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Emery v. Astrue

September 17, 2009

LAINIE M. EMERY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Lainie Emery, ("Plaintiff") brought this action pursuant to 42 U.S.C. §405(g) and 1383(c)(3), for review of the final determination of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. As is the customary practice in the United States District Court for the Western District of Pennsylvania, the parties have submitted cross-motions for summary judgment based on the record developed at the administrative proceedings.

After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs of the parties and the entire administrative record, the Court finds that the decision of the Commissioner is not supported by substantial evidence. Therefore, we will grant Plaintiff's motion for summary judgment, remand to the ALJ for further consideration as set forth below, and deny the Commissioner's motion for summary judgment.

II. PROCEDURAL HISTORY

Plaintiff protectively filed for DIB and SSI on January 6, 2005, (R. at 40), alleging disability due to chronic pain, polycystic ovary disease, ovarian cysts, irritable bowel syndrome, chronic back pain and migraines, (R. at 67), with an alleged onset date of February 1, 2001. (R. at 51). Plaintiff's claims were initially denied by the state agency on April 5, 2005. (R. at 24). Plaintiff then filed a timely request for a hearing, (R. at 29), and a hearing was held before ALJ Douglas Cohen on January 5, 2007. (R. at 30, 386). Plaintiff, who was represented by counsel, testified at the hearing before the ALJ. (R. at 386-87). Additionally, the ALJ heard testimony of an impartial vocational expert. (R. at 386, 433-38). On March 22, 2007, the ALJ issued a decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act.

(R. at 16-22). On February 20, 2008, the Appeals Council denied Plaintiff's request for review,

(R. at 4-6, 9-10), making the ALJ's decision the final decision of the Commissioner.

III. STATEMENT OF THE CASE

Plaintiff was born on July 24, 1969, making her thirty-seven years old at the time of the ALJ's decision. (R.at 40). She testified at the administrative hearing that she attended high school until the twelfth grade and received a GED. (R. at 387). Additionally, she was trained and licensed in cosmetology. (Id.).

Plaintiff's Work Background

At the time of the administrative hearing, Plaintiff had most recently worked as a printer space designer. (R. at 389). She alleges that she became unable to work in this position on February 1, 2001. (R. at 51). According to Plaintiff, her responsibilities in this position included configuring office space on a computer, invoice entry and taking care of shipping records. (R. at 389). Plaintiff testified that this position was a desk job, which she took because it did not require her to lift heavy things. (R. at 389-90). The position required her to lift five or less pounds at the most. (R. at 390).

Prior to her position as a printer space designer, Plaintiff was a retail manager at the Limited, Inc., (R. at 390-91), which required her to be on her feet all day. (R. at 391). Plaintiff testified that, in this position, she was to lift boxes but avoided doing so because of her impairments. (Id.). Consequently, she testified that she lifted no more than five pounds. (Id.). Prior to her position with Limited, Inc., Plaintiff was a salon manager. (R. at 392). She testified that this position required her to stand seven of eight hours in a day. (R. at 393). She also testified that the job required no lifting. (Id.). Prior to that position, Plaintiff was employed as a croupier (black jack dealer) in Las Vegas. (R. at 393-94). In this position, Plaintiff testified that she would stand for six and half hours in an eight hour day. (R. at 394). Additionally, Plaintiff testified that she has past work experience as a beautician. (Id.). In this position, Plaintiff was required to stand for most of the day and lift less than five pounds. (R. at 395). She also testified that she was a sales representative for an advertising company for a short period of time, which required lifting approximately fifteen pounds, as well as standing, sitting walking and driving.

(R. at 395-96). Prior to that position, Plaintiff worked as a shampooer in a salon, which required her to stand most of the day and lift five to ten pounds regularly. (R. at 396).

Plaintiff's Medical Background

At the administrative level, the ALJ was provided extensive medical records from Plaintiff's various treatment providers, including Dr. Jonathan Bekenstein, Jameson Rehabilitation Center, Ellwood City Hospital, Jameson Hospital, Lawrence County Family Medicine, Dr. Joseph Ciocca, Dr. Ronald Cramer and Dr. Robert Vandrak.

Dr. Jonathan Bekenstein

Plaintiff was seen by Dr. Bekenstein in October of 2002. (R. at 77). Dr. Bekenstein noted at this time that Plaintiff had a history of ovarian cysts, cystectomy, right carpal tunnel release in August of 2002, a cyst in her throat, endometriosis and rare migraines. (R. at 78). After an evaluation, Dr. Bekenstein noted that Plaintiff had definite spasms in the sacral spine and possible neuropathic and abdominal pain. (R. at 79). He also indicated that Plaintiff was suffering from sleep disturbance, likely as a result of major depression. (Id.). Dr. Bekenstein reviewed plains films of the spine that Plaintiff brought with her. (Id.). He indicated that these appeared to be normal. (Id.). He prescribed Plaintiff Lexepro for anxiety and depression and Topomax for headaches. (Id.). He also prescribed a pain medication, Baclofen, for back pain, as needed. (Id.). He further suggested that Plaintiff taper off Vicodin and discussed the need for excellent sleep hygiene and regular exercise. (Id.).

Plaintiff was seen again by Dr. Bekenstein in November 2002 related to chronic back and pelvic pain. (R. at 75). At this evaluation, Dr. Bekenstein noted that Plaintiff's mood and sleep had improved as a result of prescribed medications. (R. at 76). He also noted that, following laparoscopic surgery for pelvic pain, she was prescribed an anti-depressant, Citalopram and Vicodin. (Id.). Dr. Bekenstein suggested that Plaintiff begin and exercise program and attempt to taper off Vicodin. (Id.). He noted that, if Plaintiff's pelvic pain could be controlled, he believed there was a better chance that Plaintiff would be able to get back to work and improve her mood. (Id.).

Jameson Hospital

On August 7, 2002, Plaintiff underwent outpatient median nerve decompression in her right hand for carpal tunnel syndrome. (R. at 197, 203). According to the records, very good decompression was accomplished as a result of the procedure. (Id.). Plaintiff was discharged with instructions to follow up in five days and with a prescription for Vicodin. (Id.).

Plaintiff was seen at the emergency at Jameson Hospital several times, generally with complaints of migraine headache or back and abdominal pain. The medical records from these visits indicate that she was seen on July 27, 2002 and September 15, 2002 with complaints of migraine headache accompanied by nausea. (R. at 192-93, 213). She was prescribed Demerol and Vistaril for the migraine. (R. at 194-95, 215). She was seen again on December 20, 2002 with complaints of a migraine headache. (R. at 186-87). She was prescribed Toradal and Vicodin for pain. (R. at 187).

Plaintiff presented to the emergency room at Jameson Hospital on March 20, 2003, complaining that she hurt her arm and was experiencing pain from her hand to her shoulder. (R. at 168). On examination, no bone or joint abnormality was found. (R. at 173).She was diagnosed with a contusion on the right hand and right shoulder strain. (R. at 170). She was treated with Toradol and Lortab for pain and an ace bandage. (Id.). She was also instructed to ice and elevate her hand and to keep her arm as active as possible. (R. at 172). Plaintiff presented to the emergency room again on February 7, 2003 with complaints of a headache. (R. at 177). She was prescribed Imotrex, which she refused. (R. at 180). She was also directed to rest. (R. at 179).

Records indicate that Plaintiff was admitted to Jameson Hospital on November 17, 2003. (R. at 97). According to these records, Plaintiff had presented to the emergency room several times over the week prior to admission complaining of pain in her left side, back, left lower quadrant of her abdomen and pelvis. (Id.). A CT scan was performed, which showed a questionable tiny kidney stone and some fluid, but was otherwise negative. (Id.; R. at 103). Additionally, a pelvic exam was performed, which was unremarkable. (Id.; R. at 101). The records also indicate that Plaintiff was seen by a urologist, who did not believe a kidney stone was present. (Id.; R.at 99). Plaintiff was started on antibiotics and saw improvement. (Id.). An examination was done of Plaintiff again on November 19, 2003, which showed that Plaintiff was alert and did not appear to be under significant stress. (R. at 98). The examining physician noted tenderness in her mid to lower thoracic spine region and tenderness in the lumbar region. (Id.). Plaintiff had a normal range of motion in the thoracic and lumbar spine, but complained of discomfort with flexion and side bending. (Id.). The examining physician recommended moist heat as well as outpatient physical therapy for upper and lower back pain. (Id.).

Plaintiff was admitted to the emergency room on January 9, 2004 and March 21, 2004 complaining of pain and on May 4, 2004 for a toothache. (R. at 154-55). Plaintiff was admitted to the emergency room again on June 10, 2004, complaining of side and abdominal pain. (R. at 142). She was diagnosed as having a small uterine fibroid, (R. at 150), and prescribed Darvocet for pain. (R. at 149). Records from Jameson Hospital indicate that ...


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