The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Catherine Mollo ("Mollo" or the "plaintiff") commenced this action
pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
challenging the final determination of the Commissioner of Social
Security (the "Commissioner") denying disability insurance benefits to
her. Both parties move for judgment on the pleadings pursuant to
Rule 12(c) of
the Federal Rules of Civil Procedure ("Fed.R. Civ. P.").
A. The Procedural History
On January 18, 1995, Mollo filed an application for social security
disability insurance benefits, claiming disability since December 22,
1992 due to back pain. After her application initially and on
reconsideration was denied, she requested a hearing before an
administrative law judge ("ALJ"). On March 14, 1996, a hearing was
conducted before Administrative Law Judge Murray Sklaroff ("ALJ
Sklaroff"). The plaintiff appeared with her attorney. In a decision dated
June 24, 1996, the ALJ Sklaroff found that Mollo was not disabled within
the meaning of the Act and was therefore not entitled to disability
insurance. On July 15, 1996, she filed a request for review with the
Appeals Council. On October 17, 1997, the Appeals Counsel declined to
review the claim, making the ALJ's decision the final administrative
On December 5, 1997, the plaintiff commenced an action with this Court
under civil action 97 CV 7122. On December 5, 1998, this Court "so
ordered" a Stipulation and Remand entered into by the parties.
Subsequently, on February 8, 1999, the Appeals Council issued an Order
remanding this matter to the Commissioner for further proceedings
pursuant to the sixth sentence of 42 U.S.C. § 405(g).
On May 26, 1999, a second hearing was held before ALJ Sklaroff. The
plaintiff appeared with her attorney. ALJ Sklaroff stated that he would
consider all the evidence de
novo including the new evidence. On June 16, 1999, ALJ Sklaroff
again denied the plaintiff's claim, concluding that she was not disabled.
On March 19, 2001, based on the exceptions to ALJ Sklaroff's decision
filed by the plaintiff, the Appeals Council issued an Order, remanding
this matter to a different ALJ for further administrative proceedings.
On July 17, 2001, a third hearing was conducted before Administrative
Law Judge Richard Karpe ("ALJ Karpe"). Again, the plaintiff appeared with
her attorney. ALJ Karpe considered the case de novo. On July 20, 2001,
ALJ Karpe concluded that Mollo was not disabled during the relevant
period. This decision became the Commissioner's final decision when the
Appeals Council concluded on March 22, 2003 that there was no basis to
review ALJ Karpe's decision. Subsequently, the plaintiff commenced this
action under civil action 03 CV 2545, challenging ALJ Karpe's decision.
1. The Plaintiff's Background and Testimony
Mollo was born on April 18, 1944, making her 51 years of age at the
time of the first administrative hearing before ALJ Sklaroff. The
plaintiff graduated from high school and worked as a full time
bookkeeper for a retail company. On December 22, 1992, the plaintiff fell
at work and injured her back. She reported that she was disabled from
December 22, 1992 through April 15, 1996, the date on which she states
her condition improved to the extent she was able to return to work.
At the first hearing in March 1996, Mollo testified that she was
awarded Workers' Compensation benefits as a result of her injury. The
plaintiff described her back pain as radiating to her lower extremities
which restricted her abilities to sit, stand, and walk. Mollo said that
she could lift or carry small items, such as dishes. She said that,
although she was unable to do heavy housework, she was able to cook. The
plaintiff further stated that her retired husband and her adult children
Mollo testified that she initially received physical therapy for her
condition until it was discontinued by her insurance company. The
plaintiff reported that she then sought treatment from chiropractor Dr.
Nancy Paritsky. In connection with her Workers' Compensation claim, the
plaintiff began seeing an orthopedist, Dr. Jacob Lehman. She said that
she was also evaluated by a neurologist, Dr. Henry Moreta. The plaintiff
testified that her prescribed treatment during the relevant period
consisted primarily of oral analgesic medication, which she did not take
unless absolutely necessary. She indicated that she took over the
counter medication, such as Tylenol and Advil.
On May 26, 1999, during the second hearing, Mollo testified that she
still felt pain but that she was working part time for a
temporary agency. The plaintiff reported that she stopped going to
doctors, did not take prescribed medication, and tried to do pool
exercises in order to get her strength back. Mollo stated that she was
entitled to benefits through April 15, 1996, the date of her last visit
with Dr. Lehman. According to the plaintiff, during the
relevant period, she could not participate in many activities and
was limited in performing household chores. The plaintiff testified that,
while she could take care of her personal needs, she performed them
slowly, so as not to aggravate her condition. Mollo testified she stopped
seeing doctors because she "decided to try it on [her] own." She further
testified that Dr. Lehman informed her that her pain "was something [she]
was going to have to learn to live with."
At the July 17, 2001 hearing before ALJ Karpe, the plaintiff testified
that she was unable to sit or stand for any length of time during the
relevant time. The plaintiff stated that she had previously taken
Vicodin. She also said that she had taken either Relafen or Flexeril. She
testified that during the relevant time she had trouble sleeping because
of her medication and that she felt "groggy" during the day.
On February 2, 1993, Mollo underwent an magnetic resonance imaging test
("MRI") of the lumbosacral spine. The MRI revealed bulging of the fibrous
annulus at L5-S1, but no gross disc herniation. The test also showed some
dessication of the disc, suggesting degenerative changes.
A January 9, 1995 MRI of the lumbosacral spine showed evidence of
degenerative disc disease with bulging annulus at the L5-S1, but no
associated compression of the thecal sac or exiting nerve roots. Because
a signal abnormality at the L1-2 level was noted, the
examiner suggested comparing Mollo's 1993 MRI with this finding to
determine its significance. In comparing the January 1995 MRI to the
February 1993 MRI, the examiner concluded that the appearance of the
L5-S1 disc had not appreciably changed. In addition, the comparison
revealed that there was no signal abnormality or abnormal enhancement
within or around the thecal sac at the L1-2 disc level. The examiner
attributed the previously described signal abnormality to a flow related
The results of a January 20, 1995 EMG revealed an abnormal
electrodiagnostic examination consistent with right S1 radiculopathy. The
examiner recommended that Mollo continue her treatment. A February 13,
1995 MRI showed no signal abnormality or abnormal ...