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Valerie Gaudino v. Michael J. Astrue

February 3, 2012

VALERIE GAUDINO, 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 Valerie Gaudino ("Plaintiff") for Social Security disability benefits. Now before the Court is Defendant's motion [#5] for judgment on the pleadings and Plaintiff's cross-motion [#9] for judgment on the pleadings. Defendant's application is denied, Plaintiff's cross-motion is granted, and this matter is remanded for further administrative proceedings.

PROCEDURAL HISTORY

On November 13, 2007, Plaintiff applied for disability and Supplemental Security Income ("SSI") benefits. On May 16, 2008, the Social Security Administration ("SSA") denied the applications. On January 1, 2010, a hearing was held before an Administrative Law Judge ("the ALJ"). On April 9, 2010, the ALJ issued a decision finding that Plaintiff was not disabled. Plaintiff appealed, and on September 24, 2010, the Appeals Council denied the appeal.

On November 18, 2010, Plaintiff commenced this action. Plaintiff contends that the ALJ erred in several ways. First, Plaintiff maintains that the ALJ failed to classify her depression, left shoulder/arm pain, and right knee pain, as serious impairments.

Next, Plaintiff maintains that the ALJ erred by failing to properly apply the treating physician rule. On this point, Plaintiff asserts that the ALJ failed to give appropriate weight to the opinions of her treating pain-management specialist, Ashraf Sabahat, M.D. ("Sabahat"), consulting rheumatologist Laura Llinas-Lux, M.D. ("Llinas-Lux"), and consulting psychologist Maureen McAndrews, Ph.D. ("McAndrews").

Moreover, Plaintiff maintains that the ALJ's Residual Functional Capacity ("RFC") determination was erroneous. On this point, Plaintiff contends that, as a result of failing to follow the treating physician rule, and by selectively relying on the opinion of Harbinder Toor, M.D. ("Toor"), a non-treating, examining agency physician, the ALJ incorrectly concluded that Plaintiff could perform light work involving simple instructions, with postural limitations.

Plaintiff further contends that the ALJ erred by finding that she could perform her past relevant work, since the jobs that the ALJ identified do not qualify as substantial gainful activity ("SGA") under the Commissioner's regulations, and therefore cannot be considered past relevant work.

Finally, Plaintiff maintains that the ALJ failed to properly assess Plaintiff's credibility.

VOCATIONAL HISTORY

Plaintiff was 43 years old at the time of the hearing. (28)*fn1 . Plaintiff completed high school. (31) Plaintiff stopped working in 2000 due to her claimed disability, but subsequently performed some work in 2004, 2005, and 2006. (28) In 2004 Plaintiff worked as a cashier at a gas station, and in 2005-2006 she worked as a cashier at a Lowes home improvement store. (29) Plaintiff's longest period of employment at one job was for ten years, between 1990 and 2000, when she worked as a "laborer/assembly line worker" at a "metal/steel manufacturing company." (124) Plaintiff indicates that this job involved standing at an assembly line "all day every day," frequently lifting objects weighing up to 25 pounds, and occasionally lifting up to 50 pounds. (124-125)

ACTIVITIES OF DAILY LIVING

Plaintiff indicates that she cannot lift anything weighing more than five pounds, and that she needs help from her husband and children to clean the house. (33, 44) She states that she cooks, but is limited as to what she can cook because of her inability to lift. Id. Plaintiff states that her back pain is usually nine on a scale of one-to-ten. (33) She further states that her leg pain is eight out of ten, and that she has difficulty walking distances and going up stairs. (34) Plaintiff indicates that she has ankle pain, and wears braces on both ankles. (35-36) Plaintiff states that she has neck pain, which also causes her to have headaches, the pain of which is nine out of ten. (36-37) Plaintiff also indicates that the pain interferes with her sleep, and that she wakes often during the night, and takes naps during the day. (37) Plaintiff contends that she has fibromyalgia which causes her entire body to feel bruised. (37) Plaintiff reports that she had surgery on both of her ulnar nerves, but that she still has problems, including numbness in her hands and muscle spasms. (40) Plaintiff also indicates that she is being treated for depression which causes her to feel "sad a lot." (41) In that regard, she indicates that she feels worthless because there are many things that she cannot do because of her physical limitations. (41) Plaintiff also experiences periods of insomnia, in which she will not sleep for a couple of days, because of anxiety. (42) Plaintiff states that she takes a number of medications, for pain, allergies, depression, and urinary incontinence, which make her drowsy and nauseous. (42-44) Plaintiff states that she can only sit comfortably for fifteen-to-twenty minutes before needing to move around, and that she can stand for "sometimes a half hour." (47) She indicates that she is able to walk not "very far," "maybe a block." (47)

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.

Left Arm and Shoulder

On December 4, 2000, Plaintiff had acromioplasty*fn2 surgery on her left shoulder. On January 31, 2001, George Pokorny, M.D. ("Pokorny") reported that Plaintiff had "not experienced much improvement" from the surgery. (238) On February 15, 2001, Pokorny indicated that Plaintiff received a nerve block, which helped temporarily, but that she was still having muscle spasms and pain. (234) On March 21, 2001, Pokorny observed that Plaintiff's range of motion was still "considerably limited." (230) On April 25, 2001, Plaintiff complained to Pokorny of tingling in her hand, intermittent shooting pain, and increased pain "with any movement." (225) Pokorny noted, "I feel the patient is developing a fibromyalgia," Id., but added that Plaintiff was going to see a rheumatologist for a more definite opinion regarding fibromyalgia. (223) On July 5, 2001, Pokorny reported that Plaintiff's range of motion was decreased, and that she "has a component of myofascial-type pain and now is presenting with decreased range of motion of adhesive capsulitis."*fn3 (219) On January 30, 2002, Pokorny noted that Plaintiff had "some chronic pain along with a permanent loss-of-function of the left upper extremity." (214)

On March 7, 2007, Steven Garner, M.D. ("Garner"), examined Plaintiff's left shoulder and reported essentially normal findings, although Plaintiff complained of tenderness over the shoulder joint. (197-198) On March 21, 2007, Garner noted that Plaintiff was continuing to complain of significant pain, which Garner indicated was likely "secondary to AC joint arthropathy and impingement syndrome." (193) On March 22, 2007, an MRI of Plaintiff's left shoulder showed that Plaintiff had previously undergone acromioplasty, but that the shoulder joint was essentially normal. (240) On March 29, 2007, Garner indicated that Plaintiff was continuing to complain of pain, and that his impression was "[u]nresolving left shoulder pain of unknown etiology." (191)

On May 9, 2007, Plaintiff was involved in a motor vehicle accident ("MVA") which resulted in a fracture of Plaintiff's left forearm, with displacement (285). The fracture was repaired with a metal plate and screws, and required skin grafting to close the wound. (308, 317, 355) As of March 17, 2008, Plaintiff was continuing to complain of intermittent numbness and weakness in the left arm, but a nerve conduction study of the arm was "essentially normal." (386-387)

Right Arm

On September 4, 2008, Plaintiff had a nerve conduction study on her right arm, as a result of pain that she was experiencing after she fell in August 2008. (453) The study was "borderline abnormal," with "mild evidence of dysfunction in a right ulnar nerve distribution." (453)

Right Knee and Ankle

On February 9, 2006, Plaintiff complained to Sabahat of chronic knee pain, due to arthritis. (347) As noted above, On May 9, 2007, Plaintiff was involved in a motor vehicle accident ("MVA"), which, in addition to fracturing her left forearm, resulted in a contusion to her right knee. (286) Testing indicated marked soft tissue swelling, and "minimal to mild spurring arising from the posterior aspect of the right patella." (286) Plaintiff also exhibited "right ankle instability" on admission to the hospital following the MVA. (295) An orthopedic surgeon examined the ankle and diagnosed a "gross dislocation" of the ankle, with no fracture. (298) On July 11, 2007, x-rays "suggested" "old medial collateral ligamentous injury," but "no definite acute abnormality." (358) On November 16, 2007, Plaintiff complained of continuing pain, swelling, and instability in the right ankle. (350) Upon examination, the ankle was swollen and tender. Id.

Spine

On February 9, 2006, Plaintiff told Sabahat that her back pain was a stabbing pain that radiated into both legs, which was aggravated by standing for long periods, lifting any weight, and driving. (347) Plaintiff told Sabahat that her pain began in 1992 following a motor vehicle accident in which her car was struck from behind. (347) On October 19, 2006, Sabahat reported that Plaintiff's straight-leg raise testing was positive bilaterally. (340) On November 30, 2006, Sabahat noted that Plaintiff was continuing to complain of pain in her neck and back. (339) Sabahat indicated that MRI testing revealed a "left lateral L5-S1 herniated disc, extrusion impinges left L5 neural foramina effacing perineural fat, broad L5-S1 disc bulge with facet arthropathy and anterolisthesis causing mild spinal stenosis at L5 region," "chronic appearing disc bulges at multiple levels," and "facet arthropathy at L4-L5." (339) Sabahat noted that a duragesic pain patch was not controlling Plaintiff's pain. Id. On December 14, 2006, Sabahat reported that Plaintiff was complaining of chronic pain in her lower and upper back, and that various "narcotic pain medications" were not alleviating her pain. (338) Sabahat indicated that Plaintiff was complaining of severe pain in her lower back that was radiating into both legs, "in L4-L5 and L5-S1 nerve distribution." (338) Sabahat prescribed Vicodin and Lyrica, and planned to have Plaintiff receive facet joint injections.

On May 9, 2007, following her MVA, a CT scan of Plaintiff's cervical spine showed "minimal reversal of the cervical lordosis at C5-6," and "some spondylosis at C5-6 level." (288) The quality of the CT scan did not permit the radiologist to determine whether there was any disc pathology. Id. As for the lumbar spine, a CT scan showed "some degenerative changes . . . with degenerative disc disease." (290) Specifically, the scan showed "degenerative disc disease involving [the] L5 disc." (292) The scan also showed a small avulsion fracture of the L1 vertebral body. Id. Degenerative changes were also noted in the thoracic spine. (291)

On August 16, 2007, Sabahat examined Plaintiff and noted that she had a "chronic history of upper and lower back pain." (336) Sabahat indicated that Plaintiff was a "noncompliant patient," since she had refused referrals to a neurosurgeon and a referral for a nerve conduction study. Id. Upon examination, Sabahat found that Plaintiff was "tender with deep ...


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