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Peña v. Astrue

December 3, 2008

ANA JUSTINA PEÑA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Ana Justina Peña brings this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for Supplemental Security Income ("SSI") benefits. The parties have consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consent to Proceed Before a United States Magistrate Judge, filed July 23, 2008 (Docket # 13). The Commissioner has moved for judgment on the pleadings and dismissal pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, the Commissioner's motion is denied in part and granted in part.

I. BACKGROUND

A. Procedural History

Peña filed for disability benefits on January 12, 2006. See Administrative Record (annexed to Answer, filed June 19, 2008 (Docket # 9)), at 49-52.*fn1 Her application was denied on April 28, 2006. R. 38-41. She requested a hearing before an Administrative Law Judge ("ALJ"), R. 42, and a hearing was held on June 13, 2007, R. 172-92. The ALJ found Peña was not disabled within the meaning of the Social Security laws. R. 14-20. On August 29, 2007, Peña appealed to the Appeals Council. R. 6. On September 21, 2007, the Appeals Council denied her request for review. R. 3-5. Peña then filed the instant action. See Complaint, filed Dec. 7, 2007 (Docket # 2).

The Commissioner has now moved for judgment on the pleadings. See Notice of Motion, filed July 8, 2008 (Docket # 10); Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, filed July 8, 2008 (Docket # 11). Peña, who is represented by counsel, has filed opposition papers. See Memorandum of Law in Opposition to Commissioner's Motion for Judgment on the Pleadings, filed Aug. 5, 2008 (Docket # 14) ("Pl. Mem."). The Commissioner has filed a reply memorandum. See Reply Memorandum of Law in Further Support of the Commissioner's Motion for Judgment on the Pleadings, filed Aug. 20, 2008 (Docket # 15).

B. Peña's Written Statements and Testimony

Peña is a lawful permanent resident who came to the United States in 1977. R. 176. She is 5'3" and weighs about 150 pounds. R. 176. She completed high school and two years of college at City University of New York. R. 177. She can speak and understand basic English, and took tests during college in English. R. 185. At the time of the hearing she had a husband and two children. R. 176. She was 43 and her two children were 10 and 15. R. 175.

Although she initially reported she had not worked for the 15 years prior to her disability, R. 67, at her hearing she testified that she worked "off the books" from 1997 to 2000 in a clothing store, R. 178-79. Her duties included putting on price tags, waiting on customers, working the cash register and watching the store. R. 178-79. As part of her duties she lifted items that weighed 10-15 pounds. R. 179. She left the job when the store closed. R. 178.

She testified she has a medical problem in her spine that causes pain in her lower back, buttocks, hips and legs down to her shins. R. 181-82. The pain began around 2003. R. 183.

She is taking Lidoderm, Mobic, Skelaxan and Prevacid for the pain. R. 183. She had physical therapy the Monday prior to the hearing. R. 183. Her prior medications made her nauseous, but the medications she was taking at the time of the hearing did not. R. 187-88. She wakes up one or two times during the night because of back pain. R. 188. She had adverse effects after receiving injections. R. 183-84. She also does a home exercise program. R. 186.

Over time the pain has gotten worse. R. 184. She can walk less than 5 blocks. R. 184. After standing for 2 hours, she will feel pain when she sits back down. R. 184. She cannot sit for more than 2 hours at a time. R. 184. She can lift more than 5 pounds or a gallon of milk, but she would feel pain if she lifted a bag of groceries. R. 184-85. She cooks for her family, but when she finishes she has to take a pill for the pain. R. 185. She does not do housecleaning or laundry. R. 185. Her initial application states she goes shopping for food, R. 78, but also notes on the following page that she did not do any shopping, R. 79. During her testimony she said she sometimes shops with her family, but she does not carry any shopping items. R. 185-86.

She stays home most of the time and rarely goes anywhere with her children. R. 186-87. According to her testimony, she never or very rarely goes to church. R. 187. Her initial SSI application, however, stated she went to church weekly. R. 80.

B. Health Records

1. Lisa Gandolfo MRI

On November 17, 2004, Peña had an magnetic resonance imaging ("MRI") scan taken by Dr. Lisa Gandolfo. R. 89-90. The scan showed "[m]ultilevel disc desiccation in and degenerative disc disease as described, most severe at L4/5 and L5/S1, with grade I posterior spondylolisthesis*fn2 of L5 on S1." R. 89-90.

2. Dr. Naghma Burney's Records

Dr. Naghma Burney is one of Peña's treating physicians. Her November 7, 2005 notations indicate an upper respiratory infection and suggest Peña had an appointment for rehabilitation. R. 117. The January 10, 2006 notations include complaints of backache and headache. R. 117. On January 18, 2006, a report on bloodwork done for Dr. Burney showed low HDL, but was otherwise unremarkable. R. 124-25. Notations dated only "2006" indicate tiredness, backache and degenerative disc disease. R. 118. Notations dated February 2, 2006 indicate backache. R. 119. Tylenol # 3 was prescribed and Peña was referred for physical therapy and rehabilitation. R. 119. Notations dated February 21, 2006 indicate degenerative disc disease and refer Peña for physical therapy. R. 118. Notations dated November 2, 2006 indicate flu and backache, and prescribe Mobic. R. 119.

On January 26, 2006, Dr. Burney submitted a Medical Source Statement of Ability to Do Work Related Activities (Physical) in support of Peña's application. R. 101-07. Dr. Burney diagnosed her with degenerative disc disease. R. 101. Dr. Burney opined that this resulted in a backache that radiated in both legs, and was worsened by walking or lifting. R. 101. She found Peña could not bend below 30 degrees. R. 102. She opined that Peña could lift less than 10 pounds, could stand less than 2 hours in an 8-hour workday, had a restricted ability to push or pull using lower extremities, and would need to alternate between standing and sitting to relieve pain. R. 103-04. Further, Dr. Burney opined that Peña could only occasionally climb, balance, kneel, crouch, crawl or stoop. R. 104. However, Dr. Burney found no limitation on reaching, handling, fingering, feeling, speaking, hearing or seeing. R. 105. The only environmental restriction was an inability to be around moving machinery. R. 106.

Notations dated January 11, 2007 indicate backache, and note that Peña was undergoing physical therapy. R. 120. She was prescribed Mobic and Skelaxan. R. 120.

In a February 6, 2007 letter, Dr. Burney noted that "as per patient" Peña could not "sit or walk for long, has to change position frequently." R. 169. June 11, 2007 notes indicated that Peña was on Claritin-D 24 Hour, Ioratadine, Nasonex, Skelaxin and Tylenol with Codeine.

R. 170. This note indicated that Peña reported a walking ability/tolerance of less than 5 blocks and difficulty with house and yard work. R. 170. Dr. Burney's examination showed normal muscle strength, gait and coordination. R. 170-71. The note concluded with an impression of "[d]isplacement of lumbar intervertebral disc w/o myelopathy." R. 171.

3. New York-Presbyterian Health Records

Peña was treated at New York-Presbyterian Hospital's Columbia-Presbyterian Medical Center from August 22, 2005 through May 14, 2007. R. 92-99, 129-63.

An August 22, 2005 entry in her medical records showed tenderness of her joints, and pain with forward flexion and extension. R. 92. Voltaren was discontinued because it was making her sleepy. R. 92. She had muscle strength of five of five, and her deep tendon reflexes were "2." R. 92*fn3. The notes indicated "sacroiliitis v. non-specific back pain." R. 92. The assessment/plan section re-prescribed Mobic and the Lidoderm Patch, and suggested that she continue her home exercise program. R. 92.

A September 22, 2005 entry showed similar complaints, and reported a "stable amount of pain" with no radiation. R. 93. The entry indicated the pain was "well relieved" by her medication, that the pain was worst with long periods of standing, and that Peña was "minimally compliant" with her home exercise program. R. 93. On examination, Peña experienced pain with forward flexion and extension, but had a full range of motion. R. 93. She showed normal strength, reflexes and sensation. R. 93. The assessment/plan section reinforced the importance of her home exercise program and added external oblique strengthening to the program. R. 93.

In November 8, 2005, Dr. T. Fatmi and Dr. L. Weimer reported on electromyography ("EMG") and nerve conduction studies that showed normal strength and sensation, normal motor and sensory nerve conduction and no abnormal spontaneous activity in her left leg. R. 94-95, 121-23. The doctors concluded that this was a normal study and there was no "electrophysiologic evidence diagnostic for lumbosacral radiculopathy, plexopathy, myopathy, or polyneuropathy." R. 94.

A November 14, 2005 entry showed refills of her prescriptions. R. 96. A November 28, 2005 entry noted that Peña reported her 20 sessions of physical therapy seemed to have helped. R. 97. She reported no radiating pain, and an examination showed normal strength and reflexes. R. 97. It suggested Peña suffered from chronic low back pain. R. 97. It recommended weight loss in addition to the current regime of medication and exercise. R. 97.

A January 23, 2006 entry showed she was ready to start physical therapy for lumbar stabilization again, and that she would continue taking Mobic and Lidoderm. R. 98, 129. On physical examination, it indicated normal strength and reflexes, no muscle atrophy, full forward flexion and no dural tension. R. 98, 129. Further, it noted she had a bad reaction to Lidocaine.

R. 98, 129.

In February 2006, Peña re-enrolled in physical therapy. R. 130-142. An initial evaluation sheet dated February 22, 2006 showed complaints of back pain upon ambulation or prolonged standing. R. 130-31. It listed as a short term goal, raising "sitting tolerance" to about 45 minutes without pain and a long term goal of raising tolerance to more than an hour and a half. R. 131. It also suggested education in changing sleeping positions for greater comfort. R. 131. Progress reports from March 1 to April 5, 2006 showed subjective pain fluctuating between 0 of 10 to 7 of 10, with a general lessening trend. R. 132-35. A flow chart showed her exercises and physical therapy from March 1 to April 5, 2006. R. 136-41. A March 13 entry showed pain on flexion and extension, but normal strength, reflexes and sensation.

R. 99, 133. It recommended the continuation of physical therapy and medications. R. 99, 133. An April 5, 2006 discharge summary stated that the goals set February 22, 2006 were met and that Peña reported 0 of 10 pain. R. 142.

An April 10, 2006 entry noted that Peña reported back pain from lifting heavy objects and recommended ongoing prescriptions and that she continue her home exercise program. R. 143. A July 10, 2006 entry noted that Peña reported that she had not kept up with the exercise program over the past 3 months and her pain had gotten worse again. R. 144. Peña reported heartburn symptoms from the Mobic, which had been relieved by Prevacid in the past. R. 144. Prevacid was added to her medications. R. 144. Left side straight leg raising was positive. R. 144. Notations indicated no lumbosacral paraspinal muscle spasms. R. 144.

An August 7, 2006 entry notes that Peña reported back pain in the rotation and extension of lumbosacral spine. R. 145. Peña reported that her pain was usually worse in the morning when she woke. R. 145. On examination, the entry indicated a mild spasm of the midthoracic and lumbosacral paraspinal muscles. R. 145. Straight leg raising was positive at thirty degrees.

R. 145. In addition to her current medications, it suggested a return to physical therapy. R. 145. Additionally, if the pain continued, it recommended possible future use of injection. R. 145.

An October 23, 2006 entry noted the discontinuation of Mobic, and began treatment with Tramadol. R. 146. It noted Peña's complaints of back and neck pains. R. 146. Additionally, the entry ...


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