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Szaroleta v. Commissioner of Social Security

United States District Court, D. New Jersey

November 16, 2017



          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on the appeal of Plaintiff, Beth Szaroleta (“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”), denying Plaintiff disability benefits under the Social Security Act (the “Act”).

         Plaintiff initially filed an application for Social Security Disability Benefits on July 27, 2006, alleging disability beginning on August 1, 2002 due to anxiety related disorders, back problems, thyroid conditions, and asthma[1]. Upon denial at the administrative level, Plaintiff filed suit in District Court. Thereafter a District Court Judge entered a Consent Order to remand the matter to the Administrative Law Judge (ALJ) for a reconsideration of Plaintiff's Residual Functional Capacity (RFC) and to obtain additional testimony from a vocational expert. On remand the ALJ issued a second unfavorable decision on June 4, 2012.

         On July 17, 2013 Plaintiff filed suit in the District Court for the second time. District Court Judge Wolfson reversed the Commissioner, finding that the elements of the Residual Functional Capacity (RFC) were speculative and not based on substantial evidence.

         More specifically, the case was remanded to address Plaintiff's RFC with regard to:

1) Plaintiff's limitations based on her range of motion of her neck and asthma;
2) Plaintiff's mental limitations based on Plaintiff's panic attacks.

         The third hearing before an ALJ occurred on November 18, 2014 and resulted in another decision denying Plaintiff's application for benefits. This case was appealed to this Court, once again, on May 19, 2015.

         A. Background

         Plaintiff was born on February 28, 1961. (R 27). She has a high school diploma, and attended a vocational school for computer technology for a few months. (R. 26-27). Most recently, Plaintiff was the vice president and general manager of an investor relations firm. She served in this role for twenty years. Responsibilities included: drafting press releases; setting up investor briefings for CEOs, CFOs, and clients; and planning meetings, including booking hotels and necessary equipment. Plaintiff was also responsible for managing payroll. (R. 27-28). Plaintiff alleges that she stopped working in February 2002 because of back pain, panic attacks, and depression. (R. 27).

         Adult Function Report

          On August 25, 2006, Plaintiff completed an Adult Function Report (AFR) in support of her application. Plaintiff reported that her day is spent eating, drinking, taking medications, sleeping, doing light house work and shopping, working out to the best of her ability, cooking, resting, feeding her cats, and watching television. Plaintiff also explained that she is responsible for caring for her spouse and her two cats. (R. 121-22). Plaintiff noted that before illness she could run, jump, stand for prolonged periods, lift, and stay awake on routine. (R. 122). With the onset of her illness, she has erratic sleeping habits during the day and night. Id.

         Regarding personal care, Plaintiff has no problems with hair care, or feeding herself. (R. 122). However, she finds dressing, bathing, shaving, and using the toilet problematic. If any personal care activities include more than moderate lifting and bending she will struggle. Plaintiff can cook simple meals (e.g. eggs, sandwiches, cereal) which take no longer than five minutes to prepare. (R. 123). Plaintiff can perform housework, and limitations occur when heavy lifting or pain occur. Plaintiff claims she cannot do any type of yardwork. Plaintiff is outside every day, and can drive a car.

         Plaintiff shops for necessities (food, clothes, toiletries, etc.) using all available retail outlets (stores, phone, mail, and computer). (R. 123). Plaintiff can perform banking chores such as paying bills. Id. Plaintiff's hobbies include watching television and listening to music every day. Plaintiff socializes routinely, except if her ability to function is impaired. (R. 124). Plaintiff reported she has no problems talking, hearing and seeing. Her memory, understanding, using her hands, and following instructions are intact. (R. 125). She reported that she needs no reminders to go places; and is able to go places unaccompanied. She reported that many of her activities are intermittent and depend on the time of day the activity occurs. (R. 126). Plaintiff's ability to function fluctuates based on sleep and rest patterns. Plaintiff experiences anxiety due to her chronic illnesses and this results in stress and sleep disorders. (R. 128).

         Plaintiff also submitted a document entitled Disability Report - Appeal. (R. 152-49). In that undated report, Plaintiff expressed that her conditions have become “worse” (R. 153) and her impairments affected her ability to care for her personal needs. (R. 157).

         Plaintiff's medications include Allegra, Levoxyl, Singular, Lipitor, Pepcid, Albuterol, Advair, Lexapro, Xanax, Vicodin, and Celebrex as needed. (R. 181).

         A. Review of Medical Evidence During Relative Time Period

         Treatment of Back and Neck Impairments

         Robert Rosen, M.D.

         On January 5, 2005, Plaintiff visited her then treating physician, Dr. Robert Rosen, after a trip and fall on a cruise ship six weeks prior. (R. 14, 212). Dr. Rosen noted that Plaintiff was uncomfortable when standing or walking and Plaintiff was slightly uncomfortable when sitting. Dr. Rosen found Plaintiff's paravertebral muscles show[ed] mild tenderness and spasm bilaterally. Dr. Rosen believed the discomfort to be “straight forward mechanical pain . . . nothing to suggest a radiculopathy.” Dr. Rosen also noted that Plaintiff's left SI joint had mild sacroiliitis. Plaintiff was treated with Motrin 600 mg and referred to physical therapy.

         Plaintiff began said physical therapy in January 2005 and continued until February 24, 2005. Physical therapy notes focus on the treatment of “lumbago” (low back pain) and there is no mention of therapy to Plaintiff's neck. (R. 182-199).

         On February 2, 2005, Plaintiff had a follow-up examination with Dr. Rosen. During this visit, Dr. Rosen found that Plaintiff continued to experience primarily central lumbar and sacral area pain that worsened with prolonged standing. Dr. Rosen noted that the results of his examination were normal. He found that the Plaintiff's thoracic and lumbar spinous processes were aligned and nontender to palpitation or percussion, her SI joints were normal, she experienced no significant paravertebral spasms or tenderness, and her strength and sensory exam results were normal. During this visit, Dr. Rosen ordered an MRI of Plaintiff's lumbar spine. (R. 211).

          Dr. Nasser Ani

         On October 2, 2006 Dr. Nasser Ani became the treating physician for Plaintiff's neck and back pain. (R. 15, 33, 338). During that visit Plaintiff complained of sharp, stabbing pain in her neck and back which was interfering with Plaintiff's sleep. Dr. Ani diagnosed Plaintiff with degeneration of the C4 disc, degeneration of the L4 disc, cervical radiculitis, and radiculopathy. Examination of station and gait were normal and she was able to undergo exercise testing and/or participate in an exercise program. Plaintiff reported smoking three to four times a day. (R. 340).

         On October 6, 2006, Plaintiff treated with Dr. Ani for back and neck pain. The location of the pain was her neck and was described as burning, crushing, pressure, sharp and stabbing. The pain was a 9 out of 10 and was interfering with most daily activities and sleep. She also reported pain in the lumbar region of her back, which was also aching, burning, pressure, sharp and stabbing. She reported that it first began after a spinal tap in 1992. On examination her gait and station were normal and it was reported that she can undertake exercise testing and participate in an exercise program. There was normal curvature of the cervical spine, no tenderness, no muscle spasm and active range of motion. Flexion and extension was restricted. Right and left lateral rotation was restricted; there was no pain when rotating shoulders. Muscle strength normal. Sensation was normal with no instability. There was a normal inspection of the thoracic spine, normal range of motion and muscle strength, tone, and stability. Inspection of the lumbar spine found normal curvature, no tenderness, no muscle spasm and active range of motion. Flexion and Extension were restricted but there was no pain when rotating hips; no pain when abducting hips. Muscle strength normal. The straight leg test was asymptomatic bilaterally. There was normal examination of the sacral spine. Examination of the upper and lower extremities found normal inspection, normal range of motion, normal muscle tone and strength and normal stability. The neurological examination was normal. The psychiatric examination found normal mental status, judgment and insight. (R. 340).

         On November 20, 2006, Plaintiff reported to Dr. Ani that she has good and bad days. Vicodin was discontinued and replaced with Darvocet. She was referred to physical therapy, and a facet block (paravertebral block) was to be scheduled. (R. 351).

         In January and April 2007, Darren Freeman, D.O., (Dr. Ani's associate) saw Plaintiff for evaluation of her neck pain that Plaintiff indicated was aggravated by all physical activities, driving, head movements, and overhead activities (R. 349, 361). Upon examination, he reported no muscle spasm, the spine had normal curvature, she had normal muscle strength, and there was active range of motion in the cervical spine. He reported that Plaintiff's sensation was normal and that there was not instability noted. (R 350, 362).

         On January 9, 2008, Plaintiff responded that she was feeling better with response to injection therapy, but that the pain had returned. There was no tenderness in the cervical spine and Plaintiff had active range of motion. She did not want another injection on that date, and decided to wait. (R. 420). She was prescribed Vicodin. (R. 422).

         On April 14, 2008, during a visit, Dr. Ani recommended that Plaintiff obtain a donut for sitting and a “coccyx block.” On November 19, 2008, Plaintiff reported that there was much improvement of her neck and lower back pain. She reported that she had stiffness when laying down for a long period of time. (R. 412).

         Diagnostic Testing

          On August 6, 2008, Plaintiff underwent a post-date last insured cervical spine MRI that revealed small posterior ridges, moderate bulging at ¶ 4-C5, C5-C6, a small central subligamentous disc herniation at ¶ 5-C6, moderate impression of the anterior thecal sac at those levels, and a slight disc desiccation. No significant cord compression was otherwise evident. (R. 381).

          Treatm ...

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