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DiVetro v. Commissioner of Social Security

June 13, 2008


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


Plaintiff Rosemarie DiVetro, who suffers from various diagnosed mental and physical conditions including bilateral knee, neck and back pain, as well as depression, has commenced this proceeding pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's denial of her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") payments under the Social Security Act. In her appeal, plaintiff asserts that the determination of the administrative law judge ("ALJ") assigned by the agency to hear and determine the matter, to the effect that she was not disabled at the relevant times, is not supported by substantial evidence in the record and overlooks both contrary opinions of her treating physician and her statements concerning the limitations which she experiences as a result of her conditions. Plaintiff further maintains that the ALJ erroneously determined that she retains the requisite residual functional capacity ("RFC") to perform available work in the national and regional economies.

Having carefully reviewed the record of evidence and proceedings before the agency, considered in the light of plaintiff's arguments, and applying the requisite deferential review standard, I find that while the Commissioner's determination is in most respects proper, the ALJ's RFC determination, which serves as the lynchpin for his finding of no disability, is not supported by substantial evidence. Accordingly, I recommend that plaintiff's motion for judgment on the pleadings be granted, and the matter be remanded to the agency for further proceedings.


Plaintiff was born in 1952; at the time of the administrative hearing in this matter, she was fifty-three years old.*fn1 AT 48, 325. Plaintiff is not currently married, and lives alone in an apartment in Auburn, New York. AT 56, 335. Plaintiff is a high school graduate and has completed two years of college course work. AT 75, 334.

Plaintiff last worked sometime in 2003. AT 13, 330. Prior to that time, DiVetro was employed for approximately thirty-one years in various positions, including as a hairstylist, receptionist, retail sales clerk, and factory production worker. AT 59, 70, 82, 330, 332.

Over time plaintiff has experienced several injuries, both work-related and otherwise. Plaintiff has reported, for example, having fallen at a gas station in 1999 or 2000, causing injury to her left knee and resulting in persistent mild pain.*fn2 AT 194. In July 2000, plaintiff was involved in an automobile accident, resulting in injuries to her lower back and left knee. AT 163-71, 184, 247, 265, 289. Plaintiff also reports having sustained a work-related injury in October of 2000 to her right knee and lower back, AT 165-66, and additionally has registered complaints of back pain, radiating into her thighs and both knees, as well as up into her shoulder and neck, resulting from another fall at work, experienced in December of 2000.*fn3 AT 123, 182, 199.

Plaintiff has received treatment for her various physical conditions from multiple sources. Dr. John Cambareri, an orthopedist, treated plaintiff's lower back and knee conditions between November of 2001 and June 2004.*fn4 AT 182-200, 227-49A, 283-91. During the course of that treatment, plaintiff was diagnosed by Dr. Cambareri as suffering from joint knee and low back pain, lumbostenosis, and a lumbosacral strain/sprain. AT 185, 198, 200, 229, 232, 235, 238, 284, 286-87, 289, 291. Plaintiff has also received treatment from Dr. Awayda for several physical conditions, including neck pain.*fn5 AT 173-181, 250-53, 304-07, 312-16.

Plaintiff's physical conditions have been treated fairly conservatively over time, including with such medications as Vioxx, Tylenol with Codeine, Advil, Motrin, Lexapro, Aspirin, and Cortizone injections. See AT 111, 124, 128, 135, 261, 316, 341. Physical therapy has also been recommended, although plaintiff participated in physical therapy for only two months, including June of 2002 and June of 2003.*fn6 See AT 149, 151-54, 207-13, 215, 217-21. Surgery for plaintiff's physical condition has not been recommended. See AT 174-200, 227-249A, 250-51, 283-91, 304-07.

In addition to her physical conditions, plaintiff has also sought treatment for mental health issues with the Cayuga County Mental Health Center ("CCMHC"), beginning in December of 2003, complaining of feeling overwhelmed and stressed by a combination of factors, including chronic pain and her economic circumstances. AT 100-01, 109, 254-59, 293-303. Professionals at the CCMHC have variously diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood, a depression disorder, a dependent personality disorder, and a borderline personality disorder. AT 259, 303.

In addition to the records of her treating sources, the administrative transcript contains reports of consultative physical and mental examinations of the plaintiff. On March 15, 2004 plaintiff was examined by Dr. Kalyani Ganesh, an orthopedic consultant. AT 265-68. Based upon his examination of the plaintiff and an account of her daily activities, Dr. Ganesh diagnosed the plaintiff as suffering from chronic lower back pain, neck pain, and bilateral knee pain, opining that as a result of those conditions she does not suffer any significant limitations in sitting, walking, or standing, and is only mildly to moderately limited in her ability to lift, carry, push and pull. AT 267.

Plaintiff was twice examined by consultants to discern whether she experiences any limitations associated with her mental conditions. The first of those consultative examinations was conducted on March 15, 2004 by Dennis M. Noia, Ph.D. AT 260-64. In a report of that examination Dr. Noia opined that vocationally, plaintiff appears capable of following, understanding and remembering simple instructions and directions, and to have the capacity to perform simple and some complex tasks with supervision and independently, maintain attention and concentration for tasks, and regularly attend to a routine in maintaining a schedule. AT 263. After elaborating on his findings, Dr. Noia diagnosed the plaintiff as suffering from an adjustment disorder with mixed features, and concluded that her condition did not "appear to be significant enough to interfere with [her] ability to function on a daily basis." Id.

Plaintiff was later tested and psychologically evaluated on August 25, 2004 by Thomas A. Lazzaro, Ph.D. AT 317-20. Based upon his testing, which revealed intelligence quotient ("IQ") scores placing the plaintiff toward the bottom of the low average range of intellectual functioning, Dr. Lazzaro determined that DiVetro suffers from a learning disability affecting primarily the dominant left verbal hemisphere of her brain, and that as a result her working vocabulary and verbal abstracting skills are deficient. AT 317-18. Dr. Lazzaro also detected the presence of emotional difficulties, representing the most significant factor adversely affecting plaintiff's vocational training, but concluded that she has "potentially sufficient psychological resources to cope adequately with the demands imposed on her by internal and external events in her life, [as well as] the adaptive capacity to think logically and coherently, and that she appears capable of attending to her experiences in a reasonably open and flexible manner." AT 320.

In a follow-up assessment of plaintiff's ability to perform work-related activities, completed on February 16, 2005, Dr. Lazzaro reported that plaintiff experiences short term memory deficits with slight limitations in understanding, remembering, and carrying out short, simple instructions, and moderate limitations in understanding, remembering, and carrying out detailed instructions. AT 323-24. In that report, Dr. Lazzaro also noted his view that plaintiff has marked limitations in making simple work-related decisions and judgment, interacting appropriately with the public, responding appropriately to work pressures in a usual work environment, and responding to changes in a routine work setting. Id.


Plaintiff filed applications for DIB and SSI benefits in or about early 2004, asserting a disability onset date of December 31, 2000.*fn7*fn8 AT 48-50, 54-56. Those applications were denied at the initial stage of the administrative process. AT 32-41.

A hearing was conducted on February 15, 2005 by ALJ William T. Vest, Jr. to address plaintiff's claim for benefits. See AT 325-58. On March 25, 2005, following the close of the hearing, ALJ Vest issued a written decision regarding plaintiff's request for DIB and SSI benefits. AT 12-21. Based upon his de novo review of the record, and applying the now familiar five part sequential test for determining disability, ALJ Vest concluded at step one that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date. AT 20. At steps two and three of the disability algorithm, the ALJ concluded that plaintiff's degenerative disc disease, adjustment disorder, and learning disorder were impairments of sufficient severity to significantly restrict her ability to perform basic work activities, AT 20, but that they did not meet or equal any of the listed, presumptively disabling impairments set forth in the governing regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1. AT 21. In his decision, ALJ Vest specifically considered but rejected plaintiff's knee conditions as also qualifying at step two of the disability analysis as being of sufficient severity, noting the lack of significant treatment and empirical evidence demonstrating abnormality. AT 14.

Before proceeding to step four of the sequential analysis, ALJ Vest next determined that despite the limitations imposed by her medical conditions, plaintiff retains the RFC to perform a significant range of light work, provided that she is not required to climb, work at unprotected heights, or to perform more than simple routine repetitive tasks, and is allowed to alternate sitting and standing as needed.*fn9 AT 17-18, 21. In making that determination, ALJ Vest relied upon medical evidence in the record, including reports generated by treating and evaluating physicians, and rejected plaintiff's subjective testimony, to the extent that it was inconsistent with that finding, as not being fully credible. AT 13-21. Applying that RFC finding, assisted by testimony elicited from a vocational expert regarding the demands of that past relevant work, ALJ Vest determined that plaintiff is able to perform in certain of her prior jobs, including as a production assembler, and thus is not disabled. AT 13-21.

Notwithstanding his past relevant work finding, ALJ Vest went on to consider plaintiff's circumstances as they apply at step five of the relevant inquiry, at which point the burden shifts to the Commissioner to determine the availability of other work within the national and local economies susceptible of being performed by the claimant. AT 19. Noting that even if plaintiff retained only the RFC to perform sedentary work, and relying upon the medical vocational guidelines (the "grid") set forth in the applicable regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, again assisted by testimony from the vocational expert, the ALJ concluded that there is available work within the national and local economies which plaintiff is capable of performing including, inter alia, as a manicurist and an information clerk. AT 19-20. ALJ Vest thus found that plaintiff is not disabled and, accordingly, denied her ...

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