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Blowers v. Astrue

February 12, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Brenda L. Bowers brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny her application for Supplemental Security Income (SSI) benefits. This matter was referred to United States Magistrate Judge David R. Homer for a Report-Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Homer recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's claims. Presently before the Court is plaintiff's objection to the Report-Recommendation.


There being no objection, the Court adopts the Procedural History set forth by Magistrate Judge Homer in the Report-Recommendation:

On April 25, 2002, Blowers filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 47, 52. That application was denied on July 3, 2002. T. 22-24. Blowers requested a hearing before an administrative law judge ("ALJ"), which was held before ALJ Joseph Medicis, Jr. on March 4, 2004. T. 13, 26. In a decision dated April 20, 2004, the ALJ held that Blowers was not entitled to disability benefits. T. 19-20. On May 20, 2004, Blowers filed a request for review with the Appeals Council. T. 194-97. The Appeals Council denied Blowers' request for review, thus making the ALJ's findings the final decision of the Commissioner. T. 6-8. This action followed. (Report-Recommendation, Dkt. No. 14, p. 2).


According to the Administrative Transcript: Plaintiff was born on June 23, 1969. (T. 47). The highest level of education plaintiff attained was tenth grade. (T. 208). Throughout her schooling, she was in special education. (T. 208). When plaintiff was 11 years old, she had a verbal IQ of 57, a performance IQ of 64 and a full scale IQ of 56. (T. 15). Plaintiff was tested again in 1984 at 14 years of age and was found to have a verbal IQ of 62, a performance IQ of 65 and a full scale IQ of 60 classifying her as mildly mentally retarded. (T. 15). The plaintiff is a widow with six children. (T. 205). Her husband (the father of her four eldest children) committed suicide and the father of the two younger children is absent. (T. 124). Her eldest son has been removed from the home for inappropriate behavior directed at the other children. (T. 124).

Plaintiff alleges that she became disabled on March 4, 2001 due to depression and a learning disorder and filed for SSI benefits on April 25, 2002. (T. 13, 47). Prior to filing for benefits, from 1998 until 2001, plaintiff was employed at a laundromat as a "cleaner" and as a child care provider in the daycare center of a bowling alley. (T. 17, 98, 209). She worked at the laundromat 40 hours per week, five days a week cleaning the washing machines and dryers. (T. 76). She alleges that she stopped working at the laundromat at the suggestion of child protective services. (T. 75). Although the record also indicates that she was fired from her job because "her children were constantly calling her at work". (T. 17, 160). She has not been employed since filing her application. (T. 14).

Plaintiff underwent a psychological evaluation on February 1, 2002 by Dr. Norman J. Lesswing, Ph. D. (T. 113-15). Dr. Lesswing reported that plaintiff had a pleasant demeanor and was polite and cooperative. (T. 114). Plaintiff described her health as good. (T. 114). On the WAIS-III IQ test, she had a verbal IQ score of 65, performance of 69, and full scale of 64 which classified her with Mild Mental Retardation. (T. 114). Plaintiff did not display signs of any major personality dysfunction or psychopathology. (T. 115). The doctor concluded that she was not capable of managing and sustaining gainful, competitive, vocational employment but her limitations and demands would allow her to function on a part-time basis. (T. 115).

On March 28, 2002, plaintiff was seen by Dr. Badiep Tran. (T. 117). Plaintiff complained of being depressed with no energy or motivation to get out of bed. (T. 15). Her affect was noted as extremely depressed, eye contact and responses to questions were limited. (T. 15). Dr. Tran diagnosed her as having depression, prescribed Paxil and referred her to counseling. (T. 117).

On March 28, 2002, Dr. Sheryl Holley, plaintiff's treating physician, completed a "Statement for Determination of Employability". The doctor noted that plaintiff should be exempt from employment due to depression and headaches, for less than one year, until July 1, 2002. (T. 123).

On June 3, 2002, a psychiatric examination was performed by Dr. Kristen Barry. (T. 136-40). Plaintiff reported that she was unable to work because she had to watch her children, and had no education. (T. 136). Plaintiff denied any suicidal ideation, anxiety, panic attacks, manic episodes, hallucinations, delusions or paranoia. (T. 137). She reported that she had headaches and thyroid problems, but was otherwise in good health. (T. 137). At the time of the examination, plaintiff was receiving outpatient counseling services and taking Paxil as prescribed by her primary care physician. (T. 136). Dr. Barry concluded that plaintiff was able to follow and understand simple directions and instructions, maintain attention and concentration, and perform simple tasks. (T. 139). She stated that plaintiff's allegations were not consistent with the examination results. (T. 139).

Dr. M. Apacible, a state agency medical consultant, evaluated plaintiff and concluded that with the exception of a moderate limitation in the ability to understand and carry out detailed instructions, she was not significantly limited in any other functional capacity. (T. 141-42). Dr. Apacible also concluded that plaintiff had mild limitations in her ...

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