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Toni M. Lee v. Michael J. Astrue

May 4, 2011

TONI M. LEE, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER

INTRODUCTION

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 the application of Toni Lee ("Plaintiff") for supplemental security income ("SSI") disability benefits. Now before the Court is Defendant's motion [#4] for judgment on the pleadings and Plaintiff's cross-motion [#6] 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 the calculation of benefits.

PROCEDURAL HISTORY

This case has a long and unusual procedural history. Very briefly, Plaintiff first applied for SSI benefits on April 30, 2002, and the instant motions represent the third time that this Court has been required to review Defendant's denial of benefits to Plaintiff. The first time, the Court reversed the Commissioner's decision and remanded for a new hearing. See, Lee v. Barnhart, 6:05-CV-06733-CJS, Docket No. [#8]. In that case, during oral argument of the parties' motions for judgment on the pleadings, counsel for the Commissioner admitted that a remand was appropriate. Id. at p. 24. The second time, the parties stipulated to a remand for further administrative proceedings, pursuant to 42 U.S.C. § 405(g), sentence four, because the ALJ had not complied with this Court's Decision and Order following the previous remand. See, Lee v. Astrue, 6:08-CV-06068-CJS, Docket No. [#7] ("The parties further stipulate and agree that on remand, the Administrative Law Judge will be directed to obtain evidence from a medical expert,*fn1 as set forth in District Court Judge Siragusa's November 16, 2006 Decision and to fully comply with Judge Siragusa's decision in all respects."). On remand, the ALJ again found that Plaintiff was not disabled, and Plaintiff subsequently commenced the instant action. Plaintiff's application for benefits has now been pending almost ten years.

VOCATIONAL HISTORY

Plaintiff was forty-two years old at the time of the most-recent hearing. Plaintiff completed high school and earned a certificate as a nursing aide. Plaintiff has a limited work history, consisting of a few years as a home health aide, and a year or two as a nursing aide. Plaintiff has not worked as a nursing aide since 2001. Subsequently, Plaintiff worked as a daycare provider in her home for a short time, but decided that she could not physically perform the job.

ACTIVITIES OF DAILY LIVING

At the hearing, Plaintiff testified that she sleeps approximately twelve hours per day, as follows: six hours at night, and two three-hour naps during the day. (660-661). Plaintiff indicated that her medications make her drowsy. (661). Plaintiff stated that she suffers from urinary stress incontinence, which can make her lose bladder control "at any given time." (661). Plaintiff takes medication for this condition, and wears incontinence pads. (662) Plaintiff stated that she needs to use the bathroom every hour. (665) Plaintiff indicated that she needs assistance from her children to perform shopping and household chores.

MEDICAL EVIDENCE

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. Plaintiff's primary medical problems are lower-back pain and obesity. Plaintiff also has received medication for depression and urinary stress incontinence. As for her depression, Plaintiff has never been examined or treated by a psychiatrist, and has received only periodic counseling from a therapist recommended by her family doctor. (424, 550, 619). However, Plaintiff has taken a variety of prescribed anti-depressant medications for several years. (403, 532, 550, 601).

Plaintiff's treating physician and chiropractor both indicate that she is unable to work due to her back pain, and there is medical evidence of a condition that would cause such pain, contrary to the ALJ's suggestion. See, e.g., Transcript at 202-204 (electrodiagnostic testing indicating irritation of the S1 nerve root); 259, 385 (physical exam reveals decreased range of motion and Laseque's, Braggard's, Fajerstajn, Gothdthwait's, Ely's, Nachlas, Yeoman's, and Kemp's tests were positive); 296, 299 (plaintiff unable to walk heel-to-toe without assistance, positive tenderness and muscle spasm, positive straight-leg testing). However, MRI tests have been negative. David Hannan, M.D. ("Hannan"), Plaintiff's primary care physician, indicates that Plaintiff has the following limitations: lift and carry less than ten pounds; stand and/walk less than two hours in an eight-hour workday; sit less than six hours in an eight-hour workday; limited ability to push and/or pull; never able to climb, balance, kneel, crouch, crawl, or stoop; and limited ability to reach, handle, and finger. (241-243). Hannan also indicates that Plaintiff needs to lie down and/or rest, for three hours at a time, at least twice during an eight-hour workday. (391-393). Hannan further reports that Plaintiff suffers from urinary stress incontinence, which is controlled with medication. (406, 418, 425)

Marianne Santell, D.C. ("Santell"), Plaintiff's chiropractor, indicates that Plaintiff is unable to work due to "lumbalgia, facet syndrome, myofachiitis, and right-sided sciatica." (385-386). Santell states that Plaintiff has the following limitations: rarely lift less than ten pounds; stand and walk occasionally (up to 33%of workday); sit rarely (up to 5% of workday); and never stoop, crouch, or climb ladders. (387).

On April 18, 2005, Dr. James Naughten, D.O. ("Naughten"), a family practitioner, conducted a neurological consultative examination of Plaintiff at Defendant's request. Naughten indicates that Plaintiff has mild restrictions on bending, lifting, and carrying, and can lift and carry ten pounds, stand or walk for at least two hours in an eight-hour workday, and sit for six hours in an eight-hour workday. (298- 299). Naughten also indicates that Plaintiff has some postural limitations, as well as limitations on her ability to push and/or pull, because of back pain. (299).

On July 29, 2009, at the hearing held before the ALJ, psychologist Ralph Sibley, Ph.D. ("Sibley") testified as an expert witness concerning Plaintiff's mental condition. In that regard, Sibley expressly stated that he was testifying concerning Plaintiff's "mental condition" (651), and that he was "not a medical doctor." (654).*fn2 Sibley testified that Plaintiff suffers from depression, but not to the extent that would qualify as a listed impairment. Sibley further indicates that Plaintiff would likely benefit from regular counseling. (654). As for Plaintiff's mental residual functional capacity, Sibley indicates that Plaintiff has moderate limitations in the following areas: 1) the ability to understand and remember detailed instructions; 2) the ability to carry out detailed instructions; 3) the ability to maintain attention and concentration for extended periods; 4) the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms; 5) the ability to ...


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