ORDER
Thе above matter comes to me following a Report-Recommendation by Magistrate Judge Victor E. Bianchini, duly filed on the 15th day of April 2009. Following ten days from the service thereof, the Clerk has sent me the file, including any and all objections filed by the parties herein.
After careful review of all of the papers herein, including the Magistrate Judge’s ReporNRecommendation, and no objections submitted thereto, it is
ORDERED that:
1. The Report-Recommendation is hereby adopted in its entirety.
2. The Plaintiffs motion is granted in part, defendant’s motion is denied, and the action is remanded to the Commissioner for further proceedings.
3. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Jurisdiction
1. This case was referred to the undersigned for Report and Recommendation, by the Honorable Norman A. Mordue on November 18, 2008, pursuant 28 U.S.C. § 636(b)(1)(B), and is presently before the Court on motions for judgment on the pleadings as supported by Plaintiffs Brief of August 31, 2007 and Defendant’s Brief of October 15, 2007. 2 This Court has jurisdiction under 42 U.S.C. §§ 405(g), 1383(c)(3).
Background
2. Plaintiff Dianna Rockwood challenges an Administrative Law Judge’s (“ALJ”) determination that she is not entitled to supplemental security income (“SSI”) or disability insurance benefits (“DIB”) under the Social Security Act (“the Act”). Plaintiff alleges she has been disabled since February 26, 2002, because of a herniated disc, arthritis, depression
Procedural History
3. Plaintiff protectively filed an application for DIB and SSI on January 5, 2004 (R. at 53). Her application was denied initially on May 28, 2004 and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ (R. at 15-20, 103-09). See 65 Fed. Reg. 81553 (Dec. 26, 2000). Plaintiff filed a timely request for a hearing before an ALJ, and on April 14, 2005, Plaintiff and her counsel appeared before an ALJ (R. at 26-27, 29-32, 265-93). The ALJ held a supplemental hearing on August 19, 2005, at which Plaintiff, her attorney, and a vocational expert appeared (R. at 36-39, 41, 242-64). The ALJ considered the case de novo, and on September 23, 2005, issued a decision finding that Plaintiff was not disabled (R. at 6-14).
4. Plaintiff requested review by the Appeals Council, who denied Plaintiffs request on July 11, 2007 (R. at 3-5). The ALJ’s September 23, 2005 decision became the Commissioner’s final decision in this ease when the Appeals Council denied Plaintiffs request for review.
5. On December 7, 2006, Plaintiff filed a Civil Complaint challenging Defendant’s final decision and requesting the Court to review the decision of the ALJ pursuant to Sections 405(g) and 1383(c)(3) of the Act, reverse the decision of Defendant, and grant SSI and DIB benefits to Plaintiff. The Defendant filed an Answer to Plaintiffs Complaint on February 14, 2007, requesting that the Court dismiss Plaintiffs Complaint. Plaintiff submitted a Memorandum of Law on August 31, 2007. [hereinafter “Plaintiffs Brief’]. On October 15, 2007, Defendant filed a Memorandum of Law in Support of the Commissioner’s Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, [hereinafter “Defendant’s Brief’]. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.
6. For the reasons set forth below, it is recommended that the Plaintiffs motion for judgment on the pleadings be GRANTED in part, and Defendant’s cross-motion for judgment on the pleadings be DENIED.
Facts
A. Treating Sources
1. Dr. Paul L. Penar, Fletcher Allen Health Care
7. On September 28,1998, Plaintiff was treated by Paul L. Penar, M.D., a neurоsurgeon with Fletcher Allen Health Care at the University of Vermont (R. at 185-86). Plaintiff complained of sudden onset of low back pain beginning three to four months prior to the appointment, persisting since that time despite two courses of physical therapy (R. at 185). Plaintiff reported trying 800 mg of ibuprofen every eight hours, without significant relief.
Id.
Plaintiff denied pain, numbness, or weakness in her lower extremities.
Id.
Upon examination, Plaintiff had “5/5” muscle strength in all extremities and her sensation was intact.
Id.
Her ankle and knee reflexes
4
were “1 + ” bilaterally and her
Dr. Penar examined Plaintiff again in June of 2004 (R. at 183-84). Upon examination, Dr. Penar found Plaintiffs strength intact in her lower extremities (R. at 183). He could not reproduce pain with straight leg raising, but did so with mild flexion and extension of the lumbar area. Id. Plaintiffs knee reflexes were “1 + ” but Dr. Penar could not obtain ankle reflexes. Id. Dr. Penar compared a 2004 MRI study to his 1998 study and concluded that Plaintiff still had “a left paracentral disc herniation at the L5-S1 which [was] displacing the left SI root.” Id. Dr. Penar noticed the herniation had “gotten very slightly more prominent” and the disc space at L5-S1 was darker than at L4-5. Id. Dr. Penar notеd that Plaintiff was “fairly obese with a weight of 260 and a height of 5'9".” Id. Dr. Penar did not think that removing the disc herniation would vastly improve Plaintiffs pain, but was willing to consider the possibility (R. at 184). Dr. Penar sent Plaintiff for “an SI root block to assess her response” and noted, for a “more global surgical solution” the only treatment was “instrumented fusion” for which he did not feel she was a good candidate, but would refer her to the Spine Institute for an evaluation. Id. Dr. Penar finished by stating, “[c]ertainly weight loss and smoking cessation would be of benefit to her.” Id.
2. Dr. Alan Folsom, Urgicare
On August 27, 2001, Plaintiff was seen by Dr. Alan L. Folsom, M.D., at Urgicare (R. at 116). On a form entitled, “Return to Work or School,” Dr. Folsom noted that Plaintiff had been in his care for “lumbar muscle strain” and would need a “total disability recheck.” Id. On August 30, 2001, on a prescription pad, Plaintiff was ordered “off work X 5 days.” Id. On September 4, 2001, on a “Return to Work or School” form, Dr. Folsom indicated Plaintiff had been in his care for muscle strain and could return to “full duty” on September 5, 2001 (R. at 115).
3. Nurse Paula Covey, Lake City Primary Care
On February 22, 2002, family nurse practitioner, Paula Covey examined Plaintiff for thoracic pain, but most of her notes are illegible (R. at 112). On a prescription pad, Nurse Covey noted that Plaintiff was out of work that Friday and could return to work on the following Monday but was restricted to lifting only 20 pounds for two weeks (R. at 113-14). On February 26,
4. Dr. Michael T. Borrello, Fletcher Allen Pain Management
On July 8, 2002, Plaintiff was given a medial branch block 8 by Dr. Michael T. Borrello at Fletcher Allen Pain Management Center (R. at 117-18). Dr. Borrello noted that Plaintiff had a lumbar epidural steroid injection in September of 2001 that improved her lower extremity radicular pain at that time (R. at 117). Dr. Borrello administered a medial branch block to lumbar 4, lumbar 5, and the sacral ala, which Plaintiff tolerated without difficulty. Id.
5. Champlain Valley Physician’s Hospital (“CVPH”)
Dr. John H. Miller, M.D., began treating Plaintiff at CVPH Medical Center on February 5, 2004 (R. at 178-81). Upon examination, Plaintiff exhibited normal gait and station (R. at 179). She had “5/5” muscle strength and normal muscle tone throughout. Id. Straight leg raise testing was positive on both sides and Plaintiff lacked extension and was limited to fifteen degrees flexion in her back due to pain. Id. Plaintiffs reflexes were absent at the triceps, biceps and ankles, but “1 + ” at the brachioradialis 9 and knees. Id. Plaintiffs sensation was intact and symmetric throughout. Id. Dr. Miller noted that Plaintiff had undergone epidural injections that worked only temporarily and were no longer an option (R. at 180). He noted that Plaintiff disliked drugs, finding muscle relaxers made her sleepy and she sometimes refused Percocet. 10 Id. Dr. Miller noted Plaintiff had unsuccessfully tried physical therapy on at least two occasions. Id. He noted that Plaintiff would occasionally use a walker. Id. Plaintiff described her pain as progressively getting worse and reaching a constant eight on a ten point scale. Id. Dr. Miller ordered an MRI to look for neural impingement. Id. Additionally, Plaintiff complained of depression and anxiety, stating she would get angry over “stupid things.” Id. Dr. Miller found Plaintiff alert and appropriate, with good judgment and insight, normal memory, okay mood, and full affect (R. at 179). Dr. Miller noted that Zoloft 11 seemed to control her symptoms “quite well” whereas other drugs, such as Paxil, 12 caused adverse side-effects (R. at 180). Dr. Miller continued Plaintiff on Zoloft! Id.
Dr. Miller examined Plaintiff on March I, 2004 (R. at 176-77). Plaintiff complained of worsening back pain (R. at 176). Plaintiff exhibited no gait instability and Dr. Miller found no tenderness to palpation in her back.
Id.
Plaintiffs muscle tone was normal and her muscle strength was a “5/5.”
Id.
Plaintiffs left knee reflex was a two, the right knee reflex a one, and the ankle reflexes were both a one.
Id.
Plaintiffs sensation was intact and symmetrical.
Id.
After reviewing Plaintiffs latest MRI, Dr. Miller stated it was “remarkable only for left paracentral L5-S1
On April 23, 2004, Dr. Miller signed, dated, and returned a disability assessment form to the State agency, on which he indicated he could not provide a medical opinion regarding Plaintiffs ability to do work-related activities 15 (R. at 137-38).
Dr. Miller treated Plaintiff on May 12, 2004 (R. at 174-75). Plaintiff continued to complain of low back pain but had no significant changes in her symptoms (R. at 174). Dr. Miller reviewed Plaintiffs EMG, which showed “denervation potentials in L5 with entrapment of the right posterior tibial nerve and the left posterior tibial nerve at the level of the tarsal tunnel.” Id. Dr. Miller assessed Plaintiff with “[c]hronic low back pain with some degenerative changes on exam” (R. at 175) Dr. Miller noted that Plaintiffs disc herniation displaced the left SI nerve root, but her symptoms were more on the right side than on the left side and in an L5 distribution. Id. Dr. Miller referred Plaintiff to Dr. Penar and aqua therapy. Id. Plaintiff reported that she stopped taking Zoloft three weeks prior becаuse it caused her to grind her teeth. Id. Plaintiff complained of insomnia, stating she was sleeping soundly only one and a half to two hours each night. Id. Dr. Miller noted Plaintiff exhibited good judgment and insight, was alert and oriented, had normal memory, good mood, and full affect. Id. Dr. Miller prescribed a trial of Remeron. 16 Id.
Dr. Miller treated Plaintiff again on June 9, 2004 (R. at 172-73). Plaintiff only attended the initial physical therapy appointment because the treatment caused a significant increase in her pain (R. at 172). Dr. Miller explained that her symptoms may initially worsen but would ultimately improve with physical therapy and recommended she continue the physical therapy.
Id.
Plaintiff complained of back pain, rat
On July 7, 2004, Plaintiff noted no significant changes (R. at 170). Plaintiff had not returned to physical therapy but had been examined by Dr. Penar. Id. On examination, Dr. Miller noted Plaintiff had good muscle strength and tone and tenderness over sciatic notches. Id. Dr. Miller reduced Plaintiffs Zoloft prescription because the higher dose was making her “spac[e]y” (R. at 171).
On October 8, 2004, Plaintiff reported to Dr. Miller that she completed physical therapy with no significant change in her level of pain (R. at 168). Plaintiff reported that she had not had the nerve block of the SI that Dr. Penar recommеnded because the test would assess her for surgery, and Plaintiff was unwilling to consider surgery unless her symptoms got much worse. Id. Plaintiff complained of bilateral hand numbness, which Dr. Miller noted was consistent with carpal tunnel syndrome (R. at 168-69). Dr. Miller prescribed wrist splints to be worn at night (R. at 169). Plaintiff reported seeing a Dr. Smith for therapy and “doing well with his help.” 17 Id. Dr. Miller noted Plaintiff had no anhedonia or anorexia. Id. Plaintiff stated she found Zoloft helpful and Dr. Miller prescribed a low dose for one week. Id. The doctor then increased the dose. Id. Dr. Miller assessed Plaintiff as “doing fairly well at the moment.” Id.
Dr. Miller treated Plaintiff on February 9, 2005 (R. at 191-92). Plaintiff had received the SI nerve root block with no significant change in her symptoms (R. at 191). Dr. Miller noted Plaintiffs next option was to consider fusion at the Spine Institute, but she was unwilling to consider fusion at that point.
Id.
Dr. Miller noted that Plaintiff had tried Skelaxin
18
with no relief and was still taking prescription strength ibuprofen.
Id.
Plaintiff complained of more upper back pain.
Id.
Dr. Miller noted that Plaintiff did “seem to have some component of muscle spasm in the erector spinae
19
muscles of her lumbar and thoracic spine.”
Id.
Dr. Miller continued Plaintiffs prescriptions for ibuprofen and Flexeril.
20
Id.
Dr. Miller had taken Plaintiff off of Zoloft and tried Topamax,
21
but Plaintiff stopped taking Topamax after two weeks because she experienced no positive effect (R. at 192). Plaintiff reported getting very frustrated with her boyfriend while playing cards, stabbing his
On March 21, 2005, Plaintiff reported that the Flexeril she was taking at night to help her sleep was working somewhat but she could not use it on a regular basis because it made her groggy (R. at 189). Dr. Miller observed Plaintiff had a normal station and gait and that her back pain was relatively unchanged. Id. Dr. Miller noted that Plaintiff had stopped taking Effexor because it made her feel “speedy.” Id. Plaintiff reported still getting angry very quickly. Id. Dr. Miller found Plaintiff did not have suicidal or homicidal ideations, anorexia, or anhedonia. Id. Dr. Miller observed Plaintiffs mood as good and her affect as full. Id. Dr. Miller prescribed a trial of Wellbutrin 27 (R. at 190). At this visit, Plaintiff also complained of obesity, stating that she continued to gain weight. Id. Dr. Miller diagnosed Plaintiff with obesity and referred her to a dietitian. Id.
Dr. Miller treated Plaintiff on April 25, 2005 (R. at 239-40). Plaintiff complained of difficulty controlling her temper and in handling stressful situations (R. at 239). She noted that her father was in hospice care, which was stressful and required that she spend quite a bit of time helping care for him. Id. Dr. Miller noted that he had prescribed an increasing taper of Wellbutrin for Plaintiff at her last visit, but Plaintiff had not started it for fear it would be too sedating when she needed to be with her father. Id. Dr. Miller observed Plaintiff as alert and oriented, with good judgment and insight. Id. He observed her memory as normal, her mood “not great” and her affect full. Id. Dr. Miller explained that Wellbutrin should not have a sedating effect and once again prescribed the medication on an increasing taper. Id.
On June 1, 2005 and June 20, 2005, Plaintiff went to CVPH emergency room to treat pneumonia and an insect bite respectively (R. at 219-36).
On July 27, 2005, Plaintiff went to the CVPH emergency room complaining of back pain (R. at 213-17). Plaintiff described hearing a pop in her back that morning (R. at 216). Plaintiff was given Lorcet 28 and sent home with instructions to follow up with Dr. Miller (R. at 216).
Dr. Miller treated Plaintiff on July 29, 2005 for an acute onset of low back pain (R. at 237). Plaintiff described her two visits to the emergency room. Id. On her visit to Dr. Miller, Plaintiff was ambulating with a walker and had taken Lorcet and Flexeril for pain relief. Id. Plaintiff denied radiation of pain into her legs. Id. On examination, Plaintiff was tender to palpation of L5-S1, but muscle strength and tone were normal. Id. Plaintiffs knee reflexes were “2 + ” in both knees. Id. Dr. Miller noted Plaintiffs pain was due to “muscular strain” and he advised her to continue the Flexeril, Lorcet, and Prednisone. Id. Dr. Miller offered Plaintiff a physical therapy referral, which she refused. Id.
6. Dr. Massoud Azar, Electrophysiology
At the request of Dr. Miller, Dr. Massoud Azar, M.D., performed an EMG on Plaintiff on May 5, 2004 (R. at 143). Dr. Azar noted that Plaintiff “declined needle EMG in the left lower extremity because of cramping in the right leg during the same procedure.” Id. Dr. Azar’s impression of the results was as follows:
1. Electrographic evidence of denervation potentials in the right L5 distribution.
2. Entrapment of the right posterior tibial nerve at the level of the tarsa [sic] tunnel.
3. Entrapment of the left posterior tibial nerve at the level of the tarsa [sic] tunnel.
4. No electrographic evidence of a systemic peripheral neuropathy.
Id.
B. Consultative Examiners
1. Dr. Nader Wassef, Orthopedic Examination
At the request of the State agency, Dr. Nader Wassef, M.D., examined Plaintiff on
Dr. Wassef observed Plaintiff was in no acute distress, had a normal gait, and could walk on heels and toes. Id. Plaintiff could squat fully but required Dr. Wassef s assistance to stand again (R. at 121). Plaintiff was able to get on and off the examining table and rise from a chair without assistance. Id. Dr. Wassef noted that his examination was limited because Plaintiff declined to undress for the examination. Id. Nonetheless, Dr. Wassef found that Plaintiff had full flexion, extension, lateral flexion, and rotary movements in the spine. Id. He detected no tenderness, no spasm, no scoliosis, and no trigger points. Id. Plaintiffs straight leg test was negative on both legs. Id. Dr. Wassef observed Plaintiff had “5/5” muscle strength and no muscle atrophy or sensory abnormality. Id. Plaintiffs reflexes were observed as physiologic and equal. Id. Dr. Wassef stated, “[Although I was not able to detect evidence of physical limitations, claimant indeed seems to be in pain” (R. at 122).
2. Dr. Brett T. Hartman, Psychiatric Evaluation
At the request of the State agency, psychologist Dr. Brett T. Hartman, Psy.D., examined Plaintiff on May 14, 2004 (R. at 123-27). Plaintiff complained of difficulty sleeping and an increased appetite (R. at 124). Dr. Hartman found Plaintiff to be “notably overweight.” Id. Plaintiff reported suffering from depressive episode throughоut her life and endorsed the following symptoms: sadness, crying, social isolation, irritability, low energy, lack of motivation, hopelessness, loss of interest, and memory and concentration problems (R. at 125). Plaintiff reported that she was impatient, easily frustrated and easily overwhelmed. Id. Plaintiff reported getting along fairly well with her fiancé’s family, but having only one close friend and being in contact with only one of her four children (R. at 136). Plaintiff reported spending her days watching TV, napping and doing housework. Id.
Dr. Hartman observed that Plaintiff was alert and oriented, and her speech was fluent, but somewhat monotone (R. at 125). He noted her mood was dysphoric and her affect was “restricted yet pleasant.”
Id.
Dr. Hartman observed Plaintiffs attention and concentration were mildly impaired, noting she performed serial threes slowly (R. at 125-26). Plaintiffs memory appeared intact and her intellectual functioning was near average (R. at 126). Dr. Hartman found Plaintiff had fair judgment and insight.
Id.
Dr. Hartman opined that Plaintiff would be able to follow and understand simple directions and had a fair ability to learn new skills and make appropriate decisions.
Id.
Dr. Hartman opined that Plaintiff had mild attention and concentration problems, mild difficulty relating adequately to others, and mild-to-moderate problems dealing appropriately with the normal stressors of life.
Id.
Dr. Hartman found Plaintiffs limitations generally consistent with her allegations (R. at 127). Dr. Hartman diagnosed Plaintiff with ma
C. Residual Functional Capacity (“RFC”) Analysis
On May 24, 2004, State agency psychiatrist, Mark Tatar, Ph.D. completed a psychiatric review technique form base upon a review of Plaintiffs records (R. at 144-57). Dr. Tatar indicated Plaintiff had major depressive disorder, which was a medically determinable impairment but did not precisely satisfy the Listing 12.04 criteria (R. at 147). Dr. Tatar found Plaintiff had mild restrictions in activities of daily living, moderate difficulties maintaining social functioning, moderate difficulties maintaining concentration, persistence or pace, and found no evidence of episodes of decompensation (R. at 154).
Also on May 24, 2004, Dr. Tatar completed a Mental RFC assessment (R. at 159-62). In the area of understanding and memory, Dr. Tatar found Plaintiff was not significantly limited (R. at 159). In sustaining concentration and persistence, Dr. Tatar indicated Plaintiff was moderately limited in carrying out detailed instructions, and maintaining attention and concentration for extended periods. Id. Dr. Tatar found Plaintiff was moderately limited in her ability to accept instructions and respond appropriately to criticism and in her ability to get along with co-workers (R. at 160). He also found Plaintiff moderately limited in her ability to respond appropriately to changes in a work setting. Id. Dr. Tatar concluded that Plaintiffs activities of daily living did “not appear significantly impaired by psychiatric factors” and she was able “to follow simple instructions, sustain pace and relate to others in a work situation” (R. at 161).
D. Mr. Salvatore Garozzo, Vocational Expert (“VE”)
On August 19, 2005, the ALJ held a supplemental hearing to elicit testimony from VE, Salvatore Garozzo (R. at 253). The ALJ asked Mr. Garozzo to assume the Plaintiff was 43 years old and had a GED (R. at 258). He asked Mr. Garozzo to further
... assume that she can do light work, but has the following nonexertional impairments. Any job that she does must be a simple entry level job. She could make a simple decision, but there should be no complex decision making involved. It has to be a low stress job, one that would not require her to do any planning, no scheduling, no report writing, no supervising, no high production quotas, one that would have little or no change in the work environment or setting. She could have occasional, but not frequent interaction with co-workers. She could work in proximity with coworkers, but only occasionally in coordination or conjunction with them and she should be able to change positions as needed using a sit/stand option about every 20 to 25 minutes.
Id.
Based upon these restrictions, Mr. Garozzo testified that Plaintiff would not be able to do any of her past work.
Id.
Given the assumed limitations, Mr. Garozzo testified Plaintiff could work as a housekeeper (R. at 259). Mr. Garozzo testified there were 1,492,000 housekeeper jobs nationally and 1,640 regionally.
Id.
Mr. Garozzo stated there were no other jobs at the light level that a person with those limitations could perform.
Id.
Mr. Garozzo further explained that there were no jobs at the sedentary level that a person with the assumed restrictions could perform (R. at 260). Under questioning by Plaintiffs attorney, Mr. Garozzo testified that, if in addition to the assumed limitations Plain
Discussion
A. Legal Standard and Scope of Review
8. A court reviewing a denial of disability benefits may not determine
de novo
whether an individual is disabled.
See
42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec’y of Health & Human Servs.,
9. “To determine on appeal whether the ALJ’s findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.”
Williams ex rel. Williams v. Bowen,
10. The Commissioner has established a five-step sequential evaluation process to
11.This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Berry v. Schweiker,
12. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step.
See Bowen,
13. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above:
1. The claimant meets the non-disability requirements for a period of disability and disability insurance benefits set forth in section 216(i) of the Social Security Act through December 31, 2007.
2. The claimant has not engaged in substantial gainful activity since February 26, 2002 (20 CFR §§ 404.1520(b) and 416.930(b)).
3. The claimant has the following severe impairments: arthritis and depression (20 CFR §§ 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment of combination of impairments that meets or medically equals one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1, Regulations No. 4 (20 CFR §§ 404.1520(d) and 416.920(d)).
5. ... [T]he claimant has the residual functional capacity to [perform] simple entry-level light work that does not require complex decision making. She is able to make simple decisions. This position must be low stress work that requires no scheduling, no report writing, no supervision, and no high production quotas. She must have little to no change in the work environment or setting. She can have occasional but no frequent interaction with coworkers. She can work in proximity of co-workers but only occasionally in coordination or in conjunction with them. She must be able to change positions as needed using a siVstand option every twenty to twenty-five minutes.
6. The claimant is unable to perform any past relevant work (20 CFR §§ 404.1565 and 416.965).
7. The claimant was born on March 13, 1962 and was 39 years old on the alleged disability onset date, which is defined as a younger individual age 18-44 (20 CFR §§ 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR §§ 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability due to the claimant’s age (20 CFR §§ 404.1568 and 416.968).
10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant number in the national economy that the claimant can perform (20 CFR §§ 404.1560(c), 404.960(c), and 416966).
11.The claimant has not been under a “disability,” as defined in the Social Security Act, from February 26, 2002 through the date of this decision (20 CFR §§ 404.1520(g) and 416.920(g)).
(R. at 8-9, 13-14)
B. Plaintiffs Challenge
14. Plaintiff argues that (1) the ALJ violated the treating physician rule; (2) the ALJ erred in rejecting Plaintiffs credibility; (3) the ALJ erred in not finding Plaintiff disabled due to her spinal disorder and her mental impairment as required by Listings 1.04A and 12.04; (4) the ALJ erred in failing to properly consider Plaintiffs obesity; (5) the ALJ erred in concluding Plaintiff had the RFC to perform light work; (6) the ALJ improperly relied on the absence of prescribed therapy; (7) the ALJ improperly relied on the vocational expert’s testimony which depended upon an inaccurate RFC; and (8) the ALJ did not meet the Commissioner’s burden at step five.
1. Plaintiffs First Allegation: The ALJ Violated the Treating Physician Rule.
15. Plaintiff argues that the ALJ violated the treating physician rule in two ways. Plaintiffs Brief, pp. 14-17. First, Plaintiff argues that the ALJ held it against Plaintiff that Dr. Miller declined to offer his opinion. Plaintiffs Brief, p. 16. Second, Plaintiff argues that the ALJ improperly rejected the opinions of Dr. Penar, Dr. Folsom, and Nurse Covey. Plaintiffs Brief, pp. 16-17.
a. The ALJ “Held it Against” Plaintiff That Dr. Miller Did Not Offer an Opinion.
Plaintiff argues that “ALJ Zolezzi held it against [Plaintiff] that her treating physician, Dr. Miller did not offer an opinion regarding her ability to work.” Plaintiffs
First, even if the Plaintiffs allegations are assumed to be true, Plaintiff has not stated an issue reviewable by this Court under the Social Security Act. 42 U.S.C. § 405(g). Under the Act, the Court is empowered to modify or reverse an ALJ’s decision, if that decision is based upon legal error or not supported by substantial evidence.
Id.; Berry,
Nor has the Plaintiff averred any facts to support her claim that the ALJ “held it against” her that Dr. Miller declined to рrovide an opinion. The Plaintiff points to no evidence in the record or transcript to support this contention. Furthermore, a careful review of the record reveals that the only source indicating that Dr. Miller or CVPH had a “policy” against filling out disability forms is Plaintiffs attorney’s statements, which are not reviewable by this Court as they are not part of the record or pleadings. 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”) (emphasis added).
b. The ALJ Improperly Rejected Other Medical Conclusions
Plaintiff also argues that the ALJ improperly rejected the “medical conclusions” from Dr. Penar, Dr. Folsom, and Nurse Covey in violation of the treating physician rule. Plaintiffs Brief, pp. 16-17. However, Plaintiff incorrectly assumes that the treating physician rule applies to Dr. Penar, Dr. Folsom and Nurse Covey.
The Commissioner will give controlling weight to a “treating source’s opinion on the issue(s) of the nature and severity of your impairment(s)” if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” 20 C.F.R. § 404.1527(d)(2);
see also Rosa v. Callahan,
2. Plaintiffs Second Allegation:
The ALJ Erred in Assessing Plaintiffs Credibility.
16. Plaintiff argues that the objective medical evidence in the record supports Plaintiffs statements regarding pain caused by her back impairment. Plaintiffs Brief, pp. 22, 29-33. Plaintiff also argues that “[t]he record as a whole indicates that she credibly testified about her depression and anxiety.” Plaintiffs Brief, p. 33.
Courts in the Second Circuit have determined pain and other limiting symptoms are important elements in disability claims, and such evidence must be thoroughly considered.
See Ber v. Celebrezze,
The “ALJ’s credibility assessment must be based on a two step analysis of pertinent evidence in the record.”
Borush v. Astrue,
No. 3:05-CV-361,
After reviewing the record, the Court is satisfied that the ALJ applied the proper legal standards in his analysis of Plaintiffs complaints of pain and other symptoms. Further, the Court concludes that substantial evidence supports the ALJ’s determination that Plaintiffs complaints were “not entirely credible.” The ALJ found that Plaintiffs “medically determinable impairments could reasonably be expected to produce the alleged symptoms” (R. at 11). “However,” the ALJ concluded that “the claimant’s statements concerning the intensity, duration and limiting effects of those symptoms are not entirely credible” (R. at 11). The ALJ considered Plaintiffs symptoms related to her back condition and her mental condition separately (R. at 11).
With respect to Plaintiffs back related pain, the ALJ found that the intensity, duration and frequency of Plaintiffs symptoms would not preclude work activities (R. at 11). The ALJ considered factors relevant to the second step of the credibility analysis (R. at 11-12). The ALJ noted that her daily activities were “not limited to the extent one would expect, given the complaints of disabling symptoms” (R. at 11-12). The ALJ also noted that Plaintiff did not give details about what precipitated her alleged symptoms (R. at 11).
In addition to the evidence the ALJ discussed, other substantial evidence supports the ALJ’s conclusion (R. at 62-83, 270-71, 274, 282-86). For example, Dr. Miller noted that the laboratory diagnostic tests showed Plaintiff had a herniation displacing the left SI nerve root, but that Plaintiff complained of more symptoms on the right (R. at 175). Additionally, the record reveals several instances in which Plaintiffs testimony before the ALJ was inconsistent with her statements to physicians. For example, Plaintiff told Dr. Mil
In his credibility assessment, the ALJ also noted that Plaintiff spent a “great deal of time” helping her ill father which “can be quite demanding both physically and emotionally” (R. at 12). While Plaintiff correctly points out that her testimony did not imply she did any physical work earing for her father, the ALJ’s unwarranted assumption does not mean that substantial evidence did not support the ALJ’s findings.
See
(R. at 279);
see also Barringer v. Comm’r of Soc. Sec.,
With respect to Plaintiffs mental impairment, the ALJ concluded that the intensity, duration, and frequency of Plaintiffs symptoms “did not render her unable to perform basic work-related functions” (R. at 11). The ALJ considered that Plaintiff had “been maintained on medication” and was consistently evaluated by Dr. Miller to have a good mood and full affect (R. at 11). The ALJ also noted the Dr. Miller consistently found Plaintiff had nоrmal memory and intact insight and judgment (R. at 11). Finally, the ALJ noted that Plaintiff was not advised to seek any other treatment (R. at ll). 34 While the record indicates that Plaintiff had difficulty controlling her temper (R. at 189, 191) and felt anxious near people (R. at 287-88) it also indicates that she was able to “relate to others in a work situation” (R. at 161).
The Court finds that the ALJ used the correct legal standard in assessing Plaintiffs credibility and that substantial evidence supports his decision.
3. Plaintiffs Third Allegation: The ALJ Erred in Not Finding Plaintiff Met Listings 1.04A and 12.04.
a. Listing 1.04A
17. Plaintiff argues that the ALJ erred in failing to find that Plaintiff was disabled by her spinal impairment, pursuant to Listing 1.04A. Plaintiffs Brief, pp. 17-18.
Plaintiff has the burden of proof at step three to show that her impairments meet or medically equal a Listing.
Naegele v. Barnhart,
Listing 1.04A, of Appendix 1, Subpart P, Regulations No. 4, states:
Disorders of the spine (e.g., herniated nuclеus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); ...
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, § 1.04.
In this ease, there is some medical evidence that Plaintiff may have “nerve root compression characterized by nueroanatomic distribution of pain,” “limitation of motion of the spine,” “reflex loss,” and a “positive straight leg raising test;” however, there is no evidence that Plaintiff has “motor loss.” Rather, Dr. Miller, Dr. Penar, and Dr. Wassef, all found Plaintiffs strength and muscle tone normal and intact (R. at 121, 137, 170,176,179,183,185). Furthermore, the evidence of nerve root compression, limitation of spine motion, reflex loss, and a positive straight leg raising test is all contradicted. Thus, while Dr. Miller and Dr. Penar noted mild displacement of the left SI nerve root (R. at 177, 185), Dr. Penar opined that it was “not radiculopathy” (R. at 185), and Dr. Miller characterized it as “mild irritation” and “fairly unimpressive” (R. at 177). Dr. Folsom characterized Plaintiffs injuries as “muscle strain” (R. at 116). Similarly, while Dr. Miller and Dr. Penar noted Plaintiffs flexion and extension were limited due to pain (R. at 172, 179, 183, 185), Dr. Wassef found Plaintiff had full flexion and extension (R. at 121). As for loss of reflexes, Dr. Penar, Dr. Miller, and Dr. Wassef generally found Plaintiffs reflexes normal, rating them a “1 -I-,” “2 +,” one, or two (R. at 176, 179, 183, 185, 237), noting Plaintiffs sensation was intact (R. at 121, 176), and finding “no sensory abnormalities” and reflexes “physiologic and equal” (R. at 121). Finally, although Dr. Miller found positive straight leg raising test results on both legs (R. at 179), Dr. Penar and Dr. Wassef found negative results in straight leg raising tests (R. at 121, 183).
Plaintiff cannot meet Listing 1.04A because there is no medical evidence that she experienced motor loss, a required criterion of Listing.
See Zebley,
b.Listing 12.04
Plaintiff also argues that she was disabled by her mental impairment, pursuant to Listing 12.04. Plaintiffs Brief, pp. 23-25.
Listing 12.04 for Affective Disorders requires an impairment:
Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.
A.Medically documented persistence, either continuous or intermittent, of one of the following:
1.Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasivе loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, § 12.04.
In this case, non-examining State psychiatrist, Dr. Tatar, found that Plaintiff had a major depressive disorder that did not meet the requirements of Part A (R. at 147). The record supports Dr. Tatar’s finding that Plaintiff did not mеet the requirements of Part A. For example, Dr. Miller repeatedly recorded that Plaintiff suffered from disturbed sleep (R. at 169, 175, 189, 192), and on one occasion, noted Plaintiff had “positive anhedonia” (R. at 192). Plaintiff has endorsed other symptoms required for Part A depressive syndrome, such as low energy and concentration problems (R. at 125), but none of these other required symptoms have been of “medically documented persistence.” Dr. Tatar further found that Plaintiffs symptoms did not limit her to the degree required by Part B (R. at 154). This finding is also supported by the record. For example, instead of finding the marked restrictions required to meet Part B of Listing 12.04, Dr. Hartman found that Plaintiff had only mild attention and eoncentration problems and only mild to moderate limitations in social functioning (R. at 126-27). Furthermore, there is no evidence on record, nor does the Plaintiff allege, that Plaintiff meets the requirements of Part C. Given the lack of evidence to support Plaintiffs claim that she is disabled pursuant to Listing 12.04, the Court finds no error in the ALJ’s determination that Plaintiff did not meet this Listing. The ALJ’s failure to provide an express rationale for dismissing this Listing is not in error.
See Berry,
4.Plaintiffs Fourth Allegation: The ALJ Erred in Failing to Properly Consider Plaintiffs Obesity.
a. The ALJ Erred in Not Finding Plaintiffs Obesity Severe, Alone or in Combination with Her Other Impairments
18. Plaintiff argues that “[t]he ALJ failed to consider her obesity as either a severe impairment in and of itself or in combination with her other impairments” or as a factor making her statements of pain credible. 35 Plaintiffs Brief, p. 27. Defendant argues that the ALJ’s decision to not give “significant consideration” to obesity was reasonable because Plaintiff did not allege difficulty due to obesity, Plaintiffs weight was within its normal range, and the evidence of obesity was scant. Defendant’s Brief, pp. 16-17.
In this case, the ALJ did not mention obesity anywhere in his decision. The Defendant has suggested that the ALJ’s failure to mention obesity in his decision should be excused because Plaintiff never alleged obesity as a disabling condition or limiting factor. This argument is inapposite because the regulations specifically require an ALJ to consider impairments a
Defendant’s argument, that Plaintiff was “in the range of her normal weight,” is similarly misplaced. The Social Security Administration (“SSA”) has explained that obesity is “a disease characterized by excessive accumulation of body fat.” Social Security Ruling 02-lp,
When analyzing obesity, an ALJ should rely on Ruling 02-lр, which explains how an ALJ should consider obesity at steps two through five of the sequential analysis. S.S.R. 02-lp,
In this case, the ALJ did not mention obesity at steps two or three when he found that Plaintiffs arthritis and depression were severe but not severe enough to meet a Listing. However, as the Defendant correctly noted, the evidence of record regarding Plaintiffs obesity was somewhat limited. Three doctors noted Plaintiff was obese: Dr. Miller, her treating physician (R. at 124), Dr. Penar, the neurosurgeon (R. at 183), and Dr. Hartman, the State’s consultative examiner (R. at 190). Dr. Penar, rather vaguely, suggested that weight loss would “certainly ... benefit” Plaintiff (R. at 184). On the other hand, neither Dr. Miller nor Dr. Hartman opined that Plaintiffs obesity contributed to her impairments or limitations. Given Plaintiffs burden of proof, the S.S.R.’s admonition that the ALJ rely on the “information in the case record,” and the relevant case law, this Court cannot say that the ALJ erred by not specifically addressing Plaintiffs obesity at steps two and three.
b. The ALJ Did Not Properly Consider Obesity in Formulating Plaintiffs RFC
Plaintiff appears to be further arguing that Plaintiffs obesity was not properly considered in determining her RFC. Plaintiffs Brief, p. 21.
Ruling 02-lp warns that “[o]besity can cause limitation of function.” S.S.R. 02-lp,
In this case, it is unclear whether the ALJ considered Plaintiffs obesity to be a medically determinable impairment because the decision gives no indication the ALJ considered obesity. However, since Dr. Miller diagnosed Plaintiff with obesity, it is unlikely the ALJ could have found her obesity was not a medically determinable impairment.
See
S.S.R. 02-1p,
The SSA has promised with respect to assessing a claimant’s RFC: “As with any other impairment, [the ALJ] will explain how [he] reached [his] conclusions on
Here, even assuming that the Seventh Circuit’s approach is correct, this Court cannot conclude the ALJ indirectly considered Plaintiffs obesity because the ALJ did not adopt, utilize, or rely upon any examining doctor’s opinions of Plaintiffs physical limitations. Moreover, in light of the plain language of Ruling 02-lp, and the ALJ’s failure to indicate to the Court that he was even aware of evidence showing Plaintiff suffered from obesity, this Court recommends the decision be remanded for further consideration of Plaintiffs obesity, and an explanation thereof as required by Ruling 02-lp.
The Court is cognizant of Defendant’s argument that the evidence of Plaintiffs obesity is scant. However, in assessing a claimant’s RFC, S.S.R. 02-lp does not limit an ALJ to “informatiоn in the
5. Plaintiffs Fifth Allegation: The ALJ Erred in Concluding Plaintiff had the RFC to Perform Light Work.
19. Plaintiff argues that the ALJ’s RFC was flawed because it failed to include “her impairments and non-exertional limitations, including pain, ... and side effects of her medications.” Plaintiffs Brief, p. 21.
a. The RFC was Flawed Because the ALJ Did Not Properly Consider the Non-Exertional Limitations Caused by Plaintiffs Pain
Plaintiff argues that she “did not have the RFC to perform any work because of her non-exertional limitation of pain.” Plaintiffs Brief, p. 21. However, Plaintiff does not specify what non-exertional limitations were improperly excluded from her RFC. After reviewing the record, the Court assumes Plaintiff is referring to her statements that: she cannot “walk[,] sit[,] lay[,] stand” since her injuries (R. at 63, 280); she has difficulty laying down for extended periods of time; she does not “do any walking because of the pain” and sometimes does not drive due to pain (R. at 65); she has a hard time standing for long periods of time and she has a hard time bending over (R. at 75); she needs to hold onto something and bend at the knees to pick something up from the floor (R. at 281); and she has to stop while doing household chores or not do them at all due to pain (R. at 83).
An RFC is the most a claimant can still do despite limitations. 20 C.F.R. §§ 416.945(a)(1), 404.1545(a)(1). In formulating the RFC, the ALJ must consider all the relevant evidence on the record, including physical abilities, mental abilities, symptomatology, such as pain, and other limitations that could interfere with work activities on a regular and continuing basis.
Id.; Martone v. Apfel,
In this case, the ALJ articulated many specific functional abilities in Plaintiffs RFC, but failed to specify Plaintiffs ability to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop or crouch— abilities in which Plaintiff could reasonably be expected to experience limitations given her allegations of a disabling back impairment. Instead, the ALJ determined:
Upon careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to [perform] simple entry-level light work that does not require complex decision making. She is able to make simple decisions. This position must be low stress work that requires no scheduling, no report writing, no supervision, and no high production quotas. She must have little to no change in the work environment or setting. She can have occasional but no frequent interaction with eoworkers. She can work in proximity of co-workers but only occasionally in coordination or in conjunction with them. She must be able to change positions as needed using a sit/stand option every twenty to twenty-five minutes.
(R. at 9). Although the ALJ’s RFC determination is fairly lengthy, his failure to indicate Plaintiffs exertional and postural abilities on a function-by-function basis is error.
Hogan v. Astrue,
In this case, the ALJ’s failure to specify Plaintiffs abilities to sit, stand, walk, reach, handle, stoop, or crouch is particularly important because the ALJ’s conclusion that Plaintiff is not disabled hinges on his finding that she has the RFC to be a housekeeper (DOT 323.687-014) (R. at 14).
See
S.S.R. 96-8p,
As described in S.S.R. 96-8p, an ALJ’s failure to consider a claimant’s work-related functions separately from an exertional category “could be critical to the outcome of a case” because the failure to determine a claimant’s function-by-function abilities could result in the ALJ overlooking some of the claimant’s limitations, and incorrectly finding the claimant can perform work based on an exertional category. S.S.R. 96-8p,
In sum, Plaintiff alleges that her limitations prevent her from performing the position of housekeeper. The performance of such work requires functional abilities that the ALJ did not include in his assessment. Thus, in the absence of a function-by-function analysis, the Court cannot determine whether the ALJ incorrectly overlooked some of Plaintiffs limitations. Accordingly, this court recommends remаnd for further consideration as to this issue.
The Court further notes that the ALJ may need to develop the record when reconsidering this issue. In particular, the Court notes the contradiction between Dr. Wassef s notation that Plaintiff needed assistance to rise from a full squat, and his conclusion that he “was not able to detect evidence of physical limitations” (R. at 121-22). Furthermore, no medical source completed a physical RFC assessment of Plaintiff. Thus, the ALJ had “no other assessments on which to [rely to] provide him [with] guidance in formulating Plaintiffs RFC.”
Derouin v. Comm’r of Soc. Sec.,
No. 7:05-CV-211,
b. The RFC was Flawed Because the ALJ Did Not Properly Consider the Limitations Due to the Side Effects of Plaintiffs Medications
The Plaintiff argues that the record shows she “has side effects [from] her various psychotropic medications and pain medications.” Plaintiffs Brief, p. 23. Specifically, Plaintiff argues that the evidence shows she “gets very sleepy” or “speedy,” and “cannot focus or concentrate” while on some medications, and she gets headaches and grinds her teeth while
In formulating Plaintiffs RFC, the regulations require the ALJ to base his assessment “on all the relevant evidence in [the] case record.” 20 C.F.R. § 416.945(a)(1). However, this obligation “does not impose the onus to ‘specifically
address
each piece of evidence in his decision.’ ”
Derouin,
Although the ALJ’s decision did not explicitly discuss Plaintiffs medications or any associated side effects, the decision and the record indicate that the ALJ considered the issue. First, the ALJ found that in light of all the evidence he considered, “no greater or additional limitations [were] justified” as part of Plaintiffs RFC, which indicates that he considered other possible limitations, but ultimately rejected them (R. at 13). Second, as Defendant correctly points out, the ALJ asked Plaintiff about her medications and any side effects (R. at 278-80). Plaintiff testified that she had a prescription for Wellbutrin, which she was not taking because she was afraid it would make her sleepy (R. at 278-79). When the ALJ asked if her prescription ibuprofen and muscle relaxer caused any side effects, Plaintiff replied “No” (R. at 280). This testimony, as well as other substantial evidence in the record, supports the ALJ’s determination not to incorporate side effects from medication in Plaintiffs RFC because, it indicates that when Plaintiff experienced negative side effects she stopped taking the associated medication. For example, Plaintiff argues that Zoloft gives her headaches and causes her to grind her teeth, but she also testified that she stopped taking Zoloft for those very reasons (R. at 279). Similarly, Plaintiff stopped taking Topamax, Ativan, Ambien, Celexa, Prozac (R. at 192), and Effexor (R. at 189) because of negative side effects or lack of positive effects. Moreover, Plaintiffs own testimony indicates that the pain medication and muscle relaxants she continued to take did not have any side effects (R. at 280). Based on a review оf the record, the Court cannot say the ALJ erred in failing to include side effects from medication in Plaintiffs RFC.
6. Plaintiffs Sixth Allegation: The ALJ Improperly Considered Plaintiffs Lack of Prescribed Therapy.
20. Relying on 20 C.F.R. § 404.1530, Plaintiff also argues “the ALJ erred by drawing negative inferences against [Plaintiff] because she was not consistently receiving therapy from a psychiatrist.” Plaintiffs Brief, pp. 34-35.
The regulations require an ALJ to deny benefits to a claimant who does not follow prescribed treatment that can restore his or her ability to work, and who does not have an acceptable reason for that refusal. 20 C.F.R. §§ 404.1530(a)-(c); 416.1530(a)(c). Courts have remanded where an ALJ improperly relied on a claimant’s failure to seek treatment, without considering the claimant’s explanation.
see, e.g., Shaw v. Chater,
Here, the ALJ did not deny Plaintiff benefits because she refused prescribed treatment or refused to seek treat
7. Plaintiffs Seventh Allegation: The ALJ Improperly Relied on VE Testimony that Did Not Fully Account for Plaintiffs Limitations.
21. Plaintiff argues that the ALJ improperly relied on the testimony of VE, Mr. Garozzo, to the effect that someone with Plaintiffs RFC could be a housekeeper because the VE did not fairly consider Plaintiffs additional impairments and limitations. Plaintiffs Brief, pp. 27-29.
Because the Court has already recommended remand for the ALJ to reconsider several aspects of his RFC finding, it will not consider this issue.
8. Plaintiffs Seventh Allegation: The Commissioner Did Not Meet His Burden of Proof at Step Five.
22. Plaintiff argues, relying
inter alia
on
Curry v. Apfel,
Plaintiff mistakenly relies on Curry and other Second Circuit cases that have been abrogated by changes made to the regulations in August 2003. See 68 Fed. Reg. 51153, 51159 (Aug. 26, 2003). Specifically, 20 C.F.R. §§ 404.1560(c)(2) and 416.960(c)(2) explain that the Commissioner is “not responsible for providing additional evidence about [a claimant’s] residual functional capacity because we will use the same residual functional capacity assessment that we used to determine if [a claimant] can do [her] past relevant work.” Therefore, Plaintiffs argument on this point must fail.
Conclusion
23.Based on the foregoing, it is recommended that the Court GRANT Plaintiffs motion in part, DENY Defendant’s motion, and REMAND to the Commissioner for further proceedings consistent with this ruling.
Order
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to ñle objections within the speciñed time or to rеquest an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Arn,
SO ORDERED.
Notes
. Although no motion for judgment on the pleadings was filed, the moving party was excused from such filing under General Order No. 18, which states in part: "The Magistrate Judge will treat the proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings ...”
. Citations to the underlying administrative record are designated as "R."
. Deep tendon reflexes are tested to examine for abnormalities in "muscles, sensory neurons, lower motor neurons, and the neuromuscular junction; acute upper motor neuron lesions; and mechanical factors such as joint disease." Neuroexam, Deep Tendon Reflexes, http://www.neuroexam.com/content. php?p=31 (last visited Feb. 11, 2009). These
.Scoliosis is an “appreciable lateral deviation in the normally straight vertical line of the spine.” Dorland’s Illustrated Medical Dictionary 1706 (31st ed. 2007) [hereinafter Dorland's ].
. Kyphosis is "an area of the spinal column that is convex.” Id. at 1007.
. Lordosis is "a concave portion of the spinal column.” Id. at 1090.
. A medial branch nerve block is a procedure in which regional anesthesia is achieved by injecting “anesthetics in close proximity to the nerve whose conductivity is to be cut off.” Dorland’s, supra note 5, at 231.
. The brachioradialis is a muscle in the forearm. See Id. at 1222.
. Percocet is a mixture of oxycodone hydrochloride and acetaminophen used for the relief of moderate to moderately severe pain. Physicians’ Desk Reference 973 (47th ed. 1993) [hereinafter PDR ].
. Zoloft is an antidepressant. Id. at 1854.
.Paxil is a psychotropic drug indicated for the trеatment of major depressive disorder. RxList, Paxil, http://www.rxlist.com/paxildrug.htm (last visited Feb. 11, 2009).
. Spinal stenosis is a “narrowing of the vertebral canal, nerve root canals, or inter-vertebral foramina of the lumbar spine caused by encroachment of bone upon the space; symptoms are caused by compression of the cauda equine and include pain, paresthesias, and neurogenic claudication.” Dorland’s, supra note 5, at 1795.
. Electromyography is a diagnostic technique used to measure the action potentials and evoked potentials of skeletal muscles in various states, which translates to assessing the functional status of muscles and the nerves controlling those muscles based on their electrical activity. See Id. at 609.
. The Court notes that Plaintiffs attorney stated in his Brief that it is the policy of CVPH that doctors should not complete such forms. Plaintiff’s Brief, p. 16. Plaintiff’s attorney stated: “On information and belief, Dr. Miller (and the other doctors at the CVPH Clinic), as a matter of policy, does not complete disability reports for anyone because he is too busy at CVPH Clinic (which is the only provider of primary care to Medicaid recipients in Plattsburgh).” Plaintiff's Brief, p. 7, n. 1.
. Remeron is an antidepressant indicated for treatment of major depressive disorder. RxList, Remeron, http://www.rxlist.com/ remeron-drug.htm (last visited Feb. 11, 2009).
. There are no records from a Dr. Smith in the record.
. Skelaxin is a preparation of metaxalone indicated in conjunction with rest, physical therapy and other measures, for the relief of discomfort associated with acute, painful musculoskeletal conditions. PDR, supra note 10, at 863.
. Erector spinae are the muscles of the spine. Dorland’s, supra note 5, at 1223.
. Flexeril is a preparation of cyclobenzaprine hydrochloride indicated for the treatment of muscle spasms associated with acute, painful musculoskeletal conditions. PDR, supra note 10, at 1523.
. Topamax is a preparation of topiramate indicated for use in treating epileptic seizures and migraines. RxList, Topamax, http:// www.rxlist.com/topamax-drug.htm (last visited Feb. 11, 2009).
. Ativan is a preparation of lorazepam indicated for use in the treatment of anxiety disorders. PDR, supra note 10, at 2546.
. Ambien is a preparation of zolpidem tartrate indicated for use in the treatment of insomnia. RxList, Ambien, http://www.rxlist. com/ambien-drug.htm (last visited Feb. 11, 2009).
. Celexa is a preparation of citalopram hydrobromide indicated for the treatment of depression. RxList, Celexa, http://www.rxlist. com/celexa-drug.htm (last visited Feb. 11, 2009).
. Prozac is a preparation of fluoxetine hydrochloride indicated for use in treating depression. PDR, supra note 10, at 943-44.
. Effexor is a preparation of venlafaxine hydrochloride indicated for the treatment of major depressive disorder. RxList, Effexor, http://www.rxlist.com/effexor-drug.htm (last visited Feb. 11, 2009).
. Wellbutrin is a preparation of bupropion hydrochloride indicated for treating depression. PDR, supra note 10, at 842.
. Lorcet is a preparation of hydrocodone and acetaminophen indicated for use in the
. Hydrocodone is indicated for the treatment of moderate to moderately severe pain. Id. at 1033.
. Sclerosis is an “induration or hardening, such as hardening of a part from inflammation, increased formation of connective tissue, or disease of the interstitial spaces.” Dorland’s, supra note 5, at 1705.
.Sacroiliitis is "inflammation (arthritis) in the sacroiliac joint.” Id. at 1687.
. Dilaudid is hydromorphone hydrochloride, indicated for pain management where an opioid analgesic is appropriate. RxList, Dilaudid, http://www.rxlist.com/dilaudid-drug. htm (last visited Feb. 11, 2009).
. Prednisone is a glucocorticoid used as an anti-inflammatory and anti-rheumatic. RxList, Deltasone, http://www.rxlist.com/ deltasone-drug.htm (last visited Feb. 11, 2009).
. In his credibility analysis, the ALJ states that Plaintiff was not receiving any therapy (R. at 11). The record does not necessarily support this particular conclusion because there are some indications that Plaintiff sought treatment from a Dr. Smith (R. at 123, 169, 277-78). However, because the ALJ’s credibility analysis is otherwise supported by substantial evidence, this misstatement is nothing more than harmless error.
See Barringer,
. See supra Part B.2.a, for a discussion of the ALJ's credibility analysis.
.
Cruz
also states that “there is no obligation on an ALJ to single out a claimant's obesity for discussion in all cases.”
Cruz v. Barnhart,
No. 04-CV-9011,