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Gladys Jimenez v. Michael J. Astrue

May 4, 2011


The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S.D.J.:


Hon. Dennis M. Cavanaugh


This matter comes before the Court upon appeal by Gladys Jimenez ("Plaintiff") from the final decision of the Commissioner of Social Security ("Commissioner"), denying Plaintiff's claims for a period of disability and disability insurance benefits under Title II of the Social Security Act ("the Act"), and for Supplemental Security Income ("SSI") under Title XVI of the Act. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure.

As detailed below, the final decision entered by the Administrative Law Judge ("ALJ") must be affirmed in part, and remanded on the limited issue of the ALJ's step 5 hypothetical posed to the vocational expert which failed to include a description of all Plaintiff's maladies and impairments.



On July 28, 2005, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging disability due to injuries sustained in a motor vehicle accident (the "Accident") beginning November 25, 2002. (Administrative Transcript ( "Tr.") 40, 114). Plaintiff applied for SSI under the Act on August 9, 2005. (Tr. 74). Plaintiff's claim was initially denied on January 24, 2006 (Tr. 43-45), and upon reconsideration on April 19, 2006. (Tr. 49-51). Thereafter, Plaintiff requested a hearing before an ALJ on June 20, 2006. (Tr. 52-53). On November 16, 2007, a hearing was held before the Honorable Joel H. Friedman, ALJ. (Tr. 19). Vocational expert Pat Green appeared and testified as to the severity and impact of Plaintiff's conditions on her ability to work. (Tr. 603-19). The ALJ denied Plaintiff's claims on August 15, 2008. (Tr. 19-39). Plaintiff sought review of the decision, but the Appeals Council denied her request on June 2, 2010. (Tr. 3-5). On December 7, 2010, Plaintiff filed a timely complaint with this Court seeking judicial review.


1. The Findings of the Administrative Law Judge

ALJ Friedman made the following eleven (11) findings regarding Plaintiff's application for disability insurance benefits and SSI: (1) the claimant met the insured status requirements of the Act through June 30, 2004; (2) the claimant has not engaged in substantial gainful activity since November 25, 2002, the alleged onset date; (3) the claimant has the following severe impairments: degenerative disc disease, depression, and an anxiety disorder; (4) the claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"); (5) the claimant has the residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except the claimant would be limited to simple, routine, one to two step jobs, in a low contact, low stress setting, and she is limited in her ability to perform such postural activities as climbing, balancing, stooping, kneeling, crouching and crawling occasionally; (6) the claimant is unable to perform any past relevant work; (7) the claimant was born on March 27, 1965, and was 42-years-old*fn1 , which is defined as a "younger individual," on the alleged disability onset date; (8) the claimant has at least a high school education and is able to communicate in English; (9) transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled; (10) considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform; (11) the claimant has not been under a disability, as defined in the Act, from November 25, 2002, through the date of this decision.(Tr. 19-39).

2. Plaintiff's Medical History and Evidence

Plaintiff alleges that she has been disabled since November 25, 2002 due to back and neck injuries, depression, and anxiety resulting from her Accident. (Tr. 117). On the date of the alleged disability onset, Plaintiff was 37 years of age. (Tr. 148). Prior to the Accident, Plaintiff reported no significant medical history, and denied drug, prescription medication, alcohol, and tobacco use. Id. The Court summarizes Plaintiff's medical history and the evidence pertaining to her impairments below.

i. General Medical History

On November 25, 2002, the date of the Accident, Plaintiff was transported to the emergency room at JFK Medical Hospital complaining of chest pain. Id. Plaintiff was oriented and alert; she exhibited no language barriers; her affect, speech, and eye contact were normal; her motor behavior and ideations were cooperative; and her gait was steady and brisk. (Tr. 141-42). Dr. Helmi Saud ordered a chest x-ray after Plaintiff complained of minor chest and back discomfort. (Tr. 148). Results from the x-ray test were normal, and Plaintiff was discharged from the hospital in a stable and ambulatory condition. (Tr. 149). Plaintiff was instructed to take Motrin to alleviate her discomfort. (Tr. 146).

Plaintiff was examined by Dr. Ivan Krohn at the Wellness Center on December 4, 2002. (Tr. 161). Plaintiff reported sleep disturbances, headaches, and difficulties rising from a sitting position. Id. A physical examination showed a limited range of motion in Plaintiff's neck, which Plaintiff described as being painful in all directions. Id. Dr. Krohn noted marked trigger point tenderness in Plaintiff's upper back and joint tenderness in her lower back. Id. Dr. Krohn diagnosed Plaintiff with upper back, neck, and lower back strains, and prescribed Vicodin and Roboxim for the pain. (Tr. 161). In a follow-up examination on December 11, 2002, Plaintiff complained of pain in her lower back, especially while sitting and climbing the stairs, headaches, and neck tenderness. Id. Dr. Krohn diagnosed Plaintiff with upper and lower back strain, neck strain and tension headaches. Id.

Plaintiff returned to Dr. Krohn's office on January 8, 2003 complaining of sleep disturbances, headaches, and pain in her neck, right leg, and back. (Tr. 162). Dr. Krohn described Plantiff's gait as slow and guarded, and noted no noticeable improvement in Plaintiff's recovery. Id. Medical records from follow-up visits on February 26, 2003 and April 9, 2003 note continued upper chestsoreness, rib and lower back tenderness, neck and lower back pain, stiffness, and headaches. (Tr. 162, 165). Dr. Krohn recommended steroid injections in Plaintiff's neck and back, physical therapy, and a chest x-ray. (Tr. 165). The chest x-ray results were unremarkable. (Tr. 231). On May 21, 2003, Plaintiff saw Dr. Krohn after experiencing pain flare-ups in her lower back. (Tr. 170). Physical examination findings showed marked supraclavicular, suprascapular, and occipital trigger point tenderness. Id. Dr. Krohn indicated that straight leg raises caused Plaintiff jolts of mid and lower back pain, but noted no point tenderness in Plaintiff's back. Id. On June 18, 2003, Plaintiff returned for what appears to be the last time to Dr. Krohn's office. Id.

On November 22, 2004, Plaintiff was seen by Dr. Shahid Latif at Clara Barton Cardio Medical Associates. (Tr. 547). Remarkably, Plaintiff did not report any pain in her neck, back, or legs. Id. Plaintiff's physical examination was unremarkable. Id. When Plaintiff returned to Dr. Latif's office on December 21, 2004, she reported that she felt "okay" and denied any chest pain. (Tr. 550). Plaintiff returned to Dr. Latif's office on June 13, 2005 complaining of increased pain in her right knee. Id. Dr. Latif prescribed pain medication and encouraged Plaintiff to visit the emergency room. Id. Plaintiff was subsequently seen by Raritan Bay Medical Center emergency room physician Dr. Subramanyam. (Tr. 400). Dr. Subramanyam noted that Plaintiff's right knee was slightly swollen and tender, but reported that the knee had full range of motion. (Tr. 401). An x-ray of the right knee showed no acute fracture. Id.

As part of Plaintiff's disability determination, a consultative examination was performed by Dr. Ronald Bagner on December 15, 2005. (Tr. 423-25). Plaintiff reported pain in her lower back, neck and right knee, and complained of numbness in her legs and weakness in her right hand. (Tr. 423). At the time, Plaintiff reported taking several pain medications, including Nabumetone, Cymbalta, Cyclobenzaprine, and Zoloft. Id. Dr. Bagner noted that Plaintiff ambulated with a cane, exhibited a cautious gait, got on and off the examination table with marked difficulty, needed assistance in getting dressed and undressed, and was comfortable in the seated position. (Tr. 424). Dr. Bagner found no abnormalities in Plaintiff's upper extremities, but noted hypersensitivity to light palpation in those regions. Id. Despite the fact that Plaintiff would not allow range of motion testing in her shoulders, wrists, elbows, forearms, lower back, ankles, or knee, she exhibited normal ranges of movement in those areas during spontaneous activity, and was able to make a fist with both hands and oppose both thumbs. Id. Dr. Bagner found no evidence of atrophy in Plaintiff's legs. Id. Dr. Bagner diagnosed Plaintiff with non-inflammatory joint pain, and noted that there were no objective findings to correlate with Plaintiff's use of a cane to ambulate. Id.

On July 25, 2006, Plaintiff returned to Dr. Latif's office complaining of lower back pain and right knee pain. (Tr. 549). Dr. Latif prescribed Naprosyn 500 mg, referred Plaintiff to an orthopedist, and advised Plaintiff to have x-rays taken. Id. Results of the x-rays taken on Plaintiff's right knee, cervical spine, and left shoulder were normal. (Tr. 559-60).

On April 3, 2007, Plaintiff was examined by Dr. Neville Mirza, a neurologist. (Tr. 465-67). Plaintiff complained of severe neck pain, shooting pain from her back into her left leg, and numbness in her left leg. (Tr. 465). Dr. Mirza noted that Plaintiff's neck and back showed tightness with paravertebral muscle spasms, range of motion in her neck was 75 percent of normal, extreme lateral rotation and deep palpation existed on the left side of her neck, a compression test caused pain in her neck and numbness in her left hand, her range of motion was diminished, she was unable to heel and toe walk, her left knee reflexes were normal, and her right knee reflexes were hypoactive. (Tr. 466). Dr. Mirza examined Plaintiff's five year-old MRI scans and saw no true herniation, although the images showed bulging discs in Plaintiff's neck and back. Id. On April 30, 2007, Dr. Mirza referred Plaintiff to the Perth Amboy Diagnostic Imaging Center for MRI tests of the cervical and lumbar spine. (Tr. 469-72). The MRI images revealed disc bulging with some facet hypertrophy, but revealed no intrinsic cord abnormality. Id.

On May 14, 2007, Plaintiff saw Dr. Sri Kantha, an orthopedic surgeon. (Tr. 521-23). Plaintiff complained of radiating pain on the left side of her neck, bilateral numbness and tingling, lower back pain that was aggravated with walking, and radiation of pain to her lower right side extremities. Id. Dr. Kantha reported that Plaintiff's cervical range of motion was 50 percent, her lumbar range of motion was 30 percent, and her motor strength was grossly diminished in the lower extremities. (Tr. 522). Given Plaintiff's reports of constant pain, Dr. Kantha recommended steroid injection treatments, which were administered on May 31, 2007. (Tr. 523-24). On October 10, 2007, Plaintiff returned to Dr. Kantha's office to follow up on the injections. (Tr. 526). Dr. Kantha noted that Plaintiff showed a 30 percent improvement in her lower back and left leg symptoms. Id. Despite improvements, Plaintiff maintained complaints of pain caused by movement and sitting. Id. A physical examination showed no tenderness to palpation or gross swelling in Plaintiff's lower back and cervical spine, and Plaintiff's right knee appeared to be grossly normal. Id.

ii. Chiropractic Evaluations and Treatment

On December 3, 2002, Plaintiff began chiropractic treatments with Dr. Lewis Korb at Longevity Medical Center. (Tr. 152). Plaintiff complained of headaches, depression, nausea, memory problems, tenseness, dizziness, weakness, nervousness, loss of balance, tiredness and pain in her neck, head, arm, back, hip, and chest. Id. Dr. Korb evaluated Plaintiff's range of motion in her cervical and dorsolumbar spine to be between 40 and 65 percent of normal, her shoulder rangeof motion to be between 60 and 80 percent of normal, and her hip range of motion was between 45 and 60 percent of normal. (Tr. 153-55). Testing of these regions was remarkable with respect to dural adhesions, nerve root compression, space occupying lesions of the cervical region, sciactic nerve compression, lumbar disc protrusion, and sacroliac joint lesions. (Tr. 155). Dr. Korb diagnosed Plaintiff with cervical and lumbar radiculitis (pinched nerve), spine subluxation (misalignment of spinal vertibrae), shoulder strain, and headaches. (Tr. 191).

An MRI of Plaintiff's cervical spine performed by Dr. Ashok R. Babaria at Perth Amboy Diagnostic Imaging on December 2, 2002 showed a straightening of Plaintiff's lower back and mild bulging discs. (Tr. 229). An MRI of Plaintiff's lower back showed bulging discs and paraspinal muscular atrophy, but no true herniation was noted by Dr. Neville Mizra. (Tr. 229, 466). EMG and nerve condition studies completed on March 11, 2003 by Dr. V. Rimerman, a neurologist at The American Association of Electrodiagnostic Medicine, revealed normal latencies in all nerves, normal insertional muscle activity, normal motor action potentials, and normal recruitment patterns. (Tr. 201). Dr. Rimerman's impression suggested right cervical and left lumbosacral slipped dics. Id.

Plaintiff returned to Dr. Korb's offices for a follow-up examination on January 3, 2003. (Tr. 232). In addition to her previous complaints, Plaintiff reported pain in her shoulders, a cold sensation in her hands and feet, and increased pain with walking, sitting and climbing. (Tr. 232, 234). On her twentieth visit to Dr. Korb's offices (on January 28, 2003), Plaintiff reported that she started feeling "a little better," and reported overall improvement through her final visit on April 4, 2004. (Tr. 249-74). Maricel Lazo, a physical therapist at Longevity Medical, assessed Plaintiff's rehabilitation potential as good and fair throughout treatment, and reported that Plaintiff's condition consistently showed slow improvement. (Tr. 292, 275-367). Notably, a Disability Report completedby Dr. Korb during Plaintiff's last visit indicated that Plaintiff was not totally disabled, and would be able to begin working "A.S.A.P." (Tr. 160).

iii. Psychiatric Review and Treatment

On August 1, 2005, Plaintiff was treated for symptoms of depression and anxiety by Dr. Miguel Koschel at the Sunrise Institute for Mental Health. (Tr. at 533). Plaintiff reported no past psychiatric history and complained of depression, insomnia, lack of energy, and irritability. Id. Dr. Koschel reported that Plaintiff's grooming was casual, she was oriented, her memory and thought processes were intact, her attitude was guarded, her behavior was unremarkable, her affect was flat, she was not suicidal, her judgment and insight were fair, and her eye contact was poor. (Tr. 537-39). Dr. Koschel's impression in a September 26, 2005 report was that Plaintiff was limited in her ability to understand, remember, sustain concentration and attention, socially interact, and use public transportation, but reported that Plaintiff had no problems managing money or preparing meals occasionally. (Tr. 414-15). Dr. Koschel noted that Plaintiff had slightly improved with treatment, despite the fact that she had been somewhat noncompliant. (Tr. 416).

On November 1, 2005, Plaintiff's psychiatrist, Dr. Carmencita Temporsa-Lanez, submitted a psychiatric report that Plaintiff was being treated on a monthly basis for depression and anxiety. (Tr. 417-22). Dr. Lanez reported that Plaintiff was alert and oriented, did not have suicidal ideations or hallucinations, her mood was depressed, her affect and speech were appropriate, her concentration was poor, and her memory and judgment were fair. (Tr. 418-19). In Dr. Lanez's opinion, Plaintiff could perform activities of daily living, but was limited in her abilities to do work- related mental activities due to her forgetfulness and isolation. (Tr. 420, 21). Dr. Lanez's notes show that in a November 1, 2005 visit, Plaintiff's symptoms were better, her sleep had ...

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