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Brown v. Commissioner of Social Security

November 25, 2009


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



Plaintiff Barbara Brown 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 ("Act"), 42 U.S.C. §§ 401-433, 1381-1383f. Presently before the court are cross-motions for summary judgment based on the record developed at the administrative level. After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs of the parties, and the entire record, it is clear that the decision of the Commissioner must be vacated and the case remanded for further proceedings. Accordingly, Plaintiff's motion will be granted insomuch as it requests a remand for further administrative proceedings, Defendant's motion will be denied, and the matter will be remanded with direction to undertake further proceedings not inconsistent with this opinion.


Plaintiff protectively filed for DIB on June 1, 2005 and SSI on June 9, 2005, alleging disability as of June 1, 2002 due to a herniated disc and depression. (R. 45, 59, 70-71.) Plaintiff's date last insured for purposes of DIB was March 31, 2007. (R. 78.) The state agency denied her claims on December 20, 2005. (R. 52-56.) At Plaintiff's request a hearing was held before ALJ Alma Deleon on January 28, 2008 where Plaintiff, who was represented by counsel, and a vocational expert testified. (R. 492-520.) On February 4, 2008, the ALJ issued a decision finding Plaintiff not disabled. (R. 15-20.) On February 6, 2008, Plaintiff filed an appeal to the Appeals Council, who denied Plaintiff's request for review on August 13, 2008. (R. 5-8, 9.) The instant action followed.


Plaintiff was born on October 16, 1963, making her forty years of age at the time of her asserted onset of disability and forty-four years of age on the date of the ALJ's decision. (R. 492.) Plaintiff received her GED and completed one year of college. (R. 148, 492.) Plaintiff's past relevant work includes serving as site manager for a city doing a lunch program and working as a deli clerk, prep cook, and personal care worker. (R. 81, 496-499.)

On July 22, 2003, Plaintiff was examined by Dr. Jonathan Urffer for complaints of knee, left hip, and buttock pain with numbness through her leg into her toes. (R. 113-114.) She was prescribed Flexeril and Naprosyn. Id. Plaintiff underwent an MRI on August 4, 2003, which indicated a small bulge to the left side of L4-5 and a herniated disc at L5-S1 with compression of the S1 nerve root. (R. 116, 138). Dr. Thomas Kramer, an orthopaedic surgeon, indicated that Plaintiff should be treated with epidural steroids, physical therapy, and anti-inflammatories. (R. 138.) He opined that Plaintiff would need surgical decompression and that procedure, a hemilaminectomy*fn1 and decompression, was performed on L5 and S1 on September 29, 2004. (R. 138, 123). At a follow-up on September 30, 2004, Plaintiff reported that her left leg pain had improved. (R. 120). Plaintiff's examination was normal and an x-ray revealed that the vertebral bodies were preserved in height and alignment. (R. 122). Facet hypertrophic changes remained at L4-L5 and L4-S1. Id.

On October 11, 2004, Dr. Kramer indicated that Plaintiff had "no reoccurrence of her leg pain." (R. 136). This finding was repeated on November 15, 2004 and a negative straight leg test was noted. (R. 135). Dr. Kramer examined Plaintiff again on June 20, 2005 for right shoulder pain. (R. 134.) A cross-chest maneuver was positive for impingement signs and Plaintiff was treated with a cortisone shot to the shoulder. Id.

On July 19, 2005, Plaintiff completed an activities survey indicating that she could clean house, wash clothes, and cook dinner, but was trying to get her daughter to do those things for her. (R. 88). She also indicated that her daughter paid her bills, shopped for her groceries, picked out her clothes, did her hair, tied her shoes, helped her make decisions, and cooked balanced meals. Id. Plaintiff reported that when doing chores she had to rest every fifteen minutes for at least five minutes and that she could walk for a quarter of a mile and lift ten pounds. (R. 90). With respect to her emotional symptoms, Plaintiff reported she liked to isolate herself, associating mainly with her children and grandchildren. (R. 92). She also indicated that she did not like supervisors or respond well to criticism, had no difficulty understanding instructions or carrying them out, had difficulty with changes in her schedule because they made her anxious, had problems with going overboard when she became angry, and had trouble concentrating at work for extended periods of time. (R. 92-93). With respect to her physical symptoms, Plaintiff reported experiencing constant pain in her lower back, left leg, and shoulder and indicated that she did not take her medications as prescribed because she was worried about addiction. (R. 94-95). She also indicated that she began using a cane in 2003. (R. 96).

Plaintiff underwent a physical evaluation by Dr. Ryon Hurh on September 28, 2005. (R. 140-141.) Dr. Hurh indicated that while Plaintiff reported being depressed, she did not appear depressed and reported no suicidal ideation. (R. 140). Physically, Plaintiff was alert, cooperative, and oriented, and her hips, knees, and ankles were within normal limits. Id. Plaintiff's spine was straight, there was no tenderness in her neck, and she had full range of motion in the shoulders. (R. 140-141). Plaintiff, however, could only squat half way, had decreased range of motion in her neck, pain with rotation of her right shoulder, reduced strength in her right shoulder, and decreased range of motion in her back. Id. Dr. Hurh opined that Plaintiff had a history of diskectomy, degenerative changes to the spine, possible degenerative changes to the right shoulder, and depression. Id. Dr. Hurh further indicated that Plaintiff's low back pain was not acute at the time and that her treatment should be conservative. (R. 141). Dr. Hurh completed a physical capacities evaluation indicating that Plaintiff could lift ten pounds frequently and twenty pounds occasionally; could carry two to three pounds frequently and ten pounds occasionally; could stand and/or walk four hours per day; could sit eight hours a day with a sit/stand option; had the limited ability to push and pull in her upper and lower extremities; could occasionally bend, stoop, kneel, balance, and climb; could never crouch; was limited in reaching due to right shoulder pain; and had problems with temperature extremes. (R. 144).

On October 14, 2005, Dr. Anthony Fallica, Ph.D., performed a psychological evaluation of Plaintiff. (R. 147-153). During the evaluation, Plaintiff indicated that she had Hepatitis C, was on probation for welfare fraud, and did not want to admit to why she had been fired from her last job. (R. 148-150). Plaintiff reported suffering from visual hallucinations; unusual gustatory and tactile experiences; and substance abuse which included the use of alcohol, cocaine, and marijuana. (R. 150-151). Upon examination, Dr. Fallica noted that Plaintiff was alert and oriented times three; had a good fund of knowledge; had unimpaired social judgment; and mildly impaired common sense and adequate planning. (R. 152). Dr. Fallica opined that Plaintiff was suffering from an alcohol and cocaine induced mood disorder*fn2 with depressive features associated with cannabis use which was complicated by borderline personality disorder*fn3 . He also indicated that a single episode of major depressive disorder should be ruled out. Id. Dr. Fallica completed a medical sources statement indicating that Plaintiff had slight impairment in making judgment on simple work related decisions; moderate limitations in understanding and remembering simple directions and carrying out detailed instructions; and slight limitations in interacting appropriately with supervisors and co-workers, in responding appropriately to work pressures in the usual work setting and to changes in a routine work setting. (R. 155). Dr. Fallica stated "the claimant's reported use of alcohol (beer & liquor) plus other substances (e.g. marijuana and cocaine) is more than likely to cause some difficulties in her life. For example, her use of alcohol and cocaine will contribute to her unstable moods. Her use of marijuana will probably exacerbate her anxiety...[i]f she abstains from all substances, it is likely that her mood will be stabilized, i.e. will experience a decrease of depression, anxiety, & anger." (R. 156).

On November 30, 2005, Dr. Alfred Mancini, MD, completed a physical residual functional capacity evaluation based on Plaintiff's records. (R. 158-162). Dr. Mancini indicated that Plaintiff could occasionally lift ten pounds, frequently lift less than ten pounds, stand and walk for at least two hours and sit for six hours in an eight hour work day, was limited in her ability to push and pull with her upper extremities, and could occasionally climb, balance, stoop, kneel, crouch, and crawl. Id.

Dr. Roger Glover, Ph.D., completed a Psychiatric Review Technique form and Mental Residual Functional Capacity Assessment on December 9, 2005. (R. 165-179). After reviewing Plaintiff's records, Dr. Glover indicated that Plaintiff suffered from substance induced mood disorder, and personality disorder, NOS. (R. 172, 176). Dr. Glover indicated that Plaintiff was moderately limited in the ability to understand and remember detailed instructions; moderately limited in the ability to carry out detailed instructions and in the ability to maintain attention and concentration for extended periods; moderately limited in the ability to interact appropriately with the general public; and moderately limited in the ability to respond appropriately to changes in the normal work setting and in the ability to set realistic goals or make plans independently of others. (R. 165-166). Dr. Glover further opined that Plaintiff had mild restrictions in the activities of daily living and in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, and pace, and no episodes of decompensation. (R. 179). In summation, Dr. Glover stated that Plaintiff was "able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment."

(R. 176).

On February 2, 2006, Plaintiff was seen by her primary care physician, Dr. Jalit Tuchinda, M.D. when blood tests indicated that she tested positive for Hepatitis C. (R. 188-189). Plaintiff reported feeling good and her physical examination was normal. (R. 189). Plaintiff was seen again on September 6, 2006 complaining of muscle pain in the neck, fatigue, and a rash. She was prescribed Keflex for her rash and was told to try Advil and applying heat for her neck. (R. 184). On April 30, 2007, Plaintiff presented with a tearful, flat affect. She ...

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