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Bogar v. Commissioner of Social Security

June 18, 2009


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


This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration denying the application of Plaintiff, Kathleen Bogar ("Plaintiff"), for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-434. The Court must decide whether substantial evidence supports the determination of the Administrative Law Judge ("ALJ") that Plaintiff had the residual functional capacity to perform her past work before her insured status expired, thus rendering her ineligible for DIB. The Court, for the reasons set for below, finds that the opinion of the ALJ is supported by substantial evidence and will therefore affirm the decision of the Commissioner of Social Security to deny Plaintiff's application for DIB.


A. Procedural History

Plaintiff filed her application for DIB on September 1, 2005, alleging a disability onset date of February 26, 1999. Plaintiff claimed that reflex sympathetic dystrophy syndrome*fn1 ("RSDS") and cellulitis in her left foot prevented her from working. That application was denied both on initial review and on reconsideration. Plaintiff sought an administrative hearing, which was held on July 17, 2007 before the ALJ. On July 27, 2007, the ALJ issued his opinion denying Plaintiff entitlement to DIB. Plaintiff sought review of that decision, and the Appeals Council denied that request. Thus, the decision of the ALJ became the final decision of the Commissioner. Plaintiff timely filed this action.

B. ALJ Opinion

The ALJ first found that Plaintiff met the insured status requirements for disability benefits through December 31, 1999, pursuant to 42 U.S.C. § 423(c).*fn2 (R. at 17, 19.) Thus, Plaintiff was required to show disability on or before December 31, 1999 in order to be entitled to DIB. (R. at 17.)

The ALJ laid out the five steps of analysis required by the regulations. (R. at 17-19.) At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since February 26, 1999. (R. at 19.) At step two, the ALJ found that Plaintiff suffered from a severe impairment -- "tear of the left posterior tibial tendon"*fn3 -- during the relevant period. (Id.)

At step three, the ALJ found that this impairment does not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

At step four, the ALJ first found that for the relevant period, Plaintiff had the residual functional capacity to perform the full range of sedentary work. (R. at 19-22.) According to the ALJ, Plaintiff "had the residual functional capacity to lift and/or carry up to 20 pounds and to stand and/or walk for 2 hours in an 8-hour workday, and was not otherwise limited." (R. at 22.) The ALJ based his opinion, in part, on Plaintiff's testimony that in 1999 "she retained the ability to walk her daughter 1 block to school; to stand for 30 minutes; to prepare meals; and to dust and do other light housework." (R. at 21-22.) He highlighted Plaintiff's testimony "that she was unable to work full-time in 1999 due to childcare." (R. at 22.) Though the ALJ found that Plaintiff is currently diagnosed with RSDS, he concluded that this condition did not arise until after she had surgery in December, 2000. (Id.) In support of this conclusion, the ALJ referred to the radiology reports from 1999, a report from Dr. Daniel DeMeo, and the March 3, 2006, report from the neurologist Dr. Robert Schwartzman. (R. at 20-21, 22.) That letter reports that Plaintiff began experiencing severe pain and swelling in both lower extremities "following a report of a torn posterior tibial tendon in the left foot in the year 2000." (R. at 20, 352.)

The ALJ discounted Dr. DeMeo's opinion that Plaintiff has been incapable of performing any type of remunerative work since July of 1999. (R. at 20, 22.) The ALJ found Dr. DeMeo's conclusion to be "unsubstantiated by the medical evidence of record, including his own report and treatment notes" and contradicted by Plaintiff's own testimony. (R. at 22.) The ALJ also found that Plaintiff's testimony concerning the intensity, persistence, and limiting effects of her injury during the relevant period was "not entirely credible." (Id.) The ALJ summarized his findings:

At best, the medical evidence of record establishes that [Plaintiff] was limited in her ability to stand and/or walk. The undersigned will give the claimant the benefit of the doubt and assume that her limitations in standing and/or walking reduce her ability to lift and/or carry heavy objects. Thus, after reviewing the evidence of record, the undersigned finds that from February 28, 1999 through December 31, 1999, [Plaintiff] had the residual functional capacity to lift and/or carry up to 20 pounds and to stand and/or walk for 2 hours in an 8-hour workday, and was not otherwise limited. (Id.)

Continuing with the step four analysis, the ALJ found that Plaintiff was able to perform her past relevant work as an account payable clerk as that work is generally performed in the national economy. (Id.) The job is sedentary and "requires an individual to lift no more than 10 pounds and to stand and/or walk for no more than 2 hours in an 8-hour workday." (Id.)

The ALJ did not proceed to step five, but instead found that Plaintiff was not under a disability during the relevant period from February 26, 1999 to December 31, 1999. (R. at 23.) The ALJ then denied her application for DIB. (Id.)

C. Evidence in the Record

1. Pre-December 31, 1999 Medical Records

As the ALJ correctly noted, there are very few relevant records from the period of time at issue in this case.*fn4 The earliest record regarding Plaintiff's lower extremities is a radiology report dated May 13, 1999 of an x-ray of Plaintiff's left foot taken in response to Plaintiff's complaint of pain in her left foot. (R. at 163.) The report found: "There is no fracture, dislocation or other significant bone pathology. The soft tissues are unremarkable." (Id.) A radiologist report dated July 23, 1999 documents an MRI performed on Plaintiff's left ankle after Plaintiff reported "ankle pain and swelling with instability which is worse in bad weather." (R. at 166.) The MRI showed "possible synovitis*fn5 of the tibialis posterior tendon sheath with adjacent soft tissue swelling," but "no evidence of a tendon or ligament tear at the ankle." (Id.) These two reports are the only contemporaneous documents regarding Plaintiff's medical condition during this period.

2. Post-December 31, 1999 Medical Records

The medical evidence prepared after Plaintiff's date of last insured reveals Plaintiff's deteriorating medical condition. A subsequent MRI from September 8, 2000, showed "a complete focal tear of the posterior tibialis tendon." (R. at 164.) This information was passed to Dr. DeMeo on September 11, 2000, (R. at 179), who admitted Plaintiff on December 28, 2000, noting that she complained of "pain in [the] left foot and ankle for [the] past year and [a] half," (R. at 419). Dr. DeMeo's notes regarding the history of Plaintiff's left foot and ankle pain state:

Patient made a mis-step in 3/99 and was seen by her LMD who had some x-rays made. These were reported as negative. Patient initially seen by me on 7/8/99 at which time examination was indicative of posterior tibial tendon dysfunction. An MRI study was made and the patient was placed in an ankle support and started on anti-inflammatory medication. She continued with discomfort and a repeat MRI study was made on 9/8/00 and this showed a complete focal tear of the posterior tibial tendon at the medial melleolus. Patient is admitted for repair, augmentation and calcaneal osteotomy.

(R. at 406.) Dr. DeMeo went on to note: "Patient enjoys good general health." (Id.)

On that same day, December 28, 2000, Dr. DeMeo performed surgery to correct the tear by inserting a screw into Plaintiff's ankle. (R. at 176.) Following the surgery, Dr. DeMeo prescribed crutches and morphine. (R. at 414-17.)

On July 20, 2001, Dr. DeMeo reported that Plaintiff "[i]nitially did well" following the December, 2000 surgery, but later developed "ulceration" around the wound that was treated with antibiotics. (R. at 360.) On that day Dr. DeMeo performed a second surgery to remove the screw placed during the December surgery. (R. at 169.) Once again, Dr. DeMeo prescribed crutches and also noted that Plaintiff "may walk on [her] left foot." (R. at 359.)

The first reference to Plaintiff's RSDS in the record appeared in October, 2002. On October 28, 2002, Dr. John Santoro wrote a report in regarding Plaintiff's intestinal problems as well as heartburn, "which started with the initiation of Daypro for her RSD." (R. at 146.)

By June 10, 2003, Plaintiff was being treated by neurologist Dr. Russell Abrams, who stated: "She has been diagnosed with reflex sympathetic dystrophy of the left foot and this apparently occurred after surgery to repair a tendon in the left foot." (R. at 475.)

On March 3, 2006, Dr. Robert Schwartzman, Professor and Chairman at Drexel University College of Medicine's Department of Neurology, examined Plaintiff. (R. at 352-54.) Dr. Schwartzman reported:

[Plaintiff] is 49 years old, and comes in today with a chief complaint of severe pain and swelling in both lower extremities. The patient states that her problem began following a repair of a torn posterior tibial tendon in the left foot in the year 2000. The patient relates that following surgery she had complicated episodes of cellulitis. Shortly after the surgery, she noted swelling, color change, burning pain, and hypersensitivity in the left leg. Gradually, this problem spread to her right leg.

(R. at 352.) He diagnosed her condition as severe chronic regional pain syndrome. (R. at 354.)

On May 4, 2006, Dr. Schwartman prepared this letter:

It is medically necessary for [Plaintiff] to receive Intravenous Lidocaine Infusion Therapy for refractory, total body RSD/CRPS-1 (Reflex Sympathetic Dystrophy/Complex Regional Pain Syndrome Type-1).

Complex Regional Pain Syndrome (CRPS), also known as Reflex Sympathetic Dystrophy (RSD), is a chronic painful illness that usually follows relatively minor trauma to a limb. It is characterized by spontaneous pain or hyperalgesia not limited to a single nerve territory, which is disproportionate to the inciting noxious event.

At some point in the course of the illness, patients present with, or report, edema and skin blood flow (temperature) or sudomotor abnormality in the distal part of the affected limb. Many patients report feeling pain elicited by an innocuous stimulus (allodynia). Many also experience a spread of symptoms to the contralateral limb, all limbs, or even to the entire body. This condition can totally debilitate a person to the point of needing assistance with the simplest tasks of daily living.... It is vitally ...

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