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Latham v. Commissioner of Social Security

May 18, 2009

CHERRY LATHAM, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Cherry Latham, who suffers from various diagnosed physical and mental conditions including migraine headaches, the residual affects of a minor stroke, hypertension, obesity and depression, commenced this proceeding pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for supplemental security income ("SSI") benefits under the Social Security Act ("Act"). In support of her challenge, plaintiff contends that the administrative law judge ("ALJ") assigned to hear and determine the matter improperly discounted her testimony regarding the non-exertional limitations caused by her conditions as not being fully credible, and erroneously determined that she retains the requisite residual functional capacity ("RFC") to perform work available in the national and regional economies.

Having carefully reviewed the record in this case, in the light of plaintiff's arguments, I conclude that the Commissioner's determination resulted from the application of proper legal principles and is adequately supported by substantial evidence. Accordingly, I recommend dismissal of plaintiff's complaint.

I. BACKGROUND

Plaintiff was born in 1967, and was thirty-eight years old at the time of issuance of the decision denying her application for benefits. Administrative Transcript at pp. 29, 100, 365.*fn1 Plaintiff is divorced, and lives with five children in a home located in Averill Park, Rensselaer County, New York.*fn2 AT 101, 141, 347, 366, 373. Plaintiff has only a ninth grade education, having been placed in special education classes while in school, and has not obtained a general equivalency diploma. AT 127, 348, 366, 368.

Over the years since leaving school, plaintiff has had only a modest work history. Several of plaintiff's work experiences involved employment at fast food restaurants. See, e.g. AT 152, 350, 366-67. Plaintiff also worked in a warehouse for four or five months in 2000, filling five-gallon buckets with driveway/pavement sealer and loading them onto pallets, AT 122, 348-49, 366, 374, and as a dietician aide at Rosewood Gardens in 1998, AT 152. In addition, Ms. Latham has worked at a variety of jobs for durations of one week or less, including as a delicatessen server at Hannaford Market for a weekend in 2003, AT 101, 122, 152, 349; in farming at the Old Chatham Sheepherding Company for two days in 2002,*fn3 AT 107, 152; as a cashier at the Jiffy Mart for one week in 2000, AT 152; and as a custodian at River Park School for one week. AT 350.

Plaintiff has identified several conditions, including chronic and severe migraine headaches, hypertension, depression, severe mood swings and two strokes, as the basis for her inability to work, explaining that her illnesses disrupt her normal work schedule and require her to frequently call in sick. AT 121. Addressing her migraine headaches, plaintiff states that they can typically occur up to four times per month, and generally last up to two days. AT 359. To cope with her headaches, plaintiff is required to retreat to a darkened room or to seek emergency treatment at a hospital.*fn4 Id. Plaintiff takes twelve pills per day to control her headaches; the medication, however, tends to cause her to experience fatigue. AT 369.

Plaintiff also states that her depression is another major cause of her inability to work. Plaintiff testified that she feels depressed, causing her to cry, scream at people, and feel jittery, uncomfortable and generally anti-social around people. AT 356, 359, 370. Plaintiff's depression caused her to attempt suicide in 1998, resulting in hospitalization for one month at the Albany Medical Center. AT 354. Plaintiff also claims that in March of 2004 she underwent emergency treatment at Albany Memorial Hospital on three separate occasions for her symptoms of depression.*fn5

AT 354-55.

Addressing her strokes, plaintiff testified that she had one such event in 2000, and another in 2002 or 2003, initially causing some temporary paralysis in the right side of her face. AT 351-52. Plaintiff stated that those strokes also resulted in weakness in her right arm, rendering it useless for about an hour once each month. AT 352.

The effects of plaintiff's strokes were the subject of evaluation on January 5, 2003 by Dr. Clifford Erickson at Albany Memorial Hospital where plaintiff presented with complaints of left arm numbness. AT 170-87. Dr. Erickson noted stable vital signs and normal gait, and that her EKG revealed left ventricular hypertrophy, mild left axis deviation, normal intervals and no acute ischemic changes, while her complete blood count ("CBC") test was "entirely within normal limits." AT 170. Dr. Erickson's diagnosis was a cerebrovascular accident with left deltoid weakness. AT 171.

The following day Dr. James Wymer, a neurologist, also evaluated plaintiff's left arm weakness. AT 179-81. Dr. Wymer noted that the results of a computed tomography ("CT") scan of plaintiff's head was within normal limits; magnetic resonance imaging ("MRI") testing revealed no acute findings; a carotid ultrasound showed no hemodynamically significant stenosis; and an EKG found normal sinus rhythm. AT 181. In detailing plaintiff's past medical history, Dr. Wymer noted that she reported having as many as twelve migraine headaches per month. AT 179-81, 188.

Plaintiff's migraine headaches have been treated by a variety of healthcare providers. On May 25, 2003, plaintiff presented to the Albany Memorial Hospital Emergency room, complaining of headaches. AT 235-36. Plaintiff was referred to Dr. Christopher Calder, who conducted a neurological examination on the following day. AT 237-38. In a report of his examination, Dr. Calder noted difficulty in obtaining plaintiff's medical history and that she appeared unsure of how many headaches were experienced on a monthly basis, surmising that the number approximated twelve. Id. Dr. Calder recorded that plaintiff was extensively medicated, rendering her unfit for any higher function neurological testing. Id. The doctor opined that plaintiff appeared to have an "intractable headache which could potentially be due to be migraine and/or transform migraine in relationship to her nonsteroidal usage." AT 238. Dr. Calder also posited a pseudotumor or viral meningitis as other possible causes of her headache. AT 237-38.

On June 14, 2003, plaintiff again sought treatment from the emergency room at Albany Memorial Hospital, complaining of a migraine headache and describing associated blurred vision, photosensitivity and nausea with vomiting. AT 211-13. Dr. Peter Sosnow evaluated plaintiff on that occasion, and found that she was photosensitive, her heart was regular, and her gait and coordination were normal. AT 244. Dr. Stephen Hassett also assessed plaintiff on that occasion, noting that she claimed her headache would subside and return, and that she asked for narcotics. AT 243. Dr. Hassett discharged plaintiff with a diagnosis of a migraine headache and a prescription for Lortab.*fn6 AT 243.

On September 9, 2003, plaintiff presented once again at the Albany Memorial Hospital emergency room complaining of a migraine headache, accompanied by nausea and vomiting, and was treated intravenously with morphine and Anzemet.*fn7 AT 246-49. After examining plaintiff, Dr. Mary Colfer noted that her vital signs were stable and within normal limits, and that her gait was normal. AT 248. Dr. Colfer discharged Ms. Latham that same day after prescribing Lortab. AT 248-49.

On October 6, 2003, Dr. Laximkant Bhoiwala treated plaintiff for a headache and complaints of occasional nausea. AT 273. Dr. Bhoiwala noted that the headaches had lasted a few days, and that plaintiff"s prescription medications Neurontin*fn8 and Topamax*fn9 had not provided relief. Id. Dr. Bhoiwala diagnosed plaintiff as suffering from uncontrolled hypertension, morbid obesity and severe headaches secondary to migraine and hypertension. Id.

Plaintiff returned to Albany Medical Hospital on October 7, 2003 with further complaints of a migraine headache, and was admitted as an inpatient. AT 250-51. The following day Dr. Wymer treated Ms. Latham for migraine headaches, noting that a friend accompanying plaintiff indicated that she had been averaging one to two headaches per week. AT 252-54. Dr. Wymer reported that none of plaintiff's multiple neuroimaging studies had yielded abnormal results. Id. Dr. Wymer remarked that during plaintiff's physical examination, she cried "very inappropriately . . . but never appeared to be in the degree of pain to explain that." AT 253. Dr. Wymer also neurologically examined plaintiff and noted that she followed both simple and complex commands, but occasionally needed refocusing. Id. Dr. Wymer performed a lumbar puncture, and the spinal fluid withdrawn though that procedure appeared to be normal. AT 253-54. Plaintiff was discharged by Dr. Mahamadu Maida on October 10, 2003, after only "minimal improvement" in her condition. AT 257-58. In his discharge summary, Dr. Maida noted a final diagnosis of intractable headache, possibly secondary to migraine headaches, chest pain secondary to costochondritis, obesity, uncontrolled hypertension and left ventricular hypertrophy. AT 257.

On January 14, 2004, and again on January 31, 2004, Dr. Bhoiwala treated plaintiff for severe headaches as well as complaints of anxiety due to the death of her younger sister. AT 271-72. Dr. Bhoiwala saw plaintiff again on February 19, 2004 for a migraine headache, obesity and poor sleeping triggered by the loss of her younger sister. AT 270. Dr. Bhoiwala noted that plaintiff had been taking Lortab, Tegretol,*fn10 Topamax and Wellbutrin.*fn11 Id. Dr. Bhoiwala further reported that plaintiff's hypertension was uncontrolled, possibly due to secondary stress, and that she was post-gastric bypass surgery and had lost fifty pounds. Id.; see also AT 370.

Plaintiff again presented at the emergency room at Albany Memorial Hospital on March 29, 2004, complaining of a migraine headache and chest pain, attributed by her to recent court appearances, including one earlier that day. AT 264-66. Plaintiff denied experiencing any nausea or vomiting, photophobia, fever, or shortness of breath. Id. The treating physician, Dr. Tracy Sawyer-Nash, diagnosed plaintiff as having a migraine headache, anxiety disorder and a panic attack. Id.

Plaintiff was taken by ambulance to the Albany Memorial Hospital on March 14, 2005, complaining of severe headache pain and some chest discomfort, AT 283-84. In his report of the treatment administered on that occasion, Dr. Peter Sosnow noted no weakness, tingling or neurologic or visual deficits, and reported that plaintiff's gait, coordination, musculoskeletal, psychiatric and extremity examinations were normal. Id. Dr. Sosnow diagnosed plaintiff as having an acute exacerbation of a migraine headache and chest pain, but with no evidence to support myocardial ischemia or infarction. Id. Plaintiff was found to be improved and in stable condition at the time of her discharge. Id.

One week later plaintiff again presented to the Albany Memorial

Hospital emergency room with a migraine headache and associated nausea and photophobia, reporting that while she normally experienced a migraine headache on a monthly basis, she had suffered from three migraines over the last month, attributed by her to the stress of making her wedding arrangements. AT 278-81. Plaintiff stated that she uses over-the-counter medicines, including Ibuprofen and Tylenol, to treat her headaches though with only marginal success, adding that "'when it gets this bad, I just come to the hospital and you guys give me an IV.' " AT 279. The attending physician who treated her on that occasion noted that plaintiff's gait was normal, ordered a CT scan of her head, which was negative, and diagnosed her as having a migraine headache. AT 281. Upon her departure, plaintiff's headache was completely resolved, and she left the hospital feeling markedly better than when she had arrived.

AT 280-81.

In addition to her migraine headaches, plaintiff has experienced additional physical conditions, including obesity. Plaintiff underwent gastric by-pass surgery at the Albany Medical Center in January or February of 2004 by Dr. Carl Rosati, resulting in a weight loss from a high of 300 pounds down to 173 pounds. AT 370.

In addition to the records of her treating sources, the administrative transcript contains reports of multiple consultative physical and mental examinations of plaintiff or her medical records. Upon referral by the agency Dr. Gowdara Divakara Murthy, of Industrial Medicine Associates, P.C. ("IMA"), performed a consultative neurological examination of plaintiff on May 6, 2003. AT 200-203. Dr. Murthy noted that plaintiff complained of periodic headaches and occasional tingling and numbness in her left hand, and that although obese she maintained a normal gait, walked on her heels and toes without difficulty, and squatted fully. Id. Dr. Murthy also noted full grip strength bilaterally and a normal range of motion in her cervical, thoracic and lumbar spine, and diagnosed plaintiff as suffering from hypertension, depression and a history of cerebral vascular accidents affecting the left side of her body. Id. Dr. Murthy provided a medical source statement in which he characterized plaintiff's ability to walk, go up and down stairs, squat, push, pull and balance herself as "mildly limited." AT 203.

Dr. John Thibodeau, also of IMA, performed a consultative psychiatric examination of plaintiff on May 6, 2003, and provided a medical source statement regarding his findings. AT 204-208. In his report, Dr. Thibodeau noted that plaintiff's thought processes were coherent and goal directed, her attention and concentration were mildly impaired, her recent and remote memory skills were mildly impaired, and her insight and judgment were fair. Id. Dr. Thibodeau opined that plaintiff is able to follow and understand age-appropriate directions and perform simple rote tasks under supervision, but cannot maintain attention and concentration to perform complex or simple tasks based upon her condition. Id. Dr. Thibodeau further opined that plaintiff would have difficulty learning new tasks due to anxiety and depression, and would not be able to relate adequately with others due to her phobic anxiety. Id. Dr. Thibodeau concluded that the results of his evaluation were consistent with plaintiff's allegations of a handicapping psychological and psychiatric condition, diagnosing plaintiff as having major depressive disorder, moderate, without psychotic features, and recurrent; low average to borderline intelligence; and status post stroke, status post hysterectomy and hypertension. AT 207.

On May 19, 2003, Kim Testa completed a physical RFC assessment of plaintiff.*fn12 AT 209-214. In it, Testa found that plaintiff can occasionally lift and/or carry twenty pounds and frequently lift ten pounds, and is able to stand and/or walk and sit about six hours in an eight hour work-day and push and/or pull without restriction. Id. Testa further concluded that plaintiff can occasionally climb and balance, and frequently stoop, kneel, crouch and crawl. Id. Testa found neither manipulative, visual, communicative, nor environmental limitations presented by plaintiff's various conditions AT 209-214.

Dr. James Alpert, a state agency physician, completed a review of plaintiff's records on May 20, 2003, opining that plaintiff is moderately limited with respect to her ability to understand, remember and carry out detailed instructions. AT 215-32. Dr. Alpert further noted his view that plaintiff is moderately limited in her ability to complete a normal work-day/week without interruptions as a result of psychologically-based symptoms, and in her ability to set realistic goals or make plans independently of others. AT 215-16.

Dr. Aaron Satloff responded to interrogatories posed at the ALJ's request on May 27, 2005. AT 303-08. Dr. Satloff identified migraine headaches, panic disorder with agoraphobia, major depressive order and class II obesity as plaintiff's medical impairments of concern. AT 303. In those responses, Dr. Satloff noted that plaintiff's impairments, either singly or in combination, do not meet or equal any impairment described in the listing of presumptively disabling impairments. Id. Dr. Satloff additionally reported in his opinion that plaintiff has moderate limitations with respect to her abilities to carry out detailed instructions; to make judgments on simple work-related ...


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