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Jackson v. Commissioner of Social Security

June 30, 2008


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Plaintiff Mary Jackson ("Jackson") brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for benefits under the Social Security Act. Jackson moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Docket Nos. 7, 11. For the reasons which follow, the Commissioner's decision is reversed.

I. Procedural History

On July 21, 2003, Jackson filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 57-60.*fn1 That application was denied on November 13, 2003. T. 35-38. Jackson requested a hearing before an administrative law judge ("ALJ"), which was held before ALJ R. Neely Owen on February 1, 2005. T. 40-41, 339-93. In a decision dated May 25, 2005, the ALJ held that Jackson was not entitled to disability benefits. T. 251-60. On June 15, 2005, Jackson filed a request for review with the Appeals Council, which remanded the case back to the ALJ. T. 261-62, 268-71.

The second hearing was held before ALJ Elizabeth Koennecke on July 17, 2006. T. 394, 408. Prior to the hearing, ALJ Koennecke wrote two letters to Jackson's treating physicians, dated September 29 and November 11, 2005, seeking additional information pertaining to Jackson's residual functional capacity ("RFC"). T. 272, 273, 279. There was no response. ALJ Koennecke also called the treating physicians' offices on December 13, 2005 and June 28, 2006, seeking RFC information. T. 280, 289. On June 28, 2006, ALJ Koennecke received a letter from Jackson stating that Jackson's treating physicians would "not complete impairment questionnaires or narrative reports." T. 300-01.*fn2 In a decision dated September 18, 2006, the ALJ held that Jackson was not entitled to disability benefits. T. 19-32. On October 11, 2006, Jackson filed another request for review with the Appeals Council. T. 17. The Appeals Council denied Jackson's request on August 20, 2007, thus making the ALJ's findings the final decision of the Commissioner. T. 8-10. This action followed.

II. Contentions

Jackson contends that the ALJ erred when she failed to (a) consider properly the opinions of Jackson's treating physician, (b) credit properly her subjective complaints of pain, and (c) find that the record lacked substantial evidence to conclude that Jackson had the RFC to perform work which existed in significant numbers in the national economy. The Commissioner contends that there was substantial evidence to support the determination that Jackson was not disabled.

III. Facts

Jackson is currently fifty years old and received a Master's Degree in Nutrition. T. 357, 402. Jackson has worked as a retail store manager, restaurant manager, and cook. T. 78, 86, 91, 98-107, 126-28. Jackson alleges that she became disabled on July 21, 2001 from degenerative disc disease and severe back pain. T. 21, 57, 77, 79.

IV. Standard of Review

A. Disability Criteria

"Every individual who is under a disability shall be entitled to a disability. . . benefit. . .

." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. -4 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).

"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.

V. Discussion

A. Medical Evidence

Jackson began receiving treatment for her back in 2000. T. 237. Jackson saw family nurse practitioner Debbie Krupnick from May until September complaining of back pain which would not resolve with over-the-counter pain medication. T. 237-39, 241-42. At the beginning of June, Jackson was put on light duty work status. T. 238. However, Jackson's pain worsened and began radiating down her leg, eventually leading to numbness and tingling. T. 239, 241. In August, Jackson attempted physical therapy but found no relief. T. 241. On September 1, 2000, Krupnick discussed a recent MRI stating that Jackson had multiple bulging discs, referred her to an orthopaedist, Dr. Franklin Lynch, and prohibited her from returning to work until she was examined by Dr. Lynch, specifically stating that Jackson "should not do any lifting, pulling, or pushing." T. 242, 228.

On September 18, 2000, Jackson saw Dr. Lynch complaining of persistent low back pain radiating down her leg into her calf. T. 243. Jackson stated that prolonged sitting, standing, and bending were problematic, that she was unable to walk more than half a mile without feeling pain, and that when she changed position, the pain increased. T. 243, 244. Upon physical examination, Dr. Lynch noted that Jackson leaned on her elbows to relieve the pressure on her back, she could rise from the chair smoothly, she could bend over and almost touch the floor, her range of motion was good, straight-leg raising*fn3 was negative, and there was no lumbar spine tenderness. T. 243. Dr. Lynch opined that Jackson had discogenic back pain with bulging discs and said that she should not return to a job requiring "prolonged bending, reaching, and lifting," as "chronic repetitive lifting [is] not a vocation [that is] recommend[ed]." T. 244.

Jackson returned to Dr. Lynch for a follow-up examination on October 27, 2000. T. 245-46. Overall, her physical examination remained the same. T. 245. However, Jackson complained that her pain was still persisting, the pain medication was not controlling it, it was preventing her from prolonged sitting, reaching, or significant lifting, and the nine weeks of physical therapy she had endured had only rendered limited improvement. Id. Dr. Lynch discontinued any further physical therapy and recommended that Jackson try crutches to alleviate some of the pressure on her back. Id. Additionally, he stated that Jackson could not return to work successfully. Id. On December 11, 2000. Dr. Lynch noted that Jackson was moving better but still did not recommend that Jackson sit for prolonged periods of time or pursue regular work as she would probably fail if it was attempted. T. 247.

Jackson attempted to return to work at the end of 2000. T. 378. She returned on a part-time basis, but it lasted only until July 2001. Id. On October 27, 2001, Jackson underwent another MRI. T. 203-04. The MRI showed no spondylolisthesis*fn4 or spondylolysis*fn5 although there was degenerative disc disease, disc bulges at L2-3, L4-5, and L5-S1, ...

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