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Cheryl J. Jones v. Michael Astrue

September 26, 2012

CHERYL J. JONES, PLAINTIFF, -
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge

MEMORANDUM - DECISION AND ORDER

This action was filed by plaintiff Cheryl J. Jones ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("the Commissioner") of the Social Security Administration ("SSA"), who denied her application for disability insurance benefits ("DIB"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 12 ), seeking an order from the court finding that plaintiff is entitled to disability benefits under the provisions of the Social Security Act ("SSA"), or in the alternative, remanding the case for further proceedings. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 13) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.

I. Procedural History and Facts

A. Procedural History

On June 23, 2009, plaintiff protectively filed an application for DIB, alleging disability beginning March 28, 2008, due to myopathy and asthma. T.*fn1 137, 153.*fn2 The Commissioner originally denied the claim, and plaintiff requested a hearing. On January 13, 2011, after a hearing before Administrative Law Judge Jeffrey M. Jordan ("the ALJ"), the ALJ denied plaintiff's application. T. 8-21.

The ALJ found that plaintiff met the insured status requirements of the Social Security act through December 31, 2013, had not engaged in substantial gainful activity since the alleged onset date of March 28, 2008, and had the severe impairments of myopathy, hypertension, and sleep apnea. T. 13. The ALJ then determined that plaintiff did not have an impairment that met or medically equaled one of the listed impairments in 20 CFR part 404, subpart P, appendix 1, and that plaintiff had the residual functional capacity to perform less than the full range of sedentary work. T. 13-14. The ALJ determined that plaintiff was unable to perform any past relevant work, but that there are jobs that exist in significant numbers in the national economy that plaintiff could perform. T. 19. On September 14, 2011 the Appeals Council denied a request for review. T. 1-3. This action followed, appealing the final decision of the Commissioner. The relevant time period for this appeal is between the alleged onset date of March 28, 2008, and the date of the ALJ's decision on January 13, 2011.

B. Statement of Facts

Plaintiff was 44 years old on the alleged onset date. T. 137. Plaintiff reported completing the twelfth grade in 1984. T. 40, 158. Plaintiff previously worked as a machine operator in a car [transmission/transfer case] factory for 14 years. T. 41. On October 18, 2006, plaintiff treated with Paul Twydell, D.O. ("Dr. Twydell") for complaints of muscle pain and muscle weakness. T. 236. Plaintiff reported "progressively worse" pain from February 2006 to May 2006. T. 236. Thereafter, plaintiff "was on medical leave from work from May 2006 to September 2006." T. 236. An EMG had revealed neuropathic and myopathic changes in multiple lower extremity muscles, and a muscle biopsy revealed atrophic fibers type 1 and type 2. T. 236. Physical examination revealed that plaintiff was obese, and had "moderate tenderness to moderate touch on both thighs anterior and posterior aspects." T. 236. Dr. Twydell noted that an EMG would be performed, and if suggestive of myopathy a muscle biopsy would be considered. T. 237. A muscle biopsy was subsequently performed.

On November 7, 2006, plaintiff presented to the emergency room after tripping on an escalator. T. 258. Anne M. Calkins, M.D.(Dr. Calkins") conducted a physical examination, which revealed a superficial clean abrasion on the distal anterior tibia. T. 258. Plaintiff reported stiffness with range of motion. T. 258.

Dr. Calkins diagnosed plaintiff as suffering from muscle strain, contusions, and abrasions. T. 259. Plaintiff was given a tetanus shot and was instructed to follow-up with David T. Page, M.D. ("Dr. Page"). T. 259.

On January 3, 2007, Rabi Tawil, M.D. ("Dr. Tawil"), opined that results of the biopsy of plaintiff's left quadriceps muscle were consistent with slight myopathy with central cores. T. 238. On July 17, 2008, a CT scan of plaintiff's neck revealed a "prominent thyroid gland bilaterally." T. 262. On November 5, 2008, plaintiff began treatment with Michael J. Parker, M.D. ("Dr. Parker"). T. 244. Plaintiff was referred to Dr. Parker due to large bulges on the sides of her neck, and a feeling as if she were choking when lying down, and pain when raising arms above her head. T. 244. Physical examination revealed asymmetry of the neck, and palpation revealed swelling. T. 244. Dr. Parker diagnosed plaintiff as suffering from swelling in head and neck, and sleep disturbance unspecified. T. 245. On November 24, 2008, plaintiff followed up with Dr. Parker for her neck mass. T. 247. Physical examination revealed asymmetry of the neck and palpation revealed swelling. T. 247. Dr. Parker diagnosed plaintiff as suffering from swelling in head and neck, and sleep disturbance unspecified. T. 247-48.

On December 12, 2008, a sleep study "confirmed the clinical diagnosis of [obstructive sleep apnea/H] syndrome, mild to moderate in nature with impact on oxygenation." T. 249. On April 21, 2009, Dr. Page treated plaintiff. T. 293. Physical examination revealed that plaintiff's thyroid was minimally enlarged. T. 294. Dr. Page diagnosed plaintiff as suffering from diabetes mellitus, hypertension, and cough. T. 294. On May 29, 2009, plaintiff treated with Dr. Page. T. 291. After examination, Dr. Page diagnosed plaintiff as suffering from asthma extrinsic unspecified, cough, and myopathy unspecified. T. 292.

On October 3, 2009, George Alexis Sirotenko, D.O. ("Dr. Sirotenko"), conducted a consultative internal medicine examination. Dr. Sirotenko noted that "[d]ue to difficulty with insurance, she has been somewhat sporadic with medication use," and plaintiff was unable to "obtain a CPAP machine[] due to insurance difficulties." Medications were suggested to help treat plaintiff's myopathy, but the financial costs were too high. Plaintiff reported "intermittent daytime fatigue, generalized muscle pain with activities of greater than a moderate degree of physical exertion." T. 279. Physical examination revealed that plaintiff had limited hip flexion to 80 degrees bilaterally, and external rotation to 30 degrees bilaterally. T. 281. Plaintiff's had a knee extension limited to zero degrees, and flexion to 110 degrees bilaterally. Plaintiff had reduced strength of 4/5 in both her upper and lower extremities. Moreover, Dr. Sirotenko noted that plaintiff had "[d]iffuse myofascial pain shoulder girdles, arms, upper and lower hip girdles, lower extremities." Id. Plaintiff had decreased grip strength at 4/5. T. 282. Dr. Sirotenko diagnosed plaintiff as suffering from hypertension, myopathy, and a history of diabetes, sleep apnea, and asthma. Dr. Sirotenko opined that plaintiff would have "[s]ignificant limitations regarding situations in which sleeping may place her or others in danger." Plaintiff needs to avoid operation of heavy equipment machinery "or driving an automobile." Plaintiff "would benefit from activities of a sedentary nature only. Plaintiff needs to avoid respiratory triggers which may exacerbate her asthma. Id.

On December 4, 2009, plaintiff treated with Dr. Page. Plaintiff reported weakness in her hands. T. 297. After examination, Dr. Page diagnosed plaintiff as suffering from myopathy unspecified, diabetes mellitus, hypertension, and esophageal reflux. T. 298. On May 5, 2010, plaintiff again treated with Dr. Page, reporting stiff neck. Plaintiff reported that she did not have insurance. Plaintiff was unable to lie down "because of adiposity in the neck, she gets [shortness of breath] with [laying down] [sic]." T. 303. After examination, plaintiff was diagnosed as suffering from diabetes mellitus, hypertension, myopathy, esophageal reflux, and "intervertebral disc cervical [with] myelopathy." T. 305.

On May 12, 2010, Dr. Twydell noted that he treated Plaintiff for congenital myopathy with central cores. Neuromuscular examination revealed that plaintiff was morbidly obese, and had tenderness to palpation over the right greater occipital nerve. Dr. Twydell diagnosed plaintiff as suffering from congenital myopathy with central cores, neck pain, low back pain, previous hypovitaminosis D, and "she may have right occipital neuralgia as well." T. 320.

On May 19, 2010, Dr. Twydell opined that plaintiff "should only occasionally use her hands for handling and fingering." T. 326. Moreover, Dr. Twydell opined, "[t]he amount of pain [plaintiff] is in would eliminate the possibility of full-time employment for her at this point in time." T. 326. Financial difficulties affording treatment were noted. T. 326. On September 9, 2010, plaintiff again treated with Dr. Page. Plaintiff reported worsening symptoms, and that "she cannot lay [sic] down and sleep and has to sit up in a chair to sleep." Plaintiff reported fatigue. T. 309. Dr. Page diagnosed plaintiff as suffering from esophageal reflux and obstructive sleep apnea. T. 310. On September 15, 2010, plaintiff again treated with Dr. Page. T. 312. After examination, Dr. Page diagnosed plaintiff as suffering from esophageal reflux, hypertension, diabetes, myopathy, asthma, and chest pain. T. 313-14.

At her hearing, plaintiff testified that the reason she is no longer able to work are due to the pain she has throughout her body a "majority of the time." Plaintiff reported that her "hands are bad. And I cannot stand for a long period of time anymore." Plaintiff testified that central core myopathy was the cause of the pain and problem in her hands and legs. T. 42. Plaintiff reported pain of 6 to 7 on an average day, and she has to lie down a lot on bad days, which occur two to three times per week. Plaintiff testified that she has to lie down for 30 to 45 minutes until the pain subsides. T. 46.

The Commissioner incorporates plaintiff's statement of facts with the exception of any inferences, suggestions, or arguments contained therein, and supplements the statement of facts as follows: plaintiff was 46 years old on the date of the ALJ's decision. T. 21, 39-40, 137, 158. As part of her disability application, plaintiff completed an activities of daily living questionnaire. T. 172-82. Plaintiff stated that she took care of her own personal hygiene and grooming needs; took care of her ten-year-old daughter; cooked; washed dishes; swept floors; cleaned the bathroom; house cleaned and did laundry, albeit with help from her husband and daughter; went outdoors; drove a car; shopped for groceries, clothes, and personal hygiene items; listened to music; watched television; read newspapers, magazines, and the Bible; socialized; and occasionally went to church. T. 172-78; T. 50. She had no problems paying attention, finishing what she started, following written and spoken instructions, getting along with bosses or others in authority, and remembering things. T. 178-79.

Plaintiff testified that she was no longer able to work due to central core myopathy which caused chronic pain throughout her body; as well as diabetes, hypertension, and asthma. T. 42- 43, 51. She acknowledged that she could lift and carry ten pounds, sit for two hours at a time, stand for fifteen minutes at a time, and walk continuously for two blocks. T. 48-49. Plaintiff stated that she slept about six hours per night. T. 51. Victor Alberigi, an impartial vocational expert ("the VE") reviewed the evidence of record and testified that the U.S. Department of Labor's Dictionary of Occupational Titles (DOT) describes ...


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