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McGowan v. Astrue

June 6, 2009

AMY D. MCGOWAN, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Amy McGowan's ("Plaintiff") application for disability insurance and supplemental security income benefits. Now before the Court is Defendant's motion for judgment on the pleadings (Docket #10), and Plaintiff's cross-motion for an order reversing Defendant's decision and remanding the matter for calculation of benefits, or, in the alternative, remanding the case for further administrative proceedings (Docket #11). For the reasons that follow, Defendant's application is denied, Plaintiff's application is granted in part and denied in part, and this matter is remanded to the Commissioner for further administrative proceedings.

PROCEDURAL HISTORY

On December 9, 2002, Plaintiff applied for disability and supplemental security income benefits, claiming to be disabled due to "bipolar affective, [sic] depression, panic attacks."(154)*fn1 Plaintiff later claimed that she was also disabled due to fibromyalgia. Plaintiff remained insured for disability benefits through March 31, 2006. The Commissioner denied Plaintiff's application, and she requested a hearing before an Administrative Law Judge ("ALJ"). On March 8, 2005, a hearing was held before ALJ John P. Costello, who found that Plaintiff was not disabled. Plaintiff appealed, and the Appeals Council remanded the case for further administrative proceedings. On October 10, 2006, the ALJ conducted a supplemental hearing, and on November 22, 2006, the ALJ issued a decision, again finding that Plaintiff was not disabled. Plaintiff appealed, and on August 8, 2007, the Appeals Council denied Plaintiff's request for review. On October 10, 2007, Plaintiff commenced the subject action. Subsequently, with the Plaintiff's consent, the Court granted Defendant several extensions of time to file dispositive motions. On December 12, 2008, Defendant filed the subject motion for judgment on the pleadings, and on December 15, 2008, Plaintiff filed the subject cross-motion for the same relief.

VOCATIONAL HISTORY

Plaintiff has worked as a cashier, food preparer, factory assembly worker, and over-the-road truck driver. (196). Plaintiff's longest period of employment was the truck- driving job, which lasted approximately three years, and involved driving 18-wheel trucks throughout the United States and Canada. (40, 60). In connection with her work as a truck driver, Plaintiff obtained specialized training and obtained a commercial driver's license. (92,172). Plaintiff has also attended college, and as of the date of the supplemental hearing, she was on track to earn her associate's degree in Graphic Design and Advertising Technology. (44).

MEDICAL EVIDENCE

Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here. It is sufficient for purposes of this Decision and Order to note the following facts. Plaintiff has been diagnosed as having various physical and mental ailments including hypothyroidism, fibromyalgia, depression, anxiety, and personality disorder, NOS ("not otherwise specified"). Plaintiff's primary care physician was Jeffrey C. Long, M.D. ("Long"). On March 8, 2004, Long stated that Plaintiff's thyroid function tests were normal. (379). On June 25, 2006, Long reported that Plaintiff's hypothyroidism was controlled with medication. On February 17, 2006, Plaintiff told Long that she had stopped taking medication for bipolar disease and depression, and that she did not feel depressed. Plaintiff also told Long that she was taking medications for difficulty sleeping (Ambien) and anxiety (Ativan) very sparingly.

However, Plaintiff continued to complain of problems from fibromyalgia. In that regard, in November 2003, Plaintiff told Long that she had "a lot of neck and shoulder pain, which is fairly chronic." (381). Long examined Plaintiff and reported "tender points and trigger points in the trapezius bilaterally up to the base of the skull and down to the lower thoracic spine." Id. On March 8, 2004, Long noted that Plaintiff was continuing to complain of "chronic pain which is relatively mild" in her neck and shoulders. (379). Upon examination, Long found that Plaintiff had "some tenderness in her trapezius and up into the base of her skull but no true trigger points." Id. On July 27, 2004, Plaintiff told Long that her pain was worsening, with "increasing pain at the base of her neck and in her upper back." (375). Long observed that Plaintiff had "a lot of tenderness in trigger points at the based of [the skull], across the shoulders and at the base of the neck." Id.

On February 14, 2005, Long completed a "Physical Capacities Evaluation" for Plaintiff, stating that she could sit for one hour without interruption and for six hours in an eight-hour workday, and that she could walk or stand for up to thirty minutes at a time, and for up to four hours in an eight-hour workday. (442). Long stated that Plaintiff could frequently lift and carry up to ten pounds, and occasionally lift and carry up to twenty-five pounds. Id. Long also indicated that Plaintiff was "totally" restricted from twisting, turning, and bending at the waist, hips, and neck. Id. On March 7, 2005, Long supplemented his report by indicating that his earlier notations were "estimates," and that, "[f]ibromyalgia is a disease with waxing and waning symptoms. There are many days when [Plaintiff] would not be able to accomplish the physical tasks noted on the sheet, however, other day[s,] she may do fine with them. Specifically, there may be days she would not lift 20 or 25 pounds in all and repetitive lifting of 10 pounds would be a problem. She also may have problems with six hours of sitting on many days." (441).

On June 25, 2006, Long provided another statement regarding Plaintiff's ability to perform work-related activities. (450-453). Long stated that Plaintiff could frequently lift ten pounds, occasionally lift 20 pounds, and stand and/or walk for at least two hours in an eight-hour workday. (450). Long stated that Plaintiff would need to periodically alternate between sitting and standing, but he did not specifically indicate how long Plaintiff could sit, except to state: "Has fibromyalgia pain. Prolonged sitting or standing requires position change." (451). Long essentially stated that Plaintiff had unlimited ability to use her hands for handling, fingering, and feeling, and that she could frequently reach in all directions. Long indicated that his findings were "based on [Plaintiff's] reported symptoms. [Physical examination] findings are helpful in confirming [diagnosis] of fibromyalgia but show little about degree of disability." (453).

On July 10, 2006, Plaintiff's psychiatrist, Rida Y. Rizk, M.D. ("Rizk"), prepared a report. Rizk indicated that he had seen Plaintiff on two occasions, April 10, 2006 and July 10, 2006. Rizk diagnosed Plaintiff as follows: "Axis 1. Deferred. Axis 2. Personality Disorder NOS [not otherwise specified]. Axis 3. Fibromyalgia and Hypothyroidism." (463). Such diagnosis apparently includes aspects of anxiety and depression. (468-470). Rizk stated that Plaintiff had no limitation on her ability to understand and remember short and simple instructions, and a slight limitation on her ability to carry out simple instructions. (464). Rizk stated that Plaintiff would have a moderate limitation in her ability to make judgments on simple work-related decisions. Id. Rizk indicated that he arrived at those conclusions based on "patient's interview." Id. Rizk also reported that Plaintiff would have a "marked" restriction on her ability to interact appropriately with co-workers, and "extreme" restrictions on her ability to response to work pressures and changes in routine in a work setting. (465). Rizk explained that he arrived at those conclusions from "[t]he patient's evaluation of her own functioning at school." Id.

STANDARDS OF LAW

42 U.S.C. ยง 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a ...


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