Opinion
Case No. 8:09-cv-2537-T-TBM.
September 21, 2011
ORDER
The Plaintiff seeks judicial review of the decision finding medical improvement and only a closed period of disability. She argues error in the ALJ's finding of medical improvement and in his failure to properly credit the evidence from her treating doctor. She urges that her case be reversed and remanded for further consideration or, alternatively, an award of benefits. For the reasons set out herein, the decision is affirmed.
A.
Plaintiff was fifty-three years old at the time of her administrative hearing in April 2009. Plaintiff has a twelfth-grade education. She stands 54 tall and weighed 250 pounds at the time of her administrative hearing. Her past relevant work was as a receptionist, school bus driver, and office manager. She also had prior work as a seamstress. Plaintiff applied for disability benefits in October 2006, alleging disability as of April 1, 2006, by reason of a fever of unknown origin, sepsis, failed back surgery syndrome, diabetes, hypertension, depression, obesity, and abdominal pain. The Plaintiff's application was denied originally and on reconsideration.
A de novo hearing was conducted by an Administrative Law Judge (ALJ) on April 21, 2009. Plaintiff, who was represented by counsel at the hearing, testified that she is unable to work due to pain in her middle back that radiates down into her hips, down her right leg, and into her toes. She underwent back surgery in June 2004. Her back and leg pain is treated with epidural injections two or three times a year, pain medication, and muscle relaxers. The injections offer relief for about 4 to 6 weeks. The medications cause side effects including constipation for which she takes laxatives. However, this then causes her to be in the bathroom all day. According to Plaintiff, her back and leg pain occurs daily and is relieved somewhat by taking medication, laying down, and using ice packs.
As for her other impairments, Plaintiff testified that she previously had unexplained high fevers of unknown origin causing her to go into sepsis shock and renal failure in July 2006. She treated at Bartow Hospital, Winter Haven Hospital, and Brandon Hospital. She also underwent extensive testing at Moffitt Cancer Center. She still experiences low-grade fevers on an occasional basis, but it does not require hospitalization. Plaintiff testified that her diabetes and high blood pressure currently are being controlled by medication. As for her depression, Plaintiff testified she feels hopeless. She sought treatment in 2006 for mental health issues, but is not treating now because she cannot afford the insurance co-pay.
Regarding her daily activities and physical capacity, Plaintiff stated that she can stand for fifteen to twenty minutes at a time and for about one hour total in an eight-hour day due to pain in her low back and right leg. She has been walking with the use of a cane for six to eight months. Plaintiff estimated that she lays down between 11:00 a.m. and 4:30 p.m. each day due to her pain. She is able to drive, but will only go short distances once per week. As for household chores, she will occasionally do dishes or laundry, but for the most part her husband or daughter takes care of things. Plaintiff is able to take care of her own personal needs but cannot put on her socks and shoes. Bending is difficult because of problems with her back. She used to enjoy shopping, four-wheeling, and cross stitching but is unable to do these activities because of pain in her low back and leg. (R. 29-46).
The ALJ next took testimony from Jane Beougher, a vocational expert (VE). In pertinent part, the VE testified on a hypothetical question that assumed a person of Plaintiff's age, education and work history capable of light exertional work with environmental limitations of avoiding extreme temperatures, wetness, humidity, noise and vibration, fumes, odors, dust and gases, poor ventilation, and exposure to hazards such as moving machinery and unprotected heights. On this hypothetical, the VE opined that such individual could perform all of Plaintiff's past relevant work except for bus driver. Adding certain additional postural limitations did not change that opinion. However, if such hypothetical individual could sit no more than three hours, stand no more than an hour, and walk no more than thirty minutes in an eight-hour day, there would be no work available in the local or national economy because of an inability to work a full eight-hour day. Plaintiff's counsel did not question the ALJ. (R. 46-50).
On July 2, 2009, the ALJ issued a partially favorable decision finding that Plaintiff's sepsis with unexplained fevers, lumbar spine disorder status post surgery, diabetes mellitus type II, obesity and hypertension, rendered her disabled for the period from April 1, 2006, through July 26, 2007, because she was unable to engage in sustained work activity. Thereafter, her condition improved related to her sepsis, low back condition and hypertension such that she had the residual functional capacity to perform a restricted range of light exertional work beginning July 27, 2007. Upon this finding and the testimony of the VE, the ALJ concluded that Plaintiff could perform her past work except as a bus driver from that date forward. Upon this conclusion, the Plaintiff was determined to be not disabled as of July 27, 2007. (R. 13-24). The Appeals Council denied Plaintiff's request for review.
B.
In order to be entitled to Social Security disability benefits, a claimant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment," under the terms of the Act, is one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d)(3).