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Rosalind Theresa Brown v. Michael J. Astrue

April 15, 2011

ROSALIND THERESA BROWN
v.
MICHAEL J. ASTRUE



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

MEMORANDUM

Plaintiff Rosalind Theresa Brown ("Brown") challenges the denial of her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c, by Michael J. Astrue, Commissioner of the Social Security Administration ("the Commissioner").

Brown originally filed her claim on October 16, 2006, asserting that a variety of ailments -- including left upper extremity ulnar neuropathy, degenerative joint disease in her right foot and left knee, left rotator cuff tear, degenerative arthritis of her left ankle and right elbow, and a history of bowel resection for diverticulitis -- left her unable to engage in any substantial gainful activity. Following a hearing, an Administrative Law Judge ("ALJ") denied Brown's claim on November 30, 2007, and the Appeals Council then denied her request for review of this denial on December 23, 2008 and again on March 6, 2009 (after the submission of additional information), thus converting the ALJ's decision into the final decision of the Commissioner.

Brown exercised her right to review of this decision by filing a complaint before this Court pursuant to 42 U.S.C. § 405(g) on May 12, 2009. Brown filed a motion for summary judgment in this matter on August 18, 2009, to which the Commissioner filed a response a month later; Brown then filed a reply to this response.

We referred this case to Magistrate Judge L. Felipe Restrepo for a Report and Recommendation. Judge Restrepo issued his Report and Recommendation on November 30, 2010, recommending that Brown's motion for summary judgment be denied. Brown timely filed objections to Judge Restrepo's Report and Recommendation, contending that Judge Restrepo did not recognize that (1) the ALJ failed to support his credibility finding and (2) the ALJ's residual functional capacity ("RFC") determination was deficient.

Upon review of Judge Restrepo's Report and Recommendation, we find that both of Brown's objections have merit. We will consequently adopt Judge Restrepo's Report and Recommendation only in part, grant Brown's motion for summary judgment in part, and remand this matter to the Commissioner.

I. Factual Background

Brown was born on March 12, 1951, R. at 17, and completed tenth grade in 1967 and then six months of small business training in 2000. After a work history including stints as a fixed site office coordinator, security guard at a homeless shelter, and sales clerk at a gas station, id. at 21, Brown stopped working in either 2002 or 2004 to take care of ill family members. Brown confirms that she did not stop working due to disability. Id. Brown earned between $11,000 and $13,000 per year as an office coordinator, but less than $6,500 per year in the latter two positions. Id. at 22-23.

Brown had surgery for diverticulitis*fn1 in March of 2004, which allegedly led to nerve neuropathy*fn2 in her upper extremities that limits "movements of the hand" and causes "numbness." Id. at 32. Brown also suffered a tear to her left rotator cuff, resulting in "numbness . . . from the shoulder all the way down to the fingers." Id. at 32-33. In her lower extremities, Brown asserts that (a) she has "two pieces of bone that have been broken, two spurs and severe arthritis" in her left foot, (b) her left "knee is totally gone" -- apparently a reference to degenerative arthritis -- and (c) a Baker's cyst*fn3 in her right knee gives her "shooting pain." Id. at 33. Brown also states that her right "toe, has a nerve neuropathy," and that "the pain shoots from the big toe through the whole foot." Id. at 34.

Brown testified that she shares a two-story home with her mother where she lives in the basement and climbs stairs "about twice a day, maybe, just for my meals." Id. at 35. She sleeps about thirteen hours each day because "[t]he medication makes me sleepy,"*fn4 id. at 37, and remains groggy in the morning for "[m]aybe three hours before I really feel normal again." Id. at 46. Brown spends most of her day "[s]itting there watching TV," id. at 38, though she actually alternates sitting and lying in her bed. Id. at 47. She admits that no doctor has ever recommended that she remain confined to bed. Id. at 48. Brown has worn adult diapers since about April of 2006, id. at 32, and testified that she urinates every half-hour and moves her bowels four or five times per day. Id. at 46.

While Brown has, in her life, washed dishes, done laundry, gone grocery shopping, and vacuumed carpets, she no longer does any of these activities. Id. at 38-43. Brown does not wash "the glass dishes anymore, because I have dropped them," id. at 50. She does not do laundry because "[w]hen it's too heavy like that, I can't lift it," id. at 41. She does not shop for groceries "[b]ecause I can't really hold things in my hands well," id.; and she does not vacuum because she is not able to do so and doesn't "even try anymore." Id. at 43. Instead, Brown's niece helps her with these tasks. Id. at 38. Brown cooks for herself to the extent that she "use[s] microwaveable meals." Id. at 40. Brown concedes that she is able to manipulate buttons and zippers and articles of clothing "if I have to," though "[i]t takes a while." Id. at 42. Brown testified that she prefers to wear clothing that she can pull over her head, "us[ing] the right arm to put something over my head" and "then slide the arm in on the other side," so that "I don't have to worry about the buttons." Id. at 52-53.

Brown claims that she had been using a cane for about three years as of her hearing on October 2, 2007; according to Brown, her doctor gave her "a prescription for a cane and I couldn't get the prescription filled, because the places that I went to wouldn't do it. So I, I bought the, my own cane." Id. at 34. Brown also wears a foot brace, an arm brace, and an elbow brace; the latter two "weren't prescribed," but she wears them because "they make me feel better." Id. at 54-55. Despite these aids, Brown states that she can only walk "three blocks, four blocks at the most," and that she can remain standing for "half-an-hour, 45 minutes before the pain and I have to sit." Id. at

36. Brown explains that she can sit for "[m]aybe about two, three hours and, you know, then I'll lay down." Id. Brown can lift a gallon of milk, which suggests that she can lift about eight pounds, id. at 37, but she asserts that when she lifts such an object "it's hard to hold it." Id. at 50.

Brown testified that she uses public transportation, id. at 35, and attends church "once every three months." Id. at 44. While Brown is not married, she has had a boyfriend for six years and visits him "two, three days out of a week"; during these visits, they "sit home and watch movies." Id. at 43-44.

On a scale of zero to ten, "zero representing no pain and ten representing pain so excruciating you can't get out of . . . bed," Brown grades her pain in her hands and arm to be an eight; in her ankle, a seven; in her left knee, a ten; in her right knee, a five; and in her right foot, a five. Id. at 56-57.

Seven doctors submitted reports evaluating Brown's physical condition: Craig Israelite, M.D.; Matthew L. Ramsey, M.D.; Raul Yankelevich, M.D.; Michael S. Downey, D.P.M.; David J. Bozentka, M.D.; John Rombeau, M.D; and Bronell Chandler, M.D.. On August 16, 2006, Dr. Israelite examined Brown and recorded that X-rays revealed "significant medial joint DJD [degenerative joint disease] with joint space narrowing of her left knee," and also noted that Brown had "a Baker's cyst of the contralateral knee." Id. at 243. Israelite recorded Brown's reports of left knee pain and "numbness down her foot, particularly with sitting for prolonged periods of times [sic]." Id. On October 19, 2006, Israelite reported that Brown described "moderate symptoms of osteoarthritis and pain symptoms" and was "only able to walk about 4 blocks before she starts getting knee pain," but observed that "[t]here is no evidence of any back pain with sciatica*fn5 and no evidence of radiating pain down the foot." Id. at 242. Along with other recommendations, Israelite advised the "avoidance of squatting and kneeling until symptomatic relief." Id.

On October 31, 2006, Dr. Ramsey evaluated Brown and recorded that she "presents with a two year history of pain localized to the left elbow" and "numbness or tingling in the small finger" that "is becoming more significant recently." Id. at 245. While Brown demonstrated "active elbow motion from 0-140 degrees of flexion with full forearm pronation and supination" and "good sensation to light touch throughout," she had tenderness and positive Tinel's*fn6 at the cubital tunnel, and "a positive elbow hyperflexion test at about 35 seconds . . . recreates numbness in the ulnar digits." Id. After a follow-up examination on April 10, 2007, Dr. Ramsey noted that an "MRI of the left shoulder demonstrates partial-thickness tear of the supraspinatus"*fn7 and that Brown "has subdeltoid and subacromial*fn8 fluid" and "[h]er AC [acromioclavicular]*fn9 joint demonstrates moderate to severe degenerative changes." Id. at 267. Moreover, an "EMG nerve conduction report demonstrates a mild to moderately severe left ulnar neuropathy in and about the elbow." Id. Following another examination on February 6, 2007, though, Dr. Ramsey observed that Brown's "right arm which has improved quite nicely with therapy." Id. at 268. After these latter examinations, Dr. Ramsey reported that Brown could actively elevate the left shoulder to about 120 degrees and passively elevate the shoulder to 165 degrees with pain, while external rotation of the left shoulder was "to 45 degrees with good strength but discomfort." Id. at 267-68.

Dr. Yankelevich examined Brown on January 11, 2007, and reported that she claimed "tingling in right forearm radiating into ring and small fingers since about 2 or 3 years ago, of unknown cause," and "pains radiating from the left side of the neck into the left shoulder." Id. at 250. Nonetheless, Dr. Yankelevich's examination revealed full upper extremity range of motion, "with good dexterity and ability to oppose all fingers in both hands" and "normal sensory perception to pinprick, throughout," though grip strength in Brown's right hand (at 30 mm Hg) was significantly less than in her left hand (at 70 mm Hg). Id. at 252. Dr. Yankelevich further reported a decreased range of motion in Brown's left hip of 0 to 80 degrees, and in her left knee of 0 to 90 degrees, as well as an "[o]bvious Baker's cyst in the popliteal area of the right knee." Id. Dr. Yankelevich found Brown to have a full range of motion in her back and spine and noted that she was "[a]ble to get on and off the examination table and disrobe without difficulty." Id.

Dr. Downey saw Brown on November 28, 2006, February 13, 2007, and March 27, 2007, and reported her complaints of left ankle pain, especially following prolonged activity and with weather changes, and pain and numbness in her right big toe. Id. at 262, 280. Dr. Downey observed bilateral contracted digits and edema in the left ankle, id. at 262, but also noted that

Examination of the lower extremities revealed intact pedal pulses bilaterally. No edema, no erythema, and no signs of infection were noted. Ankle joint motion was symmetrical bilaterally with very minimal pain upon left ankle joint forced dorsiflexion. Otherwise no pain was noted with motion, and only mildly limited motion was noted bilaterally.

Id. at 280. Dr. Downey diagnosed mild to moderate osteoarthritis in the left ankle and mild right-sided weakness. Id. at 280-81.

Dr. Bozentka examined Brown on April 18, 2007, recording that "[s]he has paresthesias*fn10 in the ulnar nerve distribution" and "had an EMG/NCV on 3/5/07 which is consistent with mild to moderate severe left ulnar neuropathy," and that "[h]er symptoms have continued to progress despite non-operative modalities." Id. at 266. Dr. Bozentka's examination revealed "positive Tinel's at the cubital tunnel and a positive ...


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