United States District Court, E.D. New York
For the Plaintiff: Christopher James Bowes, Esq., Of Counsel, Office of Christopher James Bowes, Shoreham, NY.
For the Defendants: Kenneth M. Abell, Assistant United States Attorney, United States Attorney's Office, Eastern District of New York, Central Islip, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On January 24, 2014, the Plaintiff Chrystle Fiedler (the " Plaintiff" ) filed this
appeal of a decision dated August 20, 2012 pursuant to Section 205(g) of the Social Security Act (the " SSA" ), as amended, 42 U.S.C. 405(g). That decision denied the Plaintiff's application for Social Security Disability (" SSD" ) Benefits under Sections 216(i) and 223(d) of the SSA.
On September 8, 2014, the Commissioner of Social Security (the " Commissioner" ) moved, and the Plaintiff cross-moved, for judgment on the pleadings pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(c). For the reasons set forth below, the Commissioner's motion is denied; the Plaintiff's cross-motion is granted in part; the judgment of the Commissioner is reversed in part; and the case is remanded for further administrative proceedings.
I. PROCEDURAL HISTORY
On September 13, 2011, the Plaintiff filed a Title II application for disability and disability insurance benefits, alleging a disability beginning on July 1, 2010. Transcript (" Tr." ) at 29. She alleged a disability due to a traumatic injury to the second trigeminal nerve in her face and atypical neuralgia. She also alleged a disability due to Lyme disease.
On February 16, 2012, the Plaintiff's application was denied, based on reasoning in part that she retained the capacity to resume her previous work as a writer. Tr. at 49-52. On March 8, 2012, the Plaintiff requested an administrative hearing.
On July 23, 2012, the Plaintiff appeared with counsel and testified at an administrative hearing before Administrative Law Judge (" ALJ" ) Joseph R. Faraguna.
In a decision dated August 20, 2012, ALJ Faraguna found that the Plaintiff was not disabled. Tr. at 24. The Plaintiff requested review of the ALJ decision. On November 20, 2012, the Appeals Council denied the Plaintiff's request for review. Tr. at 1. This appeal followed. On September 8, 2014, both parties moved under Fed.R.Civ.P. 12(c) for judgment on the pleadings. In addition, the Plaintiff seeks that this Court approve the contingent fee agreement between her and her counsel under 42 U.S.C. § 406(b) and award the Plaintiff's reasonable attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
II. FACTUAL HISTORY
A. Vocational and Non-Medical Evidence
The Plaintiff was born in May 1958. Tr at 104. She completed college in 1980. Tr. at 166.
From 1993 to 1998, she worked as a television producer. Tr. at 166, 181. Beginning in September 1999, she was self-employed as a writer. Tr. at 159, 166, 181. She stated that, as a writer, she contributed articles to national magazines and had written three non-fiction books. Tr. at 159. In this role, she worked on a computer from a home office and interviewed people over the phone. Tr. at 182.
According to the Plaintiff, her job as a writer required her to sit for six to eight hours a day and to write and type, with no standing or walking. Tr. at 182. It required her to lift no more than 10 pounds, and it did not require her to supervise other people. Tr. at 182.
On July 1, 2010, the Plaintiff was in a grocery store in Greenport, New York, when an employee collided with her and caused her to sustain a concussion and damaged her second trigeminal nerve, requiring medical treatment since that time. Tr. at 37, 156, 170. While the Plaintiff was previously able to work six to eight hours a day as a writer, after this injury she could
work on her writing at most two hours a day. Tr. 170.
On December 24, 2011, the Plaintiff completed a questionnaire about her ability to function. Tr. at 147-56. She reported that she prepared light meals, such as sandwiches, and took care of her two dogs and two cats. Tr. at 149. Also, she drove and shopped. Tr. at 150-51.
However, she stated that she could not do homework and yard work " regularly," and hired someone to help with the yard work. Tr. at 150. She also indicated that she had no problems using her hands, but that she had difficulty standing and walking due to certain medications she took, including Percocet regularly and Advil and Morphine as needed. Tr. at 153. The pain medications also caused nausea, tiredness, and difficulty remembering, and concentrating. Tr. at 157, 161. She stated that bending, eating, talking, reaching, and stress aggravated her pain, which " radiate[d] across [the] right side of [her] face into [her] right ear." Tr. at 155. The Plaintiff likened the pain to " a screwdriver  screwing into [her] upper right jaw" and was painful even with pain medications. Tr. at 156.
The Plaintiff reported that she spent her time watching television or getting bed rest. Tr. 151-52. She stated that standing made her tired and that lifting or any strain would hurt her face. Tr. at 152. She also had difficulty paying attention because of her pain medications. She had to do her chores little by little as best as she could. Tr. at 154.
B. Medical Evidence
On November 4, 2010, a computed tomography scan of the Plaintiff's face revealed minimal right maxillary sinusitis, and degenerative changes of the left temporomandibular joint with a 3 mm cyst within the left mandibular condyle. Tr at 330.
On January 4, 2011, the Plaintiff began treatment with Dr. Philippe Vaillancourt of Chronic Pain Options of Long Island. Tr. at 257-59. The Plaintiff complained of right face pain on the inferior orbital ridge. Physical examination revealed that the Plaintiff carried her head forward, and had cervical hyperlordosis, as well as dorsal spine kyphosis. There was restricted extension of the Plaintiff's back and neck. The Plaintiff also had muscle spasm of her right levator scapula, right upper trapezius, and right sternocleidomastoid.
A neurological examination was unremarkable. Dr. Vaillancourt diagnosed the Plaintiff with inferior orbital nerve neuralgia. The Plaintiff was given a peripheral nerve block injection.
A follow-up examination on January 10, 2011 revealed that the Plaintiff had developed an ecchymosis at the site of her nerve block injection. The Plaintiff continued to experience facial pain. Dr. Vaillancourt prescribed morphine. Tr. at 261. Subsequent examinations revealed that her condition was essentially unchanged.
On January 28, 2011, the Plaintiff returned to Dr. Vaillancourt complaining of facial pain. Dr. Vaillancourt recommended switching to Kadian, or morphine sulfate, and to increase her dosage of Percocet.
On February 9, 2011, Dr. Vaillancourt prescribed Vimpat for the Plaintiff.
On February 24, 2011, a follow-up examination by Dr. Vaillancourt revealed that the Plaintiff's condition had improved, and that she was more functional. Tr. at 267-68.
On March 9, 2011, the Plaintiff was examined by Dr. Uzma Nasir of Chronic Pain Options of Long Island. Tr. at 269-70. The Plaintiff stated that her pain was
20% to 30% improved, but that she was still very uncomfortable.
On March 23, 2011, Dr. Vaillancourt diagnosed her condition as inferior orbital nerve neuralgia. Tr. at 271-72. She was taking Prednisone and reported worse symptoms while on lower dosages. Dr. Vaillancourt continued to recommend a nerve block procedure.
On April 7, 2011, the Plaintiff underwent another right inferior orbital nerve block to address her trigeminal neuralgia. Tr. at 273.
On April 8, 2011, Dr. Vaillancourt noted that the nerve block had been moderately effective, and that the Plaintiff's condition was improved. Tr. at 274-75. She remained on Kadian, Percocet, and Vimpat.
On April 21, 2011, the Plaintiff reported some improvement, but stated that she felt fatigued. Tr. at 276-78. Subsequent examinations revealed that the Plaintiff's condition was essentially unchanged.
On May 5, 2011, Patricia Grant, a certified nurse practitioner at Chronic Pain Options of Long Island, administered a peripheral nerve block at the right infraorbital nerve.
On May 24, 2011, Dr. Vaillancourt reported that the Plaintiff had a fairly good response to the April 7, 2011 nerve block but that she experienced much more severe pain following the May 5, 2011 nerve block. Tr. at 284-85.
On May 26, 2011, Dr. Nasir performed the second right inferior orbital nerve block procedure to address the Plaintiff's trigeminal neuralgia. Tr. at 278.
On June 4, 2011, the Plaintiff stated that she had experienced a better response to treatment, and that her pain was manageable until the day prior to the examination. Ms. Grant noted that the ...