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Ashcraft v. Commissioner of Social Security

June 9, 2008

DEBORAH A. ASHCRAFT, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Deborah Ashcraft has commenced this action seeking judicial review, pursuant to section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), of an administrative determination denying her applications for Social Security disability insurance benefits ("DIB") and supplemental security income ("SSI") payments. Plaintiff, who suffers principally from degenerative disc disease and fibromyalgia, asserts that the agency's finding that she is not disabled, and accordingly does not qualify for Social Security benefits, is not supported by substantial evidence, and resulted from the improper rejection of both contrary opinions of her treating physicians and her testimony regarding the limitations which her conditions impose. Plaintiff seeks reversal of the Commissioner's determination and a remand of the matter to the agency, with a directed finding of disability, for the limited purpose of calculation of benefits owed to her.

Having reviewed the record before the agency, considered in light of the controlling deferential standards, I find that ALJ's finding that plaintiff is not disabled is not supported by substantial evidence, and that his failure to make a function-by-function analysis of plaintiff's capacity to perform work functions warrants reversal of the determination.

I. BACKGROUND

Plaintiff was born in 1954; at the time of the administrative hearing in this matter, she was fifty years of age. Administrative Transcript at pp. 42, 120.*fn1 Ashcraft is divorced, has three adult children, and lives with her fiancé in Carthage, New York. AT 43, 74, 119-21. The plaintiff is a high school graduate, and prior to August of 2004 worked as a cashier and a cook. AT 46, 137, 142-43.

On August 28, 2003 plaintiff suffered a work-related injury when, while lifting a pan of meat weighing approximately seventy to eighty pounds, she slipped and "something snapped" in her neck. AT 49, 142. In September of 2003, plaintiff sought treatment for her neck condition from Dr. Raymond Walsemann, a chiropractor. AT 207. After reviewing x-rays taken on September 15, 2003, see AT 209, revealing "[v]ertebral subluxations of atlanto axial complex as well as T2 and T4", Dr. Walsemann placed plaintiff on disability status "until further notice."*fn2 AT 207, 209.

The plaintiff was referred by Dr. Walsemann to the North Country Orthopaedic Clinic, where she was initially examined by Dr. Dwight Campbell on October 16, 2003. AT 211-12. During that examination, plaintiff complained of pain in the base of her neck, but was able to move her head and neck well, and otherwise generally exhibited good range of motion. AT 211. Dr. Campbell's review of x-rays taken on that date revealed only "subtle cervical scoliosis without significant signs of major degenerative disc disease . . . mild calcifications and slight curing of the anterior acromion" in the shoulder area. AT 212. While noting his concern regarding the possibility of "systemic arthritis or fibromyalgia," Dr. Campbell recorded as his impression that "there really aren't very specific findings to support [her being out of work] at present".*fn3 AT 212. During a follow-up visit with Dr. Campbell on November 20, 2003, plaintiff again complained of pain and swelling in the base of her neck; noting that there was nothing specifically orthopaedic to keep her out of the workplace, on that occasion Dr. Campbell recommended that Ashcraft undergo an overall medical examination, particularly neurological. AT 210.

Plaintiff was referred for a neurological examination to Dr. Abdul Latif at North Country Neurology, in light of her complaints of persistent headaches associated with neck and bilateral shoulder pain. AT 225. In notes of his initial examination, which occurred on June 1, 2004, Dr. Latif wrote that although plaintiff reported having headaches as a teenager, she had no known history of migrane headaches. Id. Plaintiff related to Dr. Latif that the headaches had worsened since her injury at work on August 28, 2003. Id. Plaintiff also advised that her pain is centered in her neck and radiates into her shoulders and across the upper chest wall, with intermittent pain also in her upper arms. Id. Dr. Latif indicated that during his motor examination of the plaintiff he discerned some giveaway weakness in her upper extremities, and diagnosed plaintiff with cervical neuralgia, with the possibility of cervical radiculopathy and chronic migraine headaches. AT 226. Dr. Latif ordered magnetic resonance imaging ("MRI") testing of plaintiff's cervical spine and EMG/NCS testing of the upper extremities, and prescribed the use of Neurontin and physical therapy. Id.

Plaintiff met with Dr. Latif again on August 2, 2004, expressing continued complaints of severe daily headaches, as well as persistent pain in her neck, and radiating into the shoulders. AT 261. The results of Dr. Latif's examination on that occasion were largely unremarkable, although he did record a diagnosis of chronic neck pain, cervical neuralgia, and chronic migraine headaches. Id.

On December 30, 2004, Dr. Latif performed motor nerve conduction testing on the plaintiff, revealing that her right and left median motor nerves and the distal latencies of both her right and left median sensory nerves are moderately prolonged, with normal amplitudes and conduction velocities. AT 238-39. Dr. Latif also discovered that plaintiff had moderately decreased conduction velocities across her wrists bilaterally, and observed that there was moderate compressive neuropathy of her median motor and sensory nerves across her wrists bilaterally. Id. At that time Dr. Latif also found evidence of mild C5-6 root irritation on the right side. Id.

Plaintiff was consultatively examined by Dr. David Tiersten, of Industrial Medicine Associates, on July 28, 2004. AT 229-32. During that evaluation, plaintiff complained of constant aching pain in her shoulders and radiating into the arms. Based upon his examination and x--rays, which revealed minimal narrowing at C4-5, see AT 231, Dr. Tiersten diagnosed plaintiff as suffering from herniated cervical and lumbosacral intervertebral discs and determined that she is unable to perform activities that require more than mild prolongation of sitting, standing, walking, carrying, or bending. AT 231.

Plaintiff underwent rehabilitation therapy for a brief period in late January and February of 2005 under the direction of Dr. Hemanai Sane, of the Carthage Area Hospital Rehabilitation Therapy Department. AT 263-64. Plaintiff was referred by Dr. Sane to Dr. Ayaz Khan at the Carthage Area Hospital Pain Clinic, where she received treatment beginning on February 15, 2005. AT 242. At that time, plaintiff presented with neck pain and tenderness in the C5-C7 region, as well as the L4-5 region, and additionally with tenderness bilaterally in the knee joints with crepitus over both knees. AT 245. Dr. Khan noted that plaintiff exhibited limited ranges of motion and abduction due to her pain. Id. In his report of a follow-up visit on February 12, 2005, Dr. Khan wrote that although plaintiff's x-rays were basically unremarkable, an ENG report showed evidence of bilateral median nerve involvement and compression with questionable carpal tunnel syndrome. AT 249. Dr. Khan ordered a CT scan examination of plaintiff's lumbar spine on February 23, 2005, the results of which revealed disc space narrowing and vacuum disc phenomenon at the level of L5-S1 consistent with degenerative disc disease and mild degenerative change within the facets of the lower lumbar spine. AT 240-41.

Although not having worked since August of 2003, and experiencing ongoing chronic head, neck and back pain, plaintiff has managed to engage in a broad range of daily activities. When completing her disability questionnaire, plaintiff reported that despite her pain she is able to cook dinner daily, wash dishes, go out for short walks or rides, care for various pets, perform household duties including cleaning and laundry, drive occasionally, and grocery shop approximately three times each week. AT 29, 156-59, 177-78. Plaintiff is also able to engage in arts and crafts activities, including crocheting and sewing, occasionally goes fishing, plays bingo and attends church weekly. AT 159-60.

II. PROCEDURAL HISTORY

A. Proceedings Before The Agency

Plaintiff filed applications for DIB and SSI benefits under the Act on June 23, 2004, asserting a disability onset date of August 28, 2003. AT 120-22, 285-87. Those applications were denied on August 9, 2004. AT 93-98, 283.

At plaintiff's request, a hearing was conducted by video conference before ALJ Lawrence E. Shearer on May 4, 2005 in connection with the denial of her application for benefits. See AT 38-90. Testifying at that hearing were the plaintiff and Jean Hambrick, a vocational expert. Id. Following the hearing, at which plaintiff was accompanied by an attorney and her fiancé, ALJ Shearer rendered a decision dated June 21, 2005. AT 27-37. In his decision, ALJ Shearer applied the now-familiar five step sequential test for disability, finding at the outset that plaintiff had not engaged in substantial gainful activity since August 28, 2003. AT 36. Proceeding to step two ALJ Shearer determined, based upon medical and other proof in the record, that plaintiff had demonstrated the existence of medically determinable impairments, including fibromyalgia, degenerative joint disease, and degenerative disc disease, of sufficient severity to restrict her ability to perform basic work activities, but further concluded that those impairments do not meet or equal any of the listed, presumptively disabling conditions set forth in the applicable regulations, 20 C.F.R. Pt. 404, Subpt. P App 1.*fn4

ALJ Shearer next turned to the final two steps of the governing five part test, which require as a predicate a determination of plaintiff's residual functional capacity ("RFC"). AT 32. ALJ Shearer acknowledged that in affixing appropriate RFC parameters, he must weigh all of plaintiff's symptoms, including pain, and the extent to which those symptoms can reasonably be accepted as consonant with the objective medical evidence and other evidence based on the requirements of 20 CFR §§ 404.1529, 416.929, and Social Security Ruling ("SSR") 96-7p. Id. After conducting a survey of the available medical evidence, ALJ Shearer concluded that plaintiff retains the RFC to perform a full range of medium work, rejecting plaintiff's assertions of debilitating pain as not entirely credible based upon a lack of objective support from the medical evidence presented in the record and plaintiff's statements about her fairly extensive daily activities.*fn5

AT 33. Affording plaintiff the benefit of the doubt, however, the ALJ nonetheless concluded that the plaintiff would be unable to resume her past relevant work in light of her conditions despite his medium work finding. AT 37.

At step five of the sequential analysis, ALJ Shearer began by acknowledging the Commissioner's burden at that stage to show the existence of jobs in sufficient numbers in the national economy which the plaintiff is capable of performing. AT 32. Applying his RFC finding, ALJ Shearer determined that plaintiff's ability to perform all of the requirements of medium level work may be "impeded by additional exertional and/or non-exertional limitations." AT 35. The ALJ therefore opted against resorting to the medical-vocational guidelines (the "grid") set forth in the controlling regulations, 20 C.F.R. Pt. 404, Subpt. P. App. 2, to determine the issue of disability and instead elicited the testimony of a vocational expert concerning whether, despite her limitations, there are significant jobs available in the national economy, either at the light exertion level or within the medium range, with adjustments, which the plaintiff can ...


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