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Stemmermann v. Colvin

United States District Court, E.D. New York

August 19, 2014



SANDRA L. TOWNES, District Judge.

Plaintiff Donna Stemmermann ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the final decision of acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner"), which held that Plaintiff was ineligible for disability insurance benefits under Title II of the Social Security Act ("the Act"). The Commissioner found that Plaintiff had medically determinable impairments of anxiety, obesity, diabetes, neuropathy, degenerative disc disease, herniated disc, hypertension, and unspecified neurological disorders, but that none of these impairments were severe prior to the date last insured, March 30, 2009. (R. 29-32). Plaintiff and Commissioner now cross-move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Because the Administrative Law Judge ("ALJ") failed to fully develop the record and properly assess Plaintiffs credibility, defendant's motion is denied. Plaintiffs motion for judgment on the pleadings is granted to the extent it seeks remand and this case is remanded to the Commissioner on the grounds set forth below.


A. Procedural History

Plaintiff filed a Social Security Disability benefits application on July 16, 2010, alleging disability since December 31, 2007. (R. 112-13). Her claim was denied on November 4, 2010. (R. 58-69). Plaintiff then requested a hearing on November 9, 2010. (R. 70-71). On August 24, 2011, the hearing was held before ALJ Andrew Wiess. (R. 37-54). ALJ Wiess considered the application de nova and decided on September 15, 2011, that Plaintiff was not disabled on or before the date last insured, March 30, 2009. (R. 27-36). The Appeals Council denied Plaintiffs request for review on November 13, 2012 and adopted ALJ Weiss's decision as the final decision of the Commissioner. (R. 1-7).

B. Plaintiff's Education and Work History

Plaintiff is a high school graduate born in 1965. (R. 320). She worked as a certified nursing assistant and a home health care aide from 1997-2007. (R. 41, 125, 132-36, 161). Plaintiff stated that she stopped working in 2007 because there was not enough work. (R. 41; see also R. 353). She also claimed that she stopped working at this time because of anxiety attacks (R. 48), back spasms (see R. 322), and "numbness in her leg" (R. 43). She described her right leg numbness as "pains, spasm, and numbness down my right hip, leg, foot, all the way down" and occurring "every day." (R. 51).

C. Plaintiff's Medical History

1. Medical Records Prior to Alleged Disability Onset Date of December 31, 2007

a. South Shore Neurologic Associates, P.C.

Plaintiff submitted medical records from South Shore Neurological Associates to the Appeals Council after ALJ Weiss found that Plaintiff was not disabled. Mark Gudesblatt, M.D., evaluated Plaintiff on January 9, 2007 for neck and shoulder pain. (R. 619). Plaintiff stated that while lifting herself up in September 2006, she felt pain at the base of her neck and left shoulder region extending down to her arm and fingers. Id. She also developed numbness of her right leg and an unsteady feeling while walking. Id. Dr. Gudesblatt believed that cervical myofascial pain and radiculopathy, likely at the C6-7 level, caused her left arm pain and numbness. Id. He also opined that she likely had right carpal tunnel syndrome and possible upper lumbar radiculopathy related to independent lumbar disc problems. (R. 620-21).

An electromyogram ("EMG")/nerve conduction study ("NCS") of Plaintiff's upper extremities on January 17, 2007 showed moderate bilateral carpal tunnel syndrome (greater on the right), which had not resulted in any significant axonal degeneration. (R. 624-25). An EMG and NCS of Plaintiff's lower extremities from January 30, 2007, was normal, without evidence of lumbosacral radiculopathy, plexopathy, polyneuropathy, or myopathy. (R. 617; 622-23).

On March 21, 2007 at a follow-up visit to Dr. Gudeblatt's office, Plaintiff told Clifford Miller, Family Nurse Practitioner that her neck, left shoulder, and arm pain had resolved. (R. 616). She continued to have some numbness in her right leg, but no pain or weakness. Id. Her motor strength was full (five out of five) and her motor tone was normal. (R. 617). Miller's diagnostic impression included: cervical myofascial pain and radiculopathy, resolved; residual right hand tingling with evidence for carpal tunnel syndrome (greater on the right); and right leg numbness with no electrophysiological evidence for radiculopathy but documented disc herniation on magnetic resonance imaging ("MRI"). Id. He recommended a cervical MRI and prescribed Xanax for Plaintiff to take before the MRI. (R. 618).

2. Medical Records During the Alleged Disability Period (December 31, 2007 through March 30, 2009)

a. Dr. Vinod Gulati, M.D. - Treating Physician

Dr. Gulati began treating Plaintiff in October 2005. (R. 320). Prior to her alleged onset date (December 31, 2007), Plaintiff saw Dr. Gulati for anemia (menstruation induced), an acute sinus infection, obesity, and hypertension. (R. 319-20).

Plaintiff saw Registered Physician's Assistant Ann Lloyd at Dr. Gulati's office ten times between January and September 2008. (R. 318, 320, 321). On January 16, 2008, Lloyd recorded that Plaintiff had a blood pressure of 140/80, weighed 341 pounds, was neurologically intact, and her reflexes were unimpaired. (R. 321). The following month, on February 27, 2008, Lloyd noted that Plaintiff was recently diagnosed with diabetes mellitus and was taking an anti-diabetic (Glucophage) and an angiotensin-converting enzyme inhibitor (Lisinopril) to treat hypertension. Id. She had a blood pressure of 130/80 and weighed 317 pounds; Plaintiff apparently had lost twenty-five pounds in six weeks by participating in Weight Watchers. Id. She was diagnosed with hypertension and diabetes. Id. On April 30, 2008, Plaintiff complained of severe anxiety and stated that depression and anxiety ran in her family. (R. 318). She weighed 296 pounds, having lost an additional twenty-one pounds. Id. Lloyd noted that her abdomen was obese and that her legs showed 1秗. Id. Lloyd diagnosed Plaintiff with anxiety, diabetes, hyperlipidemia, and a herniated lumbosacral disc. Id. Lloyd prescribed Xanax for Plaintiff's anxiety and gave her a "handicap stick"[1] for her herniated discs. Id. Plaintiff returned to Lloyd on June 25, 2008 and August 6, 2008 for routine blood work, and September 16, 2008 for a blood pressure check. Id. Lloyd reported that Plaintiff's blood pressure was normal during these visits. Id. On September 16, 2008 Plaintiff weighed 269 pounds, had clear lungs, and her extremities revealed no edema. Id.

3. Medical Records After the Date Last Insured, March 30, 2009

a. Dr. Siby Cherian, M.D. at Dr. Gulati's office

On July 10, 2009, Plaintiff saw Dr. Cherian for pharyngitis. (R. 322). Dr. Cherian noted that Plaintiff had been noncompliant with her visits, was "seeing somebody else on the outside" to get her prescriptions, and stopped taking her ...

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