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August 24, 2005.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Marguerite E. Gardiner, a summer 2005 intern in my Chambers, and currently a second year law student at George Washington University Law School, provided substantial assistance in the research and drafting of this Opinion.


On September 27, 2004, Plaintiff Aurea Guadalupe filed this action, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), to challenge the final determination by the Commissioner of Social Security ("Commissioner") that she was not "disabled" within the meaning of the Social Security Act between January 8, 2002 and April 29, 2004. Plaintiff claims that she was incapable of work during this period because of her back impairments. Before this Court are cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Commissioner's motion is GRANTED.


  A. Procedural History

  On January 8, 2002, Plaintiff filed an application with the Social Security Administration ("SSA") for Supplemental Security Income disability benefits under Title XVI of the Social Security Act. 42 U.S.C. § 1381 et seq. Plaintiff's application was denied because the SSA determined that she was not disabled pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.18. Plaintiff subsequently requested a hearing before an Administrative Law Judge ("ALJ"). The ALJ reviewed Plaintiff's claim de novo, and on April 29, 2004, determined that Plaintiff was not disabled within the meaning of the regulations. On July 24, 2004, the Appeals Council refused Plaintiff's subsequent request for a review, at which time the ALJ's decision became the final decision of the Commissioner. Plaintiff then filed the instant action to challenge that decision. The Parties have both moved for judgment on the pleadings.

  B. Background*fn1

  1. Educational, Employment, and Personal History

  Plaintiff testified at the hearing before the ALJ that she was 49 years old. She was separated from her husband and lived in a dormitory-style homeless shelter. Plaintiff had a ninth grade education and limited English skills. In the early 1990s, she worked as a full-time security guard in Puerto Rico for two years, but she did not specify the type of facility. She was paid $225 a week, and her duties were to observe and write reports about the activities in the facility. She indicated that she walked every half hour, did not stand or sit "much," and wrote, typed, or handled small objects "most of the day." The job did not involve lifting or carrying. Plaintiff was incarcerated from 1996 to 1998, after she pled guilty to drug charges, and worked in food services during that period. Plaintiff testified that the last time she worked was about two years before her hearing, for one month, in telemarketing, but she could not sit for the length of time required because she suffered back pain. Plaintiff also testified that she was able to travel on public transportation by herself.

  2. Medical Evidence

  a. Plaintiff's Complaints

  Plaintiff stated that she had had a problem with her hip for years, and that it had worsened in the few years prior to her hearing. Plaintiff testified that she had such pain in her back and legs that she could neither sit nor stand for more than five or six minutes at a time. She explained that she took the pain medication Neurontin twice a day, and sometimes took Vioxx, Celebrex or Advil to alleviate the pain. She stated that at times the pain was so severe that she had to lie down at her daughter's home for several hours until it subsided. While her physician recommended back surgery, Plaintiff testified that she was unable to have the operation because the shelter would not allow her to stay and recover there during the day. Although she testified that she felt pain upon lifting anything, she stated that she was able to lift a gallon of milk. She also testified that she could bathe herself, but she could not dress without assistance.

  b. Medical History

  Medical records reveal Plaintiff suffered from asthma and chronic back pain during the relevant period. Between 2001 and 2003 she was treated for back pain associated with herniated lumbar discs with nerve compression and spinal stenosis.*fn2 On July 2, 2001, Plaintiff was seen at Lincoln Medical and Mental Health Center ("Lincoln") for low back pain and was prescribed medication. On August 8, 2001, Plaintiff returned to Lincoln, "unable to bend and do routine work," she complained of increased back pain that radiated down her leg. A magnetic resonance image ("MRI")*fn3 taken on October 13, 2001 revealed a bulge at the L4-5 discs that produced moderate central stenosis. Over the next year, Plaintiff continued to have tenderness of the spine, muscle spasms, and pain radiating into her legs, although there was no consistent evidence of muscle weakness, or sensory or reflex loss. Physicians recommended physical therapy and prescribed a cane. A second MRI, taken on May 10, 2002, showed that the L4-5 disc herniation had impinged on the L5 nerve roots, along with borderline spinal stenosis. In July 2002, an attending physician noted Plaintiff's antalgic gait,*fn4 and wrote that she had "disabling neuropathic pain" in her left leg, in addition to more chronic lower back pain. He suggested that Plaintiff's pain would be relieved by a discectomy,*fn5 and made a surgery referral. A final MRI taken on November 4, 2002 showed disc bulges at the L4-5 and L5-S1 discs that resulted in crowding of the existing right and left L4 roots. Surgery was discussed again in January 2003, when Plaintiff reported continuing pain. Medical records also indicate that Plaintiff's doctors prescribed a variety of pain relieving medications, and adjusted dosages to address side effects and the increasing intensity of her pain.

  Records also show that Plaintiff arrived at a February 2002 medical appointment without her prescribed cane, that she missed multiple scheduled appointments, and was discharged from physical therapy after she missed three consecutive appointments. Plaintiff was also ...

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