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Hoff v. Astrue

January 29, 2009

CAROL A. HOFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION



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

MEMORANDUM RE: SOCIAL SECURITY APPEAL

Plaintiff, Carol A. Hoff ("Hoff," "Plaintiff") seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner," "Defendant") denying her application for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383(c) (2000). Jurisdiction is established under § 405(g) of the Act.

42 U.S.C. § 405(g). For the reasons that follow, the Court will GRANT Plaintiff's Motion for Summary Judgment, REVERSE the decision of the Commissioner, and AWARD benefits to Plaintiff.

I. Background and Procedural History

A. Procedural History

Plaintiff is a 60 year-old female who can communicate in English and has completed the tenth grade. (R. 58, 75, 82). Under the Commissioner's regulations, Plaintiff is currently classified as a person of "advanced age," though at the time her application was filed in 2000 Plaintiff was considered a "person closely approaching advanced age," at age 52. 20 C.F.R. §§ 404.1563, 416.963 (2008).

Plaintiff protectively filed an application for disability insurance benefits on November 2, 2000.*fn1 (R. 58). Plaintiff's application was initially denied by the Commissioner on February 5, 2001. (R. 25). Plaintiff, represented at the time, filed a timely request for a hearing before an Administrative Law Judge (hereinafter "ALJ") on February 15, 2001. (R. 29). After a hearing was held on August 22, 2002 (R. 1486-1512), ALJ Paula Garrety denied Hoff's application on October 24, 2002, finding that Hoff was not disabled given that she could still perform the duties of her prior employment. (R. 19). She first found, after considering the medical evidence and Hoff's allegations, that Hoff had the impairments of fibromyalgia, degenerative disc disease involving the lumbar and cervical spine, a frozen right shoulder, anxiety, and depression. (R. 17). However, the ALJ determined, while Hoff's impairments did not amount to a per se disability, they did limit her to the residual functional capacity of being able to lift or carry objects weighing up to ten pounds and to stand or walk for at least six hours in an eight hour workday. She would not be able to use her right upper extremity for activities which require over the shoulder reaching or handling, and she would be limited to unskilled work. In reaching this assessment of claimant's functional capacity, the [ALJ] finds claimant's testimony to be generally credible but inconsistent with wholly work-preclusive functional limitations. Although claimant has testified to disabling levels of pain and fatigue, she has remained very active despite her impairments.

(R. 18). Regarding Hoff's mental impairments, the ALJ found that they only mildly interfered with her activities of daily living and social functioning and that they mildly to moderately interfered with her ability to maintain concentration, persistence, or pace; these mental impairments were therefore "consistent with an ability to meet the mental demands of unskilled work." (R. 18). With the vocational expert's conclusion that jobs were available in the economy in significant numbers given the tailored hypothetical considering Hoff's age, education, work history, and residual functional capacity, the ALJ found that Hoff was not disabled since she could still perform her past positions of hall monitor and lunch monitor, two positions that the vocational expert identified in response to the hypothetical, as well as other light unskilled work.

(R. 19).

The Appeals Council subsequently affirmed the decision of the ALJ after finding that there was no reason to review the opinion. (R. 5). In response, Hoff again sought review of the decision by filing a complaint in this court. On September 21, 2005, Judge Green, after considering the medical evidence, the transcript of the hearing, and the ALJ's opinion, remanded the case for a rehearing. (R. 1563). In particular, Judge Green held that the ALJ erred by not including Hoff's recognized mental impairments in the hypothetical given to the vocational expert at the hearing. (Id.)

Upon remand, another hearing was held by ALJ Garrety on April 5, 2006. (R. 1786). At the hearing, the ALJ again presented a vocational expert with a hypothetical tailored for Hoff and also instructed the expert to confine his opinion to "simple routine, one to two step tasks because of diminished capacity for concentration, persistence, and pace. Therefore, the work should be unskilled in nature." (R. 1794). In response to the hypothetical, the vocational expert identified the positions of a packer, a general office clerk, and a sorter. (R. 1795). On May 22, 2006, ALJ Garrety rendered her decision, again finding Hoff not to be disabled up to the date where her insurance ended, December 31, 2000. (R. 1521, 1522). After adopting the analysis of her prior opinion except where inconsistent (R. 1521), the ALJ again concluded that Hoff had the severe impairments of fibromyalgia, degenerative disc disease involving the cervical and lumbar spine, a frozen right shoulder, anxiety, and depression. (R. 1524). Given these impairments, ALJ Garrety determined that Hoff had the residual functional capacity "to perform a range of unskilled, light exertion work, which involves lifting/carrying up to 10 pounds, standing/walking up to 6 hours in an 8-hour day, and the performance of simple and routine tasks[, and the claimant] is also unable to use her right upper extremity for over the shoulder reaching or handling." (R. 1524). On the basis of this residual functional capacity and Hoff's age, education, and work experience, the ALJ concluded that there were jobs in significant numbers in the economy that Hoff could perform; therefore, Hoff was not disabled for purposes of social security disability insurance. (R. 1525-26).

Plaintiff filed a timely appeal with the Appeals Council on June 21, 2006. (R. 1516-17). On November 30, 2007, the Appeals Council notified Plaintiff that it would not assume jurisdiction over the ALJ's opinion, thereby finalizing the Commissioner's denial of the claim.

(R. 1513-15). Plaintiff subsequently filed a complaint in this Court seeking judicial review of the Commissioner's decision on February 19, 2008. Plaintiff filed this Motion for Summary Judgment (Doc. No. 8) on the appeal, which is presently before this Court.

B. Plaintiff's Work History

From 1983 through 1999, Plaintiff has worked in several different positions. First, from 1983 through 1985, Plaintiff was employed by a catering company as a waitress. (R. 68, 93, 95). Next, from 1987 through 1993, Plaintiff was employed as a custodian, a lunch room monitor, and a hall monitor with Bristol School District. (R. 68, 93, 96-98). Finally, from 1997 through 1999, Plaintiff was employed with a retirement home as a resident assistant. (R. 69, 93, 94).

It is important to note that Plaintiff alleges her disability began on July 15, 1999. (R. 58). As the ALJ recognized in both of her opinions, "[e]arnings records maintained by the Social Security Administration show that the claimant met the disability insured status requirements of the Social Security Act on July 15, 1999 and that she has acquired sufficient quarters of coverage to remain insured only through December 31, 2000." (R. 16-17). Neither Party disputes this conclusion. As such, the relevant analysis must be limited to the time between July 15, 1999 and December 31, 2000.

C. Plaintiff's Medical Conditions and Treatment

While Plaintiff's initial application for disability insurance did not specifically identify those impairments which she claims established her disability (R. 76), the ALJ identified the following undisputed impairments: fibromyalgia, degenerative disc disease, involving the lumbar and cervical spine, a frozen right shoulder, anxiety, and depression. (R. 17, 1524). The record in this case is 1,800 pages, including a voluminous medical history with some records pre-dating Plaintiff's benefit eligibility period. As such, the Court will only consider those conditions and injuries for which Plaintiff was treated during the period for which she is eligible for benefits. Plaintiff's family doctor at the time appears to be Dr. Cecilia Roman. (R. 114, 585.)

Plaintiff's alleged disability onset stems from an assault she experienced at work on May 9, 1999. (R. 17.) She was walking down the hall of the retirement home where she worked when a patient punched her in the face and knocked her down, causing her to fall on her right shoulder. (R. 1770.) Plaintiff went to the emergency room as a result of the accident and was released later that day. (R. 1024-26.) For her resulting injuries, including facial contusion, shoulder sprain, and headaches and dizziness, Plaintiff was initially treated by Dr. Axelrod, a workers' compensation doctor. (R. 510-12.) Plaintiff received workers' compensation for her injury. (R. 1491.)

Plaintiff continued to experience significant shoulder pain following the accident and Dr. Axelrod referred her to Dr. Stollsteimer, an orthopedic surgeon. (R. 1080-96.) An MRI performed June 2, 1999 showed subacromial enthesophyte and SLAP lesion. (R. 1145.) On July 15, 1999, she underwent shoulder arthroscopy and repair of the anterior labral tear. (R. 731.) However, Plaintiff continued to experience shoulder pain and rapid loss of motion in that shoulder following the surgery. (R. 1143-44, 1771.) At some point after the operation she began holding her right (dominant) hand in a clenched, fist-like position and continued to do so through at least 2006. (R. 1703, 1792.)

In August 1999, Plaintiff began seeing Dr. O'Brien for physical therapy. On her initial visit, the Doctor noted that Plaintiff had shoulder, back, neck, and knee pain, plus spasms in her cervical spine and trigger points. (R. 1338-39.) Plaintiff had a decreased range of motion in her right shoulder and decreased sensation in both hands. (R. 1339.) O'Brien diagnosed Plaintiff with a right shoulder injury, cervical strain and sprain, and bilateral knee injury. (R. 1157, 1340.) In addition, he referred Plaintiff to Dr. Landes, a psychologist, for her flattened affect. (R. 1343.)

Dr. O'Brien continued to treat patient through July 2000 with visits usually occurring three times per week. (R. 757-891; 1157-1246; 1388.) On November 23, 1999, Dr. O'Brien wrote a letter stating that Plaintiff could not return to work as a rebuttal to Dr. Stollsteimer's recent return to work note, which is discussed infra. (R. 1160.) Dr. O'Brien stated that he believed Dr. Stollsteimer was not aware of Plaintiff's panic attacks and anxiety related to her work-related accident. He also noted: "The frozen right shoulder, which was caused because of Dr. Stollsteimer's mismanagement status post surgery, is still being treated and may need to be fixed with manipulation under general anesthesia." (Id.) In addition, on a form asking if Plaintiff could return to her pre-injury job without restrictions, Dr. O'Brien consistently responded "No" from September 1999 through September 2000. (R. 528-40.)

Due to her complaints of knee pain, Plaintiff had an MRI performed on her knees in October and November 1999. (R. 1146-47.) The results showed an oblique tear of the posterior medial meniscus with joint effusion, associated mild degenerative changes of the medial joint space, and probable post-surgical change of the anterior horn and body of the medial meniscus in the left knee. (Id.) The right knee showed mild degenerative change of medial and patellofemoral join spaces with small joint effusion and mild medial meniscus degeneration with no frank tear. (Id.)

Dr. Landes began treating Plaintiff for the psychological repercussions of her assault at work beginning in August 1999. (R. 909, 914, 1282.) Landes diagnosed Plaintiff with "Pain Disorder Associated with General Medical condition Adjustment Disorder with Depression and Anxiety." (R. 918.) Dr. Landes described Plaintiff as suffering from severe depression, anxiety, panic attacks, sleep disturbance, difficulty functioning, social anxiety, fear of going outside, and difficulty participating in church, which she enjoyed prior to the incident. (R. 914.) Landes stated in a report on December 1, 1999, that Plaintiff "spends much of her time in pain with reduced capabilities on all levels." (Id.) In that same report, Landes stated that Plaintiff would be "unable to function on a job, even in light duty. . . . At the current time she is fully disabled from working in any capacity." (Id.) In addition, Plaintiff expressed suicidal thoughts to Landes.

(R. 1435.) Landes continued to treat Plaintiff through at least April 2002. (Id.)

In an Assessment of Mental Ability to do Work-Related Activity,*fn2 Dr. Landes noted "marked" to "extreme" limitations in Plaintiff's ability to relate to a job, including tasks such as "follow rules," "use judgment," and "maintain attention / concentration." (R. 1478.) Dr. Landes further stated, "If the individual were placed in any type of work setting, she would decompensate psychologically. She is unable to handle any type of stress or pressure and would be unable to consistently follow through in any type of task." (R. 1480.)

In September 1999, Plaintiff saw Dr. Nemiroff for pain, described as constant headache, neck pain, and severe right arm lancinating pain. (R. 1101.) Dr. Nemiroff noted her "markedly decreased range of motion of the right upper extremity and shoulder, and [ ] contracture of the fingers in the right hand, as well." (Id.) Nemiroff's medical impression of Plaintiff was "chronic right shoulder and neck pain, with possible RSD of the right upper extremity." (R. 1102.) He prescribed medication and local injections into the sympathetic nerve tissue. (Id.)

Beginning in September 1999, Plaintiff also saw Dr. Pearlstein, a neurologist, for neck pain and arm paralysis. (R. 907.) At that time he diagnosed mild right carpal tunnel syndrome.

(R. 907.) In January 2000, he summarized her condition as "persistent symptoms of post-concussion syndrome and a report of cervical disc disease although her EMG and nerve conduction study was unremarkable." (R. 1144.) Pearlstein "suspect[ed] that she is having ...


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