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Brunilda Ubiles v. Michael J. Astrue

July 2, 2012


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Represented by counsel, Brunilda Ubiles ("Plaintiff" or "Ubiles"), brings this action pursuant to Title XVI of the Social Security Act, seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI"). This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).

II. Factual Background and Procedural History

A. Overview

Plaintiff filed an application for supplemental security income benefits on August 14, 2006, alleging disability due to chronic back pain with an onset date of May 15, 2006. R.55-59.*fn1

After the claim was denied on November 21, 2006, R.46, Plaintiff timely filed a written request for a hearing before an ALJ which was held on December 11, 2008. R.185-215. In a decision dated January 22, 2009, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act ("the Act"). R.19-25. The Appeals Council which denied Plaintiff's request for review on May 6, 2011, thereby rendering the ALJ's decision the final decision of the Commissioner. R.4-6.

Plaintiff filed this action on July 12, 2011, asserting that the ALJ's decision was not supported by substantial evidence in the record and was based on the ALJ's application of erroneous legal standards. Plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rule of Civil Procedure ("Rule 12(c)") seeking to reverse the judgment of the Commissioner and remand for further administrative proceedings. The Commissioner has opposed the motion and has cross-moved for judgment on the pleadings.

For the reasons set forth below, this Court finds that the ALJ's decision contains several legal errors which require remand. Plaintiff's motion is granted insofar as the Commissioner's decision is reversed and the matter is remanded for further proceedings consistent with this opinion. The Commissioner's cross-motion is denied.

B. The Non-Medical Evidence

Plaintiff was born in June 1967. R.62. After graduating from high school, she completed a year of college. R.60, 204. From 1992 through 2001, she worked at McDonald's restaurant. R.57. Plaintiff acknowledged that she ceased working for reasons unrelated to her allegations of disability. R.56.

Plaintiff testified that she lives with her four-year-old son and serves as sole caregiver for the child, who does not attend daycare or kindergarten. R.204. Plaintiff goes grocery shopping with her neighbor's assistance and visits stores to buy clothes for her child. R. 204-05, 210. She can drive for short trips. R. 205. She cooks quick meals in the oven or microwave. R.205. Plaintiff's adult daughter visits on weekends, but Plaintiff does not go visit her. R.205-06, 207. Plaintiff last traveled three months prior to the December 2008 hearing, when she visited Puerto Rico. R. 208.

Plaintiff testified that she began experiencing back pain after kneeling down to give her son a bath in May 2006. R.190. She also has complained of depression and migraines as well as leg, neck, and shoulder pain. R.190, 198-200. She has principally treated with Dr. Eddy Laroche, her general practitioner. She attended physical therapy for four or five months during the summer of 2007. R.193. Although she took medication for her pain and migraines, she testified it made her dizzy and fatigued. R. 194-95. She testified that Dr. Laroche had recommended surgery for her back. R.201-03.

B. Medical Evidence from the Period Prior to August 14, 2006, the Date of Plaintiff's Application Plaintiff's primary care physician, Dr. LaRoche, has treated Plaintiff for lower back pain from June 2006, through the present.

R.112-16. Dr. Laroche's treatment notes reflect that Plaintiff visited the emergency room in June 2006 for back pain and also underwent physical therapy, which provided results ranging from "good" to "fair" to no improvement. R.112-16.

Plaintiff underwent an x-ray of her lumbosacral spine performed on May 22, 2006, which showed normal vertebral bodies and intervertebral disc spaces. R.126. There was no spondylolisthesis (the anterior or posterior displacement of a vertebra or the vertebral column in relation to the vertebrae below). A CT scan of Plaintiff's lumbar spine taken on that same date revealed normal vertebral bodies and intervertebral disc space and no evidence of focal disc herniation. R.127. An MRI of Plaintiff's lumbar spine on June 16, 2006, revealed mild disc desiccation and mild posterior protrusion at the L4-L5 disc level with anterior indentation of the thecal sac. R.128.

In August 11, 2006, imaging of the lumbar spine showed no fracture or spondylolisthesis but did show mild disc space narrowing at L4-L5. Other disc spaces appeared unremarkable. R.129. A no-contrast CT scan of the lumbar spine performed that same date showed no signs of spondylolysis or spondylolisthesis. R.130-31.

The CT scan revealed very mild disc degenerative changes with minor focal disc protrusions at the level of L3 to S1, without signs of nerve root compression. R.131.

C. Medical Evidence From the Relevant Period (August 14, 2006, the Date of Plaintiff's Application, to January 22, 2009, the Date of the ALJ's Decision)

Plaintiff visited the Clifton Springs Hospital and Clinic on August 24, 2006, with complaints of lower back pain that were sharp, severe, and relieved by nothing. R.107-08. Plaintiff's back appeared normal upon visual inspection. 108. Straight leg raising tests were negative, and Plaintiff had no apparent motor or sensory deficits. Plaintiff retained intact reflexes, and her extremities were non-tender with a full range of motion. R.108.

Plaintiff saw Dr. Laroche on August 25, 2006, rating her back pain at eight to nine out of ten. Plaintiff appeared stable with no lumbosacral spinal swelling, redness, or defect. R.111. She complained of some discomfort upon forward bending and hyperextension of her back. While she experienced some pain upon active and passive rotation of the upper body, she had no pain with straight leg raising. R.111. Plaintiff was instructed to continue with Lortab and increase her Lyrica dosage. Dr. Laroche referred her to Dr. Holder at the pain clinic. R.111.

When Plaintiff saw Dr. Laroche again on September 1, 2006, she reported mild improvement in her discomfort and rated her back pain as a seven out of ten. Plaintiff complained of some pain radiation to the lower extremities but denied any numbness or tingling sensation. R.110. She complained of some discomfort upon forward bending and hyperextension of her back; mild pain upon active and passive rotation of the upper body; and no pain associated with straight leg raising. Examination revealed good strength in both lower extremities. R.110. Dr. Laroche advised Plaintiff to continue with Lortab and Lyrica and to follow up in two weeks. R.110.

On September 15, 2006, Plaintiff saw Dr. Laroche, again complaining of significant lower back discomfort with numbness and tingling in both lower extremities. R.109, repeated at R.134. She rated her pain as an eight on a scale of one to ten. Dr. Laroche observed that Plaintiff looked very uncomfortable but was not in acute distress. Examination revealed no swelling or redness but plaintiff complained of severe pain upon forward bending and hyperextension of her back. R.109. She reported mild discomfort upon active and passive rotation of the upper body; no pain with straight leg raising; and no sensory deficits. R.109. Dr. Laroche referred Plaintiff to Dr. Ziedman for a surgical evaluation. She was to continue with Lyrica and Lortab. R.109. The record contains no treatment notes from Dr. Ziedman, although Plaintiff testified that she did consult with him. Dr. Zeidman advised that he would not perform surgery unless her legs evidenced paralysis. T.196.

Plaintiff saw Dr. Laroche on October 19, 2006, complaining of back pain radiating into both legs. R.135. She reported obtaining some relief from medication. Examination of the lumbosacral spine revealed no redness or swelling, but Plaintiff still experienced poor ranges of motion. R.135.

On October 30, 2006, at the Commissioner's request, James Naughten, M.D. ("Dr. Naughten") consultatively examined Plaintiff.

R.118-20. Dr. Naughten observed that Plaintiff took very short steps and used a back brace. R.119. She had to hold onto the exam table to walk on her toes and declined to walk on her heels. She could do a full squat, did not need help changing clothes or getting on or off the exam table, and was able to rise from a chair without difficulty. She had normal grip strength in both hands and had full range of motion in her shoulders, arms, hands, and hips, knees, and ankles. She complained of bilateral lumbar pain, spasm, and spinal and paraspinal tenderness. She retained intact hand and finger dexterity and full grip strength (5/5) bilaterally. R.119. With regard to Plaintiff's upper extremities, examination revealed full ...

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