The opinion of the court was delivered by: DENNY CHIN, District Judge
Plaintiff Kathleen Pizzo brings this action pursuant to
42 U.S.C. § 405(g), challenging the final determination of defendant
Commissioner of the Social Security Administration (the
"Commissioner") that plaintiff was not entitled to disability
insurance benefits under the Social Security Act (the "Act").
Plaintiff moves for judgment on the pleadings, pursuant to Fed.
R. Civ. P. 12(c). The Commissioner cross-moves for judgment on
the pleadings. For the reasons set forth below, the
Commissioner's determination is remanded for further
administrative proceedings consistent with this decision. Plaintiff's motion is granted to the extent of the remand, and
the Commissioner's cross-motion is denied.
Plaintiff filed an initial Title II application for disability
insurance benefits in August 1982 that was denied on November 22,
1982. (Tr. at 86, 106, 16). That application qualified for
reopening under the Stieberger settlement.*fn1
In March 1993, plaintiff requested review of the November 1982
denial. (Id. at 82). Six years later, in March 1999, the Social
Security Administration (the "SSA") contacted plaintiff regarding
her Title II Stieberger claim. (Id. at 76). The period of
time under consideration began on March 27, 1989. (Id. at 82).
Plaintiff's supplemental application was denied in August 1999.
(Id. at 77). The denial was based on the SSA's determination
that plaintiff was able to perform a wide range of light level work during the Stieberger period. (Id. at 78-79,
Plaintiff filed a request for a hearing before an
Administrative Law Judge ("ALJ") and on June 7, 2000, an
administrative hearing was held before ALJ Kenneth Scheer. (Id.
at 91-95, 122-23). Plaintiff, represented by counsel, appeared
and testified at the hearing. (Id. at 26-64). On March 16,
2001, the ALJ denied the application, finding that plaintiff had
not been disabled at any relevant time. (Id. at 16-22). The
decision of the ALJ became the final decision of the Commissioner
when the Appeals Council denied plaintiff's request for review on
July 19, 2003. (Id. at 4-6). This action followed.
1. Plaintiff's Age, Education, and Experience
Plaintiff was born on January 10, 1953 and was 48 years old at
the time of the March 16, 2001, ALJ decision. (Id. at 38). Her
onset date of disability was February 9, 1981, and she had not
worked since March 1981. (Id. at 16, 31, 41).
Plaintiff completed twelve years of school and worked for
various employers as a secretary/typist prior to 1979. (Id. at
39, 118). From 1979 until 1981 plaintiff worked for Mobil Oil
Co., first preparing manuals and in the mail room and later as a
record/file clerk. (Id.). According to plaintiff's testimony at
the hearing on March 16, 2001, her job as a record clerk required
her to fill large cartons with files and place them in the center
of the room. (Id. at 40-41). Plaintiff discontinued working in 1981 when she slipped and
fell after exiting an elevator at her place of employment. (Id.
at 30-31, 41-43). At the time of the hearing on June 7, 2000,
plaintiff was living with her sister. (Id. at 38). Plaintiff
testified that she did not do any of the food shopping because
she could not lift anything. (Id. at 48). Her daily activities
included watching television and reading. (Id. at 47-48).
According to plaintiff, she had driven only a few blocks in the
month before the hearing and could drive the car straight but had
difficulty turning. (Id. at 39). She did not use public
transportation. (Id.). Additionally, plaintiff took occasional
trips to a relative's home at the New Jersey Shore. (Id. at
In March 1981, plaintiff was treated for severe pain in the
emergency room of Westchester Square Hospital by Dr. Richard
Memoli. (Id. at 42-43). Since March 1981, plaintiff has
received her medical treatment from Dr. Memoli for her
work-related injuries. (Id. at 31, 108). The record, however,
does not contain any treatment records or progress notes from Dr.
Memoli. The record only contains for this period the forms that
he submitted to the Workers' Compensation Board, prescription
receipts, and a Medical Assessment of Ability to do Work-Related
Activities form. (See id. at 128-74, 176-82, 184-92, 216-18,
219-32). Documentation of plaintiff's emergency room visit is not in the
record, but the record does contain a form filled out by Dr.
Memoli based on an examination of plaintiff on May 8, 1981.
(Id. at 192). Dr. Memoli's diagnoses included cervical spine
sprain with right radiculopathy, lumbosacral spine sprain,
paraspinal muscle spasm, pain and weakness of the dominant right
arm and hand, and restricted range of motion. (Id. at 128-74,
176-82, 184-92, 216-18, 219-31). Treatment rendered and planned
future treatment mostly included examination, home traction,
keeping plaintiff off duty, and medication. (Id.). In July 1992
Dr. Memoli added that he was requesting hospitalization and
traction, along with a cervical collar. (Id. at 159). From
August 1992 to May 1995, Dr. Memoli also recommended that
plaintiff use hot packs for her neck. (Id. at 145-54). In
October 1996, January 1997, February 2000, and April 2000, Dr.
Memoli noted "positive physical findings" (Id. at 137, 139,
Dr. Memoli classified plaintiff as being totally disabled from
June 1981 through February 1993, and later classified plaintiff
as partially disabled from June 1993 through April 2000. (See
id. at 155-82, 128-54, 184-92, 219-31). There was no
explanation for this change of classification. (Id.). In
December 1998, Dr. Memoli reported that plaintiff used a splint
on her right wrist. (Id. at 128). There is no explanation of
the need for this treatment in his documentation. (Id.). Dr. Memoli referred plaintiff for EMG and nerve conduction
tests in June 1981. (Id. at 175, 191). The results of these
tests, however, are not in the record. (Id. at 46). Dr. Memoli
also referred plaintiff for physical therapy sessions starting in
September 1999. (Id. at 206). Further, Dr. Memoli prescribed
various medications beginning in 1981 including Carisoprodol
(Soma) and Elavil for muscle spasm and Tylenol with Codeine for
pain. (Id. at 116). Beginning in 1995 Dr. Memoli prescribed
Hydroconone/APAP (Vicodin) for plaintiff's pain. (Id.).
Plaintiff took all of these medications on a daily basis.
At the ALJ hearing, plaintiff submitted a Medical Assessment
form completed by Dr. Memoli on June 6, 2000. (Id. at 216-18).
Dr. Memoli estimated that in a regular work setting, plaintiff
could occasionally lift and/or carry a maximum of 5 to 10 pounds.
(Id. at 216). Dr. Memoli also reported that plaintiff could
only stand up to 1 hour, because standing could increase spinal
pressure. (Id. at 216-17). Further, plaintiff could only sit
for up to 2 hours because prolonged sitting could cause increased
stiffness. (Id. at 217). The basis of this assessment was Dr.
Memoli's diagnosis of cervical spine radiculopathy and a chronic
cervical sprain. (Id. at 216). He added that plaintiff had
persistent pain in her neck, radiating pain down her arms,
restricted range of motion, tenderness, and spasm. (Id.). Dr.
Memoli also reported that plaintiff could not lift or carry
without pain, could not stoop, kneel, crouch, or crawl, and could only climb stairs as needed. (Id. at 216,
217). Dr. Memoli characterized plaintiff as totally disabled.
(Id. at 218). He reported that plaintiff required ongoing care,
medication, and use of a cervical collar, pillow, and splint.
On April 8, 1981, plaintiff was evaluated by a psychiatrist,
Dr. Elias Savitsky. (Id. at 33, 193-95). According to Dr.
Savitsky, plaintiff suffered from persistent post traumatic pain
syndrome, characterized by anxiety and depression. (Id. at
194). He reported that her personality characteristics sometimes
caused predisposition to somatization of feelings of tension.
(Id.). Dr. Savitsky recommended continued orthopedic care and
antidepressant medications, with systematic counseling as an
option if she failed to make clinical progress. (Id. at 195).
His diagnosis was anxiety reaction, depressive features, post
traumatic, and he reported a continued disability, causally
Dr. Savitsky reexamined plaintiff on August 3, 1983. (Id. at
183). Plaintiff reported that that her condition was relatively
static, and she felt she was getting "worse." (Id.). She
complained of persistent pain syndrome involving the neck,
especially on turning, prolonged sitting, and traveling. (Id.).
Radiation to spine and back were also noted, along with numbness
and weakness of the right arm along with a sense of pressure in
the low back. (Id.). There were no gross disturbances in plaintiff's sleep, appetite, digestion, and no undue intake of
tobacco, alcohol, or drugs. (Id.).
Further, Dr. Savitsky reported a high level of persistent
anxiety and depressive moods, especially when plaintiff was in
pain. (Id.). He noted that plaintiff continued to ruminate
about her situation. (Id.). Dr. Savitsky also found no gross
impairment of memory or capacity for concentration. (Id.). Dr.
Savitsky reported that plaintiff continued to show a relatively
static clinical course with anxiety and many somatic features.
(Id.). He affirmed his prior recommendations for treatment and
if there were no response in three months, he advised systematic
psychiatric treatment because of the significant psychoneurotic
aspect to her symptoms. (Id.).
In January 1986, plaintiff was examined by Dr. Barbara Colon, a
physician employed by the Workers' Compensation Board (the
"WCB"). (Id. at 175). In her Report of Medical Examination, Dr.
Colon noted that plaintiff complained of constant pains across
the back and neck; numbness of both hands, especially the right;
difficulty sitting, walking, standing, and lying down; and
limited motion of the neck. (Id.).
Plaintiff removed her cervical collar for examination of her
neck by Dr. Colon, who found tenderness throughout the cervical
spine with marked limitation of all motions of the neck. (Id.).
Dr. Colon also reported tenderness across the upper back and
limitation of motions of the right shoulder joint due to neck and upper back pains. (Id.). Dr. Colon reported that plaintiff
walked slowly and had difficulty dressing, undressing, and
getting on and off the examining table. (Id.).
Additionally, Dr. Colon found tenderness to palpation of the
lumbar muscles and the lumbar spine. (Id.). Motions of the
trunk were markedly restricted due to pain, and straight leg
raising bilaterally was markedly limited. (Id.). Plaintiff
could not lie with the knees extended and flexion of the hips in
supine could not be done because of pain. (Id.). Dr. Colon
found no quadriceps inequality and the reflexes were ...