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Kitty Louise Hoffman v. Michael J. Astrue

July 27, 2011


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



Kitty Louise Hoffman ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), 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. Plaintiff filed her applications on September 21, 2007, alleging disability since September 18, 2007 due to scoliosis, cerebral palsy and depression (AR 107-109;112-114; 141).*fn1 Her applications were denied, and she requested an administrative hearing before an administrative law judge ("ALJ") (AR 67). Following a hearing held on December 19, 2008 (AR 23-50), the ALJ concluded, in a written decision dated June 5, 2009, that Plaintiff was not entitled to a period of disability, DIB or SSI under the Act (AR 11-23). Plaintiff‟s request for review by the Appeals Council was denied (AR 1-6), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, the Commissioner‟s motion will be denied and Plaintiff‟s motion will be granted to the extent she seeks a remand for further consideration.


Plaintiff was 24 years old on the date of the ALJ‟s decision and has a high school education (AR 20). She has past relevant work experience as a cashier/bagger and fast food worker (AR 20; 142). Plaintiff claims disability on the basis of both physical and mental impairments.

A. Medical evidence submitted to the ALJ

1. Physical impairments

Historically, Plaintiff‟s treatment for her physical impairments reveal that she was diagnosed with scoliosis in the upper lumbar region and a one-half inch leg length discrepancy when she was nine years old (AR 201; 291; 437-445). Treatment consisted of a brace and/or shoe lifts, but she never required an assistive device to walk (AR 216-218; 228-229; 251; 240-257). She has also been diagnosed with mild cerebral palsy, possibly caused by a mild intrauterine stroke (AR 441).

Plaintiff was treated by various physicians at Seneca Medical Center ("Seneca") beginning in July 1994 (AR 292-311). In July 2006, Plaintiff complained of chronic back pain aggravated by heavy lifting but had no acute complaints (AR 300-302). It was noted she was "employable" and a Functional Capacity Evaluation was ordered (AR 300). She was not prescribed any medications for her back pain (AR 300).

An x-ray of Plaintiff‟s thoracic/lumbar spine dated September 14, 2007 showed a scoliotic curvature measuring twenty five degrees and evidence of a 10mm leg length discrepancy (AR 289). On October 4, 2007, Plaintiff was seen by Donald Smith, M.D., an orthopedic surgeon, for evaluation of her scoliosis and leg length discrepancy (AR 290). Plaintiff reported that she lost her most recent job because she did not pass the physical (AR 290). Plaintiff indicated, however, that she was of the view that her scoliosis had no bearing on her ability to perform her job and she was able to "perform her job functions to the fullest degree despite scoliosis" (AR 290). She had no complaints of back pain, although she reported slight discomfort when lifting heavy boxes weighing over forty to fifty pounds (AR 290). Her physical examination was unremarkable other than an obvious curvature of her spine on forward flexion (AR 290). She was diagnosed with scoliosis with a "good" prognosis and provided a heel lift for her shoe (AR 290). When seen at Seneca on October 17, 2007, Plaintiff reported that she walked thirty minutes per day and was working with a job coach (AR 292).

On December 28, 2007, V. Rama Kumar, M.D., a state agency reviewing physician, reviewed the medical evidence of record and found that Plaintiff had medically determinable impairments of scoliosis and leg length discrepancy (AR 342). He opined that Plaintiff could occasionally lift/carry fifty pounds, frequently lift/carry twenty five pounds, could stand or walk for about six hours in an eight-hour workday, and sit for about six hours in an eight-hour workday (AR 338). In addition, Plaintiff was unlimited in her push/pull abilities and had no other limitations (AR 338-339). Dr. Kumar noted that Plaintiff claimed limitations in standing, walking, bending, pushing, pulling, climbing, balancing, stooping, kneeling, crouching and crawling (AR 342). He found her statements only partially credible however, based on reported observations of her by field office personnel, her medical history, the character of her symptoms, her daily activities, the type of treatment she received and her response to treatment (AR 342-343).

On March 10, 2008 Plaintiff reported to Kim Davis, CRNP at Seneca that she was suffering from back pain (AR 396). She indicated that she had back pain for years and could not lift more than forty pounds (AR 396). Ms. Davis reported that Plaintiff walked with a normal gait and her physical examination was unremarkable (AR 397). Plaintiff was instructed on proper lifting techniques and could engage in activity as tolerated (AR 397).

On July 24, 2008 Plaintiff to Bradley Fell, M.D., that she had "flashes of pain" down both legs every few days for six weeks that lasted for a minute or two (AR 391). On physical examination, Dr. Fell noted that she walked with a normal gait and her extremities were non-tender and normal to palpation (AR 392). Her remaining physical examination was unremarkable (AR 392). No medication was prescribed but lab tests were ordered (AR 392). Dr. Fell noted that her infantile cerebral palsy "seem[ed] mild" (AR 393).

When seen at Seneca by Veronica Santee, M.D. on November 11, 2008, Plaintiff had no musculoskeletal complaints (AR 388-390). From November 19, 2008 to December 8, 2008, Plaintiff saw a chiropractor for back pain and shoulder pain (AR 402-411). She reported that she exercised every day (AR 408).

2. Mental impairments

Prior to her alleged disability onset date of September 18, 2007, Plaintiff was psychologically evaluated by Martin Meyer, Ph.D and Julie Uran, Ph.D in 2003 through the Office of Vocational Rehabilitation (AR 231-239). Test results indicated that Plaintiff was of low average intelligence, and her academic abilities were below average, with deficits in the area of computations (AR 234). Dr. Meyer and Dr. Uran noted that Plaintiff was in denial of any emotional-based difficulties, although she was experiencing "phase of life issues involving autonomy as well as dependence" (AR 233). Her overall personality adjustment was considered "fair" but not disabling (AR 233). She was diagnosed with a mathematics disorder, identity problem, and mood disorder, and was assigned a global assessment of functioning*fn2 ("GAF") score of 60-65 (AR 234). It was recommended that Plaintiff undergo supportive and vocational counseling (AR 234).

From August 2, 2007 to December 12, 2008, Plaintiff sought counseling at Paoletta Psychological Services ("Paoletta") for her alleged mental impairments (AR 259-278; 412-432).

At her initial diagnostic assessment on August 2, 2007, Plaintiff complained of mood swings, depression, hair pulling (which resulted in a bald spot), insomnia and anxiety (AR 259). Plaintiff reported that she lived with her parents and nephews (AR 261). She further reported minimal pain from scoliosis which she managed with Tylenol (AR 262-263). Plaintiff stated that she wanted to get out on her own but was financially unable to do so (AR 267). She described herself as a dependable person who performed jobs to the best of her ability, and stated that her future goals were to attend school and hold down a steady job (AR 267).

On mental status examination, the examiner reported that Plaintiff was cooperative and friendly, but her mood was mildly manic and anxious (AR 268). She displayed circumstantial thought and exhibited flight of ideas, going "on and on about Batman and cars" and rapidly changed subjects (AR 268). She denied suffering from any hallucinations or delusions (AR 268). The examiner found her insight was "impaired", diagnosed her with a mood disorder not otherwise specified and trichotillomania*fn3 (AR 270). She was assessed with a GAF score of 40 (AR 270). At her appointment on August 16, 2007, a Paoletta therapist assessed her with a GAF score of 50, and a treatment plan was formulated to include weekly individual therapy (AR 271-278). Her criteria for discharge were to develop a consistent positive self-image and healthy cognitive patterns over a six month period and a GAF score of 65 or higher (AR 278).

When seen at Seneca on September 19, 2007, Dr. Beals noted that Plaintiff seemed stressed about her work shift and seemed "more upset than would be expected" (AR 294). On September 25, 2007, it was noted that Plaintiff was "very upset" that she failed a work physical (AR 293).

Plaintiff returned to Seneca on October 17, 2007 and complained of increased stress from living at home with her parents and two nephews, and it was noted that she was "very tearful and agitated" (AR 292). She further complained of sleep disturbances, and was assessed with mood swings and insomnia (AR 292).

Clinical Psychologist Robert P. Craig, Ph.D., performed a psychological evaluation of Plaintiff on January 28, 2008 (AR 344-355). Dr. Craig observed that she drove herself to the examination site and was easily able to ambulate to the examination room (AR 346). He found her attention, concentration, motivation and self-sufficiency were all "good" (AR 346). Dr. Craig noted that Plaintiff had no particular medical concerns, and stated that her cerebral palsy and scoliosis did not cause any problems (AR 346). While she had no problems walking, Plaintiff indicated she could only lift thirty pounds (AR 346). She stated that she walked twenty to thirty minutes per day in order to stay fit (AR 347). In addition, Plaintiff reported that she could perform all of her activities of daily living, including cooking, cleaning, childcare and handling money (AR 348). She further reported that she was able to concentrate if it was something she liked (AR 348). Plaintiff stated that she occasionally felt depressed, and was not on any medications and had never been hospitalized for any mental health ...

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