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Roberts v. Commissioner of Social Security

May 12, 2010


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, Nancy C. Roberts ("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). For the reasons set forth below, the Court will remand this action to the Administrative Law Judge ("ALJ") for proper consideration of Plaintiff's feet deformity and her inability to afford a corrective hearing aid.


A. Procedural History

Plaintiff submitted her application for SSI and DIB on March 14, 2004, alleging that arthritis prevented her from working. That application was denied both on initial review and on reconsideration. Plaintiff sought an administrative hearing, which was held on May 8, 2006 before the ALJ. On July 26, 2006, the ALJ issued his opinion denying Plaintiff entitlement to DIB and SSI. Plaintiff sought review of that decision, and the Appeals Council issued an order remanding the case for the ALJ to give consideration to the opinion of Plaintiff's treating physician. Following a supplemental hearing on June 18, 2007, on August 9, 2007, the ALJ issued a second opinion denying Plaintiff's claims for benefits. The Appeals Council denied Plaintiff's request for review and the decision of the ALJ became the final decision of the Commissioner. Plaintiff timely filed this action.

B. The ALJ Opinion

After reviewing the applicable law, the ALJ began his opinion by determining that Plaintiff has not engaged in substantial gainful activity since June 24, 2003. (R. at 48.) The ALJ concluded that Plaintiff suffers from mild to moderate osteoarthritis of the left knee and degenerative disc disease, which combined had the effect of limiting Plaintiff's ability "to lift and/or carry and her ability to engage in certain postural activities." (R. at 49.) Consequently, the ALJ found these two conditions to be "severe" for the purposes of his disability determination. (Id.) Plaintiff's alleged depression and hearing loss, however, caused no work-related functional limitations and were therefore not "severe" according to the ALJ. (Id.) With regards to Plaintiff's hearing loss, the ALJ supported his determination by noting that Dr. Christine Cicco, an ear, nose, and throat specialist, found that Plaintiff would be able to work without restriction with the help of hearing aids. (Id.) Though the ALJ found that Plaintiff did have impairments, he concluded that none of the impairments were among those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 49-50.)

The ALJ found Plaintiff to have a residual functional capacity as follows: "[T]he claimant can lift and/or carry 20 pounds frequently; can stand and/or walk for 6 hours and sit for 6 hours in an 8-hour workday; and can frequently climb ramps and stairs, balance, stoop, kneel and crouch. She is precluded from crawling and from climbing ladders, ropes and scaffolds and should otherwise avoid exposure to unrestricted heights." (R. at 50, 54.) In support of this determination the ALJ summarized Plaintiff's testimony at both evidentiary hearings and observed that the medical evidence showed that Plaintiff has degenerative joint disease of the lumbosacral spine (citing R. at 273), degenerative disc disease of the cervical spine (citing R. at 270), and osteoarthritis of both knees (citing R. at 269). (R. at 50.) An electrodiagnostic consultation on December 2, 2004 found no acute radiculopathy (citing R. at 354). (Id.)

The ALJ then summarized the findings of the various medical professionals to have treated Plaintiff. The ALJ observed that Dr. Allen Auerbach, Plaintiff's primary care physician, noted on Marcy 18, 2004 that Plaintiff was unable to work (citing R. at 253). (R. at 51.) The ALJ reported that Dr. Jack DiMarco performed a consultative evaluation on September 21, 2004, in which he performed a physical examination and diagnosed probable degenerative arthritis, degenerative disc disease of the lumbar spine, and arthritis of the knees (citing R. at 274-77). (Id.) The ALJ noted Dr. DiMarco's conclusion that Plaintiff would have difficulty lifting and carrying heavy objects, flexing or extending her lumbar spine, and climbing or balancing (citing R. at 276). (Id.) Dr. DiMarco, the ALJ observed, had no difficulty communicating with Plaintiff despite her difficulty hearing (citing R. at 275). (Id.)

The ALJ summarized the November 1, 2004 findings of a state agency medical reviewer, where the reviewer found that Plaintiff could life and/or carry 20 pounds occasionally and 10 pounds frequently, can stand and/or walk for 6 hours and sit for 6 hours in an 8-hour work day, and can only occasionally climb, crouch and crawl (citing R. at 304-11). (Id.) On November 17, 2004, the ALJ observed, Dr. Marc Kahn performed an orthopedic evaluation of Plaintiff in which he found tenderness in her lumbar spine and knees, but no abnormalities in her motor, sensory and reflex exams except for weak bilateral Achilles reflexes (citing R. at 373, 350). (Id.) The ALJ recognized that Dr. Kahn diagnosed Plaintiff with multilevel degenerative disc disease with radiculopathy and internal derangement of both knees (citing R. at 350). (Id.) The ALJ further noted that Plaintiff subsequently received physical therapy (citing R. at 358-63, 425, 427), and by March 21, 2005 she reported to feel at least 80 percent better (citing R. at 425). (R. at 51-52.) The ALJ observed that Dr. Auerbach's treatment notes from July and August 2005 do not indicate complaints of back or extremity pain (citing R. at 321-24). (R. at 52.)

The ALJ considered Plaintiff's arthroscopic surgery to her left knee on February 28, 2006. (Id.) On January 11, 2006, the ALJ stated, Plaintiff reported to Dr. Kahn only occasional lower back and right knee pain, but her left knee was painful (citing R. at 424). (Id.) After an MRI discovered a medial meniscal tear in Plaintiff's left knee, Dr. Kahn performed surgery and by May 3, 2006, after a period of physical therapy, Dr. Kahn found that Plaintiff was doing "quite well" and would be discharged to a home exercise program (citing R. at 398). (Id.)

The ALJ considered Dr. Auerbach's various letters to Plaintiff's counsel, in which he indicates that Plaintiff is unable to work and has been unable to work for three or four years (citing R. at 449-50). (Id.) The ALJ noted that while Dr. Auerbach's treatment records for March 27, 2007 indicate problems with Plaintiff's legs and back, his April 11, 2007 and May 2007 records indicate there were no such problems (citing R. at 457-61). (Id.)

Finally, the ALJ explained the weight he would give to the evidence in the record. He explained that he found Plaintiff's testimony regarding her pain and physical limitations "not entirely credible" because it was contradicted by evidence showing that as of 2005 Plaintiff felt "at least 80%" better following physical rehabilitation and Dr. Kahn's report that she was doing well following arthroscopic surgery and physical therapy. (R. at 53.) The ALJ doubted Plaintiff's testimony regarding her upper extremities, because there was no evidence that Plaintiff reported these complaints to her treating physicians. (Id.) In addition, the ALJ questioned Plaintiff's credibility because she told the unemployment office that she left her most recent employment because of a dispute with her manager (citing R. at 164), but she testified before the ALJ that she stopped working because of the pain. (R. at 54.) The ALJ doubted Plaintiff's complaints of pain because she was not taking any narcotic pain relievers and because she had indicated that her pain decreased with physical therapy. (Id.)

The ALJ gave less weight to Dr. Auerbach's opinion, finding "Dr. Auerbach's opinion that the claimant has been continuously disabled for over four years is contradicted by his own treatment notes and the medical evidence as a whole." (Id.) Instead, the ALJ gave greater weight to Dr. DiMarco's opinion. (Id.)

At the last stage of the analysis, the ALJ determined that Plaintiff had past relevant work as a cashier and that, in light of her residual functional capacity, she could perform this job as it is performed in the national economy based on the Dictionary of Occupational Titles ("DOT"). (R. at 54-55.)

C. Evidence in the Record

The following relevant evidence documents Plaintiff's various alleged conditions. Though there is also evidence in the record regarding Plaintiff's psychological condition, because Plaintiff does not challenge the ALJ's determination that her depression was not severe the Court will not summarize that evidence here.

1. Back and Legs

It is undisputed that Plaintiff suffers from degenerative joint disease of the lumbosacral spine with mild discogenic disease at the L3-4 and L4-5 levels (R. at 273), degenerative disc disease of the cervical spine at the C5-6 and C6-7 levels (R. at 270), and osteoarthritis of both knees (R. at 269, 274, 430). The dispute turns on the impact of these conditions on Plaintiff's ability to function and the degree of pain that they cause.

On March 18, 2004, Dr. Auerbach wrote a note on a prescription pad stating "The [patient] is totally disabled/unable to work[.]" (R. at 253.) It is unclear to whom this note is directed.

On September 21, 2004, Dr. DiMarco performed a physical examination and found that Plaintiff had "good strength and active range of motion at both hips, knees and ankles." (R. at 276.) Plaintiff reported pain with passive straight leg raising of each lower leg, but was able to flex forward from the waist to 80 degrees. (Id.) Dr. DiMarco detected crepitus (or crackling) in Plaintiff's left knee, suggesting arthritis. (Id.) Dr. DiMarco found that she could "ambulate independently without a hand-held assistive device," but was limited by her foot deformity. (Id.) He concluded: "[Plaintiff] would have difficulty lifting and carrying heavy objects. She may have difficulty with flexion/extension movements of the lumbar spine. She would also be restricted from high level activity such as climbing or balancing." (Id.)

On November 1, 2004, a state agency medical reviewer completed a checklist, finding that Plaintiff could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds, stand or walk and sit about 6 hours in an 8-hour work day, and push or pull without any limitation. (R. at 305.) Moreover, the reviewer found that Plaintiff could frequently climb, stoop, kneel, and balance and occasionally crouch or crawl. (R. at 306.) The review found that Plaintiff manifested "no difficulty with ambulation, or with use of her upper extremities." (Id.)

On November 17, 2004, Dr. Kahn performed an orthopedic evaluation of Plaintiff. (R. at 373, 350.) Plaintiff reported difficulty with lifting, standing, overhead work, sleeping and getting up in the morning. (R. at 373.) She also had stiffness and difficulty bending over. (Id.) Dr. Kahn found tenderness at various points in Plaintiff's back and knees, with forward flexion of the back at 60 degrees, lateral flexion at 15 degrees, and hyperextension at 10 degrees. (Id.) Dr. Kahn was left with the impression of multilevel degenerative disk disease with lower extremity radiculopathy and internal derangement of both knees.

(R. at 350.)

On December 2, 2004, an electrodiagnostic consultation "failed to demonstrate evidence of an acute radiculopathy." (R. at 354.)

After her visit with Dr. Kahn, Plaintiff spent three months in physical therapy. (R. at 358-63, 425, 427.) During her first visit to physical therapy Plaintiff showed high levels of pain and limited range of motion, and after one month her pain was reduced (her lower back when from 10 out of 10 while static to 6 out of 10 on the pain scale) and she showed a greater range of motion. (R. at 258-63.) Nevertheless, on February 23, 2005, she continued to have pain, decreased range of motion and strength, and showed "functional deficits such as unable to sit greater than 30 minutes, unable to stand greater than 15 minutes, unable to walk greater than 30 ft, unable to perform lifting or trunk bending such as making beds, carrying laundry or taking out the trash." (R. at 362.) On March 21, 2005, Dr. Kahn reported that Plaintiff was at least 80% better and was discharged to a home exercise program. (R. at 425.)

Dr. Kahn did not see Plaintiff again until January 11, 2006, when she reported "occasional low back pain and occasional [right] kn[ee] pain," and her left knee was "really bothering her." (R. at 424.) On February 28, 2006, Dr. Kahn performed arthoscopic surgery to repair a medial meniscal tear in her left knee. (R. at 403-04.) Following surgery, Dr. Kahn prescribed physical therapy (R. at 401-02) and by April 5, 2006, she showed "increased strength and range of motion with decreased pain," but she continued to have difficulty standing for more than 15 minutes, walking farther than 30 feet, climbing stairs and carrying grocery bags. (R. at 392-93.) On ...

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