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Helene Allen v. Commissioner of Social Security

March 30, 2011

HELENE ALLEN, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

NOT FOR PUBLICATION

OPINION

Presently before the Court is Plaintiff Helene Allen's Appeal in which she seeks review of a final decision by Administrative Law Judge ("ALJ") John M. Farley denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSIB") before August 13, 2006. This Court has considered submissions made in support of and in opposition of this appeal. No oral argument has been made to this Court pursuant to Federal Rule of Civil Procedure 78. Plaintiff seeks that this Court either reverse Defendant's decision denying Plaintiff's application and declarePlaintiff is entitled to disability beginning March 11, 2004, or remand the case to Defendant for a new hearing in accordance with the Social Security Act. For the reasons set forth below, this Court finds the ALJ erred in not properly explaining his opinion or developing the record at steps three and four. This Court vacates the ALJ's decision and remands the case to the ALJ to fully develop the record and explain his findings.

I. PROCEDURAL HISTORY

Plaintiff first filed for DIB and SSI on August 12, 2004. Plaintiff alleged disability due to severe orthopedic, neurological, asthmatic, and psychiatric conditions beginning March 11, 2004. ALJ Marilyn M. Faukner initially denied the claim, finding Claimant capable of light work, but on August 24, 2006 the Appeals Council remanded the denial finding the ALJ's evaluation and discussion inadequate. The Appeals Counsel requested that upon remand, the ALJ: obtain additional evidence concerning the claimant's impairments in order to complete the administrative record; give further consideration to the claimant's maximum residual functioning capacity ("RFC") and provide evidence of record in support of the assessed limitations; and if warranted by expansion of the record, obtain evidence from a vocational expert.

A hearing was held before ALJ John M. Farley on October 23, 2007.*fn1 On December 14, 2007, after considering the matter de novo, ALJ John M. Farley issued a partially favorable decision. The ALJ found Plaintiff disabled as of August 13, 2006, when Plaintiff's age category changed to an individual closely approaching advanced age, but not before. Before August 13, 2006, ALJ Farley found Claimant capable of sedentary work. The Appeals Council affirmed that decision. Plaintiff now appeals the partially favorable decision in this Court.

II. STATEMENT OF FACTS

Claimant, Helen Allen, has a high school education. R. at 1, 21. Claimant was forty-seven years old at the time of the alleged onset date of disability. R. at 20. The claimant turned fifty on August 13, 2006. Claimant worked as a nurses' aid for fifteen years, which sometimes involved heavy lifting. R. at 1, 20. At the time of the hearing, Claimant was living with her second oldest daughter and her son. R. at 406. The claimed disability onset is March 11, 2004.

R. at 16. Claimant is currently receiving Welfare, and has received Workman Compensation benefits for approximately two years. R. at 18.

Claimant sustained a work related injury to her back while working as a nurses' aid on March 11, 2004. R. at 18, 438. Plaintiff was transferring a patient and felt a sudden onset of severe back pain, and was not able to complete work that day. R. at 200. Claimant was seen at the Christ Hospital Emergency Room where she was provided with medication and discharged.

R. at 200, 332. Plaintiff attempted to return to work after three days but was unable to do so because of severe pain. R. at 200.

The claimant started treatment with Dr. Rafael S. Paz on March 18, 2004, at Concentra Medical Center. R. at 153. Dr. Paz diagnosed Claimant with a lumbar strain and recommended Claimant return to work restricting lifting, pushing, and pulling to no more than 20 pounds. R. at 153. Dr. Paz also recommended physical therapy and gave the claimant Ibuprofen and Cyclobenzaprine. R. at 153. Dr. Paz noted that the claimant had been taking her medications and did not see any improvement from either the medications or the physical therapy. R. at 147. Dr. Paz also described the pain in Claimant's lower right back as constant and moderate, but not radiating. R. at 147. Claimant's symptoms were exaggerated by bending, lifting, and carrying.

R. at 147. Dr. Paz found a normal gait, with tenderness of the right paraspinous muscles and the lumbosacral spine, as well as a decreased range of motion. R. at 147. Dr. Paz also noted that flexion was 45 degrees with pain and extension at 5 degrees and a negative bilateral leg raise. R. at 147. Radial, femoral, and pedal pulses were present and symmetrical, there was no edema, and sensory was intact to light touching distally. R. at 192, 196. Dr. Paz's opinions were unchanged through April 15, 2004, when he then referred the claimant to Dr. Jonathan Lester for further evaluation. R. at 147-66.

Dr. Lester saw the claimant on April 28, 2004, who also diagnosed Claimant with a lumbar strain. R at 171. Dr. Lester first advised that the claimant return to work with no repetitive lifting over 25 pounds, and then decreased the weight limit to 15 pounds on May 5, 2004. R. at 173. Dr. Lester indicated that the claimant had some right sided back pain associated with disc protrusion, but no found evidence of radiculopathy, and indicated that there was a significant degree of overlay. R. at 201. Dr. Lester felt the claimant would be a candidate for epidural steroid injection, and referred Claimant to Dr. Ramnanan. R. at 201.

Dr. Ramnanan saw the claimant on May 14, 2004, and performed a right transforaminal selective epidural injection at L4 and L5 under fluroscopic control. R. at 189, 201. Dr. Ramnanan noted that the claimant was sitting with discomfort and ambulated with a non-atalgic gait. R. at 278. Dr. Ramnanan stated that flexation at the lumbosacral spine was 45 degrees, with hyperextension to 15 degrees, and significant lower back pain. R. at 278. Further, he noted that left and right lateral bending caused significant lower back pain, and that a mild palpation of the lower back also elicited severe pain. R. at 278. Straight leg raising in the sitting position was negative, motor examination was grade 4 in the right extensor hallucis longus, and right plantar flexon was most likely secondary to pain. R. at 278. Dr. Ramnanan stated that there were no sensory deficits to pin prick. R. at 278.

On June 2, 2004, Dr. Lester again saw the claimant after the epidural injection, and indicated that the claimant responded poorly to the procedure. R. at 201, 186. Dr. Lester increased the amount of weight that could be lifted to 20 pounds and suggested the claimant partake in physical therapy for two weeks beginning on June 4, 2004. R. at 174. Nonetheless, Dr. Lester's notes demonstrate that the claimant did not have success with the therapy. R. at 186. Dr. Lester again increased the weight to 40 pounds on June 30, 2004. R. at 176. On July 21, 2004, Dr. Lester determined the claimant could return to regular duty but with a permanent 10 pound weight restriction. R. at 177. Dr. Lester indicated that the claimant would not be a good surgical candidate. R. at 186. Dr. Lester also reported that the claimant did poorly on the Functional Capacity Evaluation, which is consistent with a high degree of symptom embellishment and/or magnification. R. at 181, 186. Dr. Lester recommended the claimant return to sedentary work with a lifting restriction of 10 pounds, based on Claimant's failure to lift 15 pounds, and was the opinion that she would not benefit from additional treatment. R. at 186. Dr. Lester finally released Claimant from his active care on August 4, 2004, when the claimant was complaining of back pain that was radiating throughout the entire right leg when standing or going up and down stairs. R. at 179, 201.

Dr. Paul A. Foddai, an orthopedic surgeon, evaluated Claimant on August 19, 2004. R. at 200. Dr. Foddai noted that there were no fractures or dislocations in the magnetic resonance imaging ("MRI") scan, but there was evidence of degenerative disc disease at L4-L5, and a bulge present at L4-L5 with a right paracentral disc herniation. R. at 201. Dr. Foddai also found evidence of facet hypertrophy with evidence of canal stenosis at L4-L5. R. at 201. Dr. Foddai reported that the claimant complained of pain in the lower back radiating into the entire right lower extremity with paresthesias and numbness. R. at 201. Dr. Foddai was of the opinion that the claimant had no focal motor weakness. R. at 201. However, Dr. Foddai found that there was a disc herniation present and that the claimant does have some pain radiating into the right lower extremity into the thigh, calf, and foot. R. at 201. He further noted that the claimant's symptoms have significantly worsened over history and concurred with Dr. Lester that such evidence is consistent with a degree of embellishment. R. at 202. Dr. Foddai thought the claimant would benefit from a neurological evaluation with electrodiagnostic studies to determine whether there was radiculopathy and if there was any permanency. R. at 202. Dr. Foddai also concurred with Dr. Lester that the claimant would be able to perform sedentary duty. R. at 202.

Dr. James A. Charles, a neurologist, evaluated the claimant on August 26, 2004. R. at 205-10. Plaintiff was complaining that since the epidural injection, there was pain radiating into the right lower limb with numbness, tingling, and weakness, and that her symptoms worsened rather than improved. R. at 209. Dr. Charles was of the opinion that the claimant undoubtedly sustained a lower back sprain and that there was no disc herniation, but instead, there was a bulge at L4-L5. R. at 210. He did not think the pain in the lower right limb was in a neuroanatomic distribution, and noted evidence of exaggeration. R. at 210. Dr. Charles found a full cervical range of motion and found that in the recumbent position, the right straight leg raising maneuver elicited pain at approximately 5 degrees. R. at 210. Claimant's gait and station was antalgic. R. at 210. Dr. Charles performed electromyography and nerve conduction studies which were normal. R. at 206, 211. Dr. Charles found the claimant to have severe functional overlay, and thought a subarachnoid injection rather than an epidural injection was possible with an arachnoiditis. R. at 206.

Claimant then went to see Dr. Peter S. Vidaver on October 6, 2004. R. at 211. Dr. Vidaver noted exaggerated pain behaviors while sitting, and further pain behaviors when the claimant was asked to stand. R. at 211. The claimant showed minimal range of motion of the lower back in any direction, which Dr. Vidaver also found consistent with exaggerated pain behaviors. R. at 211. There were no palpable muscle spasms, no trigger points that could be palpated in the lower back, and no allodynia. R. at 211. Deep tendon reflexes were intact in both lower extremities, and the claimant had a normal sensory examination throughout the lower extremities. R. at 211. Dr. Vidaver concurred with Dr. Charles that the physical examination showed no objective signs of disease. R. at 211. He also believed the claimant reached the point of maximum medical benefit and would not be likely to respond to further treatment. R. at 212.

Dr. Salvatore J. Lapilusa saw Claimant on October 18, 2004. R. at 214. Dr. Lapilusa reported that pain radiated down the claimant's right leg, but all reflexes were normal and there was no motor or sensory loss. R. at 214. Dr. Lapilusa saw Plaintiff again on November 1, 2004, and noted that the patient had no relief, and ...


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