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Karen Laven v. Michael J. Astrue

December 15, 2011


The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge


Plaintiff Karen Laven ("plaintiff") brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), codified at 42 U.S.C. §§ 405(g), appealing a final decision of the Commissioner of Social Security ("defendant"), denying plaintiff's claim for Social Security benefits. For the reasons stated below, the defendant's decision will be reversed and remanded.

I. Facts and Procedural History

A. Facts

The following facts and procedural history are set forth in plaintiff's brief in support of plaintiff's complaint and motion for judgment on the pleadings (Doc. No. 10), and in the administrative transcript*fn1 (Doc. No. 8). The Defendant incorporates the testimony, evidence and procedural history into his own brief (Doc. No. 12) with one exception.*fn2 Plaintiff's date of birth is August 7, 1962. She was 45 years old at the time of her application, and 40 years old at the time of her date last insured ("DLI") of December 31, 1992. She is a high school graduate (Tr. 112). Plaintiff worked as a deli clerk from 1984 to 1997 (Tr. 114). Plaintiff stopped work due to a hernia repair but while recovering, developed pains down her left leg. She was diagnosed with bursitis and told not to return to work by Dr. Richards, an orthopedic surgeon (Tr. 31). Plaintiff alleges disability secondary to lumbar degenerative disc disease, bulging discs, bone spurs, radiculopathy, complications of left inguinal hernia repair, gastroesophageal reflux disease ("GERD"), and arthritis (Tr. 113). Plaintiff alleges that she could no longer return to her work at the deli, which required eight hours standing, as well as repetitive bending and lifting up to 50 pounds. Plaintiff estimated that she could only stand for one hour at a time (Tr. 31-32, 114).

Plaintiff has been under the primary care of Dr. Theresa Viola ("Dr. Viola") since January 26, 1998 (Tr. 34, 118, 398). The plaintiff was also treated for several years by physical medicine, rehabilitation and electrodiagnosis specialist Dr. James Cole, M.D., Ph.D, and neurosurgeon Dr. Thomas Lovely, M.D. ("Dr. Lovely") (Tr. 45-47, 115, 119). Two months prior to her hearing, plaintiff began treatment for fibromyalgia with Dr. Wechsler, who reviewed blood work and prescribed medication (Tr. 34). Plaintiff was also told by her pain management physician, Dr. Edward Apicella ("Apicella") that she has had fibromyalgia since 2000 (Tr. 35).

Plaintiff has been physically examined on numerous occasions. She has undergone diagnostic testing including electromyography("EMGs"), CT scans, x-rays, echocardiogram and endoscopy and magnetic resonance imagining ("MRIs") (Tr. 115, 118, 123). Treatment had included cortisone and multiple lumbar epidural steroid injections ("ESI") (Tr. 162-67) as well as physical therapy (Tr. 153-61, 168-216), ultrasound, heat, a TENS unit, exercise, medication, right knee arthroscopy and partial medial menisectomy, performed on August 2, 2005 by Dr. Eric R. Aronowitz, M.D., an orthopedic surgeon (Tr. 115-21, 123, 151-52). When plaintiff stopped work in 1997, she had a three-year-old child and a five year-old child at home. Her husband was self-employed, and she had assistance at home from her mother and her in-laws (Tr. 36). Plaintiff testified that she needs assistance of all activities of daily living including housework, cooking, grocery shopping and laundry. She testified that she has pain all of the time (Tr. 42-43).

Dr. Viola, plaintiff's primary treating physician, completed interrogatories at the request of plaintiff's hearing attorney, former ODAR*fn3 Administrative Law Judge ("ALJ") John R. Stewart. Dr. Viola verified treatment for diagnoses of status post-left inguinal hernia repair and residual inguinal neuritis and degenerative disc disease with radiculopathy (Tr. 217). Dr. Viola stated that while under her care, plaintiff could neither return to her past relevant work nor perform the full range of sedentary work (Tr. 221). Dr. Viola's written record of treatment from December 7, 2006 thorough March 9, 2009 (Doc. No. 10, p. 4; Tr. 217-21, 223-34, 262-311, 397-99) provides a detailed clinical record of examinations, complaints, symptoms and findings. Although Dr. Viola's records only document examinations from 2006,*fn4 these records confirm treatment that had been previously rendered by Dr. Viola.*fn5 The records available from Dr. Viola confirm that plaintiff was taking, inter alia, hydrocodone for chronic pain (Tr. 272-73,277). A March 2007 note in Dr. Lovely's file documented, inter alia, that nerve blocks performed by Dr. Apicella had not improved plaintiff's condition and she was being scheduled for reevaluation by Dr. Lovely (Tr. 275).

B. Procedural History

Plaintiff filed an application for Title II-SSDI benefits on June 30, 2008, alleging an onset date of July 21, 1999. The application was denied initially and plaintiff filed a timely request for a hearing. The hearing was held on October 13, 2009 in Albany, New York, before ALJ Robert Ringler. In a notice of decision dated February 19, 2010, the ALJ denied the application (Doc. No. 10, p. 2). Plaintiff filed a timely request for Appeals Council review. By letter dated September 17, 2010, the Appeals Council denied review of the ALJ's decision. The current action followed on November 9, 2010 (Id.).

During the hearing on October 13, 2009, the ALJ noted that plaintiff had filed a prior Social Security disability application. Plaintiff's prior application was filed on March 28, 1998. She was represented by Ira Mendleson, Esq., and had a hearing before ALJ Robert Wright, who denied the claim by a Notice of Decision dated July 20, 1999. Plaintiff's appeal was denied by the Appeals Council in a letter dated November 2, 2001. No further appeal was taken (Id.).

At the October 13, 2009 hearing, plaintiff testified that she did not appeal her earlier SSDI denial because she did not think she could get benefits. She did not understand that she could reapply, but finally did reapply because her condition was getting worse and she could not work ( Doc. No. 10 at p. 5). Plaintiff notes that the entire hearing transcript is only thirty pages, and those pages contain a considerable amount of discussion concerning what effect the plaintiff's prior application and denial should have on the current application (Id.). The ALJ ultimately found that plaintiff was unable to preform any past relevant work, but found that plaintiff retained the residual functional capacity for the full range of sedentary work through her DLI. The ALJ found her not disabled pursuant to Medical-Vocational Rule 201.27 (Id. at p. 6; Tr. 21).

C. Contentions

Plaintiff now asks this court to decide whether the defendant's determination that plaintiff is not disabled is supported by substantial evidence and is free of legal error. Plaintiff asks whether (1) the ALJ's failure to solicit records of treatment after November 2, 2001 is reversible error; (2) whether the ALJ's failure to credit the opinion of treating physician Theresa Viola, M.D. is reversible error; and (3) whether the decision that the plaintiff has a residual function ...

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