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Bancroft v. Commissioner of Social Security

United States District Court, Middle District of Pennsylvania

September 5, 2014

CHRISTINE BANCROFT, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

MARIANI, J.

REPORT AND RECOMMENDATION

SUSAN E. SCHWAB UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff, Christine Bancroft, appeals from an adverse decision denying her applications 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. (“the Act”). Jurisdiction is conferred upon this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference). For the reasons stated herein, I recommend that this case be REMANDED.

On June 7, 2010, Plaintiff protectively filed applications for DIB and SSI in which she alleged that she became totally disabled as of May 27, 2009, due to lower lumbar pain, and neck pain. Tr. 183. Plaintiff’s applications were denied initially on October 8, 2010. In a pre-hearing memo dated December 7, 2011, Plaintiff alleged the additional impairments of: lower back pain and disc herniation, bilateral upper and lower extremity numbness and tingling; carpal tunnel syndrome (“CTS”); headaches; depression; abdominal pain; sleep apnea; insomnia; and, obesity. Tr. 214.

On December 9, 2011, Plaintiff appeared and testified at a video hearing before Administrative Law Judge (“ALJ”) Bruce S. Fein. Tr. 26-71. Plaintiff, represented by counsel, appeared in Binghamton, New York, while the ALJ presided from Syracuse, New York. Id. On April 20, 2012, the ALJ denied Plaintiff’s applications for benefits in a written decision. Tr. 12-21. Plaintiff sought review of the ALJ’s decision denying her applications for benefits by the Appeals Council. Her request for review was denied on May 29, 2013, making the ALJ’s April 2010 decision the final decision of the Commissioner subject to judicial review pursuant to 42 U.S.C. § 405(g). 20 C.F.R. §§ 404.981, 416.1481; Tr. 1-6.

On June 21, 2013, Plaintiff initiated this action by filing a complaint in this Court seeking the award of benefits, or in the alternative, remand for a new administrative hearing pursuant to sentence four of 42 U.S.C. §405(g). Doc. 1. On September 5, 2013, the Commissioner filed an answer, and a copy of the administrative record. Docs. 9, 10. Having been fully briefed by the parties, Docs.11, 12, this appeal is now ripe for review and has been referred to the undersigned magistrate judge for preparation of a report and recommended disposition.

II. FACTUAL BACKGROUND

Plaintiff’s medical records reveal that she has been diagnosed with cervical and lumbar degenerative disc disease and spondylosis with radiculopathy, acute carpal tunnel syndrome, Tr. 265, and depression. Tr. 273-76, 284. At the hearing, Plaintiff reported that the pain in her lower back interfered with her ability to stand or walk for more than ten minutes at one time, or sit for more than twenty minutes at one time. Tr. 43. She also asserted that she had trouble lifting her arms, and was unable to carry a two liter bottle of soda due to numbness in her (left) dominant hand and that she was unable do more than write an address on an envelope before the onset of her symptoms. Tr. 50, 53. The transcript of Plaintiff’s administrative hearing also reflects that she was shifting, leaning, stretching out her legs, and fidgeting with her hands to alleviate discomfort throughout the proceedings, and her attorney directed her to “focus” and she had difficulty recounting her work history despite having reviewed it with her attorney the evening before the hearing. Tr. 37, 48. Plaintiff also reported the medication side effects of sleepiness, confusion, poor focus, headaches and decreased appetite; though she admitted that she had not taken her pain medication on the date of her hearing. Tr. 47, 49. She testified that, on a scale of one (mild pain) to ten (extreme pain requiring hospitalization), her pain was usually a five or six. Tr. 47-48.

With respect to the objective medical evidence of record a nerve conduction study performed on January 7, 2011, revealed evidence of left ulnar neuropathy at the elbow. Tr. 430-31. An imaging study of Plaintiff’s cervical spine taken on February 25, 2009, revealed straightening of the normal lordosis and narrowing of the C5-6 disc, but the neural foramen were not narrowed and there was no fracture of dislocation. Tr. 373. An MRI of Plaintiff’s cervical spine taken on November 28, 2011, was similar to the 2009 study except that it revealed a new asymmetric disc osteophyte complex to the left at the C4-C5 level causing moderate narrowing of the left neural foramina with potential impact on the exiting left C5 nerve root. Tr. 428.

An imaging study of Plaintiff’s thoracic spine performed on July 17, 2008, two weeks after she sustained an injury by falling down the stairs, revealed a mild superior end-plate depression of T6 which could represent an acute fracture. Tr. 375. An imaging study of Plaintiff’s lumbar spine taken on July 17, 2008, two weeks after Plaintiff sustained an injury falling down the stairs, revealed no acute bony injury, but did reveal narrowing of L1-2 and L2-3 discs; there was no pedicle erosion, spondylosis or spondylolisthesis, and sacroiliac joints were intact. Tr. 374. An MRI of Plaintiff’s lumbar spine taken on March 6, 2009, revealed the impression of small central disc protrusion as well as an annular tear at the L4-L5 level causing minimal mass effect on the thecal sac and no definitive nerve root compression. Tr. 370. An MRI taken of Plaintiff’s lumbar spine on January 7, 2010, revealed no significant interval change since the prior study, unchanged small central disc herniation as well as an annular tear at the L4-L5 level. Tr. 366. An MRI of Plaintiff’s lumbar spine performed on November 28, 2011, revealed no significant changes since the prior study in January 2010. Tr. 432-33.

On September 24, 2010, internist Sandra Boehlert, M.D., conducted a consultative examination of Plaintiff and prepared a report that was commissioned by the Social Security Administration. Tr. 382-85. Dr. Boehlert diagnosed right lumbar radiculopathy, neck pain (musculoskeletal in nature), hand and foot numbness (unclear etiology), and a “rule out” diagnosis of spinal stenosis. Id. Dr. Boehlert noted that Plaintiff was not currently taking any medications, had a normal gait, was able to walk on heels, toes and rise from a chair without difficulty, squat full, and needed no help changing or getting on or off the exam table. Id. Dr. Boehlert also noted that Plaintiff had intact hand and finger dexterity and 5/5 grip strength. Id. In a section of her reported entitled “medical source statement, ” Dr. Boehlert wrote “there is moderate limitation to any heavy exertion or heavy ambulation. There is mild limitation to repetitive bending and twisting of the cervical spine.” Id.

In November 2011, treating pain management specialist Xiao Fang, M.D., completed a questionnaire on the subject of Plaintiff’s physical limitations between October 2010 and November 2011 due to her cervical and lumbar spondylosis. Tr. 396-97. Dr. Fang reported that Plaintiff could sit for six hours per eight-hour workday and stand for at least two hours per workday, but must alternate between sitting and standing, and could safely lift over ten pounds up to three hours per workday without causing worsening of her condition or excessive pain on a daily basis. Id. Dr. Fang opined that, assuming Plaintiff were to return to work allowing for a sit-stand option, Plaintiff would need more than one ten minute break per hour in addition to a thirty minute lunch break. Id. Dr. Fang also opined that if Plaintiff attempted sedentary work on a sustained basis (eight hours per day, forty hours per week) her condition would likely result in four or more absences per month. Id. Dr. Fang noted that Plaintiff had moderate difficulties[1] in the areas of concentration and sustaining work pace due to her physical impairments, and that her medications caused Plaintiff to be fatigued.[2] Id.

Also in November 2011, Plaintiff’s primary care physician, Dr. John Giannone, M.D., and treating nurse practitioner Tiffany Gates-Maby completed a questionnaire on the subject of Plaintiff’s physical limitations between July 2008 through November 2011 due to her impairments of degenerative disc disease, annular tear, and herniated disc. Tr. 399-401. Dr. Giannone, and nurse practitioner Gates-Maby reported that Plaintiff could sit for less than six hours per eight-hour workday, and must alternate between sitting and standing, but was unable to stand for two hours per eight-hour workday, and could safely lift up to five pounds up to three hours per workday without causing worsening of her condition or excessive pain on a daily basis. Id. Dr. Giannone and nurse practitioner Gates-Maby opined that, assuming Plaintiff was to return to work allowing for a sit-stand option, Plaintiff would need complete freedom to rest frequently. Id. Dr. Giannone and nurse practitioner Gates-Maby also opined that if Plaintiff attempted sedentary work on a sustained basis (eight hours per day, forty hours per week) her condition would likely result in four or more ...


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