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Sherman v. Astrue

November 10, 2008


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


Plaintiff, Judith M. Sherman, commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security denying her claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq, and § 1381 et seq. Sherman filed applications for DIB and SSI on June 29, 2004, alleging disability since May 20, 2000 due to arthritis, degenerative disc disease, herniated discs and numbing in her legs (Administrative Record, hereinafter "AR", 60-64; 71; 544-546). Her applications were denied and she requested a hearing before an administrative law judge ("ALJ") (AR 40-45; 548A-548E). A hearing was held before an administrative law judge ("ALJ") on August 30, 2006 and following this hearing, the ALJ found that Sherman was not entitled to a period of disability, DIB or SSI under the Act (AR 22-28; 561-585. Her request for review by the Appeals Council was denied (AR 6-9), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, we will deny both motions and the matter will be remanded to the Commissioner for further proceedings.


Sherman was born on November 20, 1958, and was forty-eight years old on the date of the ALJ's decision (AR 27; 60). She has a high school education and past relevant work experience as a school crossing guard and home health aide (AR 72-73; 79). She lives in an apartment with her young daughter (AR 97). One month prior to her alleged disability onset date, Sherman was seen by Donald B. Smith, M.D. on April 25, 2000 for complaints of right knee pain radiating down her leg and into her right foot (AR 127). Dr. Smith reported a negative straight leg raise bilaterally, with no pain on internal or external rotation over her lower extremities (AR 127). Pain was noted along her right medial joint line in her knee but she exhibited good range of motion (AR 127). X-rays of Sherman's lumbar spine showed grade I spondylolisthesis at L5-S1 and x-rays of her knee were unremarkable (AR 127). Dr. Smith recommended an MRI of her knee to rule out a medial meniscal tear and instructed her in back extension exercises (AR 127).

Medical records from Northwest Eye Associates from June 2, 2000 through July 19, 2002 show that Sherman was treated by Roger Virgile, M.D. for recurrent corneal erosions (AR 129-166). Dr. Virgile reported normal findings in 2002 and found no limitations in her ability to perform work-related physical activities (AR 130-133).

Sherman was treated by Roberta Kahler, M.D., an internal medicine specialist, for a variety of complaints (AR 515). In November 2001, Sherman was diagnosed with a pulmonary embolism and when seen by Dr. Kahler for follow up, her lungs were clear. (AR 319; 331; 401-405; 408). A venous sonogram of Sherman's left leg dated November 6, 2001 was negative (AR 397). Lower lumbar studies conducted November 9, 2001 showed bilateral spondylolysis at L5 with degenerative changes in the lower lumbar spine (AR 396). For her complaints of back pain, Dr. Kahler prescribed Tylenol with Codeine (AR 315-316). Chest x-rays conducted November 12, 2001 showed poor inspiration with persistent or recurrent bibasilar atelectasis, but two weeks later x-rays showed improvement (AR 393-394). On November 28, 2001 a right lower extremity venous ultrasound was negative (AR 390). On December 12, 2001, Sherman requested "something for her nerves" and Dr. Kahler prescribed Ativan (AR 317).

Sherman was seen by several physicians at Cancer Care Specialists. When seen by Sajid Peracha, M.D. on December 18, 2001, Dr. Peracha reported that she suffered from severe back pain secondary to spondylolisthesis (AR 181). On physical examination Sherman exhibited tenderness where the spondylolisthesis was located (AR 181).

On January 2, 2002 Sherman reportedly still had back pain but was getting better (AR 330). She denied any other problems (AR 330). On physical examination, mild tenderness was noted in the lower lumbar area (AR 330). She was diagnosed with hypercoagulable state, cause unknown, bilateral persistent pulmonary infiltrate and elevated lupus anticoagulant (AR 330).

Sherman was seen by Dixie Harris, M.D. on January 3, 2002 for evaluation of an abnormal chest x-ray (AR 331-332). She complained of occasional shortness of breath but reported overall improvement (AR 331). On physical examination, Dr. Harris reported she was obese but otherwise well-appearing and in no acute distress (AR 331). Her physical examination was essentially unremarkable and Dr. Harris recommended that she continue her medication regime (AR 331-332).

Chest x-rays conducted January 9, 2002 showed areas of pleural and parenchymal scar with no acute process, pleural effusion or mass disease identified (AR 387). A lung scan conducted the same date showed partial re-expansion of the bibasilar atelectasis (AR 388).

On January 22, 2002, Dr. Kahler prescribed Soma and Vicodin when Sherman complained the Tylenol was ineffective (AR 315).

When seen by Bakhti Sinor, M.D. from Cancer Care Specialists on January 29, 2002, Sherman reported she was gaining weight, her body hurt, her feet cramped up, her toes tingled and she suffered from severe low back pain (AR 325). She claimed she was unable to bend or stoop, had extreme difficulty getting out of bed and suffered shortness of breath and fatigue (AR 325). Dr. Sinor reported that she was obese, her condition was fair and she exhibited no paravertebral spasm or tenderness on physical examination (AR 326). Dr. Sinor diagnosed her with multiple pulmonary embolism, rule out the possibility of lupus (AR 326). He recommended that she lose weight and prescribed a chair lift (AR 326).

An MRI of Sherman's lumbar spine conducted on February 12, 2002 showed disc and end plate degenerative changes of varying degrees from L1-2 through L4-5 with end plate spurring and resulting mild bilateral foraminal narrowing (AR 386). Sherman also had bilateral spondylolysis with grade II spondylolisthesis at L5-S1 with disc bulging, which produced marked bilateral foraminal narrowing (AR 386). There was a migrated free disc fragment or synovial cyst which did not produce a significant mass effect upon the thecal sac (AR 386). There was moderate central stenosis at L2-3 from disc bulging and end plate degenerative changes as well as prominent epidural fat and ligamentum flavum hypertrophy (AR 386).

When seen by Dr. Peracha on February 15, 2002 Sherman complained of back pain (AR 176). When seen by Dr. Harris for follow up on February 21, 2002, Dr. Harris reported she was "actually doing quite well" (AR 322).

On April 25, 2002, Sherman was seen by Dr. Sinor and reported that she felt "fair" and had twinges "now and then" in her chest wall and rib cage (AR 172). She denied any shortness of breath but complained of right thigh and groin pain (AR 173).

Sherman returned to Dr. Sinor on June 7, 2002 and had a persistent cough of unknown etiology (AR 172). She refused to have her weight checked and her remaining physical examination was unremarkable (AR 172).

A venous ultrasound of Sherman's left leg dated September 11, 2002 was reported as normal with no evidence of deep vein thrombosis identified (AR 383).

When seen by Dr. Peracha relative to her hematological problems on November 19, 2002, he noted Sherman had multiple problems including muscle problems (AR 169). He further noted that she was on Naproxen for her back pain and that overall her pain was under better control, but she was not completely asymptomatic (AR 169). Her physical examination was unremarkable (AR 169).

Chest x-rays dated January 9, 2003 showed left basilar scarring with no pleural effusion or acute process seen (AR 382).

On May 21, 2003, when seen by Dr. Kahler, Sherman complained of chest pain, leg cramping and vision changes in her eyes (AR 311).

Sherman was also treated by Donna Anderson, M.D., an internal medicine specialist (AR 476-513). On February 27, 2004 she reported a cough and swelling in her legs bilaterally with associated toe cramping (AR 484). Dr. Anderson's physical examination was within normal limits, there was no focal neurological deficits and Sherman's gait was within normal limits (AR 484). She was assessed with bronchitis and prescribed medication (AR 484).

When seen by Dr. Anderson on May 12, 2004, Sherman complained of numbness in her legs down to her knees and dizziness upon standing (AR 482). On physical examination, Dr. Anderson reported that Sherman had no focal neurological deficit, her sensation to soft touch in her left foot was decreased, her motor strength was 5/5, her deep tendon reflexes were 2/5, and she had decreased flexion and extension secondary to pain (AR 482). She was diagnosed with lumbar disc disease and cord impingement, as well as right ...

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