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Siebert v. Astrue

November 19, 2010

SHANNA E. SIEBERT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Shanna E. Siebert ("Plaintiff") brought this 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. Presently pending before the Court are cross motions for summary judgment. For the reasons set forth below, I will deny both motions and the matter will be remanded to the Commissioner for further proceedings.

II. BACKGROUND

A. Procedural Background

Plaintiff filed applications for DIB and SSI benefits claiming disability since September 21, 2004 due to lower back pain, right foot and heel pain, obesity, anxiety and depression (Administrative Record, hereinafter "AR", 72; 85-86; 329-330). Her applications were denied on February 28, 2005 and the Appeals Council remanded for further proceedings on December 14, 2006 (AR 40; 44). On November 7, 2007, a hearing was held before an administrative law judge ("ALJ") (AR 332-369). An impartial vocational expert testified that an individual with the Plaintiff's vocational profile could perform the Plaintiff's past relevant work as a companion and an assembler (AR 362).

Thereafter on April 14, 2008, the ALJ concluded, in a written decision, that the Plaintiff was not entitled to a period of disability, DIB or SSI under the Act (AR 14-28). Her request for review by the Appeals Council was denied (AR 5-7), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). Plaintiff filed her Complaint in this Court on August 5, 2009. Thereafter, cross motions for summary judgment were filed, and this matter is now ripe for disposition.

B. Plaintiff's Vocational and Medical Background

Plaintiff was 26 years old on her alleged onset date and was 30 years old on the date of the ALJ's decision (AR 18). She has a high school education and additional training as a nurses assistant (AR 18; 77-78). Her prior work experience includes work as a personal care aide (home health aid), certified nurse assistant, companion and small products assembler (AR 18; 73).

The administrative record indicates that the Plaintiff has been treated for her back pain and heel pain by James Barke, M.D. since 2002.*fn1 In May 2002 the Plaintiff was assessed with a right heel spur and received a cortisone injection (AR 259). In June 2002 she reported recurrent pain in her right heel but denied suffering from any back pain (AR 258). On November 18, 2002, the Plaintiff reported low back pain aggravated by standing for 10 hours a day at her job (AR 257). She was prescribed Ibuprofen and Flexeril and diagnostic studies were ordered (AR 257). Dr. Barke referred the Plaintiff for physical therapy on November 2002 but she was discharged for non-compliance after attending only one session (AR 200).

Plaintiff continued to be seen by Dr. Barke's office for follow-up in 2003. Dr. Barke referred the Plaintiff for physical therapy a second time in February 2003 but she was again discharged for non-compliance (AR 193). On April 11, 2003 an MRI of the Plaintiff's lumbar spine showed degenerative disc disease and a "mild disc bulge" at the L5-S1 level and borderline spinal stenosis (AR 253). In June 2003 the Plaintiff had breast reduction surgery which relieved her upper back pain (AR 128-137; 235; 243).

On March 17, 2004, the Plaintiff complained of chronic back pain and recent insomnia (AR 236). On physical examination, Dr. Barke found some mild discomfort in the lumbar spine and upper sacral area (AR 236). Plaintiff was able to easily forward flex to 90 degrees and come to an erect position (AR 236). Lateral and hyperextension movements caused the Plaintiff discomfort in the lower back area (AR 235). Dr. Barke was of the opinion that the Plaintiff's chronic lower back pain was caused by her morbid obesity (AR 235). He assessed her with chronic back pain secondary to morbid obesity and periodic insomnia (AR 235). He prescribed Xenical, a weight loss drug, recommended that she start an 1800 calorie diet, and gave her a list of lower back exercises (AR 235). She was also given a prescription for Relafen, an anti-inflammatory drug (AR 235).

Plaintiff returned for follow-up on April 30, 2004 and reported that although the back exercises had helped alleviate her pain, she experienced increased discomfort, as well as increased right heel pain, since beginning a new job (AR 235). Physical examination of her foot revealed point tenderness of the medial aspect of the calcaneus (AR 234). Plaintiff was counseled regarding her diet, and it was stressed that "it would help greatly if she had weight loss since the obesity [was] causing [a] tremendous amount of stress in the low back area" (AR 234). She was assessed with morbid obesity, chronic back pain and plantar fasciitis (AR 234). Celebrex was prescribed, she was referred for a physical therapy evaluation, told to use an arch support and heel pads for her foot, and perform foot exercises (AR 234).

When seen by Dr. Barke's office on May 28, 2004, the Plaintiff reported that her back pain improved with physical therapy (AR 234). She requested a note from Dr. Barke to decrease her work week to three days a week due to her plantar fasciitis (AR 233). She was to continue physical therapy and stretching exercises, and "significant improvement" was noted on physical examination (AR 233). Although the Plaintiff was to continue with physical therapy, treatment notes reflect that she was discharged from therapy for non-compliance due to her sporadic attendance in May 2004 (AR 176).

In June 2004 Dr. Barke started the Plaintiff on Wellbutrin for her symptoms of depression (AR 233). She complained of chest pain and anxiety (AR 233). By July 2004 her depression and anxiety had improved significantly and she had only mild discomfort in her right foot (AR 229). On September 14, 2004 the Plaintiff reported that she was unable to lose weight on numerous diets and was unable to complete exercise programs due to low back pain (AR 226). Physical examination revealed some limitation on forward flexion and tenderness over the SI joints bilaterally (AR 226). In December 2004 the Plaintiff reported that her back pain was stable and requested medication for symptoms of anxiety (AR 315). Effexor was added to her medication regimen (AR 315).

Plaintiff was examined by Dilbagh Singh, M.D., a consulting examiner, on January 28, 2005 (AR 262-269). Plaintiff relayed a history of back problems, rating her pain as "5" on a scale from 1 to 10 (AR 262). She stated that she attended physical therapy for approximately three to four weeks without any success (AR 262). Plaintiff indicated that it became difficult for her to lift in her nursing assistant position therefore she switched to cleaning houses part time (AR 262). Plaintiff also reported "some heel pain" (AR 262). She claimed that she had tried weight reduction diets without success (AR 263). She further claimed that her previous ...


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