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