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Basnett v. Commissioner of Social Security

United States District Court, D. New Jersey

March 26, 2019

TINA BASNETT, Plaintiff,

          Richard Lowell Frankel, Esq. BROSS & FRANKEL, Attorney for Plaintiff

          Stephen M. Ball, Special Assistant U.S. Attorney SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL Attorney for Defendant


          JEROME B. SIMANDLE U.S. District Judge


         This matter comes before the Court pursuant to 42 U.S.C § 405(g) for review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying the application of Plaintiff Tina Basnett (“Plaintiff”) for Social Security Disability Insurance (“SSDI”) benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff, who suffers from back, neck, and arm pain, carpal tunnel syndrome, obesity, and other conditions, was denied benefits for the period of disability from September 14, 2009, the alleged onset date of disability, to December 31, 2014, the date Plaintiff was last insured. Administrative Law Judge (“ALJ”) Marguerite Toland issued a written decision on June 1, 2016.

         In the pending appeal, Plaintiff contends that the ALJ's decision must be reversed and remanded on six grounds. To that end, Plaintiff argues that the ALJ erred by: (1) rejecting and/or failing to identify and explain the weight assigned to the opinions of the treating sources of record; (2) formulating a Residual Functional Capacity (“RFC”) that does not contemplate an eight-hour workday or is otherwise incomplete; (3) failing to assign appropriate limitations in Plaintiff's RFC accounting for her carpal tunnel syndrome; (4) finding Plaintiff's mental health issues non-severe at step two; (5) failing to pose a complete hypothetical to the vocational expert; and (6) improperly discounting Plaintiff's subjective complaints of pain. For the reasons that follow, the Court will vacate the ALJ's decision and remand for further proceedings consistent with this Opinion.


         A. Procedural History

         Plaintiff protectively filed an application for SSDI benefits on September 14, 2009, alleging a disability from February 14, 2009 through December 31, 2014, the date Plaintiff was last insured

         (hereinafter, “the Date Last Insured”).[1] (R. at 17, 148.) The SSA denied Plaintiff's claim on March 20, 2010. (R. at 200-04.) Plaintiff's claim was again denied upon reconsideration on July 12, 2010. (R. at 149.) A hearing was held before ALJ Jonathan Wesner on May 10, 2011. (R. at 105-48.) On June 9, 2011, ALJ Wesner issued an opinion, denying benefits. (R. at 150-65.)

         Thereafter, Plaintiff filed a Request for Review of Hearing Decision with the Appeals Council. (R. at 299.) On November 20, 2012, the Appeals Council granted Plaintiff's request and remanded the matter for further proceedings. (R. at 167-68.) A second hearing was held before ALJ Wesner on April 9, 2013. (R. at 66-104.) On May 9, 2013, ALJ Wesner issued another opinion denying benefits. (R. at 170-93.) Plaintiff again timely filed a Request for Review of Hearing Decision with the Appeals Council. (R at 299.) On December 16, 2014, the Appeals Council again granted Plaintiff's request for review and remanded the matter to a different ALJ for further consideration of Plaintiff's RFC and to obtain supplemental evidence from a vocational expert. (R. at 194-97.)

         A third hearing was held before ALJ Marguerite Toland on July 23, 2015. (R. at 36-67.) ALJ Toland issued an opinion on June 1, 2016, denying benefits. (R. at 14-26.) Plaintiff again timely filed a Request for Review of Hearing Decision (R. at 345-46) which the Appeals Council denied on January 23, 2018. (R. at 1-5.) This appeal timely follows.

         B. Personal and Medical History

         Plaintiff was 40 years old on the alleged disability onset date and 45 years old at the time of her third hearing before the ALJ. (R. at 148.) She graduated from high school. (R. at 387.) For more than twenty years, Plaintiff worked as an administrative assistant and case coordinator in the home health care field. (R. at 389.) She stopped working on February 27, 2009. (R. at 127-28.)

         1. Plaintiff's physical impairments and treatment

         Plaintiff was diagnosed with carpal tunnel syndrome in November 2007. (R. at 613; see also R. at 646-57.) Following a motor vehicle accident on November 24, 2008, she also began to experience back, neck, and shoulder pain. (R. at 110, 496-500.) Thereafter, she attended physical therapy at Eastern Neurodiagnostic Associates, P.C. three times per week, where she primarily worked with James Ross, P.T. (R. at 516-553.)

         Plaintiff began treating for her pain-related symptoms with Dr. Steven J. Scafidi, M.D., on December 1, 2008. (R. at 578.) According to Dr. Scafidi in his report of October 20, 2009, Plaintiff initially visited with him daily, but those visits dropped to once per week. (Id.) Dr. Scafidi assessed Plaintiff with C4-C5 herniated disc, bilateral C5-C6 radiculopathy, right shoulder impingement, reduced spinal ranges of motion, paraspinal muscle spasms, and myofascial pain. (Id.) Dr. Scafidi noted that these findings were supported by a cervical MRI showing the disc damage, an EMG showing the nerve damage, and X-rays showing a reversed cervical curvature. (Id.) He noted that over the year of treatment with medication, physical therapy, chiropractic care, and home rehabilitation, her response so far had been “Poor.”[2](Id.)

         On December 16, 2008, Plaintiff underwent a neurological evaluation with Dr. Shiva Gopal, M.D. (R. at 513-15.) Dr. Gopal reported that Plaintiff suffered from “[t]raumatic cervical strain/sprain with radicular features, right greater than left” and “[p]ost-traumatic lumbar sprain/strain with clinical radiculopathy, right greater than left.” (R. at 514.) Dr. Gopal also noted that “[Plaintiff's] injuries are acute and she needs to continue with her current chiropractic care” and that “[s]he has prominent upper extremity radicular features which need evaluation with EMG/nerve conduction studies.” (Id.) The following month, Plaintiff underwent an EMG and Dr. Gopal diagnosed her with bilateral acute C5-C6 radiculopathy. (R. at 509-10.)

         On February 17, 2009, Plaintiff was again evaluated by Dr. Gopal, who opined that Plaintiff's electrodiagnostic studies “reveal the presence of a bilateral cervical radiculopathy and rule out a lumber radiculopathy.” (R. at 505-06.) Dr. Gopal recommended that Plaintiff “have a course of soft tissue/myofascial pain management in addition to chiropractic care” and stated, “[e]ventually, I believe she may need interventional pain management to the cervical region depending on the response to her conservative care over the next four weeks.” (R. at 506.)

         On October 20, 2009, Dr. Scafidi offered an opinion on Plaintiff's functional limitations. (R. at 578-83.) In this opinion, Dr. Scafidi found that Plaintiff was limited to carrying 1-3 pounds, would be limited to less than two hours of standing or walking in an eight-hour workday, and could sit for less than six hours in an eight-hour workday. (R. at 579.) On February 26, 2010, Dr. Scafidi offered a second opinion, this time stating that Plaintiff suffered from moderate to severe pain in the entire spine, shoulders, hips, arms, and legs, with motor weakness in her extremities, as well as moderate to severe sensory loss in the affected areas. (R. at 589-92.) He also found reduced range of motion and weakness in the shoulders and spine. (R. at 590-91.)

         On October 28, 2009, Mr. James F. Ross, a physical therapist who had been treating Plaintiff for about seven months, offered an opinion on Plaintiff's functional limitations. (R. at 516-21.) Having treated Plaintiff for several months, Mr. Ross opined, among other things, that Plaintiff would be limited to less than two hours of standing or walking in an eight-hour workday and less than six hours of sitting in an eight-hour workday. (R. at 517.) He further found that she had no capacity to push or pull, and that her range of motion in the shoulder, cervical, and lumbar spine were significantly reduced with muscle weakness. (R. at 517-19.)

         Plaintiff began treating with John Waldron, D.O. in April 2010. (R. at 658-70.) In or around November 2010, Plaintiff visited with Dr. Waldron two to three times per month for her pain-related symptoms. (R. at 689.)

         Plaintiff visited with various physicians at Reconstructive Orthopedics several times between late 2010 and early 2011. (R. at 646-657.) There, Plaintiff initially reported to Dr. James A. Sanfilippo, M.D., that, since the November 2008 car accident, she had been experiencing severe pain in the base of her neck, but that recently the pain began to radiate to bilateral shoulders, the anterior portion of her shoulders, and her upper triceps and deltoid areas. (R. at 650.) Dr. Sanfilippo “urged her to look warily on anybody who wants to operate on her immediately for her cervical spine given the normal MRI and normal x-rays, ” and referred her for further evaluation of her cervical spine. (R. at 651) The following week, Plaintiff was seen by Dr. Raymond Ropiak, M.D., who noted, “I do believe she has pain but I am unsure as to where it is coming from.” (R. at 649.) Dr. Ropiak gave her a cortisone injection into the AC joint and recommended that she continue physical therapy for six weeks. (Id.) At a follow-up appointment on February 9, 2011, Dr. Ropiak diagnosed Plaintiff with cervical strain with neuropathic pain and right AC joint degenerative changes. (R. at 646.) He told Plaintiff, “I really do not have much in the way of treatment for her shoulders as I do not believe that her biggest complaint is coming from the shoulders, ” and recommended that she follow up with a nonoperative spine doctor, Dr. Andre W. Hu, for her complaints. (R. at 647.) Plaintiff met with Dr. Hu on February 25, 2011. (R. at 656-57.) According to Dr. Hu, “[g]iven the longstanding nature of [Plaintiff's] symptoms, I believe that this is now a chronic issue, and her prognosis is that she is likely stable but not likely to improve substantially into the foreseeable future, ” and “I think the goal of her rehabilitation at this point is to maintain and improve her functionality, and give her palliative pain control.” (R. at 657.)

         Plaintiff underwent a Functional Capacity Evaluation with James H. Rushmore, P.T., on February 10, 2011. (R. at 681-88.) In this report, Mr. Rushmore wrote:

[Plaintiff] demonstrated limitations in fine motor control and mobility/stability. Her performance does not meet her job requirements as reported due to limitations [in] static and dynamic activity. She performed at below a light material handling demand level with sitting, balance, and trunk mobility limitations.

(R. at 681.) Mr. Rushmore also found that Plaintiff would be limited to only occasional (less than 1/3 of an eight-hour work day) sitting, standing, walking, stair climbing, bending, stooping, and overhead reaching, and that she could not squat, crouch, crawl, or kneel at all. (Id.)

         On March 1, 2011, Plaintiff visited Advanced Pain Consultants, PA and Dr. Stephen Boyajian, M.D., assessed her with displacement of cervical intervertebral disk, possible underlying facet arthropathy. (R. at 678-69.) He advised Plaintiff to proceed with intralaminar epidural steroid injections under fluoroscopic guidance and, if there is no significant change after the injection, to “proceed with a medial branch block versus a transforaminal epidural steroid injection versus cervical discopathy.” (R. at 679.) On March 9, 2011, Plaintiff underwent an interlaminar epidural steroid injection under fluoroscopic guidance at the C7-T1 interspace. (R. at 680.) on March 22, 2011, Plaintiff followed up with Dr. Boyijian, who noted “there has been no significant improvement of her symptom complex.” (R. at 675.) After undergoing an updated EMG and nerve conduction study, Plaintiff followed up with Dr. Boyijian again, on April 12, 2011. (R. at 671-62.) According to Dr. Boyijian, the EMG and nerve conduction study “was reported as normal without any evidence of radiculopathy, polyneuropathy or plexopathy.” (R. at 671.) He opined that ...

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