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Tammy L. Hines v. Michael Astrue

July 9, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 121


Tammy Hines seeks judicial review of a decision by the Commissioner of the Social Security Administration denying her applications for disability insurance and supplemental security income benefits. Hines contends that the Administrative Law Judge ("ALJ") who considered her applications erred in assessing her residual functional capacity ("RFC") and improperly relied upon the Medical-Vocational Guidelines to determine that she was not disabled. For the reasons provided below, I affirm the Commissioner's decision.


Hines applied for disability benefits on February 21, 2007, when she was twenty-nine years old. She initially alleged a disability onset date of September 19, 2005, due to anxiety, asthma, and knee pain. She subsequently amended the disability onset date to February 19, 2007. Hines is a high school graduate who worked as a cashier, an amusement park ride operator, and a folder maker.

A. Medical History

Hines received treatment at the Nashua Area Health Center ("NAHC") beginning in December 2003, when she was diagnosed with mild persistent asthma. On September 14, 2005, she called the NAHC to report chest pains. A doctor refilled her asthma prescriptions. A week later, Hines went to the emergency room ("ER") complaining of intermittent sharp chest discomfort. The diagnosis was atypical chest pain. When she followed up with Dr. Bundschuh at the NAHC five days later, she reported that she had continued to experience similar chest pain since the ER visit. She also complained that symptoms of her asthma had increased and that she had to use her inhaler more frequently. She was assessed with atypical chest pain that appeared to be musculoskeletal in origin.

Hines presented to the ER again the following month due to dizziness and chest pain. The impression was chest wall pain and she was advised to apply heat to the area.

On December 19, Hines informed Dr. Bundschuh that she was taking Singulair for her asthma, but still had to use her inhaler three to four times a day. She stated that her asthma prevented her from working. At a follow-up appointment on May 1, 2006, Dr. Bundschuh noted that Hines was doing well with her mild persistent asthma as long as she had access to medications. Later that same month, Hines returned to Dr. Bundschuh. He again assessed stable asthma and recommended stress management.

On June 26, 2006, Hines went to the NAHC to follow up on an ER visit for asthma exacerbation. She complained of intermittent chest pressure that occurred when she was stressed.

On October 18, Hines returned to the NAHC for a health maintenance visit. The impression was a "well woman" with mild persistent asthma and psychological stress. The following month, however, Hines again complained of right chest pain that she rated as six on a scale of one to ten. The assessment was bronchitis.

On December 26, Hines went to the ER complaining of chest pain. It was noted that Hines had made multiple visits to the ER for atypical chest pain. This time she also complained of shortness of breath and palpitations. The final diagnosis was chest wall pain and dehydration. Two days later, she followed up with Carol Manning, a nurse practitioner at the NAHC, and rated her chest pain as seven out of ten. The pain was reproduced with pushing on the chest wall directly over the sternum. The assessment was costochondritis.

On January 11, 2007, Hines again went to the ER complaining of chest pain. She also reported experiencing occasional shortness of breath over the past few months. The diagnosis was chest wall pain.

On January 17, Hines called the NAHC, stating that she was still having chest pains with any exertion. Hines reported that she could not afford the medication that she had been prescribed. The next day, Nurse Manning assessed Hines with unspecified abdominal pain and advised her to take Nexium. She also noted that Hines was previously diagnosed with costochondritis and given prescriptions that she never filled. She had also been in the ER twice, but failed to follow the recommended treatment plans.

On February 1, Hines was again seen at the NAHC for her chest and abdominal pain. She was assessed with unspecified abdominal pain, most likely due to gastritis. She reported little improvement with Nexium. Approximately two weeks later, however, she stated that Nexium was making her feel better. She also reported experiencing anxiety for the past month. Hines said she had blacked out the day before and was angry and yelling at people. Upon examination, Hines appeared anxious, but her judgment, insight, and memory were intact. The assessment was mild persistent asthma, unspecified abdominal pain, knee pain, and generalized anxiety disorder.

The following month, Hines returned to the ER, complaining of chest pain and abdominal pain. She also reported having had shortness of breath while going up and down stairs. She stated that she experienced "the shakes" due to her anxiety and that she was on Paxil. The diagnosis was abdominal pain.

Hines went to the ER again on May 1, 2007, for chest pain. She stated that she experienced sharp chest pain with a racing heart when sleeping. She reported stress at home "mostly because she has to watch her dog all day and the dog needs to go outside every two hours." Tr. 387. The impression was atypical chest pain and anxiety. Three days later, Hines called the NAHC complaining of anxiety and chest pain.

On May 8, Hines underwent a comprehensive psychological profile performed by Dr. Francis Warman, a psychologist. Dr. Warman observed that Hines was nervous and anxious and had some mild stuttering in her voice. Hines reported having panic attacks three or four times a day and experiencing chest pain, shortness of breath, heart palpitations, occasional blackouts, and occasional bouts of screaming. She reported having had difficulty sitting in school and paying attention, and noted that she was in special education through high school.

Dr. Warman's diagnosis was panic disorder without agoraphobia. He noted that Hines appeared to have difficulties with concentration and believed that further testing for cognitive problems might be warranted. He also stated that there was some indication of a learning disability, particularly in the areas of computation and distractibility. According to Dr. Warman, Hines was able to understand and remember simple instructions and to interact appropriately and communicate effectively with others. In light of her distractibility and hyperactivity, Dr. Warman noted that it would be difficult, but not impossible, for Hines to maintain her concentration and focus in work situations. In addition, he opined that her frequent panic attacks would make it difficult, but not impossible, for her to maintain attendance and follow schedules at work.

On May 9, 2007, Hines was seen at the NAHC to follow up regarding her chest pain. She was still having anxiety and rated her chest pain as five out of ten. Nurse Manning diagnosed generalized anxiety disorder. She noted that Hines had made many visits to the ER and NAHC for the same problem, and that numerous tests and cardiac workups showed no problem other than anxiety. Hines admitted that anxiety was taking over her life and that she understood that there was nothing seriously wrong when she had her attacks. Nurse Manning increased Hines's dosage of Paxil and prescribed Adavan for emergency management of panic attacks. She also referred Hines to the Community Council of Nashua for counseling.

The following day, Nurse Manning wrote a letter addressing Hines's medical issues as they related to her ability to work. She opined that Hines's main issue was severe anxiety, which frequently caused panic attacks. She also indicated that Hines had moderately severe asthma and was frequently symptomatic.

Dr. William Jamieson completed a psychiatric review on May 17, 2007. He opined that Hines had mild restrictions in her activities of daily living; no difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. In his mental RFC statement, Dr. Jamieson concluded that Hines could understand, remember, and carry out simple instructions; maintain attention in a simple job setting with clear expectations and reasonable supervision; maintain attendance and follow a schedule, despite some disruption due to anxiety symptoms; sustain an ordinary routine without special supervision; adequately relate with others; and respond appropriately to routine work changes.

On May 30, Hines presented to the NAHC complaining of dizziness, a headache, and left ear pain. Nurse Manning assessed generalized anxiety disorder (improved on Paxil) and minor vertigo. Five days later, Hines returned to the NAHC for dizziness and neck pain. The impression was minor vertigo, and Hines's medication was increased. Two days later, Hines still reported feeling dizziness and chest pain, but denied neck pain. She was referred to an ear, nose, and throat specialist for minor vertigo.

Hines went back to the NAHC on July 9 to follow up about her anxiety. She reported feeling better. The assessment was generalized anxiety disorder. Hines felt that her anxiety was under good control. It was also noted that her mild persistent asthma was generally under good control.

On July 31, Hines went to the ER, complaining of shortness of breath with a persistent cough for several days prior to the visit. She also reported left mid-back pain with inspiration. The symptoms were attributed to asthma exacerbation. Hines felt better after receiving an Albuterol nebulizer treatment.

Hines returned to the ER on August 17, complaining of shortness of breath that had been severe over the previous two hours, and chest wall discomfort associated with a non-productive cough. She reported using her inhaler approximately three to four times a day. The final diagnosis was asthma.

Dr. Sabah Hadi, a consulting psychiatrist, filled out a mental RFC evaluation on January 11, 2008. Dr. Hadi concluded that Hines had no limitations with respect to performing simple work; mild limitations in her ability to interact with others; and moderate limitations in her ability to respond to usual work situations and work changes. "Moderate" was defined on the form as "more than a ...

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