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MOLLO v. BARNHART

March 2, 2004.

CATHERINE MOLLO, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant


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 Page 2 the Federal Rules of Civil Procedure ("Fed.R. Civ. P.").

  I. BACKGROUND

 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 determination.

  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 Page 3 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.

 B. The Record

  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. Page 4

  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 assisted her.

  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 Page 5 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.

  2. The Diagnostic Tests

  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 Page 6 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 artifact.

  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 ...


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