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McGregor v. Commissioner of Social Security

January 29, 2008




A. Procedural History

Plaintiff Pollyanna McGregor ("Plaintiff") filed an application for disability insurance benefits ("DIB") on May 17, 2004. Administrative Transcript ("AT") 40-41 (Dkt. No. 4). The application was denied initially and a request was made for a hearing. AT 24, 29. A hearing was held before an Administrative Law Judge ("ALJ") on August 22, 2005. AT 152-72. In a decision dated November 4, 2005, the ALJ found that Plaintiff was not disabled. AT 10-19. The Appeals Council denied Plaintiff's request for review on February 22, 2006. AT 3-5. Plaintiff commenced this action on March 20, 2006 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Compl. (Dkt. No. 1).

B. Contentions

Plaintiff makes the following claims:

(1) The Commissioner failed to lend proper weight to the opinion of Plaintiff's treating physicians. Plntf's Brief (Dkt. No. 7) at 9-15.

(2) The Commissioner failed to determine properly Plaintiff's residual functional capacity ("RFC"). Plntf's Brief at 15-17.

(3) The Commissioner's conclusion that there is significant work in the national economy that Plaintiff could perform is not supported by substantial evidence. Plntf's Brief at 18-19.

(4) The ALJ failed to assess properly Plaintiff's credibility. Plntf's Brief at 20-21. Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Deft's Brief (Dkt. No. 9).

C. Facts

Plaintiff, who was thirty-five years old at the time of the hearing, lives with her boyfriend and four children. AT 155. Plaintiff obtained her high school equivalency degree. Id. Plaintiff last worked as a pharmacy technician and stock personnel in a large retail store. AT 54.

Plaintiff alleges that while working on March 17, 2001, she fell off from a stool, injuring her lower back and neck. AT 54, 157. Plaintiff was apparently taken to the emergency room where she was given an injection of a pain reliever. AT 81, 84.

1. Treating Sources

From April of 2001 to January of 2002, Plaintiff was treated by Bedros Bakirtzian, M.D., an orthopaedic surgeon. AT 74-77. Dr. Bakirtzian noted Plaintiff's persistent complaints of pain in her lower back and legs. Id. Dr. Bakirtzian prescribed various medications, physical therapy, aqua therapy, a lumbar brace, and a lumbar pillow. Id. He consistently noted that Plaintiff should "remain off work." Id.

X-rays of Plaintiff's lumbosacral spine taken on April 4, 2001 showed a "loss of the normal lumbar lordosis . . . but no signs of any spondylolisthesis or spondylolysis. AT 78. An MRI of Plaintiff's lumbar spine performed on May 30, 2001 was normal. AT 76. Nerve conduction studies performed on November 1, 2001 showed "significant electrophysiological evidence of mild demyelination of the superficial peroneal nerve affecting sensory conduction on the left." AT 73.

From January of 2002 to July of 2005, Plaintiff received chiropractic treatment from Robert Klein, D.C. and Daniel Chamberlain, D.C. AT 102-111, 113-36, 140-43, 151. On November 3, 2003, Dr. Klein opined that Plaintiff is partially permanently disabled as a result of her workplace accident. AT 91.

From December of 2004 to July of 2005, Plaintiff treated with Roger Sullivan, M.D. AT 149-50. Dr. Sullivan treated Plaintiff for depression, carpal tunnel syndrome, ear pain, and joint pain. Id. Her depression improved and her carpal tunnel syndrome "resolved." AT 149.

On July 14, 2005, Dr. Sullivan completed a Medical Source Statement form in which he opined that Plaintiff was able to lift and carry ten pounds, stand and walk less than two hours in an eight-hour workday, must periodically alternate sitting and standing to relieve pain or discomfort, and is limited in her abilities to push and pull using her upper extremities. AT 144-45. He also found that Plaintiff had occasional postural limitations, that Plaintiff can perform reaching only frequently, and that Plaintiff had some environmental limitations. AT 145-47.

2. Examining Sources

On June 12, 2001, Plaintiff was examined by Christopher Horn, M.D. for purposes of workers' compensation. AT 79-83. Dr. Horn concluded that Plaintiff could return to work "in a modified and graduated form . . . with light work, lifting 5 pounds occasionally and expected improvement to full activities within six weeks." AT 83. He found that Plaintiff's "current degree of disability is mild, temporary. Present disability is casually related to the injury of March 17, 2001." AT 80.

On December 3, 2001, Plaintiff was examined by George Mina, M.D. AT 84-86. Dr. Mina diagnosed Plaintiff as suffering from low back syndrome. AT 85. He concluded that maximum medical improvement has been achieved and that Plaintiff could return to work on "light duty" ...

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