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Valdora v. Commissioner of Social Security

November 23, 2009


The opinion of the court was delivered by: Simandle, District Judge


This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration denying the application of Plaintiff, Barbara Valdora ("Plaintiff"), for disability insurance benefits ("DIB") under Sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, and for supplemental security income benefits ("SSI") under Section 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A). The Court must decide whether substantial evidence supports the determination of the Administrative Law Judge ("ALJ") that Plaintiff had the residual functional capacity to perform other work available in the national economy, thus rendering her ineligible for DIB and SSI. The Court must further determine whether ALJ's opinion is consistent with governing law. For the reasons set forth below, the Court will vacate the decision of the ALJ and remand for further proceedings consistent with this opinion.


A. Procedural History

Plaintiff filed her application for DIB and SSI on July 23, 2004, alleging a disability onset date of July 5, 2002. That application was denied both on initial review and on reconsideration. Plaintiff sought an administrative hearing, which was held on July 22, 2006 before the ALJ. During the July 22nd hearing, the ALJ requested a post-hearing consultative medical exam and, on request of Plaintiff's prior counsel, the ALJ held a supplemental hearing on November 30, 2006 to address the new report. On December 27, 2006, the ALJ issued his opinion denying Plaintiff entitlement to DIB and SSI. Plaintiff sought review of that decision, and the Appeals Council denied that request. Thus, the decision of the ALJ became the final decision of the Commissioner. Plaintiff timely filed this action.

B. ALJ Opinion

The ALJ first found that Plaintiff met the insured status requirements for disability benefits through December 31, 2007, pursuant to 42 U.S.C. § 423(c). (R. at 21.)

The ALJ proceeded through the five steps of analysis required by regulation. (R. at 21-37.) At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" at any time since her alleged disability onset date of July 5, 2002. (R. at 21.) At step two, the ALJ found that Plaintiff suffered from the following severe impairments: post left ulnar nerve*fn1 transposition and decompression, scoliosis, left carpal tunnel syndrome, reflex sympathetic dystrophy syndrome ("RSDS")*fn2 of the left arm, post traumatic stress disorder ("PTSD"), and adjustment disorder. (R. at 22.) At step three, the ALJ found that these impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 22-24.)

At step four, the ALJ first found that for the relevant period, Plaintiff had the residual functional capacity ("RFC") to perform a limited range of sedentary work. (R. at 25-34.) According to the ALJ, Plaintiff is able to lift/carry less than ten pounds frequently and ten pounds occasionally; can walk for two hours in an eight hour workday and twenty minutes continuously;

is able to stand for two hours in an eight hour workday and continuously [for] fifteen minutes; can sit for six hours in an eight hour workday and one hour continuously; can occasionally climb stairs, bend, and stoop, but can never climb ladders; can occasionally reach horizontally and vertically with the left (dominant) arm and occasionally handle/feel with the left hand; can frequently relate to co-workers, the public, and supervisors; and is restricted to work with simple tasks and simple instructions.

(R. at 27.)

The ALJ based his opinion on medical reports of Plaintiff's treating physicians, Dr. John M. Bednar and Dr. Alan F. Kwon, consulting physicians Dr. Frederic Brustein and Dr. Ronald Bagner, psychologist Dr. David T. London, an initial intake assessment by Cape Counseling Services, and as assessments by State Agency medical and psychological consultants. (R. at 27 -32.) The ALJ gave no weight to the opinions of Dr. Richard D. Rubin and Dr. Sidney Tobias "as neither doctor was [] a treating physician and only examined [Plaintiff] once." (R. at 30.) In addition, the ALJ observed it was unclear whether treatment could help reduce the symptoms Dr. Rubin described when diagnosing adjustment disorder. (Id.) The ALJ observed: "While Dr. Rubin reported [Plaintiff] as having a permanent disability, he does not relate this in terms of the various exertional levels, such as light and sedentary, and even noted that Ms. Valdora could do 50% of the easiest of all activities of the left arm." (Id.) Dr. Tobias' opinion, according to the ALJ, is inconsistent with his own observation that Plaintiff's RSDS was in remission and lacked evidentiary support. (R. at 30-31.) Finally, the ALJ stated that both Dr. Rubin's and Dr. Tobias' opinions were inconsistent with the opinion of Dr. Brustein. (R. at 31.)

The ALJ summarized Plaintiff's testimony during the two hearings, (R. at 25-26), but found her testimony only credible to the extent that it supported a RFC of limited sedentary work, (R. at 34). The ALJ found Plaintiff's testimony regarding the severity of her limitations to be contradicted by her own testimony regarding her daily activities and the preponderance of the medical evidence in the record. (R. at 33-34.) The ALJ elaborated:

The medical records, as previously discussed, fail to support the claimant's subjective complaints and functional limitations. While she indicated she has very little use of her left arm, there are many citations in the records from various physicians, such as Dr. Kwon, Dr. Bednar, and Dr. Bagner, which documents her having full grip and pinch strength. Also, Dr. Rubin cited the claim as being able to do 50% of the easiest of all activities of the left arm.

(R. at 34.)

Having explained his RFC, the ALJ concluded his step four analysis by finding that Plaintiff is unable to perform any of her past work. (R. at 34-35.) In so finding, the ALJ relied on the opinion of Mitchell Schmidt, a vocational expert. (Id.)

Finally, at step five the ALJ concluded based on Mr. Schmidt's testimony that Plaintiff has the ability, given her RFC for limited sedentary work, to perform other jobs existing in significant numbers in the national market. (R. at 35.) Specifically, the ALJ found that Plaintiff could perform work as a call out operator and a surveillance system monitor, for which there were significant numbers of existing jobs. (R. at 36.) Consequently, the ALJ found that Plaintiff was not disabled. (R. at 37.)

C. Evidence in the Record

1. Plaintiff's Testimony and Application Materials

Plaintiff is a single mother of three children, now adults, with a General Education Degree and two semesters of college. (R. at 532-33.) During her two hearings before the ALJ, Plaintiff testified as to the various ways that her medical conditions, and in particular the pain in her left arm, interfere with her ability to function. Plaintiff described the pain. The pain in her left arm is constant and becomes worse through the day. (R. at 518-19.) The pain is throughout the arm, with particular burning in the biceps and triceps. (Id.) Sometimes the pain travels into her shoulder blade and neck, causing a burning sensation. (Id.) She testified that if she uses her arm too much, she will have pain all the way down her arm and then the arm will go numb - she loses control of her index and pinkie fingers. (R. at 515.) Her left arm is particularly sensitive to cold and when it comes in contact with something cold, Plaintiff feels a burning sensation in her biceps and triceps. (R. at 515-16.) Frequently her left arm will feel a tearing pain -- similar to the pain of hitting the funny bone -- even when nothing has hit her arm. (R. at 516.) Her arm is also very cold to the touch. (R. at 519.) Plaintiff testified that when she hits her arm or hand against something, she feels severe pain shooting up her arm and her arm gets cold. (R. at 527.) Sometimes it will take approximately a day to "calm down." (Id.) Similarly, if Plaintiff overuses her left arm one day, then she will not do much with the arm the next day. (Id.)

Plaintiff currently has no health insurance, but she is receiving medical care through an organization called Volunteers in Medicine. (R. at 531.) In addition, she receives counseling at Cape Counseling. (R. at 530-31.) Plaintiff testified that she has taken, and continues to take, medications to address her physical and psychological problems. Until June 2006, Plaintiff was taking the antidepressant Nortriptyline, which affected her skin. (R. at 520.) As of June 2006 she was still taking Neurontin*fn3 and occasionally she takes Orphenadrine,*fn4 a muscle relaxer. (R. at 522.) Plaintiff testified that her medications do not reduce her pain. (R. at 523.) She further stated that her medications make her "a little drowsy" and "foggy." (R. at 524.) Plaintiff testified that her memory is no longer "up to par" -- that she will occasionally walk into a room and not remember why she went there. (Id.) She is unsure whether this is due to the medications or the RSDS. (Id.) Finally, she testified that she has become more irritable. (Id.)

Plaintiff testified that her RSDS and the associated pain impact her ability to care for herself. She cannot wear a bra and can only wear loose-fitting, light-weight clothing over her left arm. (R. at 514, 519.) She will lose strength in her left arm and then cannot brush her hair or teeth. (R. at 514.) Some days her boyfriend has dressed her and helped to brush her teeth. (R. at 529.) She can cook simple things, though she needs someone there to help, but after cooking she will be in too much pain and lacks the strength to clean the dishes. (R. at 516.) She can go shopping, but cannot do all her shopping at once because she pushes the cart with her right arm, which starts to swell and hurt. (Id.) She similarly does laundry and cleans using her right arm, though there are times when both of her arms "get very heavy feeling and weak at the same time." (R. at 517.)

Plaintiff testified that she has limited strength in her left hand, though she is not certain exactly how much she can safely do with it. As she explained, "I don't know how far to push myself." (R. at 515.) She cannot open cans of soda, and has to use tweezers to untie knots. (Id.) She cannot garden or do Pilates or back exercises because of her arms. (R. at 524-25.) She can ride on a stationary exercise bike and use a hula hoop. (R. at 527.) She also tries to do a lot of walking. (Id.)

Plaintiff finds her physical limitations "very degrading" and feels "very helpless and alone and worthless." (R. at 529-30.) Consequently, in June 2006, Plaintiff began receiving counseling at Cape Counseling. (R. at 539.) In addition, Plaintiff has begun speaking to her counselor about physical abuse she suffered as a child and in her marriages. (R. at 539-40.) She did seek counseling until recently because she finds it difficult to discuss these problems. (Id.)

In addition to her difficulties with her left arm, Plaintiff testified that she has arthritis in her lower back that deteriorated over the past four years. (R. at 525-26.) Plaintiff testified that recently, a Dr. Muser diagnosed her with a moderate to mild carpal tunnel syndrome in the right wrist. (R. at 536-37.) Sometimes her right arm becomes very weak and she will drop things. (R. at 538.)

When asked, Plaintiff testified that she would not be able to maintain a job five days a week, eight hours a day. (R. at 540-42.) She states: "Right now I think I would be more of a liability than an asset to anybody because of days where I can't get out of bed." (R. at 541.) She further explained that there are days when she can't even shower because of the pain. (R. at 541-42.)

Finally, during the supplemental hearing, Plaintiff testified that Dr. Ronald Bagner, the Department of Labor consultant, spent only seven to ten minutes examining her, during which time he had her move her arms, bend, and checked her reflexes. (R. at 551-57.) He did not ask her about her pain.

(R. at 552.)

Prior to giving testimony, and in the years following the work accident, Plaintiff submitted a series of materials in support of her applications for benefits. On August 18, 2004, Plaintiff completed a "Function Report -- Adult" where she described her daily activities as making the bed, taking a break ("to let my arm calm down"), washing the dinner dishes from the night before, taking a break, doing a load of laundry and using the exercise bike, and taking a break. (R. at 122.) She described having a hard time dressing and tying her shoes. (R. at 123.) She needed someone to cut her meat for her and sometimes had trouble using the bathroom. (Id.) She did not cook unless someone is there to help her. (R. at 124.) She went grocery shopping twice a week for no less than one hour. (R. at 125.) She could not drive for more than twenty minutes. (Id.) She noted at the end that her activities are not the same each day -- that she had "good days and lots of bad days." (R. at 129.) On the bad days she did the "bare minimum of activities." (Id.)

In a "Pain Report -- Adult" dated August 20, 2004, Plaintiff described the pain in her left arm as "continuous and chronic" so that it sometimes wakes her up at night. (R. at 141-47.) She explained, "There are a lot of days I can't dress myself, [or] brush my teeth. I hurt to[o] much to shower." (Id.) She acknowledged that the two ganglion blocks she received from Dr. Alan Kwon relieved her pain for a short time. (R. at 142.) On April 10, 2005, Plaintiff reported that the pain had "intensified" and was not alleviated by pain medication. (R. at 172-73.) She reported that she could no longer do the dishes or cook and that she could not go shopping alone. (R. at 174.) She repeated that her "activities vary from day to day, depending on the pain and weather [sic] I have a goodnite or badnite [sic] of sleep." (R. at 174.)

2. Medical Evidence

Plaintiff's alleged disabling conditions arose following a work accident at a hardware store. (R. at 245, 315.) On June 18, 2002, Plaintiff was "attempting to close tomato lattice for a customer when a co-worker opened a steel door which struck her around the left ulna." (R. at 245, 315) She suffered from "shooting, stabbing pain going down to her left hand" and after approximately one week with no improvement Plaintiff came under the care of Dr. Jack Facciolo, Doctor of Osteopathy. (R. ...

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