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Grimshaw v. Commissioner of Social Security

September 8, 2009


The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge


This matter has been referred to me for all further proceedings, including the entry of judgment pursuant to 28 U.S.C. § 636(c), the consent of the parties, and the order of the Honorable Norman A. Mordue, Chief United States District Judge, dated April 17, 2009. (Dkt. No. 28).


On May 5, 2003, plaintiff filed applications for Social Security Disability and Supplemental Security Income benefits. (Administrative Transcript ("T.") at 29-31, 41). Her claims were denied on July 1, 2003. (T. 15, 16-19, 130-35). After a hearing before Administrative Law Judge ("ALJ") J. Lawson Brown, the ALJ found that plaintiff was not disabled. (T. 10-14). Plaintiff filed civil action number 1:04-CV-1258 in this court, and pursuant to a Stipulation of Remand, the case was returned to the Social Security Administration for further proceedings. (T. 179-80).

On September 8, 2005, the Appeals Council remanded plaintiff's claim for a new hearing with specific instructions. (T. 183-84). On March 9, 2006, ALJ Thomas P. Zolezzi conducted the remand hearing, and on May 9, 2006, found that plaintiff was not disabled. (T. 167-75).


The plaintiff makes the following claims:

(1) The ALJ failed to fully comply with the remand order of the Appeals Council. (Pl. Brief at 7-8).

(2) The ALJ violated the treating physician rule. (Pl. Brief at 9-13).

(3) The ALJ erred in finding that plaintiff had the residual functional capacity for light work. (Pl Brief at 13-20).

(4) The ALJ did not consider plaintiff's obesity in combination with her other impairments. (Pl. Brief at 20-22).

(5) The ALJ erred in assessing plaintiff's credibility. (Pl. Brief at 22-25). The defendant argues that the Commissioner's determination is supported by substantial evidence and must be affirmed.


1. Plaintiff's Testimony

A. 2004 Hearing

Plaintiff testified at each hearing. (T. 151-66 (2004), T. 246-82 (2006)). At the July 2004 hearing, plaintiff testified that she had various jobs since age 16, and recently had worked for approximately 8 years as a Nurse's Aid. (T. 153-54). Plaintiff injured herself at work during July 2002 and stopped working in October 2002. (T. 153). Plaintiff testified that she began physical therapy, but the physical therapy made her pain worse. (T. 155). Plaintiff used prescription medications, including Hydrocodone, Flexeril, and Zoloft. According to plaintiff, these medications made her very sleepy. (T. 155-56). Plaintiff stated that she received steroid injections into her lower spine, but she still had pain in her lower back, left hip, leg, and ankle or knee. (T. 157). Occasionally, plaintiff experienced numbness, once or twice in a day. (T. 158).

Plaintiff stated that she was unable to do any of her prior activities, lost her balance when walking, and had difficulty standing more than a few minutes. (T. 157-60). According to plaintiff, she was unable to do many household chores, and received help from her children and boyfriend. (T. 160-63). The Administrative Record contains a disability report completed by plaintiff in May 2003, in which she claimed that she suffered extreme pain from her lower back impairment and saw her treating physician, Dr. Dispo, approximately every two months. (T. 42). According to plaintiff's written report, she specifically stated that she did not have any adverse side effects from either the Hydrocodone or the Zoloft. (T. 46).

In her request for the 2004 hearing, she stated that she had increased pain and decreased flexibility, but did not mention any side effects from the Hydrocodone or Zoloft. (T. 58). In a "Function Report," signed by plaintiff on May 28, 2003, she stated that she was unable to do any types of housework or outside activities, had difficulty sleeping and getting dressed, and rarely left her house because she had pain walking, sitting, and climbing stairs. (T. 60-70). Plaintiff stated that her lower back ached most of the time, and that she had stabbing pains in her left leg which had recently become worse, requiring her to lay down to relieve the pain. (T. 69). In the May 28, 2003 form, plaintiff did state that the Hydrocodone she took three times per day made her drowsy. (T. 69).

B. 2006 Remand Hearing

After the Federal Court and Appeals Council remands, ALJ Zolezzi held a supplemental hearing on March 9, 2006. (T. 246-82). Plaintiff's testimony in 2006 was similar to her 2004 testimony but was more detailed. Plaintiff stated that she had pain "just walking on level land" (T. 254); could not sit or stand very long (T. 254, 268); could only walk 200 feet (T. 268); and always had pain which got worse after standing for a short period of time. (T. 268). According to plaintiff, she spent alot of time each day in bed and could not do any usual household chores. (T. 269, 272). She spent most of her day reading and laying in bed. (T. 275). She was taking Hydrocodone for pain four times a ...

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