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Annmarie Sweetapple Eschmann v. Michael J. Astrue

May 16, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Ann Marie Sweetapple Eschmann ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied her claim for disability benefits. Presently before the Court are Defendant's motion and Plaintiff's cross-motion for judgment on the pleadings. For the reasons discussed below, the decision of the Commissioner is reversed and the matter is remanded for rehearing pursuant to the fourth sentence of 42 U.S.C. § 405(g).


I. Procedural Background

Plaintiff applied for Social Security disability insurance benefits and Supplemental Security Income ("SSI") on May 23, 2007. (Transcript (hereafter "Tr.") 59-62.)*fn1 Plaintiff alleged disability commencing on May 1, 2007 due to knee and back pain, left hip numbness, sleep apnea, and anxiety. (Tr. 124-25.) The claim was denied initially on September 20, 2007. (Tr. 52-59.) On September 28, 2007, Plaintiff requested a hearing before an administrative law judge ("ALJ") (Tr. 60), and a hearing was held before ALJ Brian J. Crawley on November 10, 2008, at which Plaintiff appeared represented by counsel. (Tr. 19-49.) The ALJ issued a decision on November 25, 2008 finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 9-18.) Plaintiff requested review by the Appeals Council ("AC"). (Tr. 5-7.) By notice dated January 27, 2009, the AC denied Plaintiff's request, rendering the ALJ's decision as the "final decision" of Defendant. (Tr. 1-3.)

II. Factual Background

A. Non-Medical Evidence

1. Hearing Testimony

Plaintiff was born on January 12, 1964. (Tr. 83, 88). She has completed high school as well as two years of college. (Tr. 131.) From 1986 to 1996, Plaintiff worked as a production room assistant for a photo company. (Tr. 126.) She did not work outside the home between approximately 1997 and 2002 in order to raise her children. (Pl.'s Mem. at 2.) In 2002 she began working as a part-time library clerk at the North Babylon Public Library, where she continued to work as of the date of the hearing. (Tr. 22, 126.) Plaintiff testified that at the time of the hearing she worked two four-hour shifts, for a total of eight hours per week, because "that's all [she] can tolerate" due to her "chronic back pain, an injury to [her] neck and . . . some nerve damage in the lower area." (Tr. 23.) Plaintiff testified that she stands up throughout her entire four-hour shift at the library, although she occasionally leans on a chair. (Tr. 41.) Plaintiff further testified that as of Spring 2007 she attended college part-time (two days per week), but "decided to stop" because she "couldn't sit there for three hours at a time." (Tr. 23-28.)

Plaintiff testified that she was not able to sit or stand for "long periods of time" and that she experience numbness in her left leg and pain in her back when she sits for extended periods. (Tr. 28, 34, 36, 135). She also reported difficulty turning her neck. (Tr. 34.) She testified that she experienced constant pinching neck pain, as well as constant back pain. (Tr. 35-36). Plaintiff stated that she can only sit for a half-hour; if she sits for any longer she experiences pain throughout her lower body and numbness in the left leg. (Tr. 39-40). She testified that she could walk around a store for approximately twenty minutes to one hour. (Tr. 40.)

Plaintiff testified that she was currently not taking any pain medication. (Tr. 38.) She testified that she had tried Percocet a few days prior to the hearing, but "won't ever take it again because [she did not] have a good response" to it. (Tr. 38.) She had been taking Tylenol PM to help her sleep, but one of her doctors advised her to stop because recent blood tests revealed she had a "fatty liver" and elevated liver enzymes. (Tr. 38.) Plaintiff also testified that she tried to take Ultram, but that she did not "feel right" on that medication -- she felt as though she had "an altered state of consciousness." (Tr. 46.) She also tried Propoxyphene but could not take that medication because it "made [her] ill." (Tr. 47.) At an appointment a few days prior to the hearing, Plaintiff's physician recommended that she take Advil, but as of the date of the hearing she "[hadn't] bought it yet." (Tr. 47-48.) Plaintiff obtained some temporary relief from physical therapy, but she testified that she stopped attending physical therapy because her insurance stopped covering it. (Tr. 39, 43.) She testified that she had difficulty sleeping because of back pain and leg numbness, and she stated that she slept continuously for five to six hours per night. (Tr. 43-44.)

Plaintiff testified that she lives with her husband and her three children, aged 10, 12, and 18. (Tr. 29-30.) Plaintiff testified that, on a day-to-day basis, "I'm a mom" and so she "take[s] care of whatever needs" they have. (Tr. 29.) She does "a lot of laundry" for the entire family, but has recently begun teaching her eldest son how to do the laundry because she is "having a hard time" getting up and down the stairs. (Tr. 29.) During the week, Plaintiff either cooks dinner for the family or orders take-out. (Tr. 31.) On the weekends, she sometimes prepared three meals a day for her family. (Tr. 31.) Plaintiff also does the food shopping for the entire family, which she spreads out over two or three trips per week. (Tr. 32.) While food shopping, Plaintiff could carry a gallon of milk, but left the cases of water in the car for her teenaged son to carry. (Tr. 32.) She packed the grocery bags lightly and carried them herself from the supermarket to the car. (Tr. 32-33.) Plaintiff attested that she drove every day, but she experienced numbness in her leg and back pain when she drove. (Tr. 33.) Plaintiff takes her daughter, who functions on the high end of the autistic spectrum, to social skills counseling every Thursday morning and takes her other daughter to dance class once per week. (Tr. 29-30.)

Plaintiff testified that she spends her leisure time lying on the couch watching cooking shows on television. (Tr. 34.) She testified that she gets "uncomfortable" if she lays in one position for too long, and described the sensation of "hav[ing] a cinder block sitting on your shoulder blades and it's kind of hard to breathe." (Tr. 34-35.)

2. Plaintiff's Work Activity Report

On May 23, 2007, Plaintiff submitted a work activity report in conjunction with her application for benefits. (Tr. 107-14.) Plaintiff reported that she started working as a library clerk in April 2002 and continued to work in that position. (Tr. 110.) She stated that she worked an average of 12 hours per week and earned $16 per hour. (Tr. 110.) Plaintiff received no special work conditions or services. (Tr. 112.) Plaintiff states that she was "only working part time, although [she] earn[ed] about [$]920.00 each month of March and April 2007," and that she "will restrict one hour of overtime each month at the least so [she] can stay under the allowable 2007 limit of [$]900.00 monthly." (Tr. 114.)

3. Plaintiff's Disability Report

In a disability report date June 27, 2007 (Tr. 134-41), Plaintiff stated that she lived in an apartment with her three children. (Tr. 134.) She reported that she worked 12 hours per week in the North Babylon Library. (Tr. 135.) Plaintiff stated that each morning, she woke her three children and made sure they ate and left for school on time. (Tr. 135.) Plaintiff also cared for her daughter, who is autistic. (Tr. 135.) If Plaintiff felt "OK," she visited her mother, did food shopping (about twice per month), did laundry, or attended doctors' appointments. (Tr. 135.)

With assistance from her daughters, Plaintiff fed and cleaned the cages of her pet guinea pigs. (Tr. 135.) Plaintiff reported that she prepared "all meals" for her family on a daily basis, although she "sometimes order[ed] out." (Tr. 136.) She reported that she and two of her children can use the microwave, and her family has been eating "more fast foods recently." (Tr. 136.) She also watered her garden. (Tr. 137.) Plaintiff went outside on a daily basis to walk her children to the bus. (Tr. 137.) She also reported that "sometimes [she] just want[s] to nap [and] be left alone." (Tr. 137.) Plaintiff reported that she could drive but that she "could not drive alone to a place [she had] never been before" because she would experience anxiety attacks. (Tr. 137.) Plaintiff reported that she shopped in stores for her children's clothes, school supplies, and food, and that she could pay bills, count change, handle her savings account, and use a checkbook or money orders. (Tr. 138.) Plaintiff enjoyed art as a hobby, and although she had not engaged in that hobby "for a long time" she expressed a desire "to start drawing again." (Tr. 138.)

Plaintiff also reported that she saw a psychologist once per week and took Wellbutrin for anxiety. (Tr. 135, 142.) Although Plaintiff would go out to breakfast once per week with others, Plaintiff complained that some of her neighbors annoyed her. (Tr. 139.) Plaintiff said that she could not take her children on long walks and could not stand at work for more than two to three hours without discomfort and pain in her knees. (Tr. 139.) She reported that her knee and back pain affected her ability to stand, walk, climb stairs, and kneel. (Tr. 139.) Plaintiff stated that she experienced sleep apnea and woke three to four times per night. (Tr. 135.) Plaintiff stated that she could follow spoken and written instructions, but "sometimes cannot focus." (Tr. 140.)

Plaintiff reported that occasionally she just "say[s] what I feel," and that she lost one job because she "spoke her mind." (Tr. 140-41.)

B. Medical Evidence

1. Plaintiff's MRI Results Prior to May 1, 2007 Onset

Plaintiff underwent an MRI of her right knee on September 24, 2003. (Tr. 190.) The MRI showed small joint effusion, femoral trochlear dysplasia, and a small one island involving the proximal tibia. (Tr. 190.) The MRI did not revel an meniscal or ligamentous tear. (Tr. 190.)

A July 19, 2004 MRI of Plaintiff's cervical spine revealed straightening of the normal cervical lordosis, a central disc herniation at the C4-5 level, and a left parasagittal disc herniation at the C5-6 level. (Tr. 172.)

2. Dr. Salvatore J. Palumbo -- Neurosurgeon

Dr. Salvatore J. Palumbo began treating Plaintiff on December 20, 2004 and noted that Plaintiff was a well-developed female in no apparent distress who had been experiencing subscapular pain on the left side since the birth of her first child. (Tr. 178.) Plaintiff complained of intermittent numbness in her right arm as well as intermittent pain and numbness radiating into the left upper extremity, which had since subsided. (Tr. 178.) Plaintiff had chronic subscapular discomfort, and reported that any upright activity tended to exacerbate her pain. (Tr. 178.) Local trigger point injections provided Plaintiff some temporary relief. (Tr. 178.) Dr. Palumbo's examination revealed no tenderness upon palpation of the cervical spine. (Tr. 178.) Plaintiff reported mild discomfort with palpation deep on the left side of her back. (Tr. 178.) Motor examination showed normal tone and bulk. (Tr. 178.) Plaintiff retained full motor power in all muscle groups. (Tr. 178.) Sensation was intact to light touch and pinprick, and deep tendon reflexes were mildly diminished in the left bicep. (Tr. 178.) All other reflexes were symmetric. (Tr. 178.) Dr. Palumbo also reviewed an MRI of Plaintiff's cervical spine,*fn2 which demonstrated a small, punctate disc extrusion at C5-6 as well as mild to moderate foraminal stenosis on the left side at the C6 exit zone. (Tr. 178.)

Dr. Palumbo opined that Plaintiff had chronic pain mainly in the left subscapular area and it was quite feasible that her chronic discomfort could be a radicular phenomenon. (Tr. 178.) Dr. Palumbo concluded that Plaintiff constituted an "excellent candidate" for physical therapy and stated that he would have her evaluated for a selective nerve root block at the left C6 exit zone. (Tr. 179.) Dr. Palumbo expressed hope that Plaintiff would obtain "significant relief of her discomfort" through these "minimally invasive maneuvers." (Tr. 179.) He noted that if Plaintiff did not improve, he would likely move toward EMG and nerve conduction studies. (Tr. 179.) He stated that any further treatment decisions would be made based upon the results of her physical therapy and the electrodiagnostic studies. (Tr. 179.)

On January 28, 2005, Dr. Palumbo reported seeing Plaintiff for a follow-up examination regarding her complaints of left upper extremity radiculopathy. (Tr. 177.) Plaintiff was still awaiting authorization for pain management treatment from her insurance company. (Tr. 177.) Dr. Palumbo noted that she did have a C6 disc extrusion with neural compression. (Tr. 177.)

On a subsequent visit, on March 31, 2005, Dr. Palumbo noted that Plaintiff had improved with physical therapy. (Tr. 176.) He observed that Plaintiff had a minimally diminished reflex in her left bicep, but was otherwise doing well. (Tr. 176.) He suggested epidural steroids but Plaintiff was "not sure if she wants to pursue" that course of treatment. (Tr. 176.) As of a May 5, 2005 visit, Plaintiff's condition was unchanged. (Tr. 175.) She still showed a "mildly" reduced brachioradialis reflex in her left bicep, but was otherwise fully intact. (Tr. 175.) She "refuse[d]" to pursue epidural steroids or further physical therapy. (Tr. 175.)

Plaintiff next visited Dr. Palumbo on October 13, 2006, when she complained of mid thoracic back pain and mild discomfort in her lower back and neck. (Tr. 174.) Dr. Palumbo noted her prior history of cervical radiculopathy, but stated that Plaintiff had previously obtained relief by treating the condition conservatively with physical therapy. (Tr. 174.) Dr. Palumbo noted that Plaintiff had no further radiculopathic symptoms, and stated that the majority of her current pain was not caused by cervical pathology, but was of a musculoskeletal nature in her mid thoracic back. (Tr. 174.) Dr. Palumbo strongly recommended Plaintiff consider physical therapy and chiropractic treatment, as a cost effective and holistic way to treat her discomfort, and stated that "[t]here are no recommendations I would make from a neurosurgical standpoint." (Tr. 174.)

3. Dr. Wendy B. Doret, Ph.D. -- Psychologist

Dr. Wendy B. Doret, Ph.D., a psychologist who had been treating Plaintiff since June 2006, completed a report on April 19, 2007. (Tr. 186-187.) Plaintiff was receiving outpatient mental health treatment for dysthymic ...

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