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Shields v. Astrue

September 5, 2008

ROSEMARY SHIELDS, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Vanaskie, J.

MEMORANDUM

Plaintiff Rosemary Shields has brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of Social Security's decision denying her claim for disability insurance benefits under Title II of the Social Security Act, ("Act"), 42 U.S.C. §§ 401-433. Magistrate Judge Mannion, to whom this matter had been referred, recommends that Plaintiff's appeal be denied. (Report and Recommendation, Dkt. Entry 14.) Plaintiff has objected to the Report and Recommendation, (Dkt. Entry 17), and Defendant has filed a response to Plaintiff's objections. (Dkt. Entry 18.) Having reviewed the matter de novo, I find that the denial of benefits is not supported by substantial evidence. Accordingly, the case will be remanded to the Commissioner for further consideration.

I. BACKGROUND

A. Procedural History

Plaintiff filed an application for disability benefits on April 15, 2005, with an alleged onset date of December 11, 2004. She alleged a post-thoracic compression fracture, osteoporosis, severe back pain, and chronic obstructive pulmonary disease ("COPD"). (R. 31, 32, 43, 44.) Plaintiff's application was initially denied and Plaintiff requested an administrative hearing. (R. 26, 28.) A hearing took place on September 25, 2006, during which the Administrative Law Judge ("ALJ") heard testimony from Plaintiff, who was represented by the same counsel representing her in this appeal, and from a vocational expert. (R. 305-25.) The ALJ issued an unfavorable decision on October 24, 2006. (R.11-20.) Plaintiff's request for review was denied by the Appeals Council on February 7, 2007.

(R. 5-7.) Thus, the ALJ's decision is the final decision of the Commissioner for purposes of this matter.

Plaintiff brought this action on March 5, 2007. (Dkt. Entry 1.) On February 18, 2008, Magistrate Judge Mannion issued a Report and Recommendation, proposing that the denial of benefits be affirmed. (Dkt. Entry 14.) Plaintiff's objections to the recommendation were filed on March 6, 2008, (Dkt. Entry 17), and Defendant's response was submitted on March 21, 2008. (Dkt. Entry 18.)

B. Factual History

Plaintiff was born on July 9, 1944, and was sixty-two years old at the time of the ALJ's decision denying her disability benefits. (R. 32.) Plaintiff graduated high school and completed one year of college. (R. 50.) Her past relevant work experience includes employment as a customer service representative, an imaging specialist, an office clerk, a personal care worker, and a billing and accounts receivable clerk. (R. 52-61.)

In April 2003, Plaintiff presented to Tracey Galardi, M.D., with complaints of lower back pain. X-rays revealed a mild narrowing of the C5-6 and C6-7 disc spaces, and a normal impression, otherwise. (R. 88-90.)

On October 26, 2004, Plaintiff was admitted to Community Medical Center with complaints of shortness of breath and chest pain. Hospital records indicate that Plaintiff also complained she had been suffering from depression for the preceding several months, impacted by stressors including the placement of her mother in a nursing home, her son's recent hospitalization, and the recent death of her daughter. Impressions noted include chest pain, acute coronary syndrome, acute bronchitis, possible depression, and likely chronic pulmonary obstructive disease ("COPD") with acute exacerbation. (R. 91-107.) She was discharged on October 28, 2004.

On December 11, 2004, the alleged disability onset date, Plaintiff injured her back at work while moving a forty-pound box. (R. 44, 119, 130.) Plaintiff was first treated for this injury on December 13, 2004, when she presented to the emergency room with complaints of back pain. (R. 109-11.) Plaintiff was diagnosed with a closed lumbar spine fracture and prescribed Vicodin. (Id.)

On December 27, 2004, X-rays revealed compression fractures at T8, L1, L2, and L4. Plaintiff was prescribed a soft lumbar support for external symptomatic relief and Darvocet for pain. (R.117.) In early January 2005, Plaintiff received a lumbar support brace for her compression fractures, and it was noted that Plaintiff "felt the relief immediately."

(R.112.) On January 21, 2005, Plaintiff's follow-up revealed that she was "somewhat improved," but still needed to take pain medication and "maintain a very minimal activity level." (R. 116.) Records indicate diffuse tenderness in the paraspinal area, some discomfort with flexion and extension, negative straight leg raising, normal motor and sensation, symmetric reflexes, good distal circulation, and no skin changes. (Id.)

On March 4, 2005, records indicate that, while there was "good overall healing of all compression fractures," Plaintiff was still experiencing a "fairly limiting amount of pain" such that "even light activities around the house go incomplete because she has to stop and lay down or rest." (R. 115.) Records again indicate diffuse tenderness in the paraspinal area, some discomfort with flexion and extension, negative straight leg raising, normal motor and sensation, symmetric reflexes, good distal circulation, and no skin changes. (Id.) The office note of Alan P. Gillick, M.D., indicates that Plaintiff was "taking a minimal amount of medication as best she can." (Id.)

An MRI on March 23, 2005, revealed remote compression deformities at the T8, L1, L2, and L4 vertebral bodies. No evidence of any significant posterior disc herniation or spinal canal stenosis was noted. (R. 122-25.) Degenerative changes were noted at the T2-3, T8-9, and T12-L1 levels. (R. 161.)

On April 8, 2005, it was noted that she was "doing no better from a pain standpoint." (R.114.) Water therapy was recommended and Plaintiff's treating physician, Dr. Gillick, an orthopedist, indicated that he still did not feel "that she is able to consider any type of work activity." (Id.) Again, diffuse tenderness in the paraspinal area, some discomfort with flexion and extension, negative straight leg raising, normal motor and sensation, symmetric reflexes, and good distal circulation without any skin changes were noted. (Id.)

On April 13, 2005, Dr. Thaddeus A. Piotrowski of Northeastern Occupational Medicine & Rehabilitation Center, P.C., noted that Plaintiff was able to reach about halfway between the knees and ankles, and that her lateral flexion, backward extension, and rotational movement were somewhat limited. Plaintiff's gait was noted to be normal. Dr. Piotrowski further noted that Plaintiff was "very frustrated with the continued pain she is having," that she stopped taking Ultracet because of gastrointestinal upset, and that Tylenol was not totally effective at relieving her pain. (R. 126.) He prescribed Darvocet, to be taken every 6 hours as needed for pain. (Id.)

In a questionnaire completed on May 3, 2005, Plaintiff indicated she was experiencing "severe back pain" and breathlessness on a day-to-day basis. (R. 63.) She indicated that she could not lift or move anything weighing over one-and-a-half to two pounds. (Id.) With regard to her daily activities, Plaintiff noted she could not stand longer than two minutes to style her hair, and that she had difficulty walking the two blocks to the bus stop and up the hill to her house. (R. 64.) She indicated that she has had such severe pain after a trip to the bank that she had to lie down for the rest of the evening and could do very little the next day on account of her pain. (R. 65.) With regard to her hobbies, Plaintiff indicated she could garden with a "child's bamboo rake" for no more than a few minutes at a time and that she could no longer lift her sewing machine. (R. 64-65.) Plaintiff also noted that her difficulty preparing meals increased throughout the day, from breakfast to dinner, and that she needed to rest one elbow on the counter while cooking. (R. 64.) She indicated that she was unable to take out the trash, that she could use a self-propelled vacuum cleaner only if someone retrieved it for her, that she could not pick up the corners of a mattress to properly make a bed, that lifting wet jeans from the washer was too difficult, and that she could only lift one to four pieces of laundry at a time. (Id.) When grocery shopping, Plaintiff indicated she needed to lean on the shopping cart for support and could carry only two light bags at a time, which contained items like a loaf of bread or a box of cereal. (Id.) Plaintiff indicated she could climb the twelve steps to her house but needed to stop and rest every three to four steps due to pain. (R. 65.) Plaintiff needed to rest every ten to fifteen minutes while performing her daily activities and lie down in the late morning to alleviate her pain. (Id.) Plaintiff also indicated she must lie down after ten to fifteen minutes of sitting, due to pain. (Id.) However, Plaintiff indicated that she could shower and dress herself without stopping to rest. (R. 66.) In describing her pain, Plaintiff attested that it felt like "someone is sitting on my shoulders & the bones are touching," and that while her pain was originally periodic, by the time of the questionnaire in May, 2005, it was more constant.

(R. 66-67.) Plaintiff noted that only lying down alleviated her pain. (Id.) Pain was affecting her concentration and interrupting her sleep. (Id.) Plaintiff indicated that she took pain medication daily, including Darvocet up to three times per day. (R. 68-69.)

On May 11, 2005, Mary Ryczak, M.D., a state agency physician, reviewed the evidence of record and concluded that Plaintiff retained the residual functional capacity ("RFC") to perform a range of light work that involved frequently lifting and carrying ten pounds, occasionally lifting and carrying ten pounds, standing or walking for up to six hours in an eight hour workday, and sitting for up to six hours in an eight hour work day, with normal breaks. Dr. Ryczak also recommended Plaintiff avoid concentrated exposure to fumes and odors. (R. 147-55, 156.) On the form completed by Dr. Ryczak, she acknowledged that Dr. Gillick had concluded that Plaintiff could not work. (R. 153.) Dr. Ryczak did not respond to the question asking for an explanation as to why Dr. Gillick's conclusion was not supported by the evidence in the file, observing that the matter was "reserved to the Commissioner." (Id.)

On June 5, 2005, Plaintiff presented to the emergency room of Community Medical Center with shortness of breath. She was treated with oxygen, nebulizer therapy, and medication. She was discharged on June 10, 2005, in stable condition with AMD Home Health Service for oxygen. The diagnosis was acute exacerbation of COPD and bronchitis.

(R. 221.)

Dr. Gillick observed on July 11, 2005, that Plaintiff had become "somewhat discouraged" and was feeling "more and more depressed." (R. 158.) Her X-ray on that date revealed a worsening of the upper compression and what Dr. Gillick believed to be a new compression at T7 or T8. (Id.) Although observing that Plaintiff "uses pretty minimal medication," he recommended increasing her Celebrex to twice per day, taking Ultracet "on a regular basis," and "using Darvocet as a supplement for pain." (Id.)

On August 8, 2005, Plaintiff presented to Dr. Gillick with complaints of lower back pain. Dr. Gillick opined that Plaintiff could not yet return to work and that "[s]he is still pretty much at a sedentary level of activity." (R. 157.) Dr. Gillick also reported that an MRI showed two new compression fractures of the thoracic spine, with no spinal cord or canal compromise. Upon examination, Dr. Gillick observed tenderness in ...


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