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Parker v. Commissioner of Social Security

October 20, 2009

MARLENE PARKER, 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 Marlene Parker, who suffers from spondylosis in her cervical spine and asthma in combination with chronic obstructive lung disease, has commenced this proceeding pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's denial of her application seeking disability insurance benefits ("DIB") under the Social Security Act ("Act"). Plaintiff claims that the finding of the administrative law judge ("ALJ") assigned by the agency to hear and determine the matter, to the effect that she was not disabled at the relevant times and therefore ineligible for DIB payments, is not supported by substantial evidence. Specifically, plaintiff asserts that the ALJ's finding concerning her residual functional capacity ("RFC"), upon which the finding of no disability hinges, is not supported by substantial evidence and results from the improper rejection of her subjective statements regarding her limitations. Plaintiff also contends that the finding that she is capable of performing her past relevant work as a tax withholding clerk ignores significant limitations which preclude her from performing a full range of the duties associated with that position.

Having carefully reviewed the record that was before the agency, applying the requisite deferential standard, I find that the Commissioner's determination resulted from the application of proper legal principles and is supported by substantial evidence.

I. BACKGROUND

Plaintiff was born in September of 1950, and was fifty-seven years old at the time of her administrative hearing before the agency. Administrative Transcript at pp. 43, 275.*fn1 Ms. Parker is married and resides with her husband principally in Valley Falls, New York, although the two spend winters together in Florida. AT 35, 129, 274. Plaintiff completed high school in 1968 and underwent additional, specialized job training in 1988. AT 41, 277-78.

Plaintiff's most recent significant period of employment was with the New York State Department of Taxation and Finance, where she worked from February 1, 1986 through October 12, 2004.*fn2 AT 36. Over the last four to five years of her employment with the State, plaintiff worked as a taxpayer call center service representative. Id. Plaintiff reported that in that position she provided customer service, answering taxpayers' questions, making referrals as necessary, and entering data on a computer describing the actions taken to address questions. AT 36, 46-47, 280-81. In that position plaintiff was required to sit for five hours and stand for one hour each day, but did not climb, stoop, kneel, crouch, or crawl. AT 47, 282. Ms. Parker stated that in that job she was required to lift less than ten pounds at a time. AT 47.

Prior to her work as a service representative, plaintiff was employed as a magnetic media and payroll services wage reporting unit calculation clerk. AT 46, 48, 231. In that position, she sat and answered telephone calls, and conducted computer research of technical questions regarding the withholding of taxable wages. AT 48, 284. Plaintiff testified that the position involved "a lot of paperwork" and that she sat and wrote, and typed, or handled small objects for five hours out of the work day while she walked, stood, stooped and handled larger objects for a half hour out of each work day. AT 48, 283. Plaintiff reported that the heaviest weight she was required to lift in that job was ten pounds, and that she frequently lifted less than ten pounds. AT 48.

Before assuming her position as a calculation clerk, plaintiff worked in the department's payment processing unit, where she answered technical questions posed by taxpayers and payroll services. AT 46, 49, 231. In that position plaintiff sat and wrote, and typed, or handled small objects for five hours out of the work day, while she walked and stood for a half hour out of each work day. AT 49. As a calculation clerk plaintiff was required to lift less than ten pounds. AT 49.

Plaintiff also worked as a member of the Taxation and Finance payment processing unit, where she worked as a data entry operator prior to her assignment to the calculation clerk position. AT 51. While in the payment processing unit, plaintiff was required to sit for six hours and walk for a half hour out of the work day. Id.

Over time, plaintiff has sought and obtained treatment for two distinct physical conditions, including a neck disorder and a respiratory condition diagnosed as asthma with chronic obstructive pulmonary disease ("COPD"). Plaintiff's neck condition began with symptomology suggesting work-related carpal tunnel syndrome. Plaintiff was examined on May 6, 2004 by Dr. Ralph Quade, an orthopedist, complaining of cramping in her hands which coincided with driving or activities entailing repetitive motions. AT 100. Upon examination, Dr. Quade found plaintiff to be positive for Phalen's sign but negative for Tinel sign, with intermittent numbness in the median nerve distribution but no thenar wasting, and a full range of motion in her wrist.*fn3 AT 100.

A later examination conducted by Dr. Quade on September 15, 2004 again revealed plaintiff's left hand to be positive for Phalen sign and negative for Tinel's sign, with her right hand negative for both. AT 96. On October 19, 2004, Dr. Quade noted that a nerve conduction study failed to reveal the existence of carpel tunnel or ulnar neuropathy, but suggested the possibility of lower cervical radiculopathy. AT 94.

Upon referral from Dr. Quade, plaintiff underwent magnetic resonance imaging ("MRI") testing on October 20, 2004. AT 110. The MRI revealed "[m]ild, multilevel degenerative disc disease," with no evidence of disc protrusion, herniation or central stenosis. Id. The MRI also disclosed a narrowing of the neural foramina at C3-4, greater on the right side. Id. Noting that both the results of the MRI and left nerve conduction studies showed radiculopathy, on October 26, 2004 Dr. Quade observed that he was "at a loss to determine the etiology of [plaintiff's] symptoms, or what the effective treatment would be . . .". AT 93.

Plaintiff was referred for consultation to Dr. Kevin Mullaney, an orthopedist practicing with the Capital Region Orthopaedic Group, where she was seen beginning on December 23, 2004. AT 111-16. Dr. Mullaney diagnosed plaintiff as suffering from cervical spondylosis, but without any signs of radiculopathy, myelopathy, or cauda equina and referred her for epidural steroid injections. AT 116. In the interim, Dr. Mullaney recommended that plaintiff not work, given the apparent unavailability of light duty jobs at her prior employment. AT 112-16. During the ensuing visits, Dr. Mullaney noted that plaintiff appeared to be responding favorably to the steroid injections as well as to Lidoderm patches prescribed for her by her primary care physician.*fn4 AT 113. During her last reported visit with Dr. Mullaney on May 25, 2005, plaintiff was prescribed a soft cervical collar, and it was recommended that she be evaluated by a specialist to affix a percent disability rating.*fn5 AT 111.

Plaintiff was also treated for her neck condition by Dr. Andrew C. Messer, a Florida orthopedist who examined her on January 10 and January 24, 2007. AT 261-63. Upon examining the plaintiff, Dr. Messer noted that she did not appear to be any acute distress, nor did she exhibit any abnormal posturing of her neck. AT 262. Dr. Messer also observed that plaintiff retained a full range of motion of both shoulders and was neurovascularly intact in her upper extremities, with the exception of decreased C6 biceps reflex bilaterally. AT 263. Dr. Messer found no evidence of cubital tunnel or carpel tunnel disease, but did note that she was positive for Spurling's maneuver bilaterally.*fn6 Id. Dr. Messer further observed that plaintiff had "soft tissue discomfort to palpation, but no muscle guarding or rigidity over the posterior neck, medial scapular and suprascapularis tendon areas bilaterally. Id. Dr. Messer noted that his review of x-rays showed a "grade I spondylolithesis of C3 on C4 . . . [and] degenerative changes at C5-6." AT 263.MRI testing conducted on January 12, 2007, on referral from Dr. Messer, revealed "mild to moderate degenerative cervical spondylosis, most pronounced at C5-C6 where [a] central to left paramedian protrusion with uncovertebral and facet joint arthropathy create mild spinal canal stenosis with left-sided neural foraminal and lateral recess stenosis." AT 228. The results of that MRI also revealed that mild spinal cord edema may have been present at the C5-C6 level. Id.

After reviewing the results of the MRI testing and conducting an examination of the plaintiff, Dr. Messer discussed with her the large left C5-C6 herniated nucleus pulposus, explaining that it was "most likely causing her discogenic neck pain [and] cervicogenic headaches . . . .". AT 261. Based upon those findings Dr. Messer recommended that the plaintiff consider an anterior cervical discectomy and fusion at C5-6, and prescribed Darvocet for her pain.*fn7 Id.

In addition to her treating sources, plaintiff was examined consultatively on July 18, 2005, by Dr. Amelita Balagtas for purposes of determining her orthopedic condition. AT 129-31. In a report of that examination, which was significantly noncommittal, Dr. Balagtas recorded an impression of "[b]ack pain, rule out degenerative disk disease and rule out musculoskeletal origin," and reported plaintiff's prognosis as "undetermined". AT 131. Based upon the evaluation, including plaintiff's subjective statements regarding her limitations, Dr. Balagtas concluded that plaintiff would experience some limitations in bending, lifting, prolonged sitting, and prolonged standing, but provided no quantification or further specifics. Id.

Plaintiff, a smoker, has also been treated over time for asthma and COPD.*fn8 X-rays of plaintiff's chest taken on March 22, 2004 revealed that her lungs were not hyperinflated, showed that there was apical oligemia and central peribronchial cuffing, and reflected no focal airspace disease and no pleural effusions. AT 80. Shortly thereafter, on April 19, 2004, plaintiff presented with complaints of dyspnea and chest tightness to Dr. Joseph Farooq of Pulmonary and Critical Care Services, P.C. in Troy, New York. AT 204-06. Based upon his examination Dr. Farooq concluded that plaintiff suffers from COPD, with marked air trapping, dyspnea of unclear etiology, nicotine dependence, and hypertension. Id. Noting that her COPD management appeared to be adequate and that at that point she was smoking two packs of cigarettes a day, Dr. Farooq opined that smoking cessation would likely be the key to the success of her therapy. Id. Dr. Farooq's reports of subsequent physical examinations of the plaintiff substantiate that her COPD is both modest in nature and well controlled. See, e.g. AT 207 (reporting on June 18, 2004 that plaintiff's breathing was "quite improved"); AT 212 (reporting on January 4, 2005 that plaintiff seemed to be "doing quite well" . . . [and was] essentially asymptomatic"); AT 218 (reporting on July 12, 2006 that plaintiff was feeling better and "had no real COPD exasperation since her last visit.")

Both in reports to the agency and during the hearing in this matter, the plaintiff described her typical daily activities. Plaintiff reported that she tends to her own personal hygiene, washes dishes, walks three hundred feet to her mother's residence, cleans a swimming pool area, and prepares easy meals, most of the time with her husband.*fn9 AT 58-59. Plaintiff is able to launder and hang her clothes to dry, dust, and vacuum a room a day at her residence.*fn10 AT 60. She is able to shop for groceries on a weekly basis, but requires assistance lifting the grocery bags. AT 61, 301. Plaintiff identified reading, watching television and walking as daily hobbies and interests. AT 61. Plaintiff also enjoys swimming, collecting antiques and using her computer to email. AT 61. She is able to visit with family and baby-sit for her grandchildren on a weekly basis. AT 62. Ms. Parker also reported attending functions at the local post of the Veterans of Foreign Wars twice weekly as well as dances, although she cannot remain on the floor for longer than three dances. AT 62.

II. PROCEDURAL HISTORY

A. Proceedings Before The Agency

On June 15, 2005, plaintiff protectively filed an application for DIB payments, alleging a disability onset date of October 12, 2004. AT 21, 36. That application was denied on August 24, 2005. AT 13, 21.

At the plaintiff's request, on June 7, 2007 a hearing was held before ALJ Robin Artz to address her request for benefits. AT 268-326. Following that hearing ALJ Artz issued a decision dated September 20, 2007, finding that the plaintiff was not disabled within the ...


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