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Alward v. Commissioner of Social Security

December 7, 2009

RE: ALWARD
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

Plaintiff Katherine Alward ("Alward") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of a final determination by the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, the Commissioner's decision is AFFIRMED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a 53 year old female suffering from asthma, chronic pulmonary disease, hypertension, and mild sleep apnea. (R. 95, 183, 203, 357). She lives in Paterson, New Jersey, with her elderly aunt. (R. 111, 323). Alward has a high school education and for ten years worked as a home health aide. (R. 293, 325). More recently, she worked as a jewelry salesperson at department stores such as Bradlees, Kohl's, and K-Mart. (R. 66-67, 324-325). She worked at Kohl's as a jewelry salesperson and cashier for two and a half to three years, until she was laid off in September 2004. (R. 324- 325). She found new work in the jewelry department at K-Mart but had to quit after only three weeks because she was hospitalized with pneumonia in early December 2004. (R. 325-326).

Upon her release from the hospital on December 3, 2004, Alward alleges that she began to experience difficulty breathing and to tire easily from activities she used to perform regularly, such as walking short distances, talking on the phone, and performing household chores. (R. 95, 327, 329, 336). She first applied for disability benefits on January 4, 2005, alleging disability since September 2004 (although she ultimately amended the onset date to December 1, 2004, when she developed pneumonia). (R. 55, 180, 326). She based her claim upon a lung condition, pneumonia, and asthma. (R. 203). She said these conditions limited her ability to work because she could no longer move around without getting tired and losing her breath. (R. 294). On her application for benefits, she described her work as a home health aide in depth but provided scant details about her work at the department stores, other than to list her salary and job title. (R. 70, 78). At a hearing on July 29, 2006, Plaintiff testified that her work at Kohl's required selling jewelry, stocking shelves, and lifting boxes weighing up to twenty-five pounds.

(R. 308). At a later hearing on October 11, 2007, she testified that the boxes weighed only up to fifteen pounds. (R. 324).

Plaintiff's treating physician was Dr. Antonio Rizzo. (R. 69). He diagnosed her with asthma and hypertension on December 22, 2004. (R. 178). He stated in separate April 2005 reports that her asthma was under fair control and that she could not work.

(R.138, 171).

In February and March 2005, Plaintiff underwent two pulmonary function tests.

The first, conducted by Dr. Rizzo, showed that her pulmonary function was close to normal. (R. 154, 156, 358). Dr. Michael Pollack, a state- agency physician, ordered a second pulmonary function test in March 2005. (R. 127-133). This test revealed moderate restrictive airway disease and showed that Plaintiff's pulmonary function was close to the listing level that would qualify her as disabled under the law. (R. 358). However, two additional pulmonary function tests conducted in January and July 2007 showed function that was normal or close to normal. (R. 358).

In a report issued by Dr. Pollack on March 29, 2005, he diagnosed Alward with asthma and hypertension. (R. 126). He noted that she had a history of shortness of breath, wheezing, coughing, and nocturnal awakenings. (R. 125). However, the report also showed that she had only one hospital/ emergency ...


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