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Fernandez v. Astrue

April 7, 2009

DIANA FERNANDEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Lawrence E. Kahn, Senior United States District Judge

DECISION AND ORDER

I. BACKGROUND

A. Procedural History

Plaintiff Diana Fernandez filed applications under Title II and Part A of Title XVIII of the Social Security Act ("Act") for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on October 23, 2003. Plaintiff alleged January 30, 1993, as the date of onset of her disabling condition. Administrative Transcript ("AT") 69-71. The Social Security Administration initially denied Plaintiff's application on March 22, 2004, AT 30-33, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on May 14, 2004. AT 35. ALJ Thomas P. Zolezzi held a hearing on April 8, 2005, in Albany, New York, at which Plaintiff appeared with counsel and testified. In addition, Peter Manzi, Ed.D., a vocational expert ("VE"), testified. AT 478-528. On August 25, 2005, the ALJ issued his decision, which found that Plaintiff was not disabled as defined by the Act from January 30, 1993, through August 25, 2005, and that she was neither entitled to a period of disability, DIB nor SSI. AT 18-27. Plaintiff filed a request for review of the ALJ's decision and order on September 10, 2005. AT 12. The Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 16, 2006, and thus the ALJ's decision became a final determination of the Commissioner. AT 3-5. Having exhausted her administrative remedies, Plaintiff commenced this action on April 17, 2006, pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision and entry of judgment in her favor. Dkt. No. 1. The Commissioner filed an answer seeking dismissal of Plaintiff's complaint and judgment in accordance with Section 205(g) of the Act affirming his final determination. Dkt. No. 7.

B. Contentions

Plaintiff makes the following claims:

(1) The ALJ failed to properly evaluate and credit Plaintiff's testimony. Dkt. No. 10 at 9-14.

(2) Substantial evidence does not support the ALJ's decision that Plaintiff retained the residual functional capacity ("RFC") to perform a full range of light/sedentary work. Dkt. No.10 at 14-15.

Defendant argues that substantial evidence in the record supports his determination that Plaintiff's impairments did not prevent her from engaging in substantial gainful activity and that his determination must be affirmed. Dkt. No. 17 at 3.

C. Plaintiff's Background and Testimony

Plaintiff was forty-seven years old at the time of the hearing. AT 69, 480. Plaintiff is five foot, two inches tall and at the time of the hearing weighed 230 pounds. Plaintiff has her high school diploma and has completed community college courses in counseling and chemical dependency. AT 480. Plaintiff is not married and has two sons, ages twenty-eight and twelve, neither of whom live with her. AT 150, 481. Plaintiff's past vocational experience consists of working as a cashier at a clothing store and a supermarket where she bagged merchandise and goods and counted transactional money. She testified that she stood during her previous work. AT 483-84. Plaintiff testified that she had not worked since 1992, at which time she was pregnant and addicted to drugs. AT 484-85. She testified that she does not drive and relied upon medical transportation, regular public transportation, her eldest son and friends for rides to and from school and appointments. AT 483, 499-500, 502, 503.

Plaintiff testified that she kept her apartment clean but that it took a long time for her to, for example, dust or vacuum or mop the floor. She testified that she laundered her clothes at home and had no difficulty changing her bed. AT 501. She testified that she experienced no problems dressing herself or attending to her personal care but added that she sometimes used a shower chair to assist in bathing herself. AT 507. Plaintiff testified that her son took her grocery shopping, that she had no problem pushing the grocery cart up and down the aisles and placing items inside the cart and that she completed her grocery shopping within about a half an hour. AT 499-500, 512. She testified that she kept her meal preparation simple and had no difficulty placing pots of water on the stove to boil. AT 500-01.

She testified that she attended community college Monday through Friday and used her walker to carry her class materials. As to her class schedule, Plaintiff testified that on Mondays she attended classes from 10:00 a.m. until 1:00 p.m., attended a club meeting at 2:00 p.m. and attended an evening course from 6:00 p.m. until 8:00 or 8:30 p.m.; on Tuesdays she attended a one-hour class; on Wednesdays she attended an evening class from 6:00 p.m. until 8:00 or 8:30 p.m.; on Thursdays she attended a one-hour class; and on Friday she had attended a class from 8:00 a.m. until 10:00 a.m. followed by a short break and then a one-hour class. AT 503-04. Plaintiff testified that she had a "hard time keeping up" with her assignments and received assistance through the disability office at school so that she had extra time to take tests. AT 510.

Plaintiff testified that she walked with the assistance of her walker five blocks to a park with her grandchildren and stayed there for an hour to an hour and a half so that they could play. She testified that such outings fatigued her. AT 505, 513. Plaintiff testified that she attended church and sat through services lasting between an hour and an hour and a half. She testified that she went out to the movies two or three times per year. Plaintiff testified that she had attended Alcoholics Anonymous meetings near her residence. AT 502.

Plaintiff testified that she could sometimes stand for a half hour, and other times for no longer than fifteen to twenty minutes. She testified that if fatigue overcame her, then she sat on the seat of her walker. Plaintiff testified that she had no physical problems associated with sitting. She also testified that she could bend, kneel or squat to lift something from the ground and estimated that she could lift twenty pounds. She further testified that she had no problems with her hands or with her ability to grasp and hold things. AT 499.

Plaintiff estimated that during the daytime, she fell asleep four times for up to an hour while sitting down, AT 506, and she testified later during the hearing that she fell asleep during her classes for five or ten minutes. AT 511-12. Plaintiff testified that her fatigue was related to her hypertension, sleep apnea and eating too much, which slowed her down immensely. She testified that when fatigue overcame her it felt as though she were "hit with a bomb." AT 495. Plaintiff testified that she had days where she had to "just take it slow." AT 483. Plaintiff testified that she missed a week of classes in February of 2005 due to migraine headaches. AT 512.

D. Medical Treatment History

1. Columbia Presbyterian Medical Center

Columbia Presbyterian Medical Center ("Columbia") admitted Plaintiff, who presented with complaints of shortness of breath, from August 27 to September 2, 2003. The attending physician, Carlos Rodriguez, M.D., noted Plaintiff's medical history which included, inter alia, reports of pulmonary hypertension. Upon physical examination, Dr. Rodriguez noted that Plaintiff's blood pressure was 135/75, that she was significant for bibasilar crackles on her lung exam, but had a regular cardiac rate and rhythm and normal heart sounds without a murmur. He further noted pitting edema on her lower extremities bilaterally. An electrocardiogram ("EKG") revealed no changes. He noted no evidence of cardiac ischemia or coronary artery disease but that she had been in and out of atrial fibrillation. Dr. Rodriguez also noted that Plaintiff suffered from a number of headaches during the period of her admission and that she received Fioricet*fn2 to treat them. Dr. Rodriguez suspected that Plaintiff had obstructive sleep apnea, which he opined may have been responsible for her pulmonary hypertension. He also suspected poor dietary compliance. Dr. Rodriguez noted that Plaintiff had a history of hypothyroidism and that she had an elevated level of thyroid stimulating hormone on admission. He noted that her Synthroid*fn3 prescription was increased from 125 micrograms to 150 micrograms once per day. AT 150-52.

Columbia again admitted plaintiff who presented with complaints of chest pain from November 8 to 11, 2003. The attending physician, Robert Basner, M.D., noted that the day prior to Plaintiff's admission, she had consumed alcohol and used crack cocaine. Dr. Basner noted that an EKG neither revealed any changes nor suggested ischemia or infarction. AT 164, 167. Upon physical examination, Dr. Basner noted that Plaintiff's lungs were clear to auscultation bilaterally and that her heart had a systolic murmur. He observed no edema on Plaintiff's legs. AT 164. Plaintiff underwent a computerized axial tomography scan of her chest, which revealed an ecstatic proximal ascending aorta, an enlargement of the main pulmonary artery, patchy focus of atelectasis but an otherwise unremarkable examination of the lungs, and no evidence of aortic dissection. AT 166. Dr. Basner's diagnosis at discharge was "chest pain possibly secondary to vasospasm from cocaine use." AT 165.

2. Olai Sam, M.D.

Dr. Sam began treating Plaintiff on December 5, 2003.*fn4 AT 305-306. Dr. Sam noted that Plaintiff's complete physical examination was within normal limits, except for pitting edema bilaterally and varicose veins. AT 306. On January 8, 2004, Plaintiff reported continued problems with chronic daily headaches. AT 303. On February 24, 2004, Plaintiff complained of general malaise with coughing and nausea, and Dr. Sam diagnosed an upper respiratory infection with chronic cough. AT 300. On March 4, 2004, Plaintiff complained of cough, chest congestion and cysts in her right groin and left lower abdominal areas. Dr. Sam diagnosed acute bronchitis and recommended further evaluation with respect to the cysts. AT 298. On March 15, 2004, Plaintiff complained of a persistent cough, and Dr. Sam advised her to follow up with her pulmonologist because her pulmonary hypertension "could be playing a role in her cough." AT 296. On April 12, 2004, Plaintiff complained of a skin rash on her neck, and Dr. Sam diagnosed dermatitis. AT 294. On May 18, 2004, Plaintiff presented with a skin rash, and Dr. Sam diagnosed sun poisoning. AT 292. On July 30, 2004, Plaintiff treated with Dr. Sam for an immunization update. AT 285. On August 24, 2004, Plaintiff presented with complaints of a cough, runny nose and generalized body aches, and Dr. Sam diagnosed an upper respiratory infection and acute bronchitis. AT 284. On September 23, 2004, Plaintiff presented with right elbow pain, but upon examination Dr. Sam noted no swelling and only mild tenderness with pressure at the lateral condyle. She diagnosed tendinitis. AT 283. On October 5, 2004, Dr. Sam noted a normal musculoskeletal examination finding normal gait, joints, bones and muscles and that Plaintiff's complete physical examination was within normal limits. AT 403. On October 29, 2004, Dr. Sam diagnosed acute bronchitis but described an otherwise unremarkable examination. AT 281.

On January 27, 2005, Dr. Sam noted a regular and rhythmic heart with no murmurs, stable and well controlled hypothyroidism, aortic aneurysm and atrial fibrillation. AT 400. On March 18, 2005, Dr. Sam opined that Plaintiff was "extremely disabled in terms of her abilities to work." AT 280.

3. Abdul Khan, M.D.

Plaintiff treated with Dr. Khan, a neurologist, on May17, 2004. Dr. Khan noted that for the last three to four years Plaintiff had headaches every few days that lasted one to two days.*fn5 Plaintiff indicated to Dr. Khan, however, that her headache control was "reasonably good" if she took her medications. AT 274. He noted that Plaintiff's gait and station were normal and that her motor strength was "5/5" in her upper and lower extremities. Dr. Khan noted that Plaintiff was awake, alert and oriented to time, place and person. He characterized her attention span and concentration as good and described her recent and remote memory as intact. AT 275. Dr. Khan's probable diagnosis was chronic paroxysmal hemicrania. AT 276. Dr. Khan treated Plaintiff on July 28, 2004, and found Plaintiff alert, awake, and oriented to time, place, and person. He noted that her recent and remote memory were intact. Dr. Kahn noted that her motor strength was "5/5" in all extremities and that her gait and station were normal. AT 272-73. Dr. Khan noted that Plaintiff's headache control was better on a regime of Neurontin*fn6 and Indocin,*fn7 "but when she tries to taper off these medicines, the headaches [return]." AT 272. Dr. Khan noted that Plaintiff's fatigue was "multifactorial due to a combination of pulmonary hypertension, obstructive sleep apnea, depression and polypharamacy." AT 273. Dr. Khan treated Plaintiff on December 28, 2004. Dr. Khan performed a neurological examination and found Plaintiff to be alert and awake. He found that she was oriented to the month and the year, knew the President's name and knew that there were seven quarters in $1.75. Dr. Khan noted that her memory recall was three for three after three minutes. He noted that her motor strength was "5/5" in all extremities and that her gait and station were normal. AT 271. On March 11, 2005, Dr. Khan noted that Plaintiff was alert, awake and oriented to time, place and person. He observed that her attention span and concentration were normal while her gait was steady. Dr. Khan noted that Plaintiff's headaches were under good control while she took indomethacin, but that since discontinuing its use due to elevated blood pressure she had daily headaches. AT 314-15.

4. Vina R. Patel, M.D.

Plaintiff treated with Dr. Patel, an internist, on November 8, 2004. Dr. Patel diagnosed her as a recovering addict who suffered from obesity, hypertension, hyperlipidemia, COPD, atrial fibrillation, and depression. AT 262-65. Plaintiff had chest X-rays taken on November 20, 2004, which revealed central pulmonary artery prominence, right heart enlargement, and consideration of pulmonary arterial hypertension. AT 261. Plaintiff underwent an EKG on November 23, 2004, which revealed, inter alia, mild concentric left ventricular hypertrophy with normal systolic function, mild aortic insufficiency, trace to mild mitral regurgitation but no significant aortic stenosis. AT 255-56. Dr. Patel treated Plaintiff on December 6, 2004, and continued her previous diagnoses. AT 253-54. Dr. Patel treated Plaintiff on January 6, 2005, and noted that fatigue was Plaintiff's only complaint. Dr. Patel also noted that Plaintiff took only some of her medication and that she did not want steroids. AT 251. Dr. Patel suggested that Plaintiff "should go back to primary M.D. for future care" because he felt that he could not "help with restrictions of meds p[atient is] willing to take." AT 252; see also AT 411-12. Plaintiff would later testify that Dr. Patel refused to continue to accept her for treatment, apparently because she did not want to utilize Dr. Patel as her primary care physician. AT 490, 492.

5. Martin Echt, M.D., Ph.D., Rafael Papaleo, M.D., and Louis Papandrea, M.D.*fn8 On January 13, 2004, Dr. Echt, a cardiologist, treated Plaintiff and noted that she currently had no cardiac symptoms but had a history of atrial fibrillation. He further noted that her blood pressure and fibrillation were controlled. In addition to atrial fibrillation, Dr. Echt's assessment included benign hypertension, aortic aneurysm, obesity and depression. Plaintiff underwent an EKG, which revealed mild concentric left ventricular hypertrophy, mild mitral regurgitation and mild to moderate aortic insufficiency. AT 231-33. On June 29, 2004, Dr. Echt treated Plaintiff and noted that from a cardiac perspective, she was stable and in normal sinus rhythm. AT 228-29.

On November 15, 2004, Plaintiff underwent a cardiac catheterization. Dr. Papaleo, a cardiologist, found no evidence of obstructive coronary artery disease, normal left ventricular systolic function and non-critical renal artery stenosis. AT 227, 238-39. On November 30, 2004, Dr. Papaleo treated Plaintiff and noted that better control of hypertension was the only immediate issue. AT 224-25. On December 29, 2004, Dr. Papandrea, a cardiologist, treated Plaintiff and noted distant heart tones and a soft diastolic murmur. AT 235. He opined that Plaintiff continued to "do very well" and that her blood pressure was "much better controlled." AT 236. Plaintiff underwent an EKG that day, which revealed mild to moderate ...


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