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Bartels v. Astrue

November 2, 2010


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


Plaintiff Cathrine Bartels, who alleges that she is disabled as a result of a lumbar back condition, has commenced this proceeding pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Social Security Commissioner's decision that she was not disabled prior to the termination of her insured status and is therefore ineligible to receive disability insurance benefits ("DIB") under the Social Security Act ("Act"). In support of her challenge, plaintiff maintains that when concluding she was not disabled during the relevant period, the administration law judge ("ALJ") assigned to hear and determine the matter ignored substantial evidence, including from two separate treating sources, indicating her inability to meet the exertional requirements of even sedentary work. Plaintiff argues that had those treating sources and her subjective testimony regarding the limitations she experiences been properly credited, the ALJ would have concluded that she is disabled, and thus seeks a remand of the matter to the agency with a directed finding of disability for the limited purpose of calculating benefits owed.

Having carefully reviewed the record in light of plaintiff's arguments, and applied the requisite deferential standard of review, I nonetheless conclude that the ALJ's determination of plaintiff's capabilities, given her medical conditions, 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 that the matter be remanded to the agency for further proceedings.


Plaintiff was born in March of 1945; at the time of the hearing in this matter she was sixty-three years old. Administrative Transcript at pp. 44, 248.*fn2 In September of 1997 plaintiff stood four feet and ten inches in height, and weighed approximately one hundred ninety-five pounds. AT 249. Plaintiff is married, and in 1997 she lived with her husband and a son in Liverpool, New York. AT 250-51. Plaintiff attended school only through the fifth grade and did not receive a general educational development ("GED") certificate. AT 252.

Aside from a brief, two-week period of employment at a McDonald's restaurant, plaintiff's work history is limited to various settings in which she served as a home health aide.*fn3 AT 72, 252-54. In that position, which she held during the 1980s, plaintiff cared for elderly patients, bathing them, assisting them in and out of chairs, and cleaning residents' homes. AT 253-54, 263, 266.

According to the plaintiff's hearing testimony, her inability to work stems principally from a chronic lumbar back condition from which she has suffered for several years. AT 254-55. Plaintiff traces her back condition to a 1995 incident when she fell on a sidewalk. AT 148. Over time, plaintiff has undergone treatment for her back condition from a number of sources, including Dr. Daniel Elstein, an orthopedic surgeon, and from various professionals at the Office of Pain Management, later renamed the New York Pain Center, located in Liverpool, New York, including Dr. Robert Tiso.*fn4 Plaintiff was also seen at various times by Dr. Daniel Rancier, a family practitioner. See, e.g., AT 81-87.

Treatment of plaintiff's condition by Dr. Elstein, which dates back at least to May of 1996, ultimately led to a laminectomy performed by Dr. Elstein on April 18, 1997, during which the doctor surgically decompressed the first sacral nerve group and foramen between L5 and S1.*fn5 AT 146-55. The pathology report associated with that surgery confirmed a final diagnosis of "[f]ocally degenerated cartilaginous tissue and bone. Clinical spinal stenosis. Designated disc L5-S1." AT 155.

Shortly after her surgery plaintiff again began to experience chronic lumbar pain. She returned to the pain clinic for a follow-up visit in September of 1997, where she saw Dr. Joseph S. Agnello, Jr. AT 104. In his report of that visit Dr. Agnello noted that plaintiff experienced right lumbar paraspinous tenderness for which he prescribed Oxycontin and Percocet.*fn6 AT 104. Plaintiff continued to treat with the pain clinic throughout the balance of 1997, with no material change in either her diagnosis or prescribed medication. AT 101-03.

Plaintiff's diagnosis remained largely unchanged through the first half of 1998. In January of 1998, Dr. Ralph W. Firestone, Jr., of the Office of Pain Management, noted that recent lumbar epidural steroid blocks had afforded plaintiff slight relief from her lower back pain, but further reported that the range of motion of plaintiff's cervical spine was decreased, secondary to pain in her head and neck region. AT 99. Reports from February and March of 1998 reflect that plaintiff had responded favorably to her medications, including the continued use of Oxycontin and Percocet, although in April of 1998 Dr. Tiso characterized plaintiff's response to treatment as marginal, an observation reiterated by Dr. Stewart J. Rodal, also with the pain clinic, in May, 1998. AT 95-98.

Records from the pain clinic reveal that plaintiff continued to experience pain through the balance of 1998, with a notation in August of that year that her diagnosis included not only post-laminectomy pain syndrome but also, inter alia, lumbar radiculopathy. AT 88-94. Plaintiff's prescriptions for Oxycontin and Percocet were continued through that period. Id.

Plaintiff presented at the pain clinic again in May of 1999. AT 186.

On that occasion Dr. Rodal noted that according to the plaintiff, her medications have "been helpful in controlling pain" and complimented her on pain control. Id. In August of 1999, during a follow up visit for refills of her Oxycontin and Percocet prescriptions, plaintiff denied experiencing any side affects from those medications and stated that she was "quite stable". AT 183. Plaintiff was seen at the pain clinic in September of 1999, and again in December of 1999, at which point she reiterated that the medications were helping her and denied suffering from any side effects.*fn7 AT 179-82.

The records regarding plaintiff's treatment for her back condition subsequent to 1999 are sparse. In April of 2001 she presented at the Upstate Medical Anesthesiology Group, Inc. with complaints of "long-standing back pain, right buttock, and right knee pain", requesting additional blocks. AT 107-08. Magnetic resonance imaging ("MRI") testing of plaintiff's back in October of 2002 revealed disc degeneration at the L3-4 and L5-S1 levels, with "[m]ild central canal stenosis at the L4-5 level secondary to disc bulge, ligamentous, and facet hypertrophy." AT 109.

In addition to her lumbar back issue, plaintiff has received treatment for a variety of other conditions including migraine headaches and an abdominal hernia requiring surgical repair in 1998.*fn8 She does not, however, urge those conditions as causing or contributing to the limitations upon which she bases her claim that she is unable to perform work-related functions.


Plaintiff protectively filed a claim for DIB under the Act on December 14, 2005, alleging that she became unable to work due to a disability as of January 1, 1997. AT 44-48. That application was denied based upon an agency determination that plaintiff was not disabled at any time prior to the expiration of her insured status for disability benefit purposes.*fn9 AT 36-39.

At plaintiff's request a hearing to address her claim for benefits was conducted before ALJ Robert E. Gale on June 3, 2008. AT 244-69. Following that hearing, on July 23, 2008 ALJ Gale issued a decision in which he found that plaintiff was not disabled from January 1, 1997 through September 30, 1997, when she last met the requirements of her insured status.*fn10 AT 10-21. In his decision ALJ Gale conducted a de novo review of the record evidence, applying the now familiar, five step prescribed test for evaluating claims of disability. At step one the ALJ concluded that plaintiff had not engaged in substantial gainful activity during the relevant time period. AT 15. At steps two and three, ALJ Gale found that plaintiff's status as post-lumbar laminectomy sufficiently interfered with her ability to perform basic work activities to be considered severe for step two purposes, but that the impairment did not meet ...

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