United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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
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. 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.
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
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.
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.
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).
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.
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.
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).
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).
medications include Allegra, Levoxyl, Singular, Lipitor,
Pepcid, Albuterol, Advair, Lexapro, Xanax, Vicodin, and
Celebrex as needed. (R. 181).
Review of Medical Evidence During Relative Time
of Back and Neck Impairments
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.
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.
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
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.
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.
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).
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,
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).
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).
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).