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Mary Lee Genao v. Commissioner of Social Security

May 23, 2011

MARY LEE GENAO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

NOT FOR PUBLICATION

OPINION

Before the Court is Plaintiff Mary Lee Genao‟s appeal of the final administrative decision of the Commissioner of the Social Security Administration ("Commissioner"), with respect to Administrative Law Judge James Andres‟s ("ALJ") denial of Genao‟s claim for disability insurance benefits ("DIB") under Sections 216(i), 223(d) and supplemental security income ("SSI") under Section 1614(a)(3)(A) of the Social Security Act (the "Act").

This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. The Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons stated herein, this Court AFFIRMS the Commissioner‟s decision.

PROCEDURAL AND PERSONAL BACKGROUND

On August 8, 2007, Genao applied for DIB and SSI. (ALJ‟s Decision at 1.) Her claims were denied on March 19, 2008, and again upon reconsideration on June 6, 2008. (Id.) Genao requested a hearing that was held on September 15, 2009 before the ALJ, (id.), who issued a ruling against Genao on October 26, 2009. (ALJ‟s Decision at 11.) Subsequently, the Appeals Council denied Genao‟s request for review. (AC Denial at 1.) Thereafter, Genao filed this appeal with the Court. (Compl. 1, Aug. 13, 2010.)

A. Employment History

Mary Lee Genao was born on July 5, 1974. (Tr. 3.) She holds a post-secondary degree in "Executive Secretarial" from the Kathryn Gibb School in Piscataway, New Jersey. (Tr. 3.) Her degree is similar to a business degree. (Tr. 3.)

From 2001 until 2003, Genao worked as a diagnostic scheduling secretary at the Community Hospital Group, Inc. (Ex. 1E at 3; Ex. 3D at 4-5.) From October 2003 until October 2004, she worked as a customer service representative for a wireless communications company. (Ex. 1E at 3.) She worked as an accounting clerk and secretary with a secretarial temporary agency from January 2005 until May 2005. (Ex. 1E at 3; Ex. 9E at 1.) Genao‟s most recent employment was as a head distribution clerk for Coca Cola Enterprises, Inc. ("Coca Cola") from October 2005 until April 2007. (Ex. 3D at 5-6; Ex. 9E at 1.)

As the head distribution clerk for Coca Cola, Genao "filed papers, completed reports, answered phones, drove to drivers for assistance with handhelds, drove to customers for signature of delivery papers." (Ex. 9E at 2.) At Coca Cola, Genao‟s responsibilities included using machinery and tools, technical skills and writing reports. (Id.) She walked for two hours each day, stood for one hour per day, sat for four hours each day and stooped for one hour per day. (Id.) The job did not require Genao to lift more than ten pounds. (Id.) In her previous job at the temporary agency, her duties included a variety of clerical work such as answering the phones, processing reports and entering orders. (Ex. 9E at 3.)

B. Medical History

Genao claims her disability began on November 5, 2006, just before she was admitted to the hospital for abdominal pain and diarrhea. (ALJ‟s Decision at 1; Ex. 12F at 1.) At her hearing, Genao alleged disability due to migraines, fibromyalgia, gastrointestinal problems, syncope, vertigo, a herniated disc, depression, sleep apnea and epilepsy.*fn1 (Tr. 4-14, 18.) In her DIB application, she claimed disability due to seizure disorder (epilepsy), gastrointestinal problems, asthma, thyroid and high blood pressure. (Ex. 1E at 2.) Genao has a past medical history that includes seizure disorder, hypertension, asthma, gastroesophageal reflux disease, multiple miscarriages and a history of migraines. (Ex. 14F at 6; Ex. 17F at 4, 7; Ex. 18F at 4, 21; Ex. 25F at 1.) Her past surgical history includes two ectoptic pregnancies, an appendectomy, gallbladder surgery and an ovarian cyst. (Ex. 6F at 1; Ex. 14F at 6; Ex. 17F at 4, 7; Ex. 18F at 4, 21; Ex. 25F at 1.)

Genao alleges she is taking several medications due to her numerous medical problems. She is taking 125 milligrams of Depakote and 50 milligrams of Imitrex for her seizures and migraine headaches respectively. (Tr. 9, 15-17.) For high blood pressure, Genao is taking 10 milligrams of Amlodipine. (Tr. 16.) She is also taking an unspecified dosage of Fioricet daily and 300 milligrams of Lyrica for her fibromyalgia. (Tr. 16-17.) The side effect for Lyrica is drowsiness. (Tr. 17.) Genao also uses Albuterol to control her asthma, Cymbalta for depression and Lidoderm for her back pain. (Tr. 17-18.)

At her ALJ hearing, Genao‟s counsel opined, "the record is replete with seizures and hospitalizations for seizures and syncopal episodes" in 2005 and 2006. (Tr. 9.) While Genao claims her seizures began in November 2006, there is no record of her going to the hospital due to a seizure. (Tr. 21.) She does see a neurologist, Dr. Farooq Rehman, M.D. ("Dr. Rehman") for her alleged seizure disorder. (Tr. 22; Ex. 19F at 2.) Genao stated that she has "just a form of epilepsy . . . and it makes [her] just [] pass out." (Tr. 13.) The most recently alleged seizures have occurred in February 2007, January 2008, April 2008 and August 2008. (Tr. 9-10; Ex. 8E at 1; Ex. 11E at 1.) Genao maintains she takes 125 milligrams of Depakote daily for her seizures, which makes her sleepy. (Tr. 9, 17.) Genao says the medication helps her condition but she is still prone to collapsing. (Tr. 11-12.)

However, Dr. Alan S. Lichtbroun, a rheumotologist Genao consults for her arthritic pain, noted that she "takes Depakote for epilepsy for the past four years but only takes it when she starts feeling nauseous and dizzy . . . [o]ne pill seems to prevent it. She takes it every 2-3 weeks, not every day . . . ." (Ex. 25F at 1.) After her consultation with another specialist, Dr. Deborah Rosin wrote to Dr. Tomasz Grochowalski (who is Genao‟s treating physician) that her symptoms included falling and blacking out. (Ex. 26F at 6.) Dr. Rosin ruled out seizure and noted that the patient appeared to suffer from vertigo of an "unclear etiology." (Id.)

On June 3, 2005, results from an electroencephalogram ("EEG"), which was done to monitor Genao‟s brain activity due to alleged epileptic seizures, were normal and no abnormalities were detected during the EEG. (Ex. 8F at 2.) On November 9, 2005, results from the electrodiagnostic study showed that the "[l]eft median and ulnar motor NCS study was normal"; the "[l]eft median, ulnar and radial sensory NCS was normal"; the "[l]eft median and ulnar F waves were normal "; and a "[n]eedle examination with monopolar needle of left upper limb was normal." (Ex. 9F at 2.)

Nearly seven months after her first EEG, another test was done on January 6, 2006. (Ex. 10F at 1.) The EEG impression noted that there was "an abnormal EEG due to the presence of left temporal slowing and sharply contoured delta activity over the same region." (Id.) And, the findings were "suggestive of left temporal lobe dysfunction but not as atypical. The finding could potentially be epileptogenic." (Id.) However, Dr. Rehman ordered a magnetic resonance imaging ("MRI") that was taken on June 22, 2009; and the results from the test were normal. (Ex. 26F at 7.)

Genao was first hospitalized due to abdominal pain, syncope and asthma on May 20, 2005. (Ex. 6F at 1.) Genao experienced pain in her lower right abdomen, and her prognosis included an ovarian cyst, enterocolitis and syncopal episode. (Id.) She was also diagnosed with Irritable Bowel Syndrome. (Ex. 8F at 3.) Her condition improved "significantly, and she was discharged in stable condition . . . ." (Ex. 6F at 1.) During her hospitalization, a series of tests were done including a computerized axial tomography ("CT scan") of her abdomen, which "showed a tumor in her liver, a cyst in her ovary, and a fibroid uterus." (Ex. 8F at 3.) Genao also underwent an MRI, EEG and CT scan of her brain. (Id.) The June 3, 2005 EEG impression came back normal, "without any focal or epileptiform discharges." (Ex. 8F at 2.)

On March 20, 2006, Genao was hospitalized again for abdominal pain due to an ectoptic pregnancy. (Ex. 11F at 2.) Specifically, she was admitted for a ruptured ecoptic pregnancy in her fallopian tube. (Ex. 11F at 17.) This resulted in a surgery to remove her right fallopian tube. (Id.) Her ovaries were not affected by the pregnancy and were in normal condition at the time of the surgery. (Id.)

On November 7, 2006, Genao visited the emergency room due to abdominal pain and diarrhea. (Ex. 12F at 1.) A CT scan of her abdomen and the patient‟s liver, spleen, pancreas, adrenal glands, kidneys and bladder appeared fine. (Ex. 12F at 12.) A second CT scan was conducted later that same day, and the pelvic ultrasound was "unremarkable." (Ex. 12F at 14.) On November 13, 2006, a biopsy was taken from ...


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