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Calabrese v. Astrue

January 9, 2009

DARLENE HANSELMAN CALABRESE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff, Darlene Calabrese ("Calabrese"), brings this action under 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that she is not disabled under the Social Security Act, and therefore, is not entitled to Social Security disability and supplemental security income benefits.

Plaintiff initially applied for Social Security disability benefits on November 18, 1999.*fn1 She listed a disability onset date of December 31, 1998. (Tr. 91). Plaintiff's application was initially denied on March 10, 2000 and again on reconsideration on May 4, 2000. (Tr. 73,78). Plaintiff then requested a hearing, which resulted in a decision dated August 27, 2001 by ALJ Daniel Shellhamer, denying her claims. (Tr. 16-24). ALJ Shellhamer's decision became final when the Appeals Council denied plaintiff's request for review. (Tr. 6).

On September 23, 2002, plaintiff appealed that decision to the district court (Civ. No. 02-CV-6486, Telesca, J.). That action was dismissed and on April 23, 2004, the matter was remanded by stipulated order to the Social Security Administration. (Tr. 365). An Appeals Council order of remand was issued on July 23, 2004 (Tr. 391, 402), instructing the ALJ to, inter alia, obtain supplemental evidence from a vocational expert, posing hypotheticals reflective of the specific capacity and limitations established by the record, identify appropriate jobs and state their incidence in the national economy, and identify and resolve any conflicts between the vocational expert's testimony and information in the Dictionary of Occupational Titles and the Selected Characteristics of Occupations.

On remand, a hearing was held on March 7, 2007 before ALJ Bruce Mazzarella. (Tr. 553 et seq.). ALJ Mazzarella determined that plaintiff was not disabled under the Act (Tr. 334-352), and his decision became the final decision of the Commissioner on November 10, 2007 when the Appeals Council denied plaintiff's request for review. (Tr. 304). This action followed.

The plaintiff has moved, (Dkt. #4) and the Commissioner has cross-moved (Dkt. #6) for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. As discussed below, the Commissioner's decision is affirmed, and the complaint is dismissed.

FACTUAL BACKGROUND

Plaintiff was born February 10, 1961 and is presently forty-seven years old. She has an eleventh grade special education and her past employment includes work as a housekeeper, painter, sales clerk and material handler. (Tr. 27, 41, 63). Her last day of work was in December 1998. (Tr. 57, 91).

In September 1999, plaintiff's primary care physician, Dr. Feinberg, diagnosed her with situational depression and anxiety disorder. Plaintiff was prescribed Paxil and Xanax, and advised to seek counseling and seek employment. (Tr. 253).

On February 9, 2000, plaintiff was examined by psychologist Dr. Thomassen at the request of the Social Security Administration. He found her speech to be sparse, slow and hesitant, and her attention and concentration to be impaired. He estimated that her cognitive functioning was in the low average range, and diagnosed depressive and dependent personality disorders. (Tr. 199-203). On June 7, 2006, plaintiff was examined by Dr. Thomassen for a second time. Dr. Thomassen opined that plaintiff would have difficulty performing complex tasks, relating to co-workers and coping with stress. (Tr. 532). He stated that plaintiff is moderately limited in her ability to understand and remember detailed instructions, carry out detailed instructions, make judgments on simple work-related decisions, interact appropriately with the public, co-workers and supervisors, and to respond to work pressures in the usual and routine work setting. (Tr. 534-535).

Upon referral from Dr. Feinberg, in June 2000, plaintiff met with Cynthia Pierce, a psychiatric social worker, for a screening assessment. Plaintiff reported a history of physical and sexual abuse, anorexia and domestic abuse injuries. (Tr. 180-182). She reported difficulties with concentration, memory, inability to function in public places, and feelings of worthlessness and guilt. She was diagnosed with major depressive disorder and panic disorder with agoraphobia. (Tr. 180).

On August 9, 2004, plaintiff was evaluated by psychologist Dr. Schorr. He diagnosed mild mental retardation, post traumatic stress disorder, anxiety and depression. He found that plaintiff has no useful ability to remember detailed instructions, respond appropriately to supervision, function independently, complete a normal workday on a sustained basis, exercise appropriate judgment, concentrate and attend to tasks over and eight-hour work day, make simple work-related decisions, be aware of normal hazards and make adjustments to avoid them, and to tolerate customary work pressures in a work setting. (Tr. 474-477). He opined that plaintiff is permanently incapable of working in any capacity. (Tr. 472).

On June 10, 2005, Dr. Feinberg, plaintiff's primary care physician, completed a residual functional capacity assessment for plaintiff. He concluded that plaintiff is moderately limited in her ability to respond appropriately to ...


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