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Newman v. Commissioner of Social Security

United States District Court, D. New Jersey

March 21, 2014

LISA NEWMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

KEVIN McNULTY, District Judge.

Lisa Newman brings this action pursuant to 42 U.S.C. § 405(g) and 5 U.S.C. § 706 to review a final decision of the Commissioner of Social Security that denied her application for disability insurance benefits under the provisions of 42 U.S.C. § 423. Compl. (Docket No. 1). That application, her first, sought benefits starting in November 2006. Pursuant to a second application, she was granted benefits starting in November 2009. Thus, on this appeal from the denial of her first application, she seeks benefits for the period November 2006-November 2009. For the reasons set forth below, the Commissioner's decision is affirmed.

I. BACKGROUND

On May 17, 2007, the plaintiff, Lisa Newman, filed her first application for disability insurance benefits CDIB") pursuant to 42 U.S.C. § 423. That first application claimed a period of disability commencing November 29, 2006. Compl. ¶ 4; PI. Br. (Docket No. 13) at 2. It was denied initially and on reconsideration. Record of Proceedings ("R_") (Docket No. 12) at pp. 34-36. Newman and her attorney appeared before Administrative Law Judge ("ALJ") James Andres for a hearing on June 23, 2009. R 44-92. ALJ Andres denied Newman's application in a decision dated November 5, 2009. R 14-25. She appealed the decision to the Appeals Council, which denied her request for review on March 21, 2011. The denial of benefits pursuant to that first application thus constitutes the "final decision" of the Commissioner. R 1-5, Answer (Docket No. 11) ¶ 5. After the denial of her claim, Newman filed a second application for DIB on November 17, 2009. This time she alleged an onset date of November 6, 2009. PI. Br. at 1.[1] That second application was granted by ALJ Wexler on February 22, 2012. Id. [2]

Newman now appeals the denial of her first application, filed May 17, 2007. (References to her application herein, unless otherwise specified, pertain to the first application.) As noted, on her second application she was found to be disabled as of November 6, 2009, and she has received benefits from that date forward. At issue here, then, is whether she was entitled to disability benefits for the period starting from the originally alleged onset date, November 29, 2006, through November 5, 2009.

A. Plaintiffs Testimony and Non-Medical Evidence

Newman was born in 1963, and was 43 at the time of her alleged disability onset in November 2006. R 49, 142, 153. She obtained a bachelor's degree in criminal justice. R 49, 140. She worked as a probation officer from 1985 until June 2005 (retiring in March 2006); as a part-time retail stock room manager from December 2005 through July 2006; and as a full-time retail "key holder" and manager-in-training from July to September 2006. R 49-50, 59-66, 123-27, 135-36, 181.

Newman's application for DIB primarily relied on alleged neuropathy in both legs. R 39. At the June 23, 2009, hearing before ALJ Andres, Newman testified to the leg pain she had experienced since undergoing gynecological surgery on November 27, 2006. R 66-68. She testified that she had not been able to work since the surgery because she was unable to sit, stand, lie down, or walk for long periods of time. Wearing clothing on her legs, she testified, caused pain at the front of her legs from her hips to her knees. R 51-52, 70, 70-82. Newman testified that she could sit or stand for five or ten minutes without a problem. R 52. She took the prescription drug Neurontin for the pain. R 81-83. She stated that, other than leg pain, she had no other physical problems that affected her ability to work.[3] R 52. She also testified that she had been diagnosed with post-traumatic stress disorder ("PTSD") but had not received any psychological treatment since January 2007. R 56-58. During the hearing, she stated that she did not think that psychological problems affected her ability to do things. R 58. She later testified that her ability to concentrate was affected because she was tired and in pain all the time, and that stress made her emotional. R 83-84, 88-89.

Newman lived alone in an apartment at the time of her application and hearing. R 58, 145. Newman was her father's primary care-giver. R 74-75. She communicated with her father's doctors, scheduled his appointments, picked up his medications from the pharmacy, and drove him to appointments about twice a month. R 74-76. She also cared for her cat. R 165. She sometimes prepared her own meals, but would get food delivery when she was not able to do so. R 58, 147, 166. She did household chores when she was able, although she would sometimes take her laundry to a friend's house to avoid the need to walk downstairs to the laundry room in the basement of her building. R 46, 58.

Newman took medicine without assistance and handled her own money. R 147-48. She drove a car and was able to go out alone. R 148. She enjoyed computers, reading, television, movies, walking, traveling, and needlepoint. R 148-49. Because of her leg pain, however, she needed to constantly change positions from standing to sitting. Id. She testified that this sometimes made it impossible to go to movies, read, or do needlepoint. Id. She spent time with other people, lunching with friends several times a week. She reported that she did not have any problems getting along with family, friends or neighbors. R 145, 149. She also stated, however, that it was hard for her to meet people because she was not working and physical activity was difficult. R 149. She stated that she got along "very well" with authority figures. R 170.

B. Medical Evidence

The following is a summary of the record evidence of medical opinion and treatment.

1. 2007

On January 4, 2007, Newman was examined by a neurologist, Dr. Babak Morvarid, to whom she was referred by her primary care physician, Dr. Javed Yousaf. R 196-98. Dr. Morvarid performed a neurologic examination which revealed some "vague decrease" in pinprick sensitivity over patchy areas of Newman's thighs, but was otherwise unremarkable. R 197. Newman's cranial nerves II through XII and muscle tone and bulk were normal. She had no tremors, 5/5 strength, normal coordination and deep tendon reflexes, negative Romberg testing, [4] and the ability to tandem walk. Id. Dr. Morvarid noted that Newman had persistent pain and numbness over the anterior part of the leg. R 197. He also noted that it was unlikely that the symptoms had an L2 or L3 radicular origin[5] because Newman had no history of trauma or reported back pain. A more likely diagnosis, he noted, was left lateral femoral cutaneous neuropathy, also known as meralgia paresthetica. He noted that the etiology could be compressive, giving as an example an overweight woman who wore tight jeans.[6] Id. Dr. Morvarid planned to perform an EMG/nerve conduction study ("NCS"), and then, if there was any evidence of radiculopathy, an MRI of the lumbosacral spine. Id. He prescribed Lyrica for the pain and recommended that Newman be checked for evidence of diabetes, B12 or folate deficiency, hypothyroidism, or inflammatory causes of neuropathy such as lupus and rheumatoid arthritis. Id.

Newman underwent the EMG/NCS on January 9, 2007. R 194. The results of the NCS were normal: no evidence of neuropathy was found along the peroneal, tibial, or sural nerves, and no evidence of radiculopathy was found. Id. The Lyrica prescription was discontinued after Newman reported side effects. R 200. Newman underwent a lumbosacral spine MRI on February 12, 2007, that revealed a central herniated disc at L5-S1, abutting the left SI nerve root.[7] R 247.

The following day, January 5, 2007, Newman saw a second neurologist, Dr. Mukesh Solanky, again at the referral of her primary care physician, Dr. Yousaf. R 250. Dr. Solanky wrote that Newman presented with a complaint of bilateral leg pain, mainly in front of the thigh up to the knee area. Id. Dr. Solanky recorded that Newman had experienced a "subacute onset" of symptoms sometime in November [2006] after undergoing myomectomy surgery. Within a few weeks, she noticed significant pain on the left side localized into lateral distribution on the anterior aspect of the thigh. Id. She also mentioned some hyperesthesia and numbness in the thigh area, more on the left side, which caused her some difficulty in walking. Dr. Solanky's possible differential diagnosis included lumbar radiculopathy or lumbar sacral plexopathy. R 251. He requested Newman's MRI and EMG results and all prior medical reports. Id. He recommended meanwhile that Newman increase her dosage of Neurontin and continue taking Elavil. R 252.

On March 12, 2007, Dr. Solanky completed a form report on Newman's behalf for the New Jersey Department of Labor and Workforce Development, Division of Temporary Disability Insurance. R 347. On the form he stated his diagnosis of lumbar radiculopathy/ neuropathy. Id. He stated that, as a result of her disability, Newman was unable to perform her regular work duties beginning on November 29, 2006, after her surgery. Id. He estimated her recovery time to be four to six weeks from the date of the report. Id.

On March 22, 2007, Newman saw Thomas Raguknois, M.D., a pain management specialist. R 201-02. Newman complained to Dr. Raguknois of pain in the mid-lumbar area as well as numbness and dysesthesia in the left lateral thigh and anterior thighs bilaterally. R 201. She denied having any loss of bladder or bowel control, perceivable muscle weakness, or foot drop. R 202. Dr. Raguknois' examination revealed allodynia and dysesthesia, to a greater extent on Newman's left lateral thigh as compared to the right. R 201. The exam revealed that she had normal range of motion in her back, with normal muscle strength testing. Id. Her reflexes were within normal limits and her muscle bulk and tone were normal as well. Id. Dr. Raguknois' diagnostic impression was neuropathic pain syndrome with a herniated disc at L5-S1. R 202. He noted that he had a "long talk" with Newman, and told her that the treatment of her neuropathic pain was being done in a "proper way." Id. He agreed that it was "within the realm of possibility" that that dysesthesis and neuropathic pain could be a result of her myomectomy and positioning on the OR table, and that it might take a year to go away. Id. He recommended that Newman add vitamins B6 and B12 to her Neurontin and Cymbalta regimen. Id. He also suggested that she consider seeking additional neurologic opinions, and said he could give her injections to help her back pain if she wished. Id.

Newman returned to Dr. Solanky on July 16, 2007. R 245. His diagnostic impression was lumbosacral radiculopathy and meralgia paresthetica. Id. His notes stated that Newman was on Neurontin and Cymbalta, both of which he continued. Id.

On July 17, 2007, Newman saw her primary care physician, Dr. Yousaf, for a routine physical. R 291-94. Newman complained of changes in bowel habits and abdominal pain. R 292. She did not make any other complaints. Dr. Yousaf noted that she had normal gait and could undergo exercise testing or participate in an exercise program. R 293. The neurologic component of the exam revealed that cranial nerves II-XII were grossly intact; her reflexes were 2 symmetric, with no pathological reflexes; and her sensation was intact to touch, pin, vibration and position. R 294. Examination of her mental status did not reveal any issues. Id. Dr. Yousaf noted that Newman would be scheduled for a colonoscopy and return to the clinic in three months. Id.

On October 24, 2007, Newman returned for a follow-up appointment with Dr. Solanky. R 246. He noted that her leg pain was continuing and that she had a burning sensation, mostly in the right leg. She had no shooting pain or numbness. Id. Newman had full motor strength and intact sensation. Id. She was continued on Neurontin and Cymbalta, and was prescribed lidocaine patches on a trial basis. Id.

On November 14, 2007, Newman underwent a consultative neurological examination from Dr. Richard Mills at the request of the Commissioner. R 228-31. Dr. Mills' notes stated that Newman drove herself to the appointment. R 228. He wrote that she could transfer papers appropriately, don and remove her shoes and socks without difficulty, and descend from the exam table unassisted. Id. Her chief complaint was numbness in both anterior thighs, with pain. Id. Newman told Dr. Mills that the pain and numbness in the anterior thighs had continued since her surgery the year before. Id. She rated the severity of the pain as between three to eight out of ten. Id. She stated that the pain increased with bad weather, with sitting for more than five to fifteen minutes, with standing more than five minutes, or with walking for about one block. She also stated that she had fallen, most recently in September. R 228-29. Dr. Mills found that she was awake and alert, exhibited good calculations, and had a "good fund of knowledge." R 228. He also found she had normal mental status. R 229.

Newman's cranial nerves II-XII were intact and sensation was intact to pinprick and light touch except for an eight inch by two inch strip on both anterior thighs. Id. Dr. Mills described this area as bilaterally symmetrical, stating that she had 20% pinprick and light touch sensation and that pain was caused by palpating the area. He described this pain as a "painful paresthesia." Id. Her motor strength was 5/5 and her coordination and finger-nose Romberg testing was intact. Id. He noted that she had a limping gait with no drift. She was able to do tandem walking but had to hold onto the wall because of the pain in her legs. Id. Her range of motion was intact except that her lumbar spine flexion was limited to 85 degrees because of posterior thigh pulling. Id. In a seated position, she was able to raise her straight leg 90 degrees bilaterally. She was not able to squat, but was able to walk on her heels and toes. She had no muscle weakness or loss of reflex. Id.

Dr. Mills' impression was that Newman had a history of painful numbness with paresthesia in both anterior thighs following her abdominal surgery. Id. He wrote that her ability to sit was limited to five to fifteen minutes, her ability to stand was limited to five minutes, and her ability to walk was limited to one block. Id.

State agency medical consultant Dr. Howard Goldbas reviewed Newman's file and completed a Physical Residual Functional Capacity Assessment on November 30, 2007. R 232-39. The assessment stated the following:

1. Newman could occasionally lift 20 pounds and frequently lift 10 pounds;
2. She could stand and/or walk with normal breaks for at least two hours in an eight hour work day;
3. She could sit with normal breaks for about six hours in an eight hour work day;
4. She could push and pull (including operation of hand or foot controls) ...

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