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Darlene M. Robertson v. Michael J. Astrue

February 9, 2011

DARLENE M. ROBERTSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

INTRODUCTION

Plaintiff Darlene M. Robertson ("plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking reversal of the Commissioner of Social Security's ("the Commissioner") final decision finding that she was not entitled to Disability Insurance and Supplemental Security Income (SSI) benefits under Titles II and XVI of the Social Security Act. The plaintiff claims she is disabled due to degenerative disc disease, stomach and bilateral foot pain, and diabetes mellitus. The Commissioner found that the plaintiff was not disabled because, although she was not capable of performing her past relevant work as a cashier, she could perform sedentary work that exists in significant numbers in the national economy. On November 6, 2009, the Commissioner moved for judgment on the pleadings, and on February 8, 2010, the plaintiff cross-moved for judgment on the pleadings. On March 8, 2010, the Commissioner filed a memorandum in response to the plaintiff's motion and in further support of his own motion for judgment on the pleadings. For the reasons stated, the Commissioner's motion for judgment on the pleadings is granted and the petitioner's motion is denied.

BACKGROUND

On October 21, 2004, the plaintiff applied for disability benefits and SSI and was denied. The plaintiff subsequently requested a hearing before an Administrative Law Judge (ALJ), which took place on November 13, 2007 before ALJ Robert T. Harvey. In a decision dated January 7, 2008, ALJ Harvey found that the plaintiff was not disabled because her residual functional capacity (RFC) was consistent with performing sedentary work that exists in significant numbers in the national economy. The Appeals Council denied the plaintiff's request for review on May 12, 2009, and this action followed.

The plaintiff claims she is disabled due to degenerative disc disease, stomach and bilateral foot pain, and diabetes mellitus. (Tr. 69, 86). The plaintiff was 47 years old at the time of the ALJ's decision and had a general equivalency diploma. (Tr. 92, 984). She stopped working as a cashier in April 2004, because her employer no longer needed her and she did not feel well enough to find another job. (Tr. 87). The plaintiff indicated her daily activities involved light housework, caring for her cat, and preparing quick meals. (Tr. 103-104). She was able to go outside a few times per week; she shopped, handled money, read, watched television and movies, played with her cat, and socialized a couple times per week, mostly by telephone. (Tr. 105-107). The plaintiff claimed her pain stopped or delayed her from finishing what she started. (Tr. 108). She further stated she could probably do a little office work, although she did not have computer skills. (Tr. 995).

The plaintiff testified she had abdominal pain still off and on resulting from the surgical removal of a fibroid via hysterectomy. (Tr. 985-86,1003-04). She stated her abdominal pain can be so severe at times that she doubles over in pain. (Tr. 1000). The plaintiff testified to having a "little bit" of back pain, which she last experienced six or seven weeks prior to the hearing. (Tr. 986). The plaintiff had several surgeries for hernia repair and resulting complications. (Tr. 987, 1004-05, 1007-08). She had hypertension and alleged blurred vision twice a week, along with daily numbness and/or tingling in her fingers and feet. (Tr. 987-89). She claimed to have anxiety stemming from her surgeries which caused sleep problems; however, she was not receiving treatment from a psychiatrist or psychologist for anxiety. (Tr. 989-90, 991, 1000, 1005). Additionally, the plaintiff had "unmanageable" diabetes mellitus. (Tr. 1002-03).

The plaintiff received primary care treatment from December 2001 through August 2003 at Kaleida Health for non-insulin dependent diabetes mellitus, and medication was prescribed to control her diabetes, hypertension, depression, and neuropathy. (Tr. 167-181, 371-417). On August 30, 2004, x-rays of the plaintiff's lumbrosacral spine showed L6-S1 degenerative discopathy and vertebral degenerative changes. (Tr. 211-17, 325). On November 1, 2004, a computerized axial tomography (CAT) scan of the plaintiff's abdomen showed a uterine fibroid. (Tr. 324). She had a hysterectomy on March 7, 2005, to remove the fibroid. (Tr. 291).

The plaintiff underwent an internal medicine consultative examination on December 30, 2004, by Dr. Fenwei Meng. Dr. Meng diagnosed diabetes mellitus, uterine fibroid, mild back pain from the fibroid, and hypercholesteremia. (Tr. 258). Dr. Meng indicated her upper extremities had no limitation with dexterity and gross activity; her cervical spine had no restricted range of motion; the lumbar spine had mild limitation with bending, extension, twisting, and heavy lifting; and the lower extremities had no limitation with walking, standing, or going up/down stairs. (Tr. 258). Also on December 30, 2004, Dr. Thomas Ryan performed a consultative psychiatric evaluation on the plaintiff. Dr. Ryan diagnosed her with adjustment disorder with depressed mood, and alcohol abuse in remission for three years. (Tr. 263).

The plaintiff was admitted to Mercy Hospital from April 3 to 10, 2006, where surgeon Dr. Michael Pell performed open repair of an incisional hernia with mesh, a complication from the hysterectomy. (Tr. 364-66, 452-53). After surgery, Dr. Pell advised against strenuous activity or heavy lifting. (Tr. 455). The plaintiff was re-admitted to the hospital on May 2, 2006 for one month with chronic wound infections and fevers. In a report to Social Services completed June 22, 2006, Dr. Pell indicated that the plaintiff was totally disabled postoperatively, but estimated that she would be able to do usual work in four-to-six weeks depending on her rate of recovery, and that he did not believe her impairment would last for one year. (Tr. 776-77). On August 18, 2006, the plaintiff underwent surgery for a split thickness skin graft of an abdominal wound. (Tr. 355-56). Dr. Rasmusson, an associate of Dr. Pell, stated in a note on September 12, 2006 that the plaintiff continued to be disabled from work. (Tr. 767).

On February 23, 2007, Dr. Rasmusson completed a functional capacity questionnaire, and noted the plaintiff had anxiety, which contributed to the severity of her symptoms, but that her impairments were not reasonably consistent with the symptoms and functional limitations assessed. (Tr. 784). He assessed the plaintiff could sit and stand/walk for less than two hours each, requiring a shifting of positions and unscheduled breaks on an hourly basis, lifting up to ten pounds occasionally, rarely climbing stairs, and never climbing ladders, twisting, stooping, crouching, or squatting. (Tr. 784-86). He further stated the plaintiff was incapable of even a low stress job and that she could be absent from work for more than four days a month. (Tr. 786).

On April 18, 2007, Dr. Rasmusson performed open hernia repair on the plaintiff. (Tr. 463-66). In a July 21, 2007 report to Social Services, Dr. Rasmusson assessed that the plaintiff could stand, walk, and climb stairs one-to-two hours each, sit for two-to-four hours, and perform no lifting or carrying. (Tr. 796). He stated the plaintiff was not capable of participating in work activities at that time and for an expected duration of six months. (Tr. 796). Dr. Rasmusson indicated that given the tenuous nature of her abdominal wall, the plaintiff would be precluded from work requiring heavy lifting or strenuous activity, but that sedentary work "would likely be acceptable." (Tr. 742).

Dr. Rasmusson completed a second functional capacity questionnaire on August 28, 2007, noting the plaintiff had undergone multiple surgeries of the abdomen but that her prognosis was good. He felt the plaintiff was capable of performing low stress jobs; lifting up to 10 pounds frequently; sitting at least six hours; standing /walking less than two hours, with standing up to 30 minutes, and walking for 10 minutes required every hour. (Tr. 496-97). Dr. Rasmusson further stated that the plaintiff would need to take breaks every one-to-two hours for 10-to-15 minutes; could occasionally climb stairs, but never ladders; rarely twist, stoop, or crouch/squat; and that she could be absent for more than four days per month. (Tr. 497 -98).

Lastly, a residual functional capacity questionnaire by Dr. Rados was completed on September 26, 2007, and noted the plaintiff was capable of low stress work. (Tr. 964-68). Dr. Rados indicated that the plaintiff could sit and stand/walk about four hours each; could frequently lift up to 10 pounds; occasionally twist, stoop, crouch, squat, and climb ladders and stairs; would need to take unscheduled work breaks during an 8-hour day; would experience good days and bad days; and would likely be absent from work more than four days per month. (Tr. 966-67).

The ALJ found that the plaintiff has severe impairments: insulin dependent diabetes mellitus, hypertension, adjustment disorder with depressed mood, status-post debridement of abdominal wound, ...


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