The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
REPORT AND RECOMMENDATION
This case was referred to me by Hon. Richard J. Arcara to hear and report in accordance with 28 U.S.C. §636(b)(1) *fn1. Before me are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. ("Rule") 12(c) [8, 12]. For the following reasons, I recommend that defendant's motion for judgment on the pleadings be denied, and that plaintiff's cross-motion be granted in part and denied in part.
Pursuant to 42 U.S.C. §405(g), plaintiff seeks review of the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") . Plaintiff filed an application for SSI and DIB on March 6, 2003 (T138-140).*fn2 This initial claim was denied on June 17, 2003 (T54-56).
Plaintiff requested a hearing on the denied claim before an Administrative Law Judge (T56). The hearing was conducted before Administrative Law Judge Robert T. Harvey on August 17, 2004 (T71). Plaintiff was represented at the hearing by her attorney David A. Shults, Esq. (T46). On March 9, 2005, ALJ Harvey issued a decision denying plaintiff's claim, finding that plaintiff was not disabled within the meaning of the Social Security Act (T32-45). On May 9, 2005, plaintiff successfully sought review of ALJ Harvey's decision from the Appeals Council (T103-105). The Appeals Council remanded the case back to ALJ Harvey to properly evaluate plaintiff's subjective complaints and residual functional capacity ("RFC") and to obtain evidence from a vocational expert (T119-122).
On April 19, 2006, a second hearing was conducted before ALJ Harvey (T123). On September 18, 2006, ALJ Harvey issued a decision again denying plaintiff's claim (T20-30). ALJ Harvey's determination became the final decision of the Commissioner on October 16, 2008, when the Appeals Council denied plaintiff's request for review (T4-6).
THE ADMINISTRATIVE RECORD
A. Relevant Medical Evidence
On July 22, 1988, plaintiff sustained a low back injury when she slipped on steps in a work related accident (T106). She was treated with physical therapy. Id. Her condition improved as long as she avoided bending, heavy lifting, and prolonged sittings. Id. Plaintiff was involved in a motor vehicle accident on August 18, 1999, as a result of which she was diagnosed with closed head injury, sprain of the neck and left hip, and contusions to her left ribs (T275).
X-rays of her pelvis, cervical spine, chest, ribs and left shoulder, and a CT scan of the head were all normal. Id.
In December 2000, Robert S. Supinski, M.D., examined plaintiff for complaints of left shoulder and hip pain (T265). A January 31, 2001 MRI of plaintiff's shoulder showed no evidence of a significant tear, but it showed some changes of "tendonisis" and "[t]here was a type II acromin; however, on examination she has no pain whatsoever in the area of her findings. All of her pain appears to be in her neck and her scapula today" (T264). He "believe[d] that she most likely had a 25% disability from her prior back problem and perhaps 75% from her current problem." Id. Regarding her left hip, Dr. Supinski opined "there may be a component of sciatica as well as trochanteric bursitis" (T266).
Louis H. Medved, M.D., performed an independent neurological examination of plaintiff on June 3, 2002 in order to determine the degree of her disability and to apportion disability between the various accidents (T267-69). Plaintiff complained of fatigue, muscle spasms, headaches, stomach pain, frequent urination, and numbness (T268). Dr. Medved observed that plaintiff's cervical range of motion was normal, but flexion and extension increased her neck pain (T270). He also observed that the range of motion in her left shoulder was limited as a result of pain and straight leg raises to 90 degrees increased her low back, left hip and thigh pain. Id. Dr. Medved concluded that plaintiff's radiating pain in her left arm suggested "cervical radioculopathy", but diagnosed plaintiff with myofascial pain syndromes (cervical, shoulder, arm, back, hip and leg) (T279). He concluded that she has an "overall marked disability." Id.
Plaintiff's primary physician, Thomas Dwyer, M.D., completed a disability determination form on April 21, 2003 (T289). Dr. Dwyer stated that plaintiff has "cervical disc with right radiculopathy" and "chronic back pain." Id. He opined that plaintiff was not capable of standing, and/or walking up to 6 hours per day, but had no limitation with sitting (T292). He opined that plaintiff could lift and carry no more than 5 pounds. Id.
An MRI of plaintiff's cervical spine dated April 28, 2003 revealed that plaintiff had a small disc herniation at C6-7 "that does not cause any impingement upon the cervical cord" (T326). According to this MRI report, "there [was] no evidence for any significant foraminal stenosis" (T326).
In July 2003, plaintiff fell and complained of pain and swelling in her right knee (T320). Plaintiff was prescribed Darvocet for her pain. Id. An MRI of plaintiff's right knee was taken on July 16, 2003, and showed no abnormalities (T327).
Dr. Dwyer's October 23, 2003 progress report indicated that plaintiff had a decreased range of motion in her neck in all directions, decreased range of motion in her ability to bend sideways, and chronic neck and low back pain with "three ruptured C-spine disks" (T322). He noted her strength was "pretty good." Id. He suggested she continue her current medications. Id.
On January 22, 2004, Dr. Dwyer noted a decreased range of motion in plaintiff's neck in all directions secondary to pain and muscle spasms, and a decrease in sensation in her arms (T323). According to a progress report dated July 6, 2004, plaintiff "was on Ultram 50 mg to a 100 mg three times a day taking Valium 4 mg in the morning and 2 mg in the afternoon and Flexeril at night" (T404).
On March 14, 2004, Dr. Dwyer completed a Medical Source Statement of Ability to do Work-Related Activities questionnaire (T355-T358), finding that plaintiff was able to "occasionally" lift/carry up to 20 pounds; "frequently" lift/carry up to 10 pounds; and stand/walk at least 2 hours in a 8-hour workday, periodically alternating between sitting and standing to relieve pain (T355-356). He also found that plaintiff was unable to climb, crouch, crawl and stoop, and was limited in pushing/pulling in her upper/lower extremities and in reaching in all directions (T355-356).
Dr. Dwyer completed a RFC questionnaire on August 13, 2004, which stated that plaintiff's pain and other symptoms were severe enough to "often" interrupt her attention and concentration (T379). He opined that she is "capable of low stress jobs"; is capable of walking one city block without rest or severe pain; can sit up to 5 minutes at one time before needing to stand and can stand up to 10 minutes before needing to sit or walk; is able to stand for a total of 2 hours in an 8-hour work day; needs to walk at least 5 minutes in an 8-hour workday; requires shifting positions at will from sitting, standing, or walking; and requires unscheduled breaks every five minutes during an 8-hour workday (T380-381). He also opined that plaintiff is able to "rarely" lift 10 pounds and "occasionally" lift less than 10 pounds (T381). He further opined that plaintiff could not twist, stoop or climb ladders, and could "rarely" crouch or climb stairs. Id.
On October 19, 2005, Dr. Dwyer completed another Medical Source Statement of Ability to do Work-Related Activities form (T395-397). In that form, he opined that plaintiff was able to "frequently" lift/carry less than 10 pounds (T395). He also opined that plaintiff can stand at least 2 hours in an 8-hour work day, but must periodically alternate between sitting and standing to relieve pain (T395-397).
On June 10, 2003, plaintiff was evaluated by neurosurgeon Lee R. Guterman, Ph.D, M.D. (T309). He acknowledged plaintiff's 20 pound weight loss, myopia, frequent bowel movements and depression. Id. He noted that her pain medications include Vicodin and Darvocet (T309). On examination, Dr. Guterman observed that plaintiff "appears to be in some constant pain." Id. He found that she had limited range of motion of her cervical spine on flexion, extension, lateral bending and rotation. Id. He noted that she complained of pain upon movement of her spine. Id. He diagnosed plaintiff with "cervical disc without myelopathy" and recommended that she continue physical therapy (T310).
A May 1, 2006 MRI of plaintiff's cervical spine revealed "asymmetric right foraminal herniation, C6-7 with degenerative disc changes" (T440). On June 21, 2006, Dr. Guterman diagnosed plaintiff with "cervical disc without myelopathy" and recommended that plaintiff undergo a C6-7 anterior cervical disc and fusion (T433).
On June 9, 2004 and September 29, 2004, Billy R. Carstens, D.O., injected plaintiff with steroid nerve blocks (T383-385 and 403). On September 13, 2004, Dr. Carstens completed a RFC questionnaire in which he opined that plaintiff's pain and other symptoms would "constantly" interfere with her attention and concentration (T390). He opined that plaintiff is "incapable of even low stress jobs" because of her "severe pain dramatically interferes with work and the ability to do the work." Id. He opined that she can sit for less than a total of 2 hours in an 8-hour workday (T391) and that she is not able to lift any weight (T392). He concluded ...