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Macomber v. Astrue

June 17, 2009


The opinion of the court was delivered by: Wolfson, United States District Judge


Plaintiff Phyllis Macomber ("Plaintiff" or "Macomber") appeals from the final decision of the Commissioner of Social Security ("Commissioner"), Michael J. Astrue, denying Plaintiff disability benefits under the Social Security Act. The Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § § 405(g) and 1383(c)(3). The issue before this Court is whether Plaintiff is entitled to disability insurance benefits under Title XVI of the Social Security Act. A disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or that has lasted or can be expected to last for a continuous period of not less than twelve months. Upon reviewing the administrative record, the Court finds that Administrative Law Judge's ("ALJ") decision denying benefits is supported by substantial evidence. Thus, the final decision of the Commissioner is AFFIRMED.


On July 6, 2004, Plaintiff filed an application for supplemental security income ("SSI"), alleging disability beginning January 1, 1989*fn1. On January 10, 2005, the claim was denied, and once again upon reconsideration on June 20, 2005 (upon reconsideration). Plaintiff then filed a written request for a hearing on July 27, 2005, and was granted a hearing on October 23, 2006 in Newark, New Jersey. The Honorable Joel H. Friedman, United States ALJ, in a decision dated June 28, 2007, denied Plaintiff's claim. Upon reconsideration on April 1, 2008, the Notice of Appeals Council once again denied her request for benefits. Plaintiff now appeals the Notice of Appeals Council Action decision that denied review and upheld the ALJ's decision of June 28, 2007.


Macomber alleges disability based on leg pain as a result of lower peripheral vascular disease. Admin. R. at 405-539. She also suffers from hypertension and the accompanying side effects of her prescription drug, Toprol. Id. In addition, Plaintiff has a history of anxiety and depression -- during a psychological evaluation conducted in October, 2006, her Global Assessment Functioning ("GAF") score was recorded at 40. Id. at 530.

From 1972 to 1979, and intermittently until 2001, Macomber worked in food catering, where her duties involved food preparation. Id. at 55-58, 567. Macomber experienced pain and swelling in her left leg for several years. Id. at 133-166, 173-176, 189-194, 195-199, 200-301, 334-543. She began treatment for the pain in June of 2004 after developing discoloration and swelling. Id. at 16, 276.

Robert S. White, APN,*fn2 at the Keyport Primary Care Center reported grossly normal results from his musculoskeletal exams on July 27, 2004 and September 13, 2004. Id. at 17, 134, 137. The reports also found that Macomber's lungs were clear, pulse was normal, and there were no findings of edema, cyanosis or clubbing in her extremities. Macomber's heart had a regular rate and rhythm with no gallops, rubs or murmurs.

A month later, on October 29, 2004, Macomber visited Dr. Justin Fernando primarily complaining of pain and swelling in her left leg, and difficulty climbing stairs. Dr. Fernando included in his report:

Chief Complaint: Claimant complains of pain in her left leg and swelling of the ankles extending up her calf of the left leg. She complains of being unable to walk beyond 1 or 2 blocks and climbing 1 flight of stairs because of the pain in the left leg.

Id. at 167-168. Dr. Fernando made a number of findings, including that Plaintiff: (1) had a normal gait; (2) could half squat; (3) needed no help changing for the exam; (4) was able to rise from a chair without difficulty; and (4) could get on and off of a table without assistance. Additionally, her left foot had edema from the calf to the dorsum of the foot, and the posterior tibial pulse could not be felt in her left foot. There were no significant varicosities or trophic changes. She had a full range of motion, including her hips, knees and ankles, and there were no strength, reflex or sensory abnormalities. The examination reaffirmed that her heart had no murmurs, gallops or rubs. A chest x-ray also revealed no active disease. Id.

Macomber again visited White on December 3, 2004, where there was 1 edema in her left leg. Later, on December 29, 2004, an exercise arterial Doppler revealed no hemodynamically significant lesions of either lower extremity. "Post exercise pulse volume recordings showed good wave form and amplitudes bilaterally. The segmental arterial pressures do not show any significant gradient bilaterally." Id. at 173.

On two separate visits to White on March 1 and 10, 2005, Macomber's leg showed signs of improvement, as there were no reports of edema. Id. at 202-212. On April 7, 2005, the arterial Doppler of her thighs, calves and ankles demonstrated no hemodynamically significant stenosis. White suspected "mutisegmental atherosclerosis involving the left leg with a mild stenosis in the left superficial femoral artery and a mild stenosis in the left popliteal artery." Id. On June 14, 2005, licensed psychologist Jan S. Cavanaugh*fn3 recorded that Macomber's gait appeared to be normal, and that " Ms. Macomber reports that she is able to dress, bathe, and groom herself. She sometimes needs assistance. She reports that she can cook and prepare food, do general cleaning, laundry, shopping..." Id. at 326-328. Cavanaugh assessed her thought processes as coherent and goal directed, and her demeanor and responsiveness to questions was cooperative. Id. at 326. Finally, the doctor diagnosed Macomber with a chronic adjustment disorder with depressed mood. Id. at 328.

When Plaintiff visited St. Michael's Medical Center on June 21, 2005, the results of her physical revealed that she had normal coronary arteries, normal ejection fraction, and 40% stenosis on the right renal artery. There was no edema found in either check up on October 27 or November 7, 2005. Id. at 405-430. However, traces of edema were found in Macomber's left leg by Randy Shafritz, M.D. on January 5, 2006. The report also concluded that changes in her skin color were consistent with early venous stasis disease. Her lungs were clear and her heart had a regular rate and rhythm. Id. at 499-510. Dr. Shafritz also noted that Macomber did not comply with instructions to wear a compression stocking. Id. at 513.

On March 15, 2006, Plaintiff underwent radio frequency ablation of her small saphenous vein in her left leg due to venous insufficiency. Id. at 526. After the procedure on August 10, 2006, reports from the Keyport Primary Care Center did not document any traces of edema or lung blockage, and her heart rate and rhythm were regular. Id. at 406. During an October 12, 2006 checkup, the doctor reported chronic thrombus in the left proximal common femoral vein with no change, and left deep venous reflux. Id. at 539.

Macomber was referred to Dr. Baharlias*fn4 for a psychological evaluation of mental status, and visited the physician on September 22, 2006. In his report, the diagnosis for Macomber included: (1) depressive disorder associated with a general medical condition; (2) heart disease; (3) vascular disease; (4) hypertension; (5) generalized anxiety disorder; (6) personality disorder with prominent features of dependency and avoidance; and (7) family relational problems Id. at 530. Notably, the ALJ did not give this evaluation significant weight, finding that it was not supported by the doctor's own objective findings or by the other evidence in the record. Id. at 15. During this visit, the doctor also observed Plaintiff's posture and gait to be unremarkable. Id. at 528-530. A stress test on September 23, 2006 by the treating cardiologist Parveen Uppal revealed the left ventricular ejection fraction at 74% with normal wall motion function, small to medium sized apical attenuation artifact, small to medium sized anterior attenuation artifact, and there was no evidence of ischemia. Id. at 533.

The Court notes that findings from White were not given significant weight, namely because he is not a physician and therefore not an acceptable medical source as defined by the Social Security Administration. Id. at 17. As a result, the ALJ concluded that there were no doctors' reports that require Plaintiff to keep her leg ...

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