United States District Court, N.D. New York
LAWRENCE E. KAHN, District Judge.
This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 14 ("Plaintiff's Brief"); 21 ("Defendant's Brief"). For the following reasons, the judgment of the Social Security Administration ("SSA") is vacated and this case is remanded for further proceedings consistent with this Memorandum-Decision and Order.
A. Plaintiff's Medical Records
Plaintiff Maryann Meadors ("Plaintiff"), who was forty three years old at the time of the SSA Commissioner's ("Commissioner") decision, has a history of back pain, shortness of breath, carpal tunnel syndrome, anxiety, depression, and borderline intellectual functioning. Dkt. No. 9 ("Record") at 294. Plaintiff maintains that her medical conditions preclude her from engaging in any gainful work activity. R. at 24-32. Plaintiff alleges that she injured her back at work while reaching for a prescription, which led her to seek treatment from her primary care physician Dr. Ahmed R. at 114. When Plaintiff saw Dr. Ahmed, on October 8, 2004, she complained of lower back pain. Id . Dr. Ahmed prescribed Lioderm patches, Mobic, and an x-ray for her back pain. Id . The x-ray showed minimal degenerative spurs of the L4 vertebral body. R. at 150.
Plaintiff saw Dr. Kuthuru, a pain management specialist, on November 17, 2004, with complaints of back pain, and he diagnosed Plaintiff with lumbrosacral radiculopathy, spondylosis with myelopathy, and myosfasical pain. Dr. Kuthuru recommended that Plaintiff consider interventional spine care and prescribed Motrin, an MRI, and an at-home exercise program. R. at 125. The follow-up MRI, which Dr. Kuthuru prescribed, showed no evidence of disc herniation or nerve root entrapment but did show slight bulging of the L3-4 and L4-5 discs as well as a central protrusion of the L5-S1 disc. R. at 151.
Plaintiff returned to Dr. Kuthuru in December 2004 with complaints of sharp, achy, and throbbing pain in her back, and he diagnosed her with lumbrosacral radiculopathy, lumbrosacral spondylosis with myelopathy, and myosfasical pain, and Dr. Kuthuru prescribed the use of hot/cold therapy, the continuance of the home exercise program, and Neurontin. R. at 128-29. Plaintiff saw Dr. Kuthuru again in January 2005 with complaints of continued lower back pain and right lower extremity paresthesia, and Dr. Kuthuru maintained her diagnosis. R. at 131-32. Dr. Kuthuru also noted that prior attempts at physical therapy and chiropractic treatments had failed, yet there are no notes in the record of these treatments other than the recommended at-home exercises prescribed on November 17, 2004. R. at 131. Plaintiff also stated that the pain was made worse by standing and decreased while sitting. Id . Dr. Kuthuru recommended a nerve conduction study, which was done on February 15, 2005. R. at 137-38. The nerve conduction study showed radiculopathy affecting the right L5-S1 neurotomal segments. Id.
After the nerve conduction study, Dr. Kuthuru referred Plaintiff to an orthopedic spinal surgeon, Dr. Blecha. R. at 131. Dr. Blecha examined Plaintiff and her radiological studies, concluded that Plaintiff did not need surgery, and instead gave her two treatment options: (1) to continue the use of medications; or (2) to have a lumbar epidural steroid injection. R. at 156-57. Plaintiff disfavored the latter approach due to her fear of needles. Id.
Plaintiff then went for a consultative examination on May 16, 2005, with Dr. Shayevitz. R. at 167-69. Plaintiff reported no medications other than Valium; she needed no assistive devices, help changing, or getting on and off the exam table; she had no difficulty rising from the chair; and appeared to be in no acute distress. Id . Plaintiff had no issues with her upper extremities, but the doctor found some reduced motion in her lumbar spine, tenderness in her lower back, and a right sacroiliac notch, but no spasms. Id . Muscle strength in her lower extremities was four out of five on a five-point strength scale, and the doctor noted that she had a decreased sensation to pinprick in her right side lower extremities. Id . Dr. Shayevitz opined that Plaintiff would have "limitations in any prolonged sitting, standing, walking, and certainly any heavy lifting" but did not quantify "prolonged." Id.
On February 21, 2006, Plaintiff returned to Dr. Ahmed with complaints of back pain and a "constant ache." R. at 239. Dr. Ahmed prescribed Flexeril and Ultram. Id . Plaintiff saw Dr. Ahmed again on June 5, 2006, for lower back pain. R. at 249. Plaintiff stated that she had stopped physical therapy and had found no relief from chiropractic care. Id . Dr. Ahmed prescribed Motrin. Id . Plaintiff saw Dr. Ahmed again on June 25, 2007, with complaints of worsening lower back pain and difficulty sleeping. R. at 645. Dr. Ahmed did not prescribe any medication but noted that Plaintiff was taking Darvocet. Id.
Plaintiff had another MRI and x-ray of the lumbar spine on July 5, 2007, which a radiologist and the orthopedic surgeon, Dr. Blecha, reviewed and interpreted. R. at 648, 655. Dr. Blecha noted that while the radiologist found minimal central protrusion at L5-S1, he did not see it in the films. R. at 655. Dr. Blecha then noted that Plaintiff might have minimal protrusion of disc material at L5-S1 on the left side, which is not the side she was experiencing pain. Id . He also noted that "there is no loss of signal consistent with degenerative disc disease" and then went on to state that he "did not know why this lady has so much low back pain" since the etiology of the pain was unknown. R. at 655. He then stated that he had referred her for pain management to Dr. Kuthuru years ago, and Plaintiff stated she did not see him due to insurance issues. Id . That same month, Dr. Kuthuru opined that Plaintiff could only lift and/or carry ten pounds occasionally, could sit less than six hours per day in an eight-hour workday, and could stand less than two hours per day. R. at 653-54.
Plaintiff underwent another consultative examination with Dr. Ganesh on August 20, 2007. Dr. Ganesh noted that Plaintiff did not appear to be in any acute distress, she walked on her heels and toes without issue, had no assistive devices, needed no assistance changing or getting on and off the exam table, and had no issues rising from the chair. R. at 657. Dr. Ganesh noted Plaintiff had a lumbar flexion of sixty degrees, extension of ten degrees, and that her lateral flexion was full. Id . Plaintiff had a negative straight leg raise test, equal deep tendon reflexes, five out of five on a fivepoint strength scale in lower and upper extremities, but had a limited squat. R. at 657-58. Dr. Ganesh opined that Plaintiff had "no limitation for sitting, standing, or walking... mild to moderate limitation for lifting, carrying, pushing, and pulling" but did not quantify "mild to moderate." Id.
Dr. Ahmed then referred Plaintiff to Dr. Robinson, and orthopedic surgeon. R. at 703. Plaintiff saw Dr. Robinson on September 11, 2009, with complaints of dysfunction and pain in her lumbar spine and numbness in her lower extremities that had become progressively more severe. Id . Plaintiff claimed sitting, standing, and walking aggravated the issue and the pain caused her difficulty with sleep. Id . Dr. Robinson requested an updated lumbar MRI before prescribing any treatment. R. at 705. On September 28, 2009, the MRI study showed mild to moderate disc degeneration of L3-L4, no narrowing of spinal canal, and minimal bulging of the L4-L5. R. at 706. The radiologist diagnosed Plaintiff with moderate disc degenerative disease. R. at 700-07. Dr. Robinson, after reading the MRI and giving Plaintiff a physical examination on October 9, 2009, dictated that Plaintiff had bilateral tenderness to her lumbosacral spine, a ninety degrees straight leg raise test, normal lower extremity motor exam on both sides, and a limited range of motion in right and left side bends. R. at 703-05. However, Dr. Robinson had noted on September 11, 2009, that Plaintiff had decreased sensation in her right and left lower extremities. R. at 700-02. He prescribed her an epidural injection, which Plaintiff later refused due to her fear of needles. Id . It was then later noted in Dr. Ahmed's notes on September 17, 2009, that Dr. Robinson also prescribed Plaintiff hydrocodone (Lortabs). R. at 714.
In May 2010, Dr. Robinson referred Plaintiff to the New York Spine and Wellness Center where, over the course of an eleven month period, three different doctors saw her. On May 11, 2010, Plaintiff saw Dr. Cantania, and reported having radiating lower back pain that caused her to wake up during the night and only get four to five hours of sleep per night. R. at 736-38. Examination showed tenderness to Plaintiff's sacroiliac joint, an antalgic gait, full range of motion in lower extremities, limited motion in her spine, and normal (2) reflexes on both sides. R. at 743. Dr. Cantania recommended that she continue to use the Lortabs (hydrocodone) and scheduled her for a nerve block, which Plaintiff later cancelled due to her phobia of needles. R. at 737, 741, 743. On June 4, 2010, Plaintiff saw Dr. Tallarico, who recommended chiropractic visits. R. at 741. There is no evidence in the record that Plaintiff went to any chiropractic visits.
On August 17, 2010, Plaintiff had her first visit with pain management specialist, Dr. Tiso. R. at 738-39. Dr. Tiso's physical examination of Plaintiff revealed paraspinous tenderness on the right side, tenderness to Plaintiff's SI joint and sciatic notch, and a normal range of motion. Id . He diagnosed Plaintiff with lumbar degenerative disc disease and lumbar radiculopathy, and recommended she continue her current medications with the addition of Ambien. Id . Dr. Tiso saw Plaintiff for her next follow-up visit on October 19, 2010; diagnosis and physical examination were the same, and he recommended she continue the same treatment plan with no changes. Id. at 736-37. Dr. Tiso opined that Plaintiff would be unable to sit or stand for more than fifteen minutes and could not lift or carry anything above ten pounds. Id . Plaintiff followed up again with Dr. Tiso on April 5, 2011, with the same complaint of lower back pain and Dr. Tiso noted the same diagnosis and gave Plaintiff the same treatment plan as prescribed beforehand. Id. at 733-34.
On October 25, 2010, Dennis Noia, Ph. D., performed an intelligence evaluation of Plaintiff and assessed Plaintiff as having an IQ of 77, indicative of borderline intellectual functioning. R. at 721-26. Dr. Noia also opined that Plaintiff had mild limitations in making complex judgments but had no limitations in her ability to understand, remember, or carry out complex instructions, and had no issue remembering simple instructions. Id.
B. ALJ Hearing
On February 2, 2005, Plaintiff protectively filed for disability insurance benefits and supplemental security income, alleging disability resulting from back pain that had caused her difficulty standing and sleeping from an onset date of November 16, 2004. R. at 52, 68. An Administrative Law Judge ("ALJ") denied Plaintiff's first claim on September 28, 2006. R. at 24-32. Plaintiff then filed a civil action in the United States District Court for the Northern District of New York and the Court affirmed the ruling on June 16, 2009. R. at 363; Meadors v. Astrue, No. 07-CV-0623, 2009 WL 1706580, at *1 (N.D.N.Y. June 16, 2009) (Kahn, J.). The United States Court of Appeals for the Second Circuit then affirmed in part, reversed in part, and remanded the case for further administrative proceedings. Meadors v. Astrue, 370 F.App'x 179 (2d Cir. 2010). The Appeals Council vacated the decision, sent it back to an ALJ for further proceedings consistent with the order of the Council, and ordered that Plaintiff be offered the opportunity for another hearing. Meadors v. Astrue, No. 07-CV-0623, 2010 WL 1945763, at *1 (N.D.N.Y. May 13, 2010) (Kahn, J.). Plaintiff took said opportunity.
The second hearing occurred on June 22, 2011. During the hearing, vocational expert ("VE") Donald Shader testified about Plaintiff's previous work experience and answered multiple hypotheticals posed by both the ALJ and Plaintiff's attorney. R. at 809. Mr. Shader reported that prior to the hearing, Plaintiff worked as a pharmacy technician and that any other jobs she worked were all placements through a temporary service, and thus were irrelevant to his assessment. R. at 810-11. The ALJ then posed a hypothetical to the VE as to what vocations were available to someone of Plaintiff's age, education, and experience and with the following limitations:
could lift and carry 20 pounds occasionally and 10 pounds frequently; can stand and walk six out of eight hours, and sit six out of an eight-hour period; push and pull consistent with light exertion. There are no postural, manipulation - or manipulative, visual, or environmental limitations except only occasional squatting and no climbing of ladders and scaffolds. And mentally... can understand and follow simple instructions and directions and perform simple and some complex tasks with supervision and independently, and can maintain attention and concentration for tasks, can attend to a routine and maintain a schedule, can learn new tasks, [and] can work in a low-stress environment, defined as occasional decisions making and occasional interaction with others.
R. at 816-18. Considering all those factors, the VE testified that an individual in the above hypothetical would be able to perform such occupations as a mail clerk, an assembler of small parts, and an office helper. Id.
The ALJ then changed the physical limitations of the hypothetical to a person who was limited to only standing and walking four hours out of an eight-hour period, thirty minutes at a time and sitting six hours out of an eight hour period, forty five minutes at a time, and with the same mental limitations. R. at 820-21. The VE again said that person could be a mail clerk or an office helper, but a small parts assembler may not be feasible. Id . The hypothetical proposed by the ALJ to the VE was the same except that the hypothetical person would be limited to lifting and carrying only ten pounds, standing and walking four hours out of an eight hour period thirty minutes at a time, and sitting six hours out of an eight-hour period thirty minutes at a time. R. at 821-22. The VE testified that a person in that ...