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Camden Vicinage Ernestine Diggs v. Michael J. Astrue

June 14, 2011

CAMDEN VICINAGE ERNESTINE DIGGS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

NOT FOR PUBLICATION (Doc. No. 15)

OPINION

This matter comes before the Court on an appeal filed by Plaintiff Ernestine Diggs from a decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff disability insurance benefits pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). For the reasons expressed below, the Court will affirm the Commissioner's decision that Plaintiff is not entitled to disability insurance benefits.

I. BACKGROUND

A.Procedural History

Ernestine Diggs is a forty-seven year-old woman who filed an application with the Social Security Administration (the "Administration") for disability insurance benefits and supplemental security income ("SSI") on April 20, 2005. (Tr. 15). In both applications, Plaintiff alleged that her disability results from an injury she sustained on December 6, 2002. (Id.). The Administration denied her claims on August 26, 2005, and again upon reconsideration on December 13, 2005. (Id.). Thereafter, Plaintiff requested a hearing before an administrative law judge ("ALJ") on December 16, 2005. (See 20 CFR § § 404.929 et seq., 416.1429 et seq.). Plaintiff appeared before the ALJ on January 31, 2007 without counsel. After hearing her testimony, the ALJ determined that Plaintiff was not disabled. (Tr. 16).

Plaintiff filed a petition for appeal before the Social Security Administration Appeals Council (the "Appeals Council"). The Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. 376-78). As a result of that denial, Plaintiff initiated a civil action before this Court. (Tr. 381). In response to the civil action, the Commissioner petitioned this Court to remand the matter for further administrative proceedings. (Tr. 383). The Court granted the Commissioner's motion. (Id.). The Commissioner then remanded the matter to the ALJ for further proceedings. (Tr. 384).

On April 1, 2009, the ALJ conducted a hearing. Plaintiff appeared with counsel and testified. (Tr. 583-624). The ALJ issued a decision on May 18, 2009, finding that Plaintiff was not disabled, and therefore not entitled to either disability insurance benefits or SSI. (Tr. 409-24). On April 10, 2010, the Appeals Council denied Plaintiff's request for review, and this lawsuit followed. (Tr. 363-65).

B.Plaintiff's Medical History

Plaintiff holds a Bachelor of Science degree in Computer Science from Rowan University, and worked as a computer programmer and program developer prior to December 6, 2002. (Tr. 423). In addition to employment as a computer programmer, Plaintiff testified that she held positions as a residential aide at a nursing home, and a desk clerk at a local Young Men's Christian Association ("YMCA"). (Tr. 590-91).

Plaintiff claims that on December 6, 2002, she slipped and fell into a drainage ditch on her property while shoveling snow. (Tr. 341). As a result of the fall, Plaintiff experienced pain on the left side of her body. (Tr. 121). Three days after the fall, Plaintiff experienced "signs of concussion." (Id.). On January 17, 2003, Plaintiff explained that while she was standing in a prayer line at church, someone grabbed and squeezed her head, and twisted her torso. The following day, "pain radiated down the left side of [her] neck and shifted from [her] lower to upper back." (Id.). Plaintiff did not seek medical treatment for her injuries.

On September 25, 2004, Plaintiff claimed that while playing "3 on 3 basketball" with her nephews, "a little boy got angry and rammed into her," causing severe pain in her lower back and injuring her right knee. (Id.). Once again, Plaintiff did not receive medical treatment for the knee injury. On October 22, 2004, Plaintiff claims that she sustained another injury when her supervisor "hugged [her] and began rocking up and down on [her] back." (Id.). Plaintiff did not receive medical treatment for that injury, and claims that her employer terminated her employment "for not being able to get along with [its] employees." (Id.). Plaintiff claims that she experienced three other injuries between 2004 and 2005 that affected her physical condition. On December 1, 2004, she fell at a UPS thoroughfare, in June 2005 she hit her head on a playground, and in July 2005 someone pulled her hair while she was getting a perm at a hair salon. (Id.).

Between December 2002 and 2005, Plaintiff's weight increased from approximately 179 pounds to 244 pounds. (Tr. 122). On August 28, 2005 Plaintiff weighed approximately 273 pounds. (Id.). Plaintiff stated that she gained weight after taking injections to control endometriosis. (Id.).

As a result of her injuries, Plaintiff claims that she suffers from: (1) severe migraine headaches; (2) fibromyalgia; (3) numbness, pain, and weakness in her legs; (4) nerve pain; and

(5) sleep deprivation (Plaintiff complains that she generally sleeps two to four hours per night).

In addition, Plaintiff claims that due to nerve pain, she can only use her hands for one span of fifteen minutes during an eight-hour workday; that she can only sit comfortably for a period of twenty minutes on four separate intervals during an eight-hour workday; that she can only stand for ten minutes without experiencing any pain; and that she can only walk a distance of approximately two blocks on three occasions during an eight-hour period. (Tr. 605-09). In addition, Plaintiff complains that she can only lift approximately one gallon of milk. (Tr. 609).

C.Medical Examinations

Plaintiff underwent a number of medical examinations between December 6, 2002 and 2008. On December 6, 2002, Plaintiff underwent an examination and treatment at the Underwood-Memorial Hospital emergency room. At that time, Plaintiff complained of pain in her left shoulder, neck, left hand, and left hip. (Tr. 222). The examining physician found no evidence of injury. In particular, the x-ray results demonstrated "no sign of fracture, dislocation or other significant osseous." (Tr. 227). The physician released Plaintiff with instructions to call her family doctor in four days for follow-up treatment. (Tr. 231).

Plaintiff applied for state disability in New Jersey. In connection with her claim for benefits, Plaintiff underwent an examination by Dr. Nithyashuba Khona on July 15, 2005. During that examination, Plaintiff described her fall on December 6, 2002, and recounted the other subsequent events that she believed contributed to her condition at the time of the examination. In particular, Plaintiff told Dr. Khona that she experienced tenderness in her hand after someone at church held her hand tightly, and remarked that "she was hit by a small child who was playing a game." (Tr. 232). However, when asked to describe her pain, she was unable to provide Dr. Khona with a detailed description of her condition. Based on his examination, Dr. Khona noted that Plaintiff could walk on her toes and heels, and squat halfway to the ground.

Dr. Khona also noted that Plaintiff experienced no difficulty getting on and off the examination table or rising from a chair without assistance. In addition, Dr. Khona reported that Plaintiff's "[h]and and finger dexterity were intact," and that her "[g]rip was 5/5 bilaterally." (Tr. 233). Furthermore, Dr. Khona found that Plaintiff had full range of motion in her shoulders, elbows, forearms, wrists, and fingers bilaterally, and no joint inflammation or muscle atrophy. (Id.). Finally, Dr. Khona noted that Plaintiff had full range of motion in her hips, knees, and ankles. (Id.).

In connection with his visual examination, Dr. Khona ordered x-rays of Plaintiff's right knee. Those x-rays revealed osteoarthritic changes in Plaintiff's knee, but no fracture or dislocation. (Tr. 237). X-rays of Plaintiff's lumbar spine revealed mild degenerative changes but no fracture or subluxation. (Id.).

Dr. Khona's examination produced no positive findings aside from Plaintiff's general complaints of pain. Dr. Khona noted that despite Plaintiff's numerous complaints, she could not describe the pain, and never took any medication or consulted a physician. (Tr. 234). Dr. Khona concluded that Plaintiff should undergo a psychiatric evaluation. (Id.).

On August 8, 2005, at the request of the Administration, Plaintiff underwent a psychiatric evaluation by Dr. Robert Waters. (Tr. 239-42). When asked why she could not work, Plaintiff described a variety of injuries she sustained between 2002 and 2005. Specifically, Plaintiff reported that a member of her church pulled her hair on June 29, 2005, which caused her to suffer a mild stroke. She also explained that a child hit her in the stomach on September 25, 2004, and claimed that a woman attacked her in church on January 17, 2003. In addition, Plaintiff stated that she suffered a stroke on July 8, 2005, which affected her short-term memory and caused her "pressure headaches." (Tr. 239). With respect to her daily activity-level, Plaintiff reported that she could wash dishes, shower, groom, and shop independently when necessary.

With respect to Plaintiff's mental condition, Dr. Waters concluded that she was "alert and oriented to the time, place, person, and situation," and that "her speech was coherent, goal directed, relevant and logical." (Tr. 241). In addition, Dr. Waters noted that "[Plaintiff's] affect was appropriate to her mood and content of dialogue," and that she "made adequate eye contact throughout the evaluation." (Id.). Dr. Waters noted that Plaintiff denied any suicidal ideation or suicidal attempts. (Id.). Moreover, Dr. Waters noted that Plaintiff's attention was excellent and her concentration was intact. For example, Plaintiff could repeat seven digits forward and six digits backwards and could complete simple mathematical equations such as 8 x 5 = 40 and 12 x 6 = 72. (Tr. 242). Significantly, Dr. Waters reported that Plaintiff's abstract reasoning was excellent, and her remote memory and immediate memory were intact. (Id.). The only deficiency Dr. Waters observed was that Plaintiff's recent memory was deficient, and remarked that the cause of that deficiency may be her reported "mild stroke." (Tr. 242).

As a result of his analysis, Dr. Waters concluded that Plaintiff's "mental status does not appear to be playing any significant role in her occupational limitations," and noted that "her physical/medical conditions present her most significant obstacle to adapting to a typical work environment . . . ." (Id.).

On August 10, 2005, Dr. David Schneider, a state agency medical consultant, reviewed the evidence in Plaintiff's medical file to determine whether she could perform work-related activities that required physical exertion. (Tr. 243-50). Dr. Schneider noted that Plaintiff complained of pain in all regions of her body, especially her back, knees and shoulders. (Tr. 244). Dr. Schneider also highlighted the fact that Dr. Khona evaluated Plaintiff on July 15, 2005 and identified no significant abnormalities, and that Plaintiff is morbidly obese. (Id.). Finally, Dr. Scheider noted that Plaintiff could heel and toe walk and perform a half squat; and that x-rays of Plaintiff's right knee and spine demonstrated evidence of osteoarthritis. (Id.).

Dr. Schneider concluded that Plaintiff could stand and/or walk for a total of six hours in an eight-hour workday, and carry fifty pounds occasionally and twenty-five pounds frequently. Dr. Scheider also found no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 245-47). With respect to Plaintiff's symptoms, Dr. Schneider found that "the symptoms of pain all over [Plaintiff's] body are attributable to . . . osteoarthritis and obesity," and concluded that "[t]he severity and duration of the symptoms are not proportionate to the expected." (Tr. 248). Lastly, Dr. Schneider noted that Plaintiff could drive, shop, and perform some household chores. (Id.).

On July 31, 2006, Dr. Francis Grandizio, a chiropractor, evaluated Plaintiff. Dr. Grandizio reported that Plaintiff complained of pain in her neck, back, left buttock, posterior thigh, and left and right upper extremities. (Tr. 269). Dr. Grandizio found that Plaintiff had decreased cervical range of motion with pain upon flexion, extension, and rotation, but no cervical spine abnormalities. (Id.). In addition, Dr. Grandizio found that Plaintiff had decreased range of motion in the lumbar region and experienced pain in the lumbar region. (Id.). Plaintiff's Lasegues and Bechterews tests were positive, which Dr. Grandizio concluded indicated probable disc involvement. (Id.).

Dr. Grandizio diagnosed Plaintiff with lumbo pelvic somatic dysfunction with probable disc involvement and cervico thoracic somatic dysfunction. (Tr. 270). Dr. Grandizio found that Plaintiff's x-rays revealed facet degeneration at L5-S1 with narrowing of the neural formina. (Id.).

Plaintiff saw Dr. Barry Butler for treatment on August 17, 2006, complaining of pain in her lower back, right shoulder and neck. (Tr. 272).*fn1 Dr. Butler noted that at the time of treatment, Plaintiff weighed 282 pounds, and displayed full range of motion in her neck, but complained of pain while flexing her neck. Dr. Butler also reported that Plaintiff had tenderness in her lumbar spine, but noted that straight-leg raising was negative with no pain. In addition, Dr. Butler reported that Plaintiff had full motor strength in her lower extremities, and her deep tendon reflexes were two-plus and equal. Dr. Butler diagnosed Plaintiff with low back pain, shoulder pain, and obesity, and recommended rest, moist heat and Motrin. (Tr. 272). In addition, Dr. Butler recommended an MRI for Plaintiff's low back pain, and an x-ray for Plaintiff's shoulder pain.

On August 23 and 24, Plaintiff received an MRI and x-ray. The x-ray of Plaintiff's right shoulder revealed no fracture, dislocation, or significant degenerative change. (Tr. 275). The MRI of Plaintiff's lower back revealed "minimal disc at L5-S1" and no significant stenosis. (Tr. 274). Thereafter, on August 29, 2006, Plaintiff visited Dr. Butler for a follow-up examination. The Commissioner claims that the follow-up examination produced similar findings to Dr. Butler's examination on August 17, 2006.*fn2

On September 5, 2006, Diane Thompson, a physical therapist, evaluated Plaintiff for physical therapy. Thompson noted that Plaintiff experienced pain in her left shoulder and lower back, but concluded that Plaintiff's "[p]otential to improve with skilled physical therapy interventions is fair to good." (Tr. 280).

On September 21, 2006, Lisa Saulsbery, a physical therapist at Underwood-Memorial Hospital, discharged Plaintiff from physical therapy. Saulsbery noted that during therapy, Plaintiff complained of pain in her lower back and lower extremities but refused to use moist heat to relieve the pain. (Tr. 473). Saulsbery also noted that Plaintiff reported difficulty taking steps, and was unable "to perform prolonged standing greater than 5 minutes to walk through stores." (Id.). Finally, Saulsbery reported that Plaintiff could not squat, kneel, lift or perform moderate household tasks, but noted that Plaintiff walked "with a normal gait." (Id.). Saulsbery recommended that Plaintiff continue her home exercise program and consult an orthopedic doctor.

On October 4, 2006, Plaintiff re-visited Dr. Hopkins, complaining of pain in her lower back, bilateral knee pain, and left shoulder pain. (Tr. 317). Plaintiff stated that she fractured her knee in 1998 and underwent an arthroscopy in 1982. (Id.). Plaintiff also informed Dr. Hopkins that she conducted stretching and range of motion exercises for four weeks, but still experienced tenderness in her left biceps and shoulder. (Id.). Plaintiff complained that her symptoms worsen when standing, walking, climbing stairs, sitting for prolonged periods, driving, and raising and lowering her legs. (Id.). Finally, Plaintiff complained that her symptoms worsened after physical therapy. (Id.).

Dr. Hopkins found that Plaintiff could "heel toe" walk, and that straight leg raises were negative and Hoffman's sign was negative. (Id.). Plaintiff's motor strength was four out of five with no sensory deficit. With respect to treatment, Dr. Hopkins recommended a whole body scan, connective tissue panel and aquatic therapy. (Id.).

On October 6, 2006, Plaintiff underwent a whole body bone scan at Underwood-Memorial Hospital. (Tr. 291). The scan revealed "scattered diffuse degenerative joint changes."

(Id.). Approximately two to two-in-a-half hours after Plaintiff received 22 mCi of Technetium 99m MDP, Plaintiff complained of headaches, nausea, neck pain and slurred speech. At that time, Plaintiff was located in a room awaiting the whole body bone scan. When a radiology nurse advised Plaintiff to go to the emergency room, Plaintiff refused. (Id.). After the scan was complete, Plaintiff agreed to visit the emergency room for further evaluation. (Id.).

On November 17, 2006, Dr. Hopkins reviewed the results of the bone scan. (Tr. 309). Dr. Hopkins reported that the results of the bone scan demonstrated that Plaintiff suffered from systemic arthritis in her shoulders, knees, hips, ankles, and thoracic spine. Plaintiff's labs were negative, but she complained of severe pain in her back. Dr. Hopkins prescribed Naprosyn, and noted that Plaintiff could not do aquatic therapy because she did not possess adequate insurance. (Tr. 309).

Plaintiff began physical therapy for her back and left shoulder on January 12, 2007. (Tr. 328). At the outset of therapy, Plaintiff complained of pain on her left side since 2002, when she fell into the drainage ditch, and stated that she suffered an injury when she fell into a mail crate in December 2004. Plaintiff also alleged chronic pain in all of her joints and muscles and complained of a left kidney problem. (Id.). On February 12, 2007, after eleven physical therapy sessions, Plaintiff continued to complain of pain in her left shoulder and upper arm, and lumbar. When asked to assess her level of discomfort, Plaintiff graded her pain as a ten out of ten, with ten being the most excruciating form of pain. However, the physical therapist reported that Plaintiff demonstrated no objective signs of acute distress. (Tr. 326).

Plaintiff reported to the Underwood-Memorial Hospital emergency room on January 17, 2008, complaining of nasal congestion, sore throat, and headaches. (Tr. 540). The treating physician diagnosed Plaintiff with upper respiratory infection and sinusitis, and released her with instructions to take Levaquin and Allegra. (Tr. 536).

On July 28, 2008, Plaintiff visited Dr. Sylvester Sutton Hamilton, complaining of lower back pain, and pain in her lower tailbone and knees. (Tr. 449). Plaintiff stated that she had difficulty sitting for prolong periods, and that exercise exacerbated the pain. Additionally, Plaintiff noted that she had difficulty walking for exercise, and sleeping due to the pain in her knees and lower back. Dr. Hamilton reported that Plaintiff had two four-week physical therapy sessions, and that ...


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