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HOGUE v. BARNHART

May 3, 2005.

JEAN HOGUE Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Plaintiff Jean Hogue brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g) to challenge the final decision of defendant Jo Anne B. Barnhart, Commissioner of Social Security, denying plaintiffs' claim for Social Security disability insurance ("SSDI") benefits. The Commissioner and Hogue have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the Commissioner's motion is denied, Hogue's motion is granted, and this case is remanded for further proceedings.

BACKGROUND

  I. Procedural History

  Hogue applied for Social Security disability benefits on February 21, 2000, alleging an inability to work since April 26, 1999. (R. 67).*fn1 The claim was initially denied and Hogue requested a hearing before an Administrative Law Judge ("ALJ"). (R. 61, 64). On December 4, 2002, Hogue appeared with counsel at the hearing held before ALJ Kenneth Levin. (R. 25-29). After consideration of the case de novo, Judge Levin issued a decision finding Hogue not disabled because she was capable of performing her past relevant work of a social service aide. The Appeals Council denied Hogue's request for review on April 29, 2003, rendering the ALJ's January 22, 2003 decision the final decision. (R. 3-5).

  II. Factual Background

  A. Non-medical Evidence

  Hogue, who was fifty-one years old at the time of the hearing, lives with her two adult children. (R. 41, 67). She has a year of college education, (R. 42) and her most recent employment, which she held from July 1994 to April 1999, was as a home health aide. (R. 28, 76). Hogue reported that her job as a home health aide involved assisting patients with dressing and meals, escorting them to appointments, and cleaning. (R. 29, 32, 76). Prior to that, from 1987 to 1991, Hogue worked as a peacekeeper supervisor (referred to by the ALJ as a "social service aide" position) in a family homeless shelter. (R. 29-30, 76). Hogue reported that her activities as a peacekeeper supervisor included writing reports, monitoring the building, and supervising residents. (R. 30-31). Additionally, Hogue reported that the peacekeeper job occasionally involved assisting her co-workers in breaking up fights between residents. (R. 31).

  1. Plaintiff's Testimony

  At the hearing before Judge Levin, Hogue testified that she stopped working after she injured her back while pushing a wheelchair and started having back spasms. (R. 32). Hogue testified to having pain and stiffness in her lower back on the right side. (R. 33). She reported that the pain does not radiate to other parts of her body. (Id.). She also testified that she suffered daily from heart palpitations and chest pain. (R. 34-35). She referred to the chest pains as "angina pains," and described them as "catches" in her chest that make it feel like she needs to belch. (R. 34). She testified that belching does not relieve the symptom, but that she was taking potassium and other medication to relieve the pain. (R. 35). She testified that she feels the pain under her heart when she is upset or stressed, but that it does not radiate to other parts of her body. (R. 34).

  Hogue also testified that she experiences daily asthma attacks. (R. 35). She reported that the asthma causes a tightening in her chest, but also testified that she could not tell the difference between chest pains associated with the asthma and chest pains associated with angina. (R. 35-36). She reported that she uses a nebulizer to treat the pain associated with her asthma. (R. 35). Hogue testified that to treat the attacks she uses her inhaler, and when that does not work, she uses a nebulizer. (R. 36-37). She testified that she uses the nebulizer two to three times a day, for approximately forty-five minutes each time. (R. 37, 56). Hogue testified that she smokes cigarettes, but that she was down to three cigarettes a day. (R. 46).

  Hogue also testified that she suffers from sleep apnea, and because the sleep apnea makes her unable to sleep through the night, she falls asleep two or three times during the day for forty-five minutes to one hour, sometimes without realizing that she has fallen asleep. (R. 36-37). To treat the sleep apnea, she uses a continuous positive airway pressure ("CPAP") machine about three times per week, but testified that she could not use it more often because she suffers from panic attacks when she wakes up with the CPAP mask on. (R. 36). In addition, Hogue testified that she suffered from a gynecological problem that results in abnormal bleeding and pain, that she has a peptic ulcer, and that she was once diagnosed with gout. (R. 38, 40). She testified that she takes Nexium for the ulcer, and that it helps provide relief. (R. 39). Finally, she testified to having tendonitis in both shoulders that causes pain and makes it difficult for her to raise her arms. (R. 39). She testified at the hearing that she was currently experiencing pain in the left shoulder, but that earlier in the year she had been troubled by the right shoulder. (Id.).

  With respect to physical limitations, Hogue testified that she could sit for forty-five minutes to one hour at a time before feeling stiffness in her lower back. (R. 39). She reported that she could stand for one hour, and for up to two hours if nothing touches her knee. (R. 40). She testified that she could walk for about an hour before she experiences chest and knee pain. (Id.) Hogue testified that she could lift and carry five or ten pounds. (R. 42). Hogue reported that she does not do any of the cooking, cleaning and other household chores at home. (R. 42). She testified that she generally spends her day watching television, writing, reading and napping, and she goes to church once or twice a month. For exercise, she walks and does home exercises prescribed by her orthopedist. (R. 43-44).

  2. Vocational Expert's Testimony

  Mark Rammauth, a vocational expert who testified at the hearing, stated Hogue's prior work as a home health attendant was classified as medium work, and her work as a peacekeeper supervisor, (referred to by Rammauth as a "social service aide"), was considered "light work." (R. 53-54).*fn2 He stated that breaking up fights was not an essential part of a social service aide job as it is typically performed. (R. 45). On examination by Hogue's attorney, Rammauth testified that if a person had to use a nebulizer two to three times a day, for thirty-five to forty-five minutes each time, or had to lie down during the day for forty-five minutes to an hour each time, she would not be able to perform her past relevant work or any of the jobs discussed as hypothetically available light work. (R. 56). B. Medical Evidence

  1. Treatment Prior to the Alleged Onset of Disability

  Records from Beth Israel Medical Center show that on February 25, 1999, Hogue underwent surgery for the removal of a benign mass from her left breast. (R. 205-20). Test results prior to surgery showed a normal electrocardiogram ("EKG"), and records reveal that Hogue's asthma and hypertension were stable, and a chest x-ray was negative. (R. 207-213). A physical examination showed that Hogue's lungs were clear, her heart rhythm was regular, and she had normal musculoskeletal findings. (R. 208). At a follow-up examination two months later, Hogue's condition stable. (R. 252).

  Hogue was examined by her primary physician, Dr. Eduardo Pignanelli, on March 25, 1999. (R. 249). Dr. Pignanelli reported that Hogue's blood pressure was at 110/80, and stable on medication. (Id.). Her lungs were clear, and her asthma was also stable. (Id.). Hogue reported lower back pain, with some radiation to her legs, however, no clear motor or sensory deficits were observed. (Id.). Dr. Pignanelli instructed Hogue to obtain magnetic resonance imaging ("MRI") of the lumbrosacral spine. (Id.). An MRI taken on April 14, 1999 revealed annular disc bulging with degenerative disc disease at the L5-S1 level of the lumbrosacral spine. (R. 134, 194, 227, 250). Hogue was examined by Dr. Pignanelli again on April 24, 1999 for hypertension, bronchial asthma and low back pain. (R. 251). Dr. Pignanelli noted that Hogue continued to complain of low back pain. (Id.). He discussed the MRI results with Hogue, and referred her to physical therapy and to an orthopedist. (Id.). Dr. Pignanelli diagnosed low back pain syndrome, and recommended Hogue perform only light duty, with no bending or lifting for the next three months. (R. 89). During the August 24, 1999 examination, Dr. Pignanelli also reported Hogue's blood pressure as 150/105, and noted that her asthma was stable. (R. 251). He instructed her to comply with her prescribed medication and diet. (Id.)

  2. Medical Treatment During the Relevant Period

  a. Musculoskeletal Impairments

  Following the alleged onset of disability, Hogue received treatment from a variety of sources for her lower back, left shoulder, right shoulder and right knee. That treatment is detailed here.

  The first record of treatment subsequent to the alleged onset disability is of an examination by orthopedist Dr. Ely Bryk at Beth Israel Medical Associates. (R. 229-31). On May 6, 1999, Dr. Bryk reported Hogue's complaints of pain in her lower back and right side. (R. 226-247). Dr. Bryk diagnosed lumbar strain with lumbar radiculitis, for which he prescribed range of motion, strengthening and pain reduction exercises. (R. 231). In a note dated June 8, 1999, Dr. Bryk stated that he had diagnosed Hogue with lumbar strain, and that Hogue would not be able to return to work until July 28, 1999. (R 235). In a report dated August 10, 1999, Dr. Bryk again recommended that plaintiff not work. (R. 238). In an August 11, 1999 letter, Dr. Byrk reported that Hogue had been attending physical therapy, but continued to report severe pain radiating down her right leg. (R. 239). Dr. Bryk's examination revealed tenderness in her right leg, and he requested electromyography ("EMG") testing to determine the extent of nerve damage. (Id.). The report from the EMG test of Hogue's lower extremities, dated August 25, 1999, revealed normal findings, and showed no signs of lumbar radiculopathy. (R. 240-42). A physical examination revealed that Hogue's lower extremity strength, sensation and reflexes were normal. (Id.). On a form dated September 2, 1999, Dr. Bryk reported his primary diagnosis as lumbar radiculitis, and a secondary diagnosis of lumbar strain. (R. 245-46). Dr. Bryk prescribed continued physical therapy. (R. 244). Dr. Bryk noted the negative EMG test results, and reported that upon physical examination, Hogue complained of tenderness on palpitation. (R. 245-46). Dr. Bryk reported that plaintiff's lumbar sprain and lumbar radiculitis had retrogressed, and that plaintiff was "totally disabled" and had an "inability to function in almost all areas." (Id.). Dr. Bryk did not estimate how long the limitations would last, instead noting that a further evaluation was scheduled for October 5, 1999. (Id.) On October 5, 1999, Dr. Bryk reported that Hogue could return to work on November 1, 1999. (R. 91, 247).

  Hogue's problem with her left shoulder was first recorded in a report of an August 23, 1999, visit to Dr. Pignanelli. (R. 253). During the visit, Hogue reported low back pain and left shoulder pain with decreased range of motion. (Id.). Dr. Pignanelli prescribed Celebrex, and referred Hogue for a shoulder x-ray. (Id.). An x-ray dated October 4, 1999 showed degenerative changes at the acromioclavicular joint but was otherwise normal. (R. 95, 222, 254).

  Hogue's left shoulder was examined by Dr. Peter McCann, an orthopedist, on October 7, 1999. (R. 93-95). Dr. McCann's notes indicate that an x-ray of the shoulder was negative, and he reported his diagnosis as left shoulder impingement and possible degenerative joint disease of the acromioclavicular joint. (R. 92-94). Dr. McCann referred Hogue to physical therapy for range of motion and strengthening exercises. (R. 94, 225).

  The next record of treatment for the lower back and left shoulder are of an examination by Dr. Pignanelli on April 30, 2001. (R. 259). Dr. Pignanelli reported Hogue's complaints of back pain and difficulty breathing through her nose. (Id.). For her lower back pain and left shoulder impingement, Dr. Pignanelli ordered bone density testing, and again ordered physical therapy. (Id.). An x-ray of the lumbar spine taken on May 4, 2001 revealed degenerative spurring at multiple levels of the lumbar spine and a slight rightward curvature. (R. 135, 195, 261-62). Bone density testing conducted on June 26, 2001, revealed normal bone density. (R. 264). On March 8, 2002 in an examination by Dr. Pignanelli, Hogue's lower back condition and left shoulder were described as stable. (R. 278).

  In 2001, Hogue reported pain in her right shoulder. On June 14, 2001, Hogue was evaluated by orthopedist, Dr. Paul Hobeika. (R. 187-89). Dr. Hobeika noted that Hogue had complained of pain in her right shoulder lasting for two months. (R. 189).*fn3 Hogue also reported pain in her lower lumbar spine continuing since 1996, with no leg pain. (Id.). However, Dr. Hobeika noted that Houge stated she could walk fifteen to twenty blocks. (R. 187, 189). Dr. Hobeika also noted that Hogue felt stiff in the morning, but that she started feeling better after moving. (R. 189). On examination, Hogue was neurologically intact but had "all the signs of an impingement syndrome of her right shoulder." (Id.). Dr. Hobeika diagnosed Hogue with osteoarthritis of her lumbar spine. (Id.). Dr. Hobeika gave Hogue an injection to treat her shoulder and recommended physical therapy and stretching of her lumbar spine. (Id.).

  At a follow-up visit with Dr. Hobeika on December 10, 2001, Hogue reported that the injection had helped with the pain for five months. (R. 191). An MRI of the right shoulder dated December 14, 2001 revealed degenerative arthritic changes in the acromioclavicular joint, and noted a diagnosis of chronic tendonitis with a small partial tear of the supraspinatus tendon. (R. 198).

  On July 13, 2001, Hogue was treated in the Columbia Presbyterian Medical Center ("CPMC") emergency room for complaints of right knee pain that had started two days earlier. (R. 126-32). Hogue reported that she had a history of gout. (R. 127). On examination, the emergency room physician reported that Hogue walked with a limp, but that her right knee had a full range of motion with pain and no signs of effusion or laxity. (Id.). An x-ray of the right knee revealed mild degenerative changes, but no fracture or effusion. (R. 127, 129). The examining physician diagnosed Hogue with right knee pain likely due to arthritis, or possibly gout. (R. 132). Hogue was prescribed medication and a knee brace. (Id.).

  Hogue received physical therapy for her lumbar sprain, right shoulder pain and right knee pain from July 2001 through December 2001. (R. 164-70). The reports indicate that Hogue consistently tolerated the treatment well, and indicate generally ...


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