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Lane v. Astrue

March 22, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Teresa Lane's ("Plaintiff") application for supplemental security income benefits. Now before the Court is Defendant's motion [#14] for judgment on the pleadings and Plaintiff's cross-motion [#15] for judgment on the pleadings. For the reasons that follow, Defendant's application is denied, Plaintiff's application is granted, and this matter is remanded for calculation of benefits.


On February 12, 2003, Plaintiff applied for supplemental security income benefits, claiming to be disabled due to "arthritis, asthma, [chronic obstructive pulmonary disease] COPD, sleep apnea, irritable bowel syndrome, high blood pressure, migraines, [gastroesophageal reflux disease] GERD, stress headaches, chronic kidney disorder, fibromyalgia, depression, [and] recurrent umbilical hernia." (64-66, 78).*fn1 The Commissioner denied the application. On February 15, 2006, a hearing was held before Administrative Law Judge Timothy M. McGuan ("ALJ"). On July 22, 2006, the ALJ issued a decision denying benefits, finding that Plaintiff could perform sedentary work. (17-25). On July 21, 2008, the Appeals Council denied Plaintiff's request for review. (6-9). On September 22, 2008, Plaintiff commenced the subject action. Subsequently, Defendant made several unopposed requests to extend the deadline for filing dispositive motions, which the Court granted.


Plaintiff was forty-six years of age at the time of the hearing, and had completed high school and some college courses. (84). Her employment history includes work as a cashier/ticket agent for Greyhound Bus Lines and as a supermarket cashier. (112). Plaintiff claims that she cannot remember any other employment prior to 1994. (125).


Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here in its entirety. It is sufficient for purposes of this Decision and Order to note the following facts.

On September 4, 2002, Plaintiff began treating with D.A. Brubaker, M.D. ("Brubaker"), a primary care physician. Brubaker noted that Plaintiff had "a long list of medical problems," including chronic daily headaches, osteoarthritis, low back pain, hypertension, anxiety, high cholesterol, obesity, possible sleep apnea, carpal tunnel syndrome, COPD/asthma, and irritable bowel syndrome. (311). Brubaker stated that Plaintiff was taking Fioricet for headaches. With regard to anxiety and depression, Brubaker reported that Plaintiff was taking Xanax, but still often felt depressed and cried a lot. Upon examination, Brubaker noted that Plaintiff was "teary." Brubaker stated that he wanted to wean Plaintiff off Fioricet and Xanax, and place her on Inderal and Paxil instead. (312). On October 24, 2002, Brubaker saw Plaintiff again, at which time Plaintiff was attempting to wean herself off both Fioricet and Xanax. With regard to her headaches, Plaintiff reported a minimal change after taking Inderal. Brubaker opined that Plaintiff's headaches might be "analgesic rebound headaches" related to her use of Fioricet. Plaintiff complained of continuing low back pain, but said that the pain was improved from her last visit. As part of this same visit, Brubaker completed a form entitled, "Medical Examination for Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction Determination." (308-309). Brubaker indicated that Plaintiff had the following limitations: Moderately limited as to walking, standing, sitting, and climbing stairs; very limited as to lifting, carrying, pushing, pulling, and bending. (308). On February 14, 2003, Brubaker provided a letter to Plaintiff's attorney, summarizing her medical condition. (307). Brubaker stated, in relevant part:

In regards to being on disability I would say that she is significantly limited in activities that require prolonged sitting or standing. She certainly cannot do lifting, bending, or physically continuous activities. In regards to use of judgment, interaction with peers, concentration and social aspects of employment I would not regard her as limited with the exception that when her headaches flare it does make it more difficult for her to concentrate and this could be a hindrance. (307). On February 26, 2003, Plaintiff told Brubaker that her pain was much improved, as a result of treating with a rheumatologist, which treatment will be discussed further below. (344). Plaintiff stated that she was still having "intermittent headaches, though not daily," but that overall her headaches were significantly improved. (Id.). Brubaker reported that Plaintiff's depression was "stable." (345). On March 24, 2005, Brubaker completed a residual functional capacity ("RFC") assessment. (453-457). Brubaker stated that Plaintiff could occasionally lift and carry up to twenty pounds, occasionally reach, and frequently handle and feel. (453, 455). Brubaker stated that Plaintiff could never crouch, kneel, crawl, push, pull, or lift or carry more than twenty pounds. (453, 455). Brubaker indicated that Plaintiff could sit for four hours in an 8-hour workday, walk for six hours in an 8-hour workday, and never stand for any length of time. (454). Brubaker opined that Plaintiff's pain would often interfere with her attention and concentration, that her pain would frequently interfere with her sleep, and that her impairments were likely to cause her to have "good days" and "bad days," such that she would likely be absent from work more than four days per month. (457).

Between August 2002 and December 2002, Plaintiff treated with Billy R. Carstens, D.O., ("Carstens"), a pain management specialist, upon referral by Brubaker. On August 1, 2002, as part of an initial evaluation, Carstens noted that Plaintiff was complaining of pain in her back, neck, shoulders, arms, and legs. Plaintiff complained of dull aching pain, with intermittent sharp pain and burning pain. (328). Plaintiff reported sleeping only two-to-three hours per night, because of pain. Upon examination, Carstens reported that Plaintiff had a depressed mood and flat affect, and that she scored 29 on the Beck Depression Inventory test, "which is consistent with severe depression." (328). Carstens observed a limited range of movement in Plaintiff's cervical spine, but a full range of motion in the lumbosacral spine. Carstens detected tenderness over the C1-C5 paraspinal muscles and T1-T4 paraspinal muscles bilaterally, and over the left T6 and T10 paraspinal muscles, as well as "diffuse trigger points... throughout the neck and back and upper extremities." (329). Carstens started Plainiff on Nortriptyline and Flexeril for pain. On September 27, 2002, Carstens reported that Plaintiff was participating in physical therapy, and was increasing her "functional mobility steadily." (323). Plaintiff stated that her sleep was improved, and that she was sleeping five-to-six hours per night. On December 5, 2002, Carstens noted that Plaintiff's physical examination was "unchanged from exam on 9/27/02," although he added a diagnosis of "fibromyalgia" to his list of "Impressions." (322). On April 28, 2003, Carstens completed an RFC assessment, indicating that, during an 8-hour workday, Plaintiff could sit for only one hour, stand for only one hour, and walk for only one hour. (390). Carstens stated that Plaintiff could lift and carry up to five pounds occasionally, and should never push or pull. When asked to state whether Plaintiff's restrictions limited her ability to maintain full-time employment, Carstens responded: Yes - she has severe neck and back pain headaches, myofacial pain disorder in these areas that greatly restrict her activities." (390)

On November 5, 2002, James VanDeWall, M.D. ("VanDeWall"), a rheumatologist, examined Plaintiff, upon a referral by Brubaker. VanDeWall stated that Plaintiff presented with "a history of chronic pain," for which she had tried a variety of therapies, including muscle relaxants, antidepressants, anti-inflammatory drugs, narcotic analgesics, corticosteroids injections, and trigger-point injections, without much success. (333). Plaintiff reported having pain, that was "global and diffuse," poor sleep, vague numbness, paresthesias (sensation of pins and needles), and generalized poor mood and affect. (Id.). VanDeWall noted that Plaintiff was obese, and that her "mood and affect are very poor." (334). Plaintiff had normal range of movement in her joints, but had "numerous tender points" "along the paraspinal region of the axial skeleton and diffusely throughout the peripheral skeleton." (Id.). VanDeWall diagnosed Plaintiff with fibromyalgia, and prescribed Topamax. VanDeWall also noted that Plaintiff's sleep apnea might have something to do with her pain and depression. (335). On January 6, 2003, VanDeWall examined Plaintiff and reported that she was responding "very well" to Topamax, and seemed to be "in much better spirits." (331). VanDeWall found Plaintiff's condition essentially unchanged, noting that he found "[n]umerous tender points... in a very traditional fashion for fibromyalgia." (Id.). On February 28, 2003, VanDeWall noted that Plaintiff was "overall doing much better." (351). VanDeWall stated that Plaintiff was reducing her medications, attempting physical conditioning, and sleeping well. Upon physical examination, VanDeWall reported finding "tender points [that were] still present in a very traditional fashion for fibromyalgia, but [were] much less exquisite than in prior examinations." (352). On March 24, 2004, VanDeWall noted that he had not seen Plaintiff in a long time, and that she had recently been in an automobile accident, which had increased her pain. (461). VanDeWall examined Plaintiff and found "numerous tender points... in a very traditional fashion for fibromyalgia." On March 30, 2003, VanDeWall saw Plaintiff again, and reported that while she indicated that she felt better overall from using Topamax, she was still complaining of pain "in a global fashion," with mild sleep disturbance. VanDeWall increased Plaintiff's dosage of Topamax and urged her to exercise. (460). On July 16, 2004, VanDeWall examined Plaintiff, and noted that she was doing "excellent" on Topamax and Percocet. On physical examination, Plaintiff's joints were tender. VanDeWall noted that Plaintiff's physical activity had increased, and was "not... limited by fibromyalgia pain." (462).

On March 13, 2003, O. Castro, M.D. ("Castro") diagnosed Plaintiff with sleep apnea, following "attended overnight polysomnography" testing. (364). Castro recommended that Plaintiff use "nasal CPAP therapy." (Id.).

In or about January 2003, Plaintiff began treating with Lixin Zhang, M.D. ("Zhang"), at the Dent Neurological Institute, upon a referral by Brubaker. (346, 370). According to Brubaker's notes, he referred Plaintiff to Zhang because of her chronic daily headaches. (346). It appears that Zhang treated Plaintiff for approximately four months, focusing on Plaintiff's headaches, depression, and sleep apnea. (370). On April 21, 2003, Zhang completed an RFC assessment, which bears little resemblance to the other assessments in the record. (369-375). Specifically, Zhang stated that Plaintiff had no limitations with regard to sitting, standing, or walking, that she had full strength and could frequently lift up to twenty pounds, that she had no postural limitations, and that she could frequently bend, squat, crawl, and climb. (369-374).*fn2

On May 1, 2003, Plaintiff was examined by Steven Dina, M.D. ("Dina"), a non-treating consulting physician, apparently specializing in internal medicine. (407-411). Dina examined Plaintiff and diagnosed her with fibromyalgia, joint pain consistent with osteoarthritis, hypertension, depression/anxiety, COPD, recurrent umbilical hernia, and possible sleep apnea. (410). Dina stated that Plaintiff's depression/anxiety and hypertension would not cause her any functional limitations. Dina stated that the fibromyalgia and osteoarthritis pain would cause "moderate limitations." On this point, Dina stated that Plaintiff should avoid "walking distances," bending, squatting, kneeling, going up and down stairs, straining, lifting, repetitive bending, and repetitive gripping and grasping. (411).

On May 1, 2003, Thomas Dickinson, Ph.D. ("Dickinson"), a non-treating psychologist, conducted a psychiatric examination. (420-426). Plaintiff complained of depression, frustration, feelings of worthlessness, insecurity, and poor concentration. Plaintiff also described a history of alcohol abuse, ending in 1981. Dickinson observed that Plaintiff was cooperative, with adequate social skills. (422). Plaintiff's thought processes were coherent and goal directed, her affect was full and appropriate, her speech was fluent and clear, and her concentration, memory, and attention were intact. (422-423). Plaintiff's cognitive functioning was average, and her judgment was fair.

(423-424). Dickinson saw no signs of depression, anxiety, negativism, suspiciousness, or significant emotional distress. (424). Plaintiff's ability to read and spell were at the college level. (Id.). Dickinson's diagnosis included dysthymic disorder, mild panic disorder with agoraphobia, PTSD*fn3, and alcohol abuse in remission. (425). Dickinson opined that Plaintiff could understand and follow basic job directions and perform repetitious tasks with mild supervision. (424). In that regard, Dickinson noted that Plaintiff seemed able to maintain attention and concentration and to make basic decisions. However, Dickinson cautioned that Plaintiff would have difficulty performing tasks in a consistent and reliable manner, because of her physical and emotional problems. (425). Dickinson also stated that Plaintiff would have mild troubles dealing adequately with supervisors, co-workers, and customers. (Id.).

On May 9, 2003, George Burnett, M.D. ("Burnett"), a non-treating, non-examining agency review physician, completed a Mental Residual Functional Capacity Assessment (429-432) and a Psychiatric Review Technique form (433-446). Burnett stated that Plaintiff would be moderately limited in her ability to carry out detailed instructions, her ability to maintain attention and concentration for extended periods, her ability to perform activities within a schedule and maintain regular attendance, her ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms, her ability to accept instructions and respond to criticism from supervisors, her ability to get along with co-workers, her ability to respond to changes in the work setting, and her ability to set realistic goals. ...

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