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Felicia Pereyra v. Michael J. Astrue

August 28, 2012

FELICIA PEREYRA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

OPINION AND ORDER

Plaintiff Felicia Pereyra ("Plaintiff") filed an application for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") under the Social Security Act ("the Act") on March 29, 2007. Plaintiff alleged her disability began on December 31, 2006, due to hypertension, embolism and thrombosis of veins, and lumbar scoliosis. By a decision dated February 20, 2009, Administrative Law Judge Jeffrey Jordan ("ALJ") concluded that Plaintiff was not disabled within the meaning of the Act. On October 21, 2010, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review.

On December 17, 2010, Plaintiff commenced the instant action seeking reversal of the Commissioner's decision and remand solely for the calculation of benefits. The Commissioner moved for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits. (See Def.'s Mem. of Law in Supp. of His Mot. for J. on the Pleadings, Dkt. Entry 12.) Plaintiff cross-moved for judgment on the pleadings, asserting that the ALJ's determination that Plaintiff could perform sedentary work is flawed because it is not supported by a treating physician's opinion and it fails to properly assess Plaintiff's credibility. Further, Plaintiff argues that the court should remand for calculation of benefits only because the record is complete and provides substantial evidence of Plaintiff's disability. (See Mem. of Law in Supp. of Pl.'s Cross Mot. For J. on the Pleadings and in Opp'n to Def.'s Mot. for J. on the Pleadings, Dkt. Entry 14 ("Pl. Mem.").)

For the reasons set forth more fully below, the Commissioner's motion is denied, and Plaintiff's motion is granted in part and denied in part. Plaintiff's motion is granted to the extent that it seeks remand based on the ALJ's failure to properly apply the treating physician rule and determine Plaintiff's credibility, and denied to the extent Plaintiff seeks this court to issue a finding that Plaintiff is disabled.

BACKGROUND

I. Testimonial and Self-Reported Evidence

A. Hearing Testimony

1. Plaintiff's Testimony

Plaintiff alleges she became disabled on December 31, 2006 and has not worked since then. (R. 34, 132.)*fn1 Plaintiff claims to suffer from hypertension, embolism and thrombosis of the veins, and lumbar scoliosis. (Id. at 132.) According to Plaintiff, she also stopped working because she had a blocked coagulation in her leg that caused her leg and foot to swell "very much." (Id. at 35.)Plaintiffalso had pain in the lower right side of her back that worsened over time. (Id.) On January 8, 2009, Plaintiff appeared with counsel and testified before the ALJ to review her disability claim. (Id. at 25-54.) A Spanish interpreter was also present to assist in the proceeding. (Id. at 25.)

Born in the Dominican Republic on June 9, 1950, Plaintiff became a United States citizen in the 1970's. (Id. at 29-30.) Plaintiff is married but lives with her daughter and her daughter's family. (Id.) Plaintiff completed college in the Dominican Republic in the 1990's and received a degree in business administration. (Id. at 31.) The only job Plaintiff has held in the past fifteen years was in the Dominican Republic in the credit and collection department of Johnson & Johnson, where she collected money, kept records and archives, and recorded data by computer. (Id. at 34-35.) Plaintiff's job required her to sit 80 percent of the time and stand the rest of the time. (Id.) Plaintiff had to pick up papers weighing less than ten or five pounds in order to file them. (Id.)

At the hearing, the ALJ asked Plaintiff a series of questions regarding her exertional capabilities. Plaintiff testified that her legs swell when she sits or stands for long periods of time. (Id. at 37.) When the ALJ asked Plaintiff how long she could sit in an eight-hour workday, Plaintiff stated she could sit for less than an hour and explained that, even while sitting in the hearing, she wanted to get up. (Id.) According to Plaintiff, she could stand for "maybe half an hour." (Id.) Plaintiff testified that she could walk one or two blocks, but her back hurt a lot. (Id.) Plaintiff was unsure of how much weight she could lift, but things she picks up fall from her hands. (Id.) Plaintiff has numbness in her hands and legs, which, according to Plaintiff, her doctor attributed to pinched nerves due to Plaintiff's disc problem. (Id. at 37-38.)

Next, Plaintiff's attorney questioned Plaintiff regarding her prior work. According to Plaintiff, her employers fired her because she was unable to perform her work. (Id. at 38.) Plaintiff explained that, when she did work, she worked only three to four hours daily, as per her doctor's instructions. (Id. at 39.) Plaintiff's attorney asked her if she could do her previous job, and Plaintiff responded, "I wish I could, I wish I could. I really loved my job, I, I really can't." (Id. at 40.)

Plaintiff also testified about her daily activities. Plaintiff stated that she can no longer cook because she gets dizzy from her vertigo, her hands get numb, and things fall from her hands. (Id. at 39.) Plaintiff also needed help bathing and putting her pants and shoes on because she could not bend down to her legs or tie her shoes. (Id. at 39-40.) According to Plaintiff, she was unable to bend because she "feels like something is pulling from my back." (Id. at 40.) Plaintiff is also unable to bend her neck. (Id. at 39.) Plaintiff then stated that, when she is seated for too long, her legs go numb and she will have to get up to move her legs because it is painful.*fn2 (Id. at 41.) According to the Plaintiff, "if I sit too long, it's bad, if I stand too long, it's bad. I just want to die." (Id. at 43.)Plaintiff is able to lie down for a couple of hours before her back becomes "tired" and she has to get up. (Id.)

Plaintiff testified that she takes Cyclobenzaprine at night and Niaprazine in the day for the pain. (Id. at 41.) Additionally, Plaintiff received three injections in her spinal column, which provided some help for the pain. (Id.) Plaintiff stated that her doctor told her to put her legs up and wear support stockings for the swelling in her legs. (Id. at 41-42.) The ALJ pointed out that the medical records do not support Plaintiff's assertion that her doctor told her to elevate her legs. (Id. at 44.) Plaintiff explained that her doctor told her to put pillows below her leg when she lies down, and when she is sitting she puts her legs up a little higher than her seat. (Id.) Plaintiff also testified that she had begun utilizing a cane more than a year ago because she has pain when she puts her left leg down. (Id. at 42.) She also needed the cane for balance. (Id.)

Plaintiff testified that for three days prior to the hearing she did not suffer from any vertigo, but on the day of the hearing she began to feel it again. (Id. at 42.) Plaintiff explained that when she turns her head in a rapid manner, she gets nauseous and dizzy.*fn3 (Id.) Plaintiff said that her doctor prescribed her medication, but it makes her drowsy.*fn4 (Id.) Plaintiff has a driver's license but does not drive due to her vertigo syndrome. (Id. at 32-33.)

The ALJ noted that, although Plaintiff claimed she has numbness, there is no evidence of nerve root compression in any of Plaintiff's MRI results. (Id. at 45.) In response, Plaintiff explained that when she told her neurologist that she drops things from her hands, he said it was because of her pinched nerve. (See id. at 45-46.)At the close of the hearing, Plaintiff's attorney referenced MRI results from August 18, 2007 and July 21, 2008 and noted that there were objective findings in the record regarding pressure on Plaintiff's nerves. (Id. at 49-50.) After reviewing the findings, the ALJ did not see any impairment causing numbness in Plaintiff's hands. (Id. at 51.)

2. Testimony from Vocational Expert

The ALJ questioned Donald Silve, a vocational expert ("VE"). (Id. at 47-49.) According to the VE, Plaintiff's job as an accounts receivable bookkeeper is sedentary, the Specific Vocational Preparation is 6, and the procedures applied in the Dominican Republic to perform this job are the same as in the United States. (Id. at 48.) In determining whether there were any positions in the local and national economies that Plaintiff could perform, the ALJ asked the VE to assume a hypothetical individual of Plaintiff's "age, education, and work experience; can lift and carry ten pounds occasionally; can stand and walk at least two hours, can sit at least six hours; can push and pull the same as for lift and carry; must avoid squatting, crawling, kneeling, and climbing ladders and ropes and scaffolds but can perform other postural movements occasionally; must avoid moving dangerous machinery and unprotected heights, and moving dangerous machinery also includes avoid driving." (Id. at 48-49.) According to the VE, the hypothetical individual could perform Plaintiff's past work. (Id.)

Later in the hearing, in response to the ALJ's determination that Plaintiff could perform sedentary work, Plaintiff's attorney argued that Plaintiff would be limited to less than sedentary work because of Plaintiff's chronic pain, caused, in part, by degenerative changes throughout her spine. (Id. at 51-52.) He further argued that Plaintiff would not be able to sit for the required six hours because of her back and leg pain. (Id. at 52.) To resolve this issue, the ALJ called the VE for a second time to clarify whether Plaintiff could still perform the work of an accounts receivable bookkeeper if she needed to stand for a period of ten to fifteen minutes, approximately every 30 to 60 minutes. (Id. at 52-53.) According to the VE, such an individual would not be able to perform the work of an accounts receivable bookkeeper. (Id. at 53.)

B. Adult Function Report

On May 4, 2007, Plaintiff's sister, on behalf of Plaintiff, filled out an Adult Function Report. (See id. at 114-25.) Plaintiff reported that, about two years earlier, she started experiencing pain in her back and hips, and the pain has intensified. (Id. at 123.) Plaintiff described the pain as a stabbing pain in her lower back and legs that radiated to her lower legs. (Id.) Plaintiff experienced this pain every hour of every day, and standing, sitting, walking, and lying down on her back brought it on. (Id. at 124.) Twice daily for eight months, Plaintiff took two 500-mg tablets of Ultra-Strength Tylenol to relieve the pain. (Id.) The pills took effect after a half hour and provided relief from the pain for a couple of hours. (Id.) Additionally, in the Dominican Republic, Plaintiff took Dolowin Forte for the pain. (Id.) Plaintiff took care of her own personal needs and grooming without help or reminders but she needed reminders to take her medicine. (Id. at 117.) Additional measures Plaintiff took to relieve the pain included using a cane, rubbing her back with pain releasing cream, and wearing a corset during the day. (Id. at 125.)

Before the onset of her condition, Plaintiff worked full time and took care of herself and her home. (Id. at 116.) However, for the past six months, Plaintiff's pain affected her ability to perform daily activities. (Id. at 123.) Plaintiff's daughter helped Plaintiff bathe because Plaintiff could not bend over or kneel. (Id. at 125.) Plaintiff's daughter also prepared all Plaintiff's meals because Plaintiff could not stand for long periods. (Id. at 117.) Due to Plaintiff's hip, back, and leg problems, she could not use public transportation because she could not go up and down the stairs. (Id. at 115.) Though Plaintiff rides in a car, she does not drive because she does not have a car and she could not sit for a long time. (Id. at 118.) Her back problems rendered her unable to lift heavy objects, and she is unable to kneel or squat. (Id. at 120.)

According to Plaintiff, her back and hips hurt "very much," and her left leg swelled when she was on her feet for long periods of time. (Id. at 122.) Plaintiff stated that she could not go out alone because she could not walk for two blocks, and when she does she has sit down for at least fifteen minutes. (Id. at 121-22.) When Plaintiff feels stressed, she gets terrible headaches and the left side of her neck gets swollen. (Id. at 122.) Any activity Plaintiff starts, she eventually stops so she can rest. (Id. at 121.)

II. Medical Evidence

A. Lincoln Medical and Mental Health Center

Plaintiff received treatment at Lincoln Medical and Mental Health Center from February 2007 to July 2008.

At a February 27, 2007 visit, an ultrasound of Plaintiff's left lower extremity ruled out deep venous thrombosis. (Id. at 167.) Plaintiff was diagnosed with embolism and thrombosis of other specified veins. (Id. at 168.) Plaintiff also was diagnosed with benign essential hypertension. (Id. at 169.)

On March 2, 2007, Plaintiff was not in acute distress and was ambulatory. (Id. at 185) Plaintiff had varicose veins and peripheral pulses. (Id.) There was no edema, clubbing, or cyanosis. (Id.) On March 26, 2007, Plaintiff's benign essential hypertension was uncontrolled, but she was compliant with her medications. (Id. at 179-80.) Plaintiff was continued on Coumadin, but her doctors increased Lisinoril from 20mg to 40mg. (Id. at 179.) On April 10, 2007, Plaintiff reportedly had pain with movement and her symptoms increased at night. (Id. at 175.) On April 24, 2007, Plaintiff was not in acute distress and was ambulatory. (Id. at 172.) Varicose veins and peripheral pulses were present. (Id.)

Plaintiff also received treatment from a cardiologist on May 21, 2007 and June 18, 2007, (id. at 255-58), a gastroenterologist, (id. at 259-65), and a rheumatologist. (Id. at 285-87.) Plaintiff met with a dietician on February 7, 2008 and February 21, 2008. (Id. at 272-80.) Plaintiff was put on a treatment plan to treat her obesity and hypertension. (Id.)

An MRI of Plaintiff's lumbar spine was performed on August 18, 2007. (Id. at 220-21; 343-44.) The MRI results showed a central disc herniation/protrusion at the level of L5-S1 impressing the thecal sac without causing direct compromise of the exiting nerve ...


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