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Provost-Harvey v. Commissioner of Social Security

March 13, 2008

TERRY PROVOST-HARVEY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff commenced this action seeking judicial review of a decision by the Commissioner of Social Security denying disability insurance benefits ("DIB"). Plaintiff requests that this Court reverse the decision and remand the matter to the Administrative Law Judge to further develop the record. The Commissioner seeks to affirm the decision. This Court has jurisdiction to review an unfavorable decision of the Commissioner under 42 U.S.C. § 405(g).

I. FACTS

Procedural History

Plaintiff alleges that she became disabled on March 8, 2002 due to fibromyalgia, depression, and panic disorder. (R. at 13; Pl.'s Br., Dkt. No. 7, at 5). On July 29, 2002, Plaintiff filed an application for DIB under Title II of the Social Security Act, codified at 42 U.S.C. § 423. (R. at 44-46). This application was denied and Plaintiff requested a hearing, which was held on January 29, 2004. (R. at 23-27, 223, 432-49). Administrative Law Judge ("ALJ") Carl Stephan issued an unfavorable decision on March 12, 2004. (R. at 213-22). Upon review, the Appeals Council vacated the ALJ's decision and remanded the case for a new hearing, which was held on August 25, 2005. (R. at 194, 225-27, 450-83). On October 5, 2005, ALJ Stephan found that Plaintiff was not disabled. (R. at 12-20). This decision became the final decision of the Commissioner when the Appeals Council denied review on August 4, 2006. (R. at 4-6, 8).

On September 20, 2006, Plaintiff filed a complaint in the United States District Court for the Northern District of New York pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner's decision. (Dkt. No. 1). The Commissioner answered on January 9, 2007. (Dkt. No. 6).

Non-Medical Evidence

Plaintiff was forty-two years old on the alleged onset date of March 8, 2002. (R. at 44). She completed high school and two years of college, and has past relevant work experience as a custodian and sales clerk. (R. at 53, 58, 66-72, 238-39).

Plaintiff testified that she suffered from "constant pain and weakness throughout [her] entire body." (R. at 436). She also alleged daily hand and foot numbness. (R. at 461). Plaintiff stated that she has difficulty with anxiety, that her "throat closes" and she has panic attacks which make her feel like "the walls are closing in." (R. at 457). As a result, she stays away from stores and social settings. (R. at 457). Plaintiff also testified to limitations in concentration. (R. at 457-58). She stated that she has to read things three to four times before understanding them and that she forgets where she is going and has to leave herself notes. (R. at 457-58).

Plaintiff testified that she took Methotrexate and Arava for arthritis, Procardia for poor circulation, and Maxalt for migraines. (R. at 439-40). Plaintiff also took several medications for depression and anxiety, including Paxil, Wellbutrin, and Zoloft. (R. at 439-40, 458). Eventually Plaintiff went off of all psychiatric medication because she felt it did not help her. (R. at 459). Plaintiff stated that she was totally unable to lift or carry, and could not push appliances such as a vacuum. (R. at 438-39). She also stated that she could walk about a tenth of a mile without difficulty and that she could stand for a "couple of minutes" without feeling pain. (R. at 443). She testified that since quitting her job in March of 2002, she has not looked for work. (R. at 442). Plaintiff participated in no physical therapy or exercises, and was never treated by a psychologist or psychiatrist for mental conditions. (R. at 444). Her family physician, Dr. Jeffrey Stone, prescribed her antidepressant medications. (R. at 459).

In terms of daily activities, Plaintiff testified that she got up every morning and took her dog out for a walk, "once or twice" around her apartment building. (R. at 441-42). She maintained a driver's license and drove about twice a month. (R. at 453). She stated that she could do no housekeeping except some dusting and making the bed.

(R. at 436-38, 442). She was able to bathe, feed, and dress herself as well as take care of her personal hygiene. (R. at 446).

Medical Evidence Dr. Edward Merzig

Plaintiff saw treating rheumatologist Dr. Edward Merzig on June 3, 2002, complaining of joint pain and pain in her neck, shoulders, upper arms, wrists, hands, fingers, upper back, knees, ankles, feet, toes, thighs, and lower legs. (R. at 322). She also complained of fatigue, malaise, sleeplessness, and depression. (R. at 322). Upon physical examination, Plaintiff had tenderness in the small and large joints, with tenderness and stiffness of the sacroiliac joints, shoulder joints, elbow joints, and ankle joints. (R. at 324).

Plaintiff treated with Dr. Merzig through June of 2005. (R. at 128-65, 181-92, 271-80, 293-320, 327-44, 396-402, 405-08). Physical examination consistently found tenderness and stiffness of both sacroiliac joints, shoulder joints, wrist joints, metacarpophalangeal ("MCP") joints, proximal interphalangeal ("PIP") joints, distal interphalangeal ("DIP") joints, hip joints, knee joints, ankle joints, and metatarsophalangeal ("MTP") joints. (R. at 275, 277, 324, 333, 397). Examinations also showed full ranges of motion in Plaintiff's extremities, negative straight leg raising ("SLR") tests, and normal neurological findings. (R. at 269, 275, 277, 324-25, 333, 397). Plaintiff's condition fluctuated, with Dr. Merzig repeatedly noting that Plaintiff was "doing well" or had "improved" since the last visit. (R. at 276, 280, 290, 292, 294, 296, 304, 306, 310, 318, 330, 334, 335-36, 338, 342, 396, 400, 402, 407).

X-rays performed in January 2005 showed mild disc narrowing at L4-5-S1, mild facet sclerosis, and Grade 1-2 sacroiliitis. (R. at 406). An MRI taken in April of 2005 showed mild degenerative disc disease at L3-4-5, which had not changed since an April 24, 2004 MRI. (R. at 406).

Annette Payne, Ph.D.

Plaintiff was examined by state agency psychologist Annette Payne on August 20, 2002. (R. at 111-14). Dr. Payne noted that Plaintiff's speech was fluent and clear, her thought processes were coherent and goal-directed with no evidence of hallucinations, delusions or paranoia, her affect and mood were anxious and depressed, her sensorium was clear, and she was alert and oriented to time, place and person. (R. at 112-13). Her attention and concentration were impaired due to emotionality and she had some trouble with serial 3's, but was able to perform simple calculations. (R. at 113). Her recent and remote memory skills were grossly intact and her cognitive functioning was assessed as "probably in the average range." (R. at 113). Her judgment and insight were fair. (R. at 113).

Dr. Payne diagnosed Plaintiff with depressive disorder, mild to moderate panic disorder with agoraphobia, and pain disorder associated with her psychological and medical condition. (R. at 114). Dr. Payne opined that Plaintiff was able to follow and understand simple instructions, and consistently perform simple rote tasks under supervision. (R. at 113). Plaintiff was assessed as having problems with attention and concentration, difficulty learning new tasks and performing complex tasks and making appropriate decisions, and difficulty relating to others and dealing with stress. (R. at 113-14). Dr. Payne assessed Plaintiff's psychiatric difficulties as "mildly to moderately limiting," but noted that Plaintiff was capable of managing her own funds. (R. at 114). Dr. Payne opined that Plaintiff would benefit from counseling. (R. at 114). On June 15, 2004, Dr. Payne examined Plaintiff again, with identical findings except to add that Plaintiff had moderate social anxiety. (R. at 262-65).

Dr. Amelita Balagtas

Dr. Amelita Balagtas performed a consultative orthopedic examination on August 20, 2002. (R. at 115-17). Plaintiff complained of burning joint and muscle pain all over her body including her neck and back, which was aggravated by walking and "a lot of movements." (R. at 115). Plaintiff reported being able to engage in self-care, grooming, dressing, and limited driving. (R. at 115). Physical examination found Plaintiff had a slow gait and could heel/toe walk. (R. at 116). Range of motion ("ROM") in her cervical spine was limited to forty degrees of extension and flexion and there was tenderness over the posterior paracervical muscles and both trapezius muscles; ROM of the upper extremities was full and strength was 5/5; forward flexion of the lumbar spine was limited to thirty degrees by pain in the low back and there was tenderness over the lumbar spine and lumbar paraspinals; and ROM was full at the lower extremities with 5/5 ...


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