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Patricia M. Cozan Pierce v. Michael J. Astrue

May 17, 2013

PATRICIA M. COZAN PIERCE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER

I. Introduction

Represented by counsel, Patricia M. Cozan-Pierce ("Plaintiff"), brings this action pursuant to Title II of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for Disability Insurance Benefits ("DIB"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).

Presently before the Court is Defendant's motion pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 12(c) for judgment on the pleadings, which Plaintiff has opposed. Because the ALJ made a significant error of fact in making the severity determination at step two, his decision denying benefits is not supported by substantial evidence. As discussed further below, Defendant's motion for judgment on the pleadings is denied, and the matter is remanded for further administrative proceedings.

II. Procedural History

On December 15, 2008, Plaintiff protectively filed an application for Title II benefits, alleging disability commencing January 1, 2002, due to carpal tunnel syndrome ("CTS"), colitis, and arthritic pain. After the claim was denied on March 27, 2009, Plaintiff requested a hearing, which was held on June 24, 2010, before Administrative Law Judge James E. Dombeck ("the ALJ"). The ALJ was unable to find 12 months of continuous disability from March 4, 2009, back to May 29, 2002, the time-frame covered by the treatment record of Plaintiff's primary care physicians. Accordingly, the ALJ entered a finding of not disabled on August 19, 2010. (T.5-14).*fn1 The Appeals Council declined Plaintiff's request for review on February 14, 2012, making the ALJ's decision the final decision of the Commissioner. (T.1-4).

III. The Administrative Record

A. Plaintiff's Testimony

Plaintiff testified that she had worked for the Center for Disability from October 2007, to May 2008. Her client was a 200-pound paralyzed man. (T.23). She ensured that he had meals and a clean place to live in her home, and her children assisted with his personal care. (T.23-24). She also drove the client to his doctor's appointments.(T.23).

Prior to that, she had worked at Kodak as a buyer, but she left in 1995. According to Plaintiff, she had taken time off work because of her medical conditions, and when she returned, they had given her buyer position to someone else. Kodak attempted to find something else for her (e.g., assembly-line work), but there were no positions that met her physical restrictions (no lifting, pushing, pulling, carrying, or handling anything over ten pounds, and nor repetitive tasks with her hands). (T.25).

After leaving Kodak in 1995, she did odd jobs, including working as a buyer at a different company, off and on, until 1999. Plaintiff indicated that she would have continued to work as a buyer at Kodak if the position had been available. (T.27).

Plaintiff explained that after 1995, her health began deteriorating, especially her back. (T.28). She testified she had at least two surgeries on her hands, in 1993 and 2009. (T.29, 30). Plaintiff stated that she could not work after 2001 because she could not even hold a coffee cup for any length of time without losing her grip on it. (T.29). She also testified that she could not drive for long periods or her hands would hurt and swell.

(T.29).

Due to a lack of insurance coverage, Plaintiff had only intermittent medical treatment between 2001 and 2007. (T.30--31). Plaintiff testified that she had seen her primary care doctors (Dr. Richard and eventually his replacement Dr. Steele) at least every other month between 2001 and 2007 (T.31). When questioned by the ALJ about a statement that Dr. Steele purportedly had made in a March 4, 2009 treatment note, to the effect that Plaintiff was returning after not having been seen for seven years, Plaintiff stated that it was a "mega error."*fn2 (T. 33--34, 487). She testified that the longest that she had gone without treatment was a year, due to a lapse in insurance coverage, but that she did not believe it was even that long (T.34).

Plaintiff testified that she suffered from colitis; osteoporosis; and arthritis in her neck, shoulder, hands, back, and left leg (T.36). She stated she could not work because she could not do anything repetitive with her hands. (T.36). Since her onset of colitis sometime in 2003, she testified that she has been prevented her from completing daily activities because she does not know when she will have to use the bathroom. (T.39). Plaintiff testified that her colitis was somewhat stable with medication, but that she had taken the medication for only a month. (T.39).

Plaintiff testified that she could not perform normal tasks of daily life because of her medical conditions. (T.40). For instance, she had to get somebody to lift heavy things such as laundry detergent, or to reach anything that was above a certain level on the shelf. (T.40). She required assistance with shopping because she could not push clothes on a rack or carry bags. (T.40). She also stated that she could not drive for more than 30 minutes.

(T.41).

Plaintiff's husband, son, or daughter did the cooking because she dropped the pans and utensils. (T.41). She could usually take care of her personal hygiene unless her back was bothering her, and generally needed help with personal care (e.g., shampooing her hair) about three to four days a week. (T.42). Plaintiff also testified that she did not go on walks or take walks with her dogs, because if she fell, she would not be able to get up without assistance. She did play with the dogs a little bit in her yard.

(T.42).

Plaintiff testified that her hand was healing and improved after surgery in March 2009. (T.43). The doctors wanted her to continue physical therapy, but she was unable to do so because she did not have sufficient health insurance. (T.44--45). Plaintiff testified she attended two months or less of physical therapy after the hand surgery because she did not have health insurance. (T.45). She also stated that she never regained total use of her hand after surgery and was unable to hold a pound of weight over a long period of time. (T.44). Plaintiff stated that she had not had any recent treatment other than pain medications for her back, neck, and shoulder. (T.45). Plaintiff also testified that she had had ulcers since she was 25-years-old, but was not being treated for them at the time of the hearing. (T.46).

B. Medical Evidence

1. 1990 to the Onset Date (January 1, 2002)

Plaintiff received treatment for arthritis in her neck, shoulders, back, and hands from at least May 1990, to September 2001. (T.249-84). During this time period, her pain-management consisted of Tylenol #3 (Tylenol with codeine), Naprosyn, and Flexeril. (T.249). On September 14, 2001, her primary care physician, Dr. Eric Richard, noted that apart from her arthritis, she is "feeling fine." (T.249). He observed that Tylenol #3 "help[ed] her function." (T.249). Plaintiff was directed to return in a few months for follow-up.

2. The Period Relevant to a Finding of Disability (January 1, 2002, to March 31, 2007) a. 2002

On January 4, 2002, Plaintiff returned to Dr. Richard complaining of increasing arthritis pain as well as skin lesions on her chin, neck, and left shoulder. (T.245). Physical examination revealed full range of motion, with no tenderness, swelling, or erythema in her joints. (Id.). Dr. Richard ordered blood work and x-rays to rule out rheumatoid arthritis and systemic lupus erythematosus ("SLE"). (Id.). An x-ray of both hands, ordered by Dr. Richard, showed no bony erosions, but did show small soft tissue calcifications adjacent to the right and left ulnar styloid process which could represent residual prior trauma. (T.246, 468).

On January 22, 2002, Plaintiff had a dual-energy x-ray absorptiometry ("DEXA") test, which showed osteopenia in the right hip. (T.240--41, 473). The bone density of Plaintiff's spine and left hip were normal (T.21, 474).

Plaintiff saw Dr. Richard on February 26, 2002, complaining of pain in her stomach. (T.237, repeated at T.238, 396). Dr. Richard diagnosed possible peptic ulcer disease with some dyspepsia, osteopenia, and bilateral hand arthritis. (T.237).

On April 27, 2002, Plaintiff returned to Dr. Richard, with complaints of pain in her hands and depression. (T.235). Plaintiff's joints were somewhat swollen, and she had mildly decreased range of motion. (T.235). Dr. Richard diagnosed arthritis and gave her samples of Vioxx for her pain. (T.235).

On May 15, 2002, Plaintiff was referred to Dr. Berchman Vaz, in the Rheumatology Clinic of the University of Rochester Medical Center, due to ongoing pain in her hands. (T.464). Radiographic studies were negative for erosions on her hands, although she had strongly positive results for Tinel and Phalen signs on the right hand and was moderately positive on the left. (T.464). Plaintiff showed pain with movement of the right shoulder and on palpation of the back, especially the lower back. (T.464). Dr. Vaz diagnosed her with chronic pain syndrome involving the back, shoulder, and wrist, and also indicated that Plaintiff probably had CTS. In Dr. Vaz's opinion, she had oseteoarthritis, rather than inflammatory arthritis, in her hands. (T.465). At Dr. Vaz's recommendation, a nerve conduction study was performed on May 29, 2002, which revealed mild to moderately severe CTS. (T.461--62).

b. 2003

On March 23, 2003, Plaintiff presented to her primary care physician, Dr. Richard, with bilateral ear pain and tinnitus.

(T.393). Dr. Richard noted that Plaintiff had continuing peptic ulcer disease with dyspepsia every time she discontinued Prevacid. He stated that her arthritis "appear[ed] stable" on Tylenol #3 and Flexeril, and recommended follow-up in a few months. (T.393).

A repeat DEXA scan on September 5, 2003, again showed osteopenia. (T.457).

On February 23, 2003, Plaintiff had a digestive disease consultation at Strong Memorial Hospital, and was diagnosed with ischemic colitis and intermittent diarrhea. (T.408).

On October 7, 2003, Plaintiff presented at the Strong Memorial Hospital emergency department with ...


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