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Tamika Latoya Ricks v. Michael J. Astrue

January 26, 2012

TAMIKA LATOYA RICKS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Tamika Latoya Ricks ("Plaintiff") commenced this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), challenging the Defendant Commissioner of Social Security's (the "Commissioner") denial of her application for disability insurance benefits. Presently pending before the Court are Plaintiff's and the Commissioner's cross-motions for judgment on the pleadings. For the reasons explained below, the Commissioner's motion is DENIED, Plaintiff's motion is GRANTED, and this matter is remanded to the Commissioner for further consideration in accordance with this Memorandum and Order.

BACKGROUND

On May 2, 2007, Plaintiff was involved in a motor vehicle accident. (R. 224.) On March 12, 2008, she filed an application for disability insurance benefits asserting that she had been unable to work since May 21, 2007 as a result of the injuries sustained in the accident. (R. 94-96.) Her application was denied on April 29, 2008. (R. 38-41.) On June 20, 2008, Plaintiff requested a hearing before an administrative law judge ("ALJ") arguing that she is "still totally disabled."

(R. 43.)

The hearing took place on November 18, 2009, before ALJ Andrew S. Weiss. (R. 19.) Plaintiff was represented by counsel at the hearing and was the only witness to testify. (R. 19-31.) The Court will briefly summarize Plaintiff's testimony.

She was born in 1976. (R. 22.) She is 5 feet 7 inches tall and weighs approximately 270 pounds. (R. 114.) She is a single mother to her two children, who were fifteen and thirteen years old respectively as of the date of the hearing.

(R. 26.) She is a high school graduate and attended three years of college. (R. 22-23, 120.) She was steadily employed from 1997 through 2004. (R. 24.) In August 2006, she began working as a customer service representative for Cablevision. (R. 115.)

The job involved assisting customers over the phone (R. 23); it entailed no walking but required her to stand for up to two hours each day, sit for up to six hours each day, and occasionally lift and carry objects weighing no more than ten pounds (R. 116). She stopped working for Cablevision on May 21, 2007 and has been unable to return to work since due to persistent back pain. (R. 23, 28.)

Plaintiff testified that her back pain is about a seven in severity on a scale of one to ten. (R. 28.) The pain is stabbing, aching, tingling and constant, originates in her lower back and left hip, and runs down both legs to the tips of her toes. (R. 108-09.) The pain is so severe that she requires the assistance of a motorized wheelchair. (R. 106.) She cannot sit or stand for longer than twenty minutes, walk more than one block, or lift anything heavier than a gallon of milk. (R. 29.) Plaintiff asserts that the pain has also limited her ability to perform "just about every [daily] activity." (R. 100.) Her two children help with household chores and grocery shopping, and Plaintiff regularly requires the assistance of her daughter in getting in and out of the shower and on and off the toilet. (R. 101-02.) Although she can drive short distances and prepare meals for her children, her social life "no longer exist[s]" and she rarely leaves the house for activities other than doctor appointments and physical therapy. (R. 102-05.)

In addition to Plaintiff's testimony and personal statements, the ALJ also had before him all of Plaintiff's medical records. She first sought medical attention for the injuries she sustained in the accident on May 3, 2007--the day following the accident. (R. 224.) The pain had been getting progressively worse since the accident, so she took herself to the New Island Hospital emergency room for x-rays. (R. 224.) The x-rays were negative for fracture, and Plaintiff was discharged the same day. (R. 224.) Thereafter, she saw her primary care physician, Dr. Donato Balsamo, who prescribed oxycodone for the pain and referred her to Dr. Paul Alongi, an orthopedic specialist. (R. 224.)

Plaintiff first saw Dr. Alongi on May 11, 2007. (R. 224.) She complained of neck and back pain as well as pain in her left shoulder, left hip, and numbness in her left arm and leg. (R. 224.) Dr. Alongi found tenderness to palpation in areas of her neck and lumbar spine and noted limited range of motion of the cervical spine and lower back. (R. 225.) His diagnosis was cervical and lumbar strain, and he prescribed an anti-inflammatory medication, Darvocet for severe pain, and an MRI of the cervical and lumbar spine. (R. 225.)

The MRI of the lumbar spine, performed on May 16, 2007, revealed a small central disc herniation at L5-S1 and questionable disc herniation at T10-11. (R. 216.) The MRI of the cervical spine was "essentially unremarkable." (R. 236.)

Plaintiff returned to Dr. Alongi on May 18, 2007 complaining of continued neck and back pain--about a six to eight in severity on a scale of one to ten. (R. 225.) Dr. Alongi noted that she appeared uncomfortable and had a limited range of motion of her lower back, and he found tenderness to palpation in areas of her neck and lumbar spine. (R. 225.) He recommended that she continue with her prescribed medications, start physical therapy, and return for a follow-up in two weeks.

(R. 226.)

However, the pain persisted, and she returned to Dr. Alongi just a few days later on May 22, 2007 complaining of increased back and neck pain. (R. 226.) Dr. Alongi noted that Plaintiff appeared uncomfortable, was having difficulty walking, and had a "significantly limited range of motion about the lower back." (R. 226.) She was prescribed a stronger pain medication and told to continue with her other medications, remain out of work, and return to his office in a week for a follow-up. (R. 226.)

Plaintiff next saw Dr. Alongi on May 29, 2007. (R. 226.) Although she had begun physical therapy, which helped "somewhat," her back pain was getting increasingly worse--about an eight in severity on a scale of one to ten. (R. 226.) She appeared uncomfortable and cried multiple times during the appointment. (R. 226.) Dr. Alongi assessed Plaintiff as "totally disabled," and prescribed a stronger anti-inflammatory.

(R. 227.) She was to continue with her other medications and physical therapy and follow up in one week. (R. 227.)

She returned to Dr. Alongi on June 8, 2007 "feeling slightly better" even though she still reported pain as an eight in severity on a scale of one to ten. (R. 227.) Dr. Alongi again noted that Plaintiff appeared uncomfortable, had a limited range of motion of the neck and lower back, and demonstrated tenderness to palpation in areas of her lumbar spine, but his impression was that her symptoms were "slowly improving." (R. 227.) He advised that she continue with her current medications and physical therapy. (R. 227.)

Plaintiff saw Dr. Alongi again on June 22, July 24, and August 21, 2007. (R. 227-28.) At each appointment, Dr. Alongi observed that Plaintiff was increasingly more comfortable and her symptoms were improving due to physical therapy, but "her progress was slow." (R. 227-28.) She reported pain at a six to eight in severity on a scale of one to ten. (R. 228.) He advised that she not return to work, continue with her medications but only as needed, and continue with physical therapy. (R. 227-28.) Plaintiff continued with physical therapy until early September when she was forced to stop because her no-fault insurance coverage was denied. (R. 228.)

On September 21, 2007, Plaintiff went to the emergency room at New Island Hospital complaining of right ankle and foot pain. (R. 151.) She reported pain at a ten in severity on a scale of one to ten. (R. 151.) The emergency room doctor observed that Plaintiff's calf was mildly tender, that her right foot was swollen, and that she had reduced range of motion in her foot. (R. 151.) An ultrasound of Plaintiff's foot was normal, and x-rays showed no evidence of a fracture. (R. 153-54.) She was diagnosed as having a leg cramp, prescribed Motrin, and discharged that same day. (R. 152.)

Plaintiff returned to Dr. Alongi on September 28, 2007 complaining of exacerbated symptoms since stopping physical therapy. (R. 228.) Dr. Alongi noted that Plaintiff appeared uncomfortable and had difficulty walking. (R. 228.) Her other symptoms--reduced range of motion and tenderness to palpation of her lower back--continued. (R. ...


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