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Cabibi v. Colvin

United States District Court, E.D. New York

August 28, 2014

DEBRA M. CABIBI, Plaintiff,
v.
CAROLYN W. COLVIN, as COMMISSIONER OF SOCIAL SECURITY, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiff: Sharmine Persaud, Esq., Of Counsel, Law Office of Sharmine Persaud, Farmingdale, NY.

For Defendant: Vincent Lipari, Assistant United States Attorney, Loretta E. Lynch, United States Attorney, Eastern District of New York, Central Islip, New York.

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MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On September 19, 2012, the Plaintiff Debra M. Cabibi (the " Plaintiff" ) commenced this action pursuant to the Social Security Act 42 U.S.C. § 405(g) (the " Act" ), challenging a final determination by the Defendant Carolyn W. Colvin, as Commissioner of Social Security (the " Commissioner" or the " Defendant" ), that she was ineligible for Social Security disability benefits. Presently before the Court is the Commissioner's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(c). Also before the Court is the Plaintiff's cross-motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

The Court notes that both party's motion papers contain footnotes in violation of the Court's Individual Rules. Nevertheless, despite these infractions, the Court will consider both motions.

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied and the Plaintiff's cross-motion for judgment on the pleadings is granted, but only to the extent that the Court finds that remand is appropriate in this case.

I. BACKGROUND

A. Procedural History

On January 28, 2005, the Plaintiff filed an application for a period of Disability and Insurance Benefits. (Administrative Record (" AR" ) at 95.) Due to her lupus, fibromyalgia and breast cancer, she alleged a disability and inability to work since January 8, 2004. (Administrative Record (" AR" ) at 95.) On July 15, 2005, the Social Security Administration (" SSA" ) denied her application. (AR at 23-25, 27.) Thereafter, the Plaintiff made a timely request for a hearing before an Administrative Law Judge (" ALJ" ). (AR at 23-25, 27.)

On July 31, 2007, the Plaintiff testified at a hearing held before ALJ Andrew S. Weiss. (AR at 384-407.) She was represented by counsel at the hearing. (AR at

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384-407.) Following the hearing and a review of the record, in a decision dated August 31, 2007, ALJ Weiss found that the Plaintiff was not disabled and denied the Plaintiff's claim for disability benefits. (AR at 35-44.)

On September 14, 2007, the Plaintiff requested that the Appeals Council review ALJ Weiss's August 31, 2007 decision. (AR at 45-46, 49-61 .) On May 30, 2008, the Appeals Council remanded the Plaintiff's case for further proceedings. (AR at 62-65.) In this regard, the Appeals Council explained that " further development [was] necessary," and therefore instructed the ALJ on remand to (1) give further consideration to the opinion of the Plaintiff's treating physician, Dr. Peter M. Rumore, (2) obtain additional evidence cornering the Plaintiff's orthopedic impairment, (3) give further consideration to the Plaintiff's maximum residual function capacity (" RFC" ), and (4) if warranted, obtain evidence from a vocational expert (" VE" ) to clarify the effect of the assessed limitations on the Plaintiff's occupational base. (AR at 62-65.)

On February 24, 2009, ALJ Weiss held a second hearing. The Plaintiff, who was again represented by counsel, testified. (AR at 45-83.) A VE and a medical expert also testified. (AR at 45-83.) On March 26, 2009, ALJ Weiss issued a partially favorable decision for the Plaintiff. (AR at 69-81.) In this regard, he found that the Plaintiff was disabled beginning on July 5, 2007, but was not disabled prior to this date as the Plaintiff alleged. (AR at 69-81.)

On April 19, 2009, the Plaintiff requested that the Appeals Council review ALJ Weiss's March 26, 2009 decision with respect to the date of the onset of her disability, which she was maintained was January 8, 2004, and not July 5, 2007, as ALJ Weiss had found. (AR at 82-83.) On June 14, 2011, the Appeals Council once again remanded the Plaintiff's case for further proceedings. (AR at 90-93.) Specifically, the Appeals Council instructed the ALJ on remand to (1) give further consideration to Dr. Rumore, as a treating source opinion; (2) give further consideration to the Plaintiff's maximum RFC and provide appropriate rationale including directly citing evidence included in the record; and (3) if warranted by the expanded record, obtain additional evidence from a VE so as to clarify the Plaintiff's occupational base in light of her assessed limitations. (AR at 92.)

On September 22, 2011, ALJ Jay L. Cohen held a hearing to determine whether was disabled from January 8, 2004 through July 4, 2007. (AR at 309-44.) Still represented by counsel, the Plaintiff testified, as did a VE. (AR at 309-44.) After the hearing and a review of the record, on January 12, 2012, ALJ Cohen issued a decision finding that the Plaintiff was not disabled during the period of January 8, 2004 through July 4, 2007. (AR at 309-44, 8-17.)

On February 8, 2012, the Plaintiff requested review by the Appeals Council of ALJ Cohen's January 12, 2012 decision concerning the onset date of her disability. (AR at 6-7.) However, on August 2, 2012, the Appeals Council denied the Plaintiff's request, thereby making the January 12, 2012 decision the final decision of the Commissioner in the Plaintiff's case. (AR at 3-5.) On or about September 9, 2012, the Plaintiff commenced the present appeal from that decision.

B. The Administrative Record

1. The Plaintiff's Non-Medical Background

The Plaintiff was born on December 19, 1955 and is fifty-nine years of age. (AR at

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112, 349.) She completed high school and attended college for two years, receiving an associates degree in business administration in 1976. (AR at 101, 350, 96.)

From 1994 to January 2004 the Plaintiff was employed as an office manager at Sterling Optical. (AR at 96, 104-05, 124-25.) Her work history only goes back ten years, because prior to that date the Plaintiff was raising her children. (AR at 124.) The Plaintiff stopped working in January of 2004, after pain and fatigue allegedly caused her to cut her hours back to three days a week, then two days, and finally one day before she was totally unable to continue working. (AR at 390.)

The Plaintiff is divorced and lives with her father and three children, who at the time of the alleged onset date were twelve, thirteen, and seventeen years old. (AR at 395.) On a typical day, she stays in bed until noon and performs household tasks and shopping with help from her family. (AR at 327-28.) She makes the easiest meals possible due to the fact that she cannot stand for very long. (AR at 134, 327.) In addition, the Plaintiff's children assist her with the cleaning of the house, as well as carry the laundry and the bags during shopping trips. (AR at 328.) For entertainment, she watches television, reads and does crossword puzzles, all of which she does daily. (AR at 328-29.) The Plaintiff spends her time resting rather than socializing with friends, and has allegedly been unable to pursue her interests in walking and yoga due to her condition. (AR at 133, 136.) However, the Plaintiff does go to church twice a week. (AR at 137.)

2. The Medical Evidence

The Plaintiff's medical issues began in May of 1997, when she was diagnosed with " breast carcinoma, Stage I." (AR at 161-64.) Beginning in 2003, after she was treated for the breast cancer, the Plaintiff began treatment at Rheumatology Associates " primarily for fibromyalgia, lupus, degenerative joint disease, low back pain, knee pain, and gastroesophogeal reflux disease." (Pl. Mem., pg. 4.; AR at 171-246.)

On March 20, 2003, the Plaintiff visited Rheumatology Associates and was examined by one of the doctors in the practice, Dr. M. Barilla-LaBarca. (AR at 232-33.) According to Dr. LaBarca, the Plaintiff presented with a rash on her face, which was biopsied and came out as lupus. (AR at 232.) Further, Dr. LaBarca noted the Plaintiff's " prominent photosensitivity, polyartharalgias, and arthritis involving her knees, hips and hands, morning stiffness that last[s] about one hour, [ ] fatigue," and Sicca, or dryness, symptoms related to the Plaintiff's dry mouth and dry eyes. (AR at 232.)

During her physical examination of the Plaintiff, Dr. LaBarca observed that the Plaintiff had (1) " erythematous, palpable, dime to quarter size lesions over her arms and back, the right was greater than her left" ; (2) left hip pain 1 on external rotation; and (3) 1 pain and 2 swelling over her metacarpophalangeal (" MCP" ) joints two and three bilaterally. (AR at 233-37.) Dr. LaBarca reviewed previous tests performed on the Plaintiff, which revealed (1) degenerative changes in the Plaintiff's left hip; (2) reduced disk space at L5-S1 in the Plaintiff's lumbar spine; and (3) mild degenerative joint disease of the Plaintiff's cervical spine. (AR at 233-37.) Sometime thereafter, Dr. LaBarca apparently left Rheumatology Associate's practice. (AR at 224-229.)

On April 5, 2003, Dr. Jeffery L. Lieberman of BAM Radiology performed an MRI of the Plaintiff's left hip. (AR at 169.) In a letter dated April 9, 2003, he advised Dr. Labarca that " [t]here [was] no evidence of

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an occult fracture or definite bone marrow replacement (such as neoplastic disease) seen in the left hip." (AR at 169.) However, he noted that " [t]here [was] a small amount of fluid seen by the left hip, in particular anterior to the femoral neck and by the femoral head," which " [did] not appear to extend into the femoral/acetabular component of the hip." (AR at 169.) According to Dr. Lieberman, " [t]he fluid [was] more prominent on the left than on the right." (AR at 169.) He opined that " [t]his [ ] [was] [ ] somewhat unlikely to represent bursitis, as [it] [did] not extend into the acetabular/femoral component of the hip," though he felt " this possibility does remain a consideration." (AR at 169.)

On July 22, 2003, the Plaintiff visited Hematology Oncology Associates of Western Suffolk, PC, and was examined by Dr. Paul M. Hyman. (AR at 163-64.) Dr. Hyman indicated that the Plaintiff had " breast carcinoma, Stage I dating from May 1997" and noted she was taking " Plaquenil and Celebrex for underlying [systemic lupus erythematosus (" SLE" )] and rheumatoid arthritis from which she was doing quite well." (AR at 163.)

On July 16, 2003, the Plaintiff returned to Rheumatology Associates for another visit, but this time she was examined by Dr. Nazia Hussain, who was another doctor in the practice. (AR at 226-230, 232.) Dr. Hussain noted the Plaintiff's complaint of both tumid lupus and of " low back pain radiating to her buttocks, and swelling and arthralgias in the hands." (Pl. Mem., pg. 4.; AR at 226-27.)

On September 10, 2003, the Plaintiff had another physical examination at the offices of Rheumatology Associates. The Court notes that while no doctor signed or initialed the bottom of the report concerning this Plaintiff's September 10, 2003 examination, Dr. Hussain's name appears at the top of the report and the handwriting on the report matches the handwriting used by Dr. Hussain in filling out other reports and paperwork related to the Plaintiff's case. (AR at 224-29, See AR at 216, 215, 209, 194, 193, 192, 176, 171.) Therefore, the Court assumes that the Plaintiff's September 10, 2003 visit was with Dr. Hussain and that Dr. Hussain completed the associated report.

During the September 10, 2003 examination, the Plaintiff complained of pain in her left knee. (AR at 224.) Dr. Hussain diagnosed the Plaintiff with abdominal pain, tumid lupus and fibromyalgia. (AR at 224.) In addition, Dr. Hussain found that the Plaintiff had crepitus in the knee, decreased range of motion in both hips and fibromyalgia tender points on examination. (AR at 224.)

On October 22, 2003, the Plaintiff again had an office visit with Dr. Hussain, during which she complained of achy knees. (AR at 216.) Dr. Hussain diagnosed the Plaintiff as having tumid lupus and degenerative joint disease of the knees. Thereafter, in her notes concerning an examination of the Plaintiff that occurred on December 19, 2003, Dr. Hussain also diagnosed the Plaintiff with osteoarthritis of the left knee in addition to diagnoses of tumid lupus and fibromyalgia. (AR at 215, 224.) Dr. Hussain based this diagnosis on x-rays that had been taken of the Plaintiff's left knee. (AR at 215, 224.)

As of February 17, 2004, according to Dr. John J. Loscalzo of Hematology Oncology Associates of Western Suffolk, PC, the Plaintiff " did not have any evidence of an active malignancy and would not be considered disabled from an oncological standpoint." (AR at 162.)

On March 12, 2004, the Plaintiff was once more examined by Dr. Hussain. (AR at 209.) This was the Plaintiff's first visit

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after she had stopped working. (AR at 209.) At this visit, the Plaintiff reported fatigue and urge incontinence. (AR at 209.) Dr. Hussain noted that the Plaintiff continued to experience knee pain, neck pain, fatigue and lower back pain. (AR at 209.) Again, Dr. Hussain indicated diagnoses of abdominal pain, osteoarthritis of the left knee, tumid lupus and fibromyalgia. (AR at 209.)

Two months later, on May 14, 2004, the Plaintiff reported a new rash, described by Dr. Hussain as " new worse." (AR at 194.) Dr. Hussain noted that the Plaintiff was suffering from myalgias and arthralgias in the knees, elbows, ankles, and hands. (AR at 194.) She further noted the Plaintiff's diagnoses of osteoarthritis of the left knee, tumid lupus and fibromyalgia. (AR at 194.) During this exam, Dr. Hussain observed that the Plaintiff had tenderness of the joints in her hands and a rash on her chest. (AR at 194.) Laboratory tests from this date revealed no abnormalities. (AR at 195-97.)

Only one week later, on May 21, 2004, the Plaintiff returned to Rheumatology Associates to be examined by Dr. Hussain. (AR at 193.) The Plaintiff reported paraspinal back pain and fatigue. (AR at 193.) Dr. Hussain again diagnosed the Plaintiff with tumid lupus and fibromyalgia. (AR at 193.) The next month, during a June 18, 2004 visit with Dr. Hussain, the Plaintiff complained of a new lesion on her back. (AR at 192.) Dr. Hussain repeated her diagnosis of tumid lupus and fibromyalgia. (AR at 192.)

The Plaintiff returned to Rheumatology Associates twice for follow up visits after the June 18, 2004 visit. (AR at 187, 185.) First, on July 20, 2004, the Plaintiff had a follow-up examination that was performed by Dr. Sarah J. Johnson, who was another doctor at Rheumatology Associates. (AR at 187.) The Plaintiff complained of pain in the left hip, a rash developing on her chest and fatigue to a mild degree for the last three months. (AR at 187.) In her notes for this visit, Dr. Johnson wrote " S/P breast cancer" in the working diagnosis section. (AR at 187.) This differed from the Plaintiff's treating physician at the time, Dr. Hussain, who had, as discussed above, diagnosed the Plaintiff with tumid lupus, fibromyalgia, and osteoarthritis in the left knee. (AR at 187.)

On September 14, 2004, the Plaintiff had a second follow-up visit with Dr. Johnson. During this examination, the Plaintiff complained that the rash was now on her face. (AR at 185.) She further complained of fatigue and arthralgia. (AR at 185.) Laboratory tests from this date did not indicate any abnormalities. (AR at 182-84.) Dr. Johnson included no working diagnosis in her notes for this visit. (AR at 185.) However, for both the July 18, 2004 exam and the September 14, 2004 exam, Dr. Johnson's notes indicated a diagnosis of lupus discoid in the permanent diagnosis section. (AR at 187, 185.)

The Plaintiff returned to seeing Dr. Hussain on October 21, 2004. (AR at 181.) At this visit, the Plaintiff complained of fatigue, achy knees and chest tightness. (AR at 181.) Dr. Hussain observed that the Plaintiff was experiencing some chest occlusion and wheezing and diagnosed her with lupus discoid. (AR at 181.) Dr. Hussain also took x-rays of the Plaintiff's left hip during this examination, which revealed subchondral sclerosis and minimal osteophytosis at the inferior margin of the femoral head. (AR at 177.)

On November 10, 2004, the Plaintiff underwent an MRI of her left hip at BAB Radiology. (AR at 167.) The MRI was performed by Dr. Elizabeth Schultz. Dr. Schultz noted that there was " no change from [the] previous [MRI] study" performed by Dr. Lieberman on the Plaintiff

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on April 5, 2003, and that there was " minimal fluid in [the] left hip, probably within range of normal." (AR at 166-67).

In a letter dated November 15, 2004, Dr. Schultz informed Dr. Hussain of her findings from the November 10, 2004 x-ray. (AR at 166.) She indicated that the Plaintiff had a clinical history of " [p]ain, breast cancer, cervical cancer, lupus, asthma, fibromyalgia." (AR at 166.) She further indicated that she was comparing the Plaintiff's November 10, 2004 MRI with the Plaintiff's April 5, 2003 MRI. According to Dr. Schultz, her impression of the Plaintiff's left hip was " [m]inimal joint fluid in the left hip that is probably within the physiologic range of normal," which was " unchanged from the patient's previous [MRI] study of 2003." (AR at 166.)

On December 1, 2004, the Plaintiff again visited Dr. Hussain and complained of a cough, as well as left hip pain and locking. (AR at 176.) During the examination, Dr. Hussain observed that the Plaintiff was suffering pain in the left hip, as well as tenderness in the MCP, proximal interphalangeal (" PIP" ) and metatarsophalangeal (" MTP" ) joints. (AR at 176.) Dr. Hussain diagnosed the Plaintiff with tumid lupus and fibromyalgia. (AR at 176.)

At her January 26, 2005 examination with Dr. Hussain, the Plaintiff once more complained about left hip pain and locking. (AR at 171.) Dr. Hussain noted that the Plaintiff was experiencing pain on rotation of the hip and tenderness over the joints in her hands. (AR at 171.) Again, she diagnosed the Plaintiff with tumid lupus and fibromyalgia. (AR at 176.) She also diagnosed the Plaintiff with possible SLE. (AR at 176.)

On June 16, 2005, Dr. Samir Dutta, a consultative physician hired by the Defendant, examined the Plaintiff. (AR at 249-52.) The Plaintiff reported pain over her knees, hands, back and hips since 2001. (AR at 249-50.) She also reported thyroid swelling. (AR at 249-50.) Dr. Dutta noted that for her lupus and fibromyalgia, the Plaintiff was taking the medications Plaquenil, Relafen, Nexium, Ultracet and Ditropan. (AR at 249-50.) He diagnosed the Plaintiff with a history of fibromyalgia; lupus; thyroid enlargement and nodules; post right radical mastectomy with early reconstruction; and possible early osteoarthritis of the lumbosacral spine and hips. (AR at 251.) Dr. Dutta opined that the Plaintiff had a " mild limitation for sitting, standing, walking, and carrying weight on a continued basis." (AR at 251.)

The next month, on July 7, 2005, a New York State Agency physical RFC assessment was completed by M. Fox, Disability Analyst II. (AR at 254-59.) The record does not indicate whether Fox actually examined the Plaintiff. According to Fox's RFC Assessment, the Plaintiff's lupus and fibromyalgia limited her to (1) lifting twenty pounds occasionally and ten pounds frequently; (2) sitting, standing and/or walking for six hours in an eight-hour workday; (3) occasional performance of postural maneuvers; and (4) occasionally climbing, balancing, stopping, kneeling, crouching, and crawling. (AR at 254-59.) Fox found that the Plaintiff had no limitations for pushing and/or pulling. (AR at 255.) Fox further determined that the Plaintiff's complaints of pain were partially credible. (AR at 257.) She opined that the Plaintiff could climb, balance, stoop, kneel, crouch and crawl occasionally. (AR at 254-59.)

According to an unsigned and undated Interrogatory for Medical Expert form, the Plaintiff had no severe impairments during the time period between January 8, 2004, and July 5, 2007. (AR at 299.) The Defendant asserts that this form was completed by Dr. Charles Plotz, who did not examine the Plaintiff but whose opinion

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was obtained by ALJ Cohen. (Def. Mem., pg. 11-12; AR at 11, 299.) The record also does not appear to indicate whether Dr. Plotz specialized in any particular area of medicine.

In addition, without examining the Plaintiff and on an unspecified date, Dr. Plotz completed an RFC assessment for the Plaintiff. (AR at 300-08.) It appears to the Court that Dr. Plotz made his assessments on the Plaintiff's medical condition based solely on the evidence contained in the administrative record. (Def. Mem., pg. 11-12; Pl. Mem., pg. 7.) Dr. Plotz's RFC assessment referenced the Plaintiff's diagnoses of lupus, her history of breast cancer and the x-ray evidence of osteoarthritis of her left hip, but does not mention her diagnoses of fibromyalgia. (AR at 300-308.) Based on his review of the record, Dr. Plotz opined that the Plaintiff (1) could lift twenty pounds occasionally and ten pounds frequently; (2) could sit, stand and/or walk for six hours in an eight-hour workday; and (3) had no limitations for pushing and/or pulling. (AR at 302.) Dr. Plotz believed there was minimal x-ray evidence of osteoarthritis at the left hip. (AR at 307.) He also noted that although the Plaintiff's treating doctor claimed that the Plaintiff had lupus, tests for systemic diseases had repeatedly come back negative. (AR at 307.)

On July 9, 2007, Dr. Peter M. Rumore of Rheumatology Associates completed a SLE RFC questionnaire concerning the Plaintiff. (AR at 260-66.) Dr. Rumore stated that since 2003, the Plaintiff had been seen in the office every two to three months for lupus and fibromyalgia. (AR at 260.) According to Dr. Rumore, the Plaintiff did not meet the diagnostic criteria for SLE, which requires the presence of four out of eleven of the first listed signs or symptoms. (AR at 260-62.) However, he noted that she did present with three of these eleven signs or symptoms, as follows: (1) malar rash; (2) photosensitivity; and (3) non-erosive arthritis in the hands, wrists, heels and feet. (AR at 260-62) In addition, the Plaintiff presented with symptoms of severe fatigue, severe malaise and Sjogren's syndrome. (AR at 260-62.)

Dr. Rumore opined that the Plaintiff (1) would be capable of a low stress job; (2) was not a malingerer; and (3) would frequently experience systems severe enough to interfere with the Plaintiff's attention and concentration. (AR at 262.) He further opined that the Plaintiff (1) could sit for thirty minutes at a time; (2) could stand for twenty minutes; (3) could sit, stand or walk for about two hours in an eight-hour workday; (4) would need to alternate positions at will; and (5) would need to take unscheduled breaks approximately four times a day for thirty minutes before returning to work. (AR at 263.) In addition, he found that the Plaintiff (1) could occasionally lift ten pounds; (2) could never lift twenty to fifty pounds; (3) could perform repetitive reaching for only ten percent of the workday; (4) could perform handling for only ten percent of the workday; (5) could perform fingering for only five percent of the workday; (6) could never stoop or crouch; and (7) had to avoid exposure to smoke, fumes, odors and dusts. (AR at 264-65.) According to Dr. Rumore, the Plaintiff was likely to have good days and bad days, which would result in her missing work more than three times a month. (AR at 265.)

Dr. Rumore also completed a Fibromyalgia Medical Source Statement. (AR at 267-70.) He stated that the Plaintiff met the American Rheumatological criteria for fibromyalgia and that she presented with the following symptoms: (1) multiple tender points; (2) ...


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