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Deborah Mckee Sligh v. Michael J. Astrue

September 28, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Deborah McKee Sligh commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "defendant"), which denied her claim for disability benefits. Presently before the Court is defendant's motion for judgment on the pleadings. For the reasons set forth below, defendant's motion is granted and the decision of the Commissioner is affirmed.


I. Procedural Background

Plaintiff applied for Social Security disability insurance benefits and Supplemental Security Income ("SSI") on June 14, 2007. (Transcript (hereafter "Tr.") 43.)*fn1 Plaintiff alleged that she suffered from a disability, commencing on January 23, 2007, due to a left knee injury and a bone spur in her right heel. (Tr. 101.) The claim was denied initially on July 31, 2007 (Tr. 86-91), and plaintiff requested a hearing before an administrative law judge ("ALJ"). A hearing was held before ALJ Jay L. Cohen on November 6, 2008, at which plaintiff appeared represented by counsel. (Tr. 9-39.) The ALJ issued a decision on November 18, 2008 finding that plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 40-48.) Plaintiff requested review by the Appeals Council ("AC"). (Tr. 219, 221-22.) By notice dated June 2, 2009, the AC denied plaintiff's request for review. (Tr. 3-5.) Subsequently, plaintiff submitted additional evidence to the AC and on July 23, 2009, the AC set aside its June 2, 2009 decision in order to consider that additional evidence. (Tr. 223-26.) After doing so, however, the AC issued a separate decision that again denied plaintiff's request for review. (Tr. 223-26.) Accordingly, the ALJ's decision became the "final decision" of the Commissioner. (Tr. 1-3.)

II. Factual Background

A. Non-Medical Evidence

1. Hearing Testimony

Plaintiff was born on July 23, 1957 and was 51 years of age at the time of the hearing.

(Tr. 97.) She has completed high school as well as secretarial school. (Tr. 106.) From 1994 to 2005, plaintiff worked as a electronics assembler and electronics inspector, which involved assembling cell phone and television components or inspecting those components with a microscope. (Tr. 16-17, 102.) These jobs required plaintiff to walk for one hour, stand for one hour, sit for six hours, and lift less than ten pounds. (Tr. 102-03.)

Plaintiff's application for disability benefits indicated that she stopped working on January 23, 2007. (Tr. 101.) At the start of the hearing, however, plaintiff's counsel informed the ALJ that, as of June 2008, plaintiff had been working, without pay, for 21 hours per week at a Salvation Army store in order to maintain her public assistance. (Tr. 12, 14.) Plaintiff testified that her job duties include hanging up clothes, taking them off the racks, sorting through donations, and tagging items. (Tr. 14-15.) Plaintiff further testified that she performed these duties while standing and that she lifts objects that weigh between twenty and thirty pounds. (Tr. 15-16.) Plaintiff indicated that sometimes a co-worker will help her move heavy objects, but on other occasions she manages to move heavy items herself, although she is in pain afterwards. (Tr. 30.) According to plaintiff, her supervisor allows her to take breaks, but she has difficulty completing her work. (Tr. 27.)

During the hearing, plaintiff asserted that she could not work for forty hours per week because of spurs on her feet and a bad knee, back, and shoulder. (Tr. 20.) Plaintiff testified that she could not sit, stand, or walk for extended periods, and that she had a difficult time bending to lift things up. (Tr. 20.) Specifically, plaintiff testified that she could only sit for between five and fifteen minutes, and stand for between ten and fifteen minutes. (Tr. 20.) Plaintiff further testified that she could walk between fifty and one hundred feet with mild to extreme pain. (Tr. 21.) Finally, plaintiff stated that she could lift no more than fifteen pounds. (Tr. 21.) Plaintiff testified that she does not cook and does very little cleaning. (Tr. 25-26.) She

testified that she does not drive, but that she takes the public bus to get to and from work. (Tr. 26.) The bus that plaintiff rides is equipped with a handicap-accessible lift, but she has trouble getting on and off the bus. (Tr. 28.) Plaintiff testified that, in terms of recreation, she watches television, reads, knits, or crochets. (Tr. 26.)

Plaintiff testified that her pain intensifies when she sits for long periods of time. (Tr. 29.) She stated that if she stands for a few moments and then sits back down, "sometimes [the pain] will shift, other times it like leaves." (Tr. 29.) Plaintiff further testified that her knee swells up, locks, cracks, and sometimes "go[es] out from underneath" her. (Tr. 29.) Plaintiff indicated that she walks with a limp and sometimes has to lean on things to walk. (Tr. 30.) With respect to her shoulder pain, plaintiff testified that she has never been treated or hospitalized for that pain. (Tr. 22.) Plaintiff stated that he sees an orthopedist, Dr. Feldman, for her heel spurs and knee problems. Seven years prior to the hearing, plaintiff underwent an operation to remove spurs from the tops of her feet. (Tr. 23.) Plaintiff testified that Dr. Feldman has recommended that she have another such operation, but she has not scheduled it for fear that she will lose her job and, by extension, her public benefits. (Tr. 23-24, 28.)

2. Function Report

On July 12, 2007, plaintiff completed a Function Report for submission to the New York State Office of Temporary and Disability Assistance, Division of Disability Determination. (Tr. 113.) In the Function Report, plaintiff stated that she lived in a homeless shelter with her husband and other married couples. (Tr. 113.) Plaintiff described her daily activities as including reading, writing, listening to music, watching television, and performing limited washing and chores. (Tr. 113.) Plaintiff stated that she takes care of her husband by cooking, giving him medication, and checking on his health daily. (Tr. 114.) She indicated that she could not do household chores, exercise, work at a job, or bend, lift, push, pull, or climb stairs. (Tr. 114.) Plaintiff also stated that the pain in her feet and knees interrupted her sleep. (Tr. 114.) Plaintiff indicated that she did not have problems with personal care, although she did require help to put on or take off clothing due to her knee and foot pain. (Tr. 114-15.) Plaintiff stated that her husband usually cooked, although she often made her own breakfast and lunch by preparing microwave or fast food. (Tr. 115.)

B. Medical Evidence

1. Dr. Matthew Illikal -- Orthopedist

The Division of Disability Determination referred plaintiff to Dr. Illikal for an orthopedic examination, which was conducted on July 19, 2007. (Tr. 143.) Plaintiff complained of left knee and shoulder pain as well as a calcaneal spur on her right foot. (Tr. 143.) Plaintiff recounted that in 1998 her left knee had been crushed between the bumpers of two cars, and she was taken to Huntington Hospital. (Tr. 143.) X-rays revealed a hairline fracture on the patella, and her left knee was immobilized in a brace for four weeks. (Tr. 143.) During the examination, plaintiff complained of intermittent aching pain in the left knee, extending to her left thigh. (Tr. 143.) She reported that she could sit and lie down in bed without discomfort, and could stand for more than thirty minutes and walk for longer than 3/4 of a mile. (Tr. 143.) Plaintiff stated that she could not bend her knee to pick up anything from the floor, or lift more than ten pounds. (Tr. 143.)

Plaintiff also complained of pain in her left shoulder, but could not recall any inciting event except for a motor vehicle accident around 1987. (Tr. 143.) She described the pain as intermittent, and stated that she had never received any medical evaluation or treatment for it. (Tr. 143.) Plaintiff claimed that she had limited range of motion in her left arm. (Tr. 143.) Plaintiff also complained of right heel pain that had become severe in 2007, for which she had received no medical consultation or treatment. (Tr. 143.) She stated that it was painful for her to walk. (Tr. 143.) Plaintiff stated that she cooked five times a week, with the help of her husband. (Tr. 144.) She further reported that she showered and dressed daily, watched television, listened to the radio, and read. (Tr. 144.)

On examination, Dr. Illikal observed that Plaintiff was in no acute distress. (Tr. 144.) She walked with a mild limp and was unable to walk on her heels due to the right foot spur. (Tr. 144.) Plaintiff's squatting was half the normal range, her station was normal, and she used no assistive device. (Tr. 144.) Plaintiff did not require assistance to change for the exam or get on and off the exam table. (Tr. 144-45.) The examination of the cervical, thoracic, and lumbar spines was normal. (Tr. 145.) The forward flexion of her shoulders was 150 degrees on the right and 135 degrees on the left. (Tr. 145.) The range of motion of plaintiff's left shoulder was limited due to her complaints of pain, and the internal and external rotation were reduced. (Tr. 145.)

Dr. Illikal diagnosed arthralgia of plaintiff's left knee and moderate osteoarthritis, as well as a calcaneal spur on plaintiff's right heel, and arthralgia of her left shoulder. (Tr. 146.) The doctor opined that plaintiff had a mild limitation in standing and walking, bending her left knee, picking up objects off the floor, flexion and abduction of the left shoulder, and lifting and carrying with her left hand. (Tr. 146.)

X-rays performed on July 19, 2007 revealed moderate osteoarthritic changes around the knee, no evidence of a current fracture or evidence of any healing change from the previous fracture, and no step-off at the tibial plateau. (Tr. 147.) The x-rays of Plaintiff's right foot and toes were unremarkable except for a plantar calcaneal spur. (Tr. 147.)

2. Dr. William Bollhofer, D.O.

Plaintiff was examined by Dr. Bollhofer, of the Queens Long Island Medical Group ("QLI Medical") on November 23, 2007.*fn2 (Tr. 208.) Plaintiff presented with multiple complaints, including left arm and left knee pain, spurs on her left foot, a lump in the middle of her chest, a double ear infection, hot flashes, and a rash in her groin area. (Tr. 208.) A musculoskeletal examination revealed pain in plaintiff's left shoulder when it was actively or passively moved. (Tr. 209.) Dr. Bollhofer observed that plaintiff's shoulder did not suddenly "lock up" or catch during movement, and the shoulder joint did not feel unstable or "out of place." (Tr. 209.) Dr. Bollhofer also noted that plaintiff experienced pain when her left knee was actively or passively moved, and that such pain got worse with ...

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