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Cindy L. Dunlap v. Michael J. Astrue

October 24, 2011


The opinion of the court was delivered by: Vecchiarelli Magistrate Judge


Plaintiff, Cindy L. Dunlap ("Plaintiff"), pro se, challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying Plaintiff's application for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 ("the Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


On May 19, 2005, Plaintiff filed an application for a POD and DIB and alleged a disability onset date of August 17, 2000. (Tr. 21.) The application was denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 21.) On June 10, 2008, an ALJ held Plaintiff's hearing. (Tr. 21.) Plaintiff appeared, was represented by an attorney, and testified. (Tr. 21.) A vocational expert ("VE") also appeared and testified. (Tr. 21.)

The ALJ noted that Plaintiff previously had filed an application for a POD and DIB, and that an ALJ found Plaintiff not disabled in relation to that application through April 7, 2003. (Tr. 21.) The ALJ did not reopen the prior application because Plaintiff did not submit new and material evidence, and because the evidence upon which the prior determination was made did not clearly show on its face that there was any error. (Tr. 21.) The ALJ incorporated by reference the evidentiary review contained in the prior decision except for the inferences and conclusions drawn therefrom. (Tr. 21.)

On August 29, 2008, the ALJ found Plaintiff not disabled. (Tr. 32.) On August 25, 2010, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 6.) On October 15, 2010, Plaintiff timely filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.)

On January 13, 2011, the Commissioner answered Plaintiff's complaint and filed a copy of the administrative record. (Doc. No. 13.) Plaintiff was required to file her Brief on the Merits within thirty days thereafter (Doc. No. 7), but Plaintiff failed to do so. On April 4, 2011, the Court ordered Plaintiff to file her Brief on the Merits within fourteen days or show cause why her case should not be dismissed. (Doc. No. 20.) On April 22, 2011, the Court received a letter from Plaintiff explaining that certain impairments and pending surgery prevented her from filing her Brief on the Merits. (Doc. No. 21.) Plaintiff further requested that she be appointed an attorney and that she have a hearing. (Doc. No. 21.)

On May 19, 2011, the Court held a hearing to address Plaintiff's overdue Brief on the Merits. (Doc. No. 25.) Plaintiff appeared and represented herself pro se. (Doc. No. 25.) The Court explained to Plaintiff that she was not entitled to a court-appointed attorney and that the Court would not appoint an attorney for her. (Doc. No. 25.) The Court suggested how Plaintiff may search for an attorney, but Plaintiff indicated that she already searched for attorneys and none would take her case. (Doc. No. 25.) Plaintiff stated that she would proceed without counsel. (Doc. No. 25.) Therefore, the Court ordered Plaintiff to file her Brief on the Merits within fourteen days. (Doc. No. 25.) The same day, Plaintiff filed her Brief on the Merits. (Doc. No. 24.)

On July 20, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 28.) Plaintiff did not file a Reply Brief; however, on August 16, 2011, the Court received medical records from Plaintiff via United States Postal Service Priority Mail. (Doc. No.

30.) The Court ordered that it would not supplement Plaintiff's Brief on the Merits with the medical records because Plaintiff did not provide any explanation of the relevance of the medical records or what Plaintiff would like the Court to do with them, and Plaintiff did not file a motion to supplement her Brief on the Merits with such an explanation. (Doc. No. 31.)

On August 25, 2011, Plaintiff filed a letter with the Court "to explain the severity of [her] chronic illness and how it has progressed to become more damaging along with excruciating pain being much worse." (Doc. No. 32.) Plaintiff attached to the letter the medical records that she previously submitted to the Court without explanation. (Doc. No. 32-1.)

Plaintiff asserts two assignments of error: (1) "the ALJ failed to bring out the information of the physical conditions to the cervical spine"; and (2) the ALJ failed to consider all the illnesses, and the diseases that were noted along with the chronic pain." (Pl.'s Br. 1.) Plaintiff also contends that new and material evidence regarding Plaintiff's disability claim warrants remand. (Pl.'s Br. 1.)


A. Personal and Vocational Evidence

Plaintiff was 47 years old on the date she was last insured. (Tr. 29.) She had at least a high school education and was able to communicate in English. (Tr. 30.) She had past relevant work experience as a general office clerk, plastics operator, medical supply aide, housekeeper, and activities director at a nursing home. (Tr. 29.)

B. Medical Evidence

1. Evidence Between 1998 and April 7, 2003-the Date Plaintiff's Prior Application Was Denied

Starting in 1998, Plaintiff received treatment for hand, shoulder, and neck pain; in 1998 and 1999 she underwent cervical spine surgery. (Tr. 171-239, 279-97, 343-689, 766-94, 822-1022, 1221-24, 1232-73, 1305-12, 1315-18, 1449-60, 1547-48, 1564-78.) She was treated by neurologist Eric Schreier, D.O., on a continuous basis until November 2002. (Tr. 343-689.) On November 8, 2002, Dr. Schreier noted that Plaintiff's "[s]pinal flexibility has dramatically improved" and that her functioning was stable. (Tr. 351.) Dr. Schreier reported that he and Plaintiff discussed the possibility of Plaintiff returning to work, and that Plaintiff had been engaged in vocational rehabilitation. (Tr. 351.) Plaintiff did not present to Dr. Schreier again for two years. (Tr. 338.)

Plaintiff began treatment of her systemic lupus symptoms with rheumatologist Steven Behrendsen, M.D., in August 2002. (Tr. 777-94.) On November 21 and 25, 2002, Dr. Behrendsen indicated that Plaintiff reported doing better and "feeling quite well." (Tr. 771, 773.)

Plaintiff received counseling for depression during this time period (Tr. 1128-41), and she last visited her therapist, Melissa Kogge, LISW, in August 2002. (Tr. 690.)

2. Evidence Between April 7, 2003, and December 31, 2005-the Date Plaintiff was Last Insured*fn1

Plaintiff continued treatment with Dr. Behrendsen in 2003. (Tr. 723-65.) On July 23, 2003, Plaintiff reported feeling well for the past three months. (Tr. 764.) On August 16 and 18, 2003, however, Plaintiff presented to the hospital and complained of chest pain and shortness of breath. (Tr. 240, 255.) Testing revealed normal results and no active cardiopulmonary disease. (Tr. 245, 258, 276.) By December 2003, Plaintiff reported to Dr. Behrendsen that she felt better and had no pain, and that her energy level had increased. (Tr. 741.) Dr. Behrendsen noted that Plaintiff's test results "look great." (Tr. 740.) On March 4, 2004, Dr. Behrendsen reported that Plaintiff felt "well," had no specific complaints, and did not suffer pain, although she was moderately fatigued. (Tr. 736.) On July 19, 2004, Dr. Behrendsen reported that Plaintiff felt "well," and had no pain or fatigue. (Tr. 733.) Plaintiff cancelled numerous appointments with Dr. Behrendsen between November 2004 and April 2005. (Tr. 730-31).

On December 3, 2004, Plaintiff resumed treatment with Dr. Schreier after more than two years. (Tr. 338, 351.) Dr. Schreier noted that this absence was a "very favorable" sign, but that Plaintiff reported an increase in generalized upper back symptoms over the last few weeks. (Tr. 338.) Dr. Schreier reported upon physical examination that Plaintiff's symptoms were consistent with myofascial tightness, but that he did not find evidence of any new focal or global upper or lower motor neuron dysfunction. (Tr. 339.) Dr. Schreier recommended that Plaintiff take Zoloft. (Tr. 339.)

Also on December 3, 2004, Plaintiff underwent a cervical spine x-ray. (Tr. 278.) The reading radiologist reported that the x-ray showed status post posterior spinal fusion with no acute abnormalities. (Tr. 278.) Through April 2004, Dr. Schreier treated Plaintiff with medication and trigger point injections and repeatedly noted that the injections were helpful and gave Plaintiff a "dramatic benefit." (Tr. 316, 319, 324, 328, 329, 332.)

On July 9, 2004, a nurse at Dr. Schreier's office indicated in a nursing note that Plaintiff called the office by telephone and reported that her lupus had been in remission for a year and that she was looking for a job in accounting. (Tr. 341.)

On June 18, 2005, Plaintiff completed a function report for her disability claim and acknowledge that, with pain pills, she prepared meals, swept floors, did laundry, ironed clothes, shopped for groceries and clothing, went to church, drove, walked, ...

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