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Cavileer v. Commissioner of Social Security

United States District Court, D. New Jersey

February 1, 2019

MARIA DIANA CAVILEER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Alan H. Polonsky, Esq. POLONSKY AND POLONSKY Attorney for Plaintiff

          Rachel E. Licausi Special Assistant U.S. Attorney Social Security Administration Office of the General Counsel Attorney for Defendant Commissioner of Social Security

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant Commissioner of the Social Security Administration (hereinafter “Defendant”) denying the application of Plaintiff Maria Diana Cavileer (hereinafter “Plaintiff”) for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers from degenerative disc disease, thrombocytosis status post partial amputations of the right index and long fingers, obesity, carpal tunnel syndrome, sleep apnea, asthma, thyroid impairment, and affective disorder was denied benefits for the period beginning on August 25, 2013, the alleged onset date of disability, to October 18, 2016, the date on which Administrative Law Judge Paul R. Armstrong (hereinafter “ALJ Armstrong” or “the ALJ”) issued his written decision.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on numerous grounds, including that the ALJ erred by: finding that Plaintiff's sleep apnea and mental problems were not “severe” impairments; improperly determining Plaintiff's “Residual Functional Capacity” (“RFC”); and finding that Plaintiff is able to perform past work activity and alternative work activity. Defendant opposes Plaintiff's appeal. (See Def.'s Opp'n [Docket Item 10].) The Court will remand the ALJ's decision, because the ALJ failed to consider significant, perhaps dispositive, medical conditions, pain, treatments (including surgeries), and opinions of treating physicians during the alleged period of disability.

         II. BACKGROUND

         A. Procedural History

         Plaintiff filed her application for Social Security disability benefits on April 29, 2014, alleging a disability onset date of August 25, 2013. (Administrative Record (hereinafter “R.”) [Docket Item 5], 24.) Plaintiff's claim was denied by the Social Security Administration on September 17, 2014. (Id.) Plaintiff's claim was again denied upon reconsideration on January 7, 2015. (Id.) Plaintiff next testified before ALJ Armstrong by way of a video hearing on August 16, 2016. (Id.) ALJ Armstrong issued his opinion on October 18, 2016, denying Plaintiff benefits. (Id. at 24-34.) On December 20, 2017, the Appeals Council denied Plaintiff's request for review. (Id. at 1-4.) This appeal timely follows.

         B. Medical History

         Plaintiff has been diagnosed with degenerative disc disease, thrombocytosis status post partial amputations of the right index and long fingers, obesity, carpal tunnel syndrome, sleep apnea, asthma, thyroid impairment, and affective disorder. (Id. at 26-28.) Plaintiff has undergone multiple surgeries to amputate portions of two of her fingers. As reported to Dr. Stephen Soloway, M.D., Plaintiff's rheumatologist, these surgeries began at least in 1988, with the amputation of the tip of her right index finger. (Id. at 592.) As a result of poor blood flow (ischemia) and thrombosis, between August 2013 and December 2013, Plaintiff developed dry gangrene in her right index and middle fingers. (Id. at 403-04, 413-15, 447-50, 473-77.) Plaintiff contends that she was “hospitalized with thrombocytosis and ultimately underwent amputations of the last joint of the right [index] finger and middle finger” in February 2014. (Pl.'s Br. [Docket Item 9], 8.) Plaintiff's brief does not cite to any specific medical records that document the alleged surgery in February 2014, however Defendant does not dispute that such a surgery took place.[1] (Pl.'s Br. [Docket Item 9], 8; Def.'s Opp'n [Docket Item 10], 8.)

         Beginning in April 2015, Plaintiff began seeing Dr. Stanley Marczyk, M.D., an orthopedic specialist, who diagnosed Plaintiff with bilateral carpal tunnel, bilateral cubital tunnel, cervical radiculopathy, and clotting disorder. (R. at 1404-05.) At a follow-up appointment in May 2015, Dr. Marczyk discussed the potential risks and benefits of surgery to relieve some of Plaintiff's symptoms. (Id. at 1402-03.) In July of 2015, Dr. Marczyk saw Plaintiff again and Plaintiff complained of increased arm and wrist pain as a result of increased lifting. (Id. at 1398-99.) In August 2015, Dr. Marczyk saw Plaintiff once again and recommended that she continue to wear a wrist brace and receive cervical spinal injections; Dr. Marczyk also discussed the need for surgery in the future, if symptoms worsen. (Id. at 1392-93.) Plaintiff presented again at Dr. Marczyk in January 2016, complaining of tingling and numbness in her hands; Dr. Marczyk provided Plaintiff with an injection, which seemed to alleviate her symptoms, ordered a new EMG nerve test, and discussed with Plaintiff the potential future need for surgery. (Id. at 1386-87.) The EMG nerve study ordered by Dr. Marczyk, and undertaken by Dr. Wei Xu, M.D., later indicated bilateral carpal tunnel syndrome. (Id. at 1429-32.) In April 2016, Plaintiff again saw Dr. Marczyk, where Plaintiff indicated that she was interested in proceeding with surgical interventions to relieve the symptoms of her carpal tunnel syndrome; Dr. Marczyk informed Plaintiff that the surgeries may not completely relieve Plaintiff's symptoms. (Id. at 1382-83.) On May 10 and June 21, 2016, Dr. Marczyk operated on Plaintiff in order to address her carpal tunnel syndrome in her right and left hands, respectively. (Id. at 1372, 1376; Pl.'s Br. [Docket Item 9], 8; Def.'s Opp'n [Docket Item 10], 16.)

         On June 24, 2016, following Plaintiff's two carpal tunnel surgeries, Plaintiff's primary care provider, Dr. Rafat Choudhry, M.D., noted that Plaintiff denied experiencing any joint pain, swelling, or weakness. (R. at 1246-49.) Nevertheless, Plaintiff testified at the August 16, 2016 hearing, less than two months after her second carpal tunnel surgery, that she was experiencing continued pain in her hands and stiffness in her finger joints as a result of carpal tunnel syndrome and that she is seeking additional treatment from her physicians for such pain and stiffness. (Id. at 58.)

         Meanwhile, Plaintiff received treatments for significant neck and back pain throughout the period of alleged disability. During Plaintiff's neurological consultation with Dr. Maria Carta, M.D., on April 22, 2014, Plaintiff complained of lower back pain, which radiates to “both buttocks and posterior dermatomes” and is exacerbated by sitting or standing, which began approximately 20 years earlier. (Id. at 711.) During this visit, ...


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