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Tina Lasher v. Commissioner of Social Security

October 1, 2012


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge


Plaintiff Tina Lasher commenced this proceeding seeking judicial review of an agency determination denying her application for disability insurance benefits, pursuant to 42 U.S.C. § 405(g). Judgment was ultimately entered in the case, based upon the parties' filing of cross-motions for judgment on the pleadings, vacating the Commissioner's determination that plaintiff was not disabled at the relevant times, and thus ineligible to receive Social Security benefits, and remanding the matter to the agency, with a directed finding of disability, for calculation of benefits owed.

The Commissioner now moves for alteration of the judgment entered, in essence requesting that the court reconsider its determination that the agency's determination is not supported by substantial evidence and results from the improper rejection of opinions of two treating physicians which contradict the residual functional capacity ("RFC") determination upon which the finding of no disability is predicated, as well as rejection of the plaintiff's subjective complaints of disabling pain. In the alternative, the Commissioner requests a stay of the court's determination pending appeal. For the reasons set forth below, I find no basis to disturb my prior decision to vacate the Commissioner's determination, but agree that the directed finding of disability was improvident.


On October 7, 2008, plaintiff submitted an application for disability insurance benefits to the Commissioner alleging that she was disabled, and thus precluded from working, beginning on September 28, 2008. In an interview regarding her application plaintiff stated that she suffers from back and neck conditions, with restlessness in both legs, and that these conditions together limit her ability to work. Plaintiff clarified that because of her circumstances she is unable to sit and stand for prolonged periods of time, and cannot lift heavy objects. Plaintiff stated that she stopped working on September 25, 2008, based upon the pain that she was experiencing.

Plaintiff has received treatment for her medical conditions primarily from Dr. Fabio Danisi, a neurosurgeon in Kingston, New York, as well as at the Albany Medical Center ("AMC") where she was evaluated for chronic low back and neck pain by both neurosurgeons and/or personnel with the Center's Department of Physical Medicine and Rehabilitation. Magnetic Resonance Imaging ("MRI") testing of the plaintiff in May of 2008 revealed mild degenerative disc disease at L4-L5 and L5-S1, with two mildly bulging disks at those levels, and in the cervical region showed broad-based disc bulging at C3-C4 "with mild right-sided degenerative neuro foraminal stenosis and mild right-sided cord compression." Upon referral of the plaintiff to the AMC it was determined that she was not a suitable candidate for surgery.

Plaintiff's neck and back pain has been treated with prescription medication, including Topamax, although that medication was discontinued when plaintiff was unable to afford the co-payment necessary to fill the prescription. According to a letter from Dr. Danisi, dated January 23, 2009, plaintiff suffers from diffuse chronic pain during the day as well as chronic fatigue which impairs her ability to work. Dr. Danisi completed a Physical Capacity Evaluation Form on April 16, 2009, opining that Ms. Lasher cannot lift, carry, push or pull at any level; cannot climb, stoop, kneel, crouch or crawl; and must have the ability to change positions frequently. In that evaluation, Dr. Danisi also noted that she is "unable to perform even sedentary activities" due to her cervical and lumbar pain as well as restless leg syndrome ("RLS").

In addition to experiencing cervical and lumbar back conditions, plaintiff also suffers from pain and discomfort in her right elbow. Plaintiff's right elbow condition was precipitated by a workplace accident in which she fell over a shopping cart on May 29, 2008. Beginning in June of 2008, plaintiff treated for the injuries associated with that accident at Capital Region Orthopedics, where she was ultimately followed by Dr. Richard R. Whipple, who she saw periodically in the months that followed.*fn1 On October 19, 2010 -- eight months after the decision rendered by the administrative law judge ("ALJ") assigned by the agency in this matter -- Dr. Whipple wrote that authorization for physical therapy was being requested in view of the failure of multiple injections to help alleviate the plaintiff's pain. In that written communication, Dr. Whipple noted that he was prescribing a Lidoderm patch for relief of the pain, and would consider surgical release as a last resort.

On February 12, 2010, following a hearing conducted on January 10, 2012, ALJ Carl B. Stephan issued a decision in which he concluded that plaintiff was not disabled at the relevant times, and therefore ineligible to receive disability insurance benefits. Applying the now-familiar five step test for determining disability, at step one ALJ Stephan found that plaintiff had not engaged in substantial gainful activity since her alleged onset date. Proceeding to step two, he found that the plaintiff suffers from severe impairments, as defined under the Act and corresponding regulations, limiting her ability to perform basic work related functions, including a lumbar spine disorder, cervical spine disorder and RLS, but concluded at step three that those conditions do not meet or medically equal any of the listed, presumptively disabling impairments set forth in the regulations, either individually or collectively. See 20 C.F.R. Pt. 404, Subpt. P, App. 1.

ALJ Stephan then conducted a survey of the available medical evidence and determined that despite her condition, plaintiff retains the RFC to perform a full range of light work, as defined under the Commissioner's regulations.*fn2 In arriving at that determination he rejected contrary opinions of two treating sources, Dr. Fabio Danisi and D. O. Kathleen Marici, as well as plaintiff's subjective complaints concerning her pain and resulting limitations. The ALJ then concluded at step four that the plaintiff is capable of performing her past relevant work as a cashier, but nonetheless went on to conclude that consideration of plaintiff's relevant characteristics, as applied to the medical vocational guidelines of the regulations (the "grids"), 20 C.F.R. Pt. 404, Subpt. App. 2, would in any event support a finding of no disability.

Plaintiff sought review of the ALJ's decision by the Social Security Administration Appeals Council. In support of that request, inter alia, plaintiff submitted an October 19, 2010 letter from Dr. Whipple addressing her right elbow condition. The Appeals Council determined that Dr. Whipple's letter, as well as two other documents, should be included as part of the record. Notwithstanding the addition of those materials, however, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's decision a final determination of the agency.


Plaintiff commenced this action on July 8, 2011. Following the submission by the Commissioner of an administrative transcript of the proceedings and documents before the agency, as well as briefing, oral argument in the matter was conducted by me on March 19, 2012.*fn3 At the conclusion of that hearing I rendered a bench decision granting plaintiff's motion for judgment on the pleadings, and followed that determination with the issuance of a written order, dated March 28, 2012, incorporating by reference the earlier bench decision, ordering that the determination of the agency be vacated and that the matter be remanded to the Commissioner with a directed finding of disability, solely for the purpose of calculation of benefits owing to the plaintiff. Judgment was thereafter entered on March 29, 2012, based upon that determination.

On April 26, 2012, the Commissioner moved seeking alteration or amendment of the court's judgment, pursuant to Rule 59(e) or, alternatively, a stay pending appeal, pursuant to 62(b), of the Federal Rules of Civil Procedure, respectively. Plaintiff has not ...

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