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MOLINA v. BARNHART

August 15, 2005.

BETZAIDA MOLINA, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), plaintiff Betzaida Molina brought this action to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits on the ground that she was not disabled. The Commissioner maintains that the decision should be affirmed, and moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Molina cross-moves for judgment on the pleadings, arguing that the Commissioner's decision is contrary to law, and is not supported by substantial evidence. For the reasons that follow, the Commissioner's motion is denied, and Molina's motion is granted, insofar as this matter is remanded to the Commissioner for further proceedings consistent with this opinion. BACKGROUND

I. Procedural History

  On March 19, 2002, Molina filed an application for supplemental social security income benefits based on disability. (Tr. 52-55.) After the application was denied, Molina requested a hearing before an administrative law judge ("ALJ"). (Tr. 44-49.) The hearing was held on September 2, 2003, before ALJ Kenneth G. Levin. (Tr. 26-42.) On September 26, 2003, the ALJ issued a decision finding that Molina was not disabled, as defined by 20 C.F.R. § 416.920(f), at any time through the date of the decision. (Tr. 19.) On March 4, 2004, the Appeals Council denied Molina's request for review, and the ALJ's finding became the final decision of the Commissioner. (Tr. 3-5.) Molina appeals from that decision.

  II. Plaintiff's Personal History

  Molina was born in Puerto Rico on November 23, 1981. In 1997, at age 16, she moved to Pennsylvania. In 2000, she graduated from high school, where she had taken both Spanish and English classes. According to Molina, she understands English "very well," but makes mistakes when speaking and writing. (Tr. 31.) She has filled out medical questionnaires in both English and Spanish.

  Molina has thoracolumbar scoliosis.*fn1 (Tr. 110.) In 1996, she had surgery to implant Harrington rods in her back and correct the curvature of her spine. (Id.) Molina experiences pain in her lower back and right shoulder area, which she describes as "stabbing," "aching," and "intense." (Tr. 82, 110, 61.) She has stated that her pain gets worse when it is cold (Tr. 83), and that her pain prevents her from sleeping. (Tr. 75.) While Molina has given varying descriptions of her pain, the record as a whole indicates that she began experiencing pain sometime after the surgery, and that her pain worsened subsequent to giving birth to her son by a caesarean section in December 2000. (Tr. 128, 137.)

  Molina states that her back pain prevents her from being able to mop, sweep, walk long distances, bend, lift, carry, push, or pull. (Tr. 75.) She experiences pain after walking or standing for more than ten or twenty minutes, and sitting for more than fifteen minutes. (Tr. 34, 83.) According to Molina, she is capable only of "light household chores," and her husband "does the tasks that require more physical effort," including mopping and bathing their son. (Tr. 75.) Her mother-in-law helps out around the house, and a neighbor helps Molina when she has appointments. (Tr. 34.) She attends a 30-minute church service two or three times a week. (Tr. 38.) She goes to the store and to the park with her family. (Id.) She is unable to dance or go to the movies. (Tr. 79.) For three or four weeks in July, 1997, Molina worked as a shoe store salesperson. (Tr. 32, 61-62.) She ceased working there "due to intense pain" she suffered as a result of lifting shoe boxes, bending, and standing. (Tr. 61, 32.)

  III. Plaintiff's Treatment and Medical Evaluation History

  Since 2001, Molina has been examined by several physicians and physical therapists. On January 22, 2001, x-rays of Molina's back (ordered by Dr. Elyse Olshen of Columbia Presbyterian Hospital) revealed scoliosis of the midthoracic spine with convexity to the right, but normal bone density in the right shoulder, and no evidence of acute fracture or dislocation. (Tr. 88.) On October 26, 2001, Dr. Christopher Michelson, Chief of Orthopedics, New York Presbyterian Hospital, examined Molina. Dr. Michelson's examination revealed that Molina had normal range of motion and muscle strength. (Tr. 97-103.) Dr. Michelson observed Molina's stiffness while she dressed and undressed, and that Molina walked with a normal gait without any assistive device. (Tr. 101.) Dr. Michelson recorded that Molina's flexion, or ability to bend forward at the waist, was limited to thirty degrees.*fn2 (Id.) Examination of her cervical spine, or neck, revealed a normal range of motion. (Tr. 97). Her shoulders, hips, and legs showed normal strength and range of motion. The straight leg test revealed pain at 100 degrees,*fn3 and there was tenderness in the L3-5 regions of the spine. (Tr. 100.) While the record of proceedings includes Dr. Michelson's examination records, it does not include his opinion as to Molina's capacity to perform work-related and other physical activities. Dr. Michelson's provisional diagnosis in the examination records is illegible.*fn4 (Tr. 102.)

  An x-ray ordered by Dr. Michelson on March 12, 2002, revealed scoliosis with straightening of the curve, both small and prominent bulging discs, short pedicles, or growths on the spine, mild stenosis, and narrowed lateral recesses. (Tr. 106.) On April 30, 2002, Dr. Michelson examined Molina again, and reported a diagnosis of scoliosis and herniated nucleus pulposus. (Tr. 108.) Molina was no longer able to see Dr. Michelson after her husband's health insurance changed to a plan that Dr. Michelson did not accept. (Tr. 16, 35.)*fn5

  Dr. Michelson referred Molina to Larry Shapiro for physical therapy. From January 4, 2002, through March 18, 2002, Molina attended five sessions of physical therapy. (Tr. 134-135.) In a letter dated March 20, 2002, Mr. Shapiro reported that Molina continued to experience pain in her low back and decreased strength in her right shoulder. (Tr. 109.) He reported that Molina was unable to work and would remain so indefinitely. (Id.)

  On April 10, 2002, at the request of the Social Security Administration ("SSA") (Tr. 17), Molina was examined by consultative physician Dr. Kyung Seo of Diagnostic Health Services, Inc.*fn6 (Tr. 110-111.) Molina had no difficulty getting on and off the examination table. (Tr. 110.) Her cervical spine, or neck, showed that forward flexion was limited to forty degrees, and backward extension was limited to zero degrees,*fn7 but no muscle spasm was observed. (Id.) The range of motion for her shoulders was normal. (Id.) Her thoracolumbar spine, or lower back, showed forward flexion of thirty degrees, and extension of zero degrees.*fn8 (Id.) The thoracolumbar lateral flexion and rotation was fifteen degrees, with no muscle spasm observed.*fn9 (Tr. 111.) Molina's range of motion of her legs and hips was normal, but her right thigh showed atrophy of a half inch compared to the left thigh. (Id.) Muscle strength of "both legs [was] Grade 5/5 on the left side and the right side [was] Grade 4/5."*fn10 (Id.) The straight leg raising test was negative. (Id.) Molina was able to toe walk, heel-to-toe walk, and squat. (Id.) Dr. Seo's "impression" of Molina's condition was degenerative spondylosis, and a post reconstructive scoliosis surgery status.*fn11 (Id.) He concluded that Molina's ability to sit, stand, and walk was slightly limited, while her ability to bend, lift, and carry heavy objects was severely limited. (Id.)

  On April 26, 2002, Dr. Richard Finley of the New York State Department of Family Assistance, Office of Temporary and Disability Insurance, wrote a report after reviewing Molina's medical records, ultimately concluding that the "findings here simply do not permit the conclusion that the claimant cannot perform the functions required for work." (Tr. 114.) Dr. Finley opined that Molina could lift and carry twenty pounds occasionally and ten pounds frequently. He also found that Molina could sit and walk for six hours per workday, and "otherwise do light work." (Id.)

  On March 12, 2003, Molina began a second course of physical therapy at the New York Presbyterian Hospital, Columbia-Presbyterian Center. (Tr. 128-131.) Molina attended four physical therapy sessions with Hope Manuel. In ...


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