with her condition "much improved." (R. 127.) Coumadin, an anticoagulant, and Minipress, an anti-hypertensive medication, were prescribed. (R. 127.)

 Upon her admission to Mount Vernon Hospital in December 1990, a venogram revealed deep vein thrombosis. (R. 156.) Pickering responded well to therapy and her condition improved. (R. 156.) When Pickering signed out against medical advice on January 2, 1991, she was "seriously encouraged" to seek further treatment. (R. 156.)

 Pickering was again admitted to Mount Vernon Hospital on January 5, 1991 for treatment of deep vein thrombosis. (R. 172.) The hospitalization was "completely unremarkable" and Coumadin was prescribed upon discharge. (R. 172.)

 Pickering was next treated at Mount Vernon Hospital in June 1991. (R. 197.) Doppler flow studies of the extremity were negative for acute deep vein thrombosis. (R. 197.) The hospital record notes that the treating physician doubted Pickering had complied with the earlier Coumadin prescription. (R. 197.) Upon discharge, Pickering was in stable condition. Coumadin was again prescribed. (R. 197.)

 Dr. David Pulver, a consultative examiner, saw Pickering on July 25, 1991. (R. 213.) Pickering told Dr. Pulver that her hypertension was controlled by diet alone, without medication. (R. 213.) Her blood pressure was 148/84. (R. 213.) Pickering told Dr. Pulver that she "gets infrequent asthma attacks," but still smoked approximately one-third of a pack of cigarettes per day. (R. 213.) Dr. Pulver's evaluation of her chest demonstrated that it was "resonant to percussion, [with] no rales, rhonchi, or wheezes." (R. 213.) X-rays revealed "mild peribronchial changes indicative of bronchitis." (R. 214.) Her pulmonary function testing revealed "mild obstructive impairment with normal results after administration of a bronchodilator." (R. 214.) On examination, Dr. Pulver found that Pickering was in no acute distress. (R. 213.) Dr. Pulver's impression was asthma and a history of hypertension and recurrent thrombophlebitis. (R. 214.)

 Pickering was admitted to New Rochelle Hospital on April 29, 1992 and remained there through May 9, 1992. (R. 230-54.) A lung scan ventilation was consistent with pulmonary embolization. (R. 233.) A Doppler study of the lower extremity veins revealed no evidence of deep vein thrombosis. (R. 234.)

 Pickering was admitted to New Rochelle Hospital again on June 24, 1992. (R. 255.) She was discharged on July 1, 1992, against medical advice. (R. 255.)

 Pickering was admitted to New Rochelle Hospital on July 21, 1992. (R. 297.) The Hospital determined that no deep vein thrombosis existed. (R. 298, 309.) A lung scan perfusion demonstrated that no pulmonary embolism existed. (R. 310.) A chest x-ray revealed no evidence of active pulmonary infiltration or pleural effusion. (R. 308.) Pulmonary function tests revealed a mild diffusional defect, but no airway obstruction or pulmonary restrictive impairment. (R. 306)

 Pickering received treatment at New Rochelle Clinic from July 1992 through early 1993. (R. 340-58, 360-62.) The doctor noted a history of pulmonary embolus, hypertension and asthma, with the latter requiring an emergency room visit on September 5 according to Pickering. (R. 344, 347.) Treatment included Coumadin and a steroid inhaler. (R. 344-45.) In August 1992, her blood pressure was noted to be "better controlled." (R. 345.) When examined on September 15, 1992, her lungs were clear bilaterally and her blood pressure was 150/96. (R. 348.) The doctor's assessment was controlled blood pressure and status post asthma attack. (R. 348.) Her prothrombin time was not at a therapeutic level. (R. 348.) When examined on October 13, 1992, her prothrombin time was still not at a therapeutic level. (R. 349.) The doctor considered this likely to be due to noncompliance with her Coumadin prescription. (R. 349.) On January 7, 1993, Pickering's blood pressure was 140/90. (R. 364.) The doctor noted that Pickering "may not be taking her own Coumadin," and discontinued the Coumadin prescription, instead prescribing aspirin. (R. 364-65.) On January 19, 1993, Pickering was seen for a new onset of diabetes and commenced taking Glucotrol. (R. 350.) Her blood pressure at this time was 120/90 and her lungs were clear. (R. 350.)

 Pickering was again evaluated by Dr. Pulver on April 20, 1993. (R. 389.) Dr. Pulver noted that Pickering reported having required treatment in the emergency room several times for acute asthma attacks. (R. 389.) When Dr. Pulver examined her, she was in no acute distress. Her gait remained normal. (R. 389.) She had no inflammation or edema and her pulses were palpable to the dorsalis pedis bilaterally. (R. 390.) She was experiencing tenderness in her right calf. (R. 390.) Her blood pressure was 124/84. (R. 389.) Her chest was "resonant to percussion, [with] no rales, rhonchi or wheezes." (R. 389.) Pulmonary function test results reflected a mild restrictive impairment, with normal results following the administration of the bronchodilator. (R. 390.) A chest x-ray revealed no active lung disease. (R. 391.) Dr. Pulver determined that as to "residual function," Pickering had "no restrictions." (R. 390.)

 The ALJ's Decision

 The ALJ found that there was no evidence that Pickering "engaged in substantial gainful activity since August 20, 1992." (R. 9.) The ALJ found that Pickering "has hypertension, asthma and a history of phlebitis [and diabetes] which impose restrictions on the claimant's ability to perform basic work-related functions." (R. 9, 10.) The ALJ determined, however, that "the medical evidence does not establish the existence of an impairment which meets or equals in severity an impairment contained in ... Appendix 1, Subpart P, of [Social Security] Regulations No. 4." (R. 9.) Specifically, the ALJ found that Pickering's condition did not ...


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