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Evans v. Commissioner of Social Security

United States District Court, S.D. New York

June 24, 2015

VALERIE EVANS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Valerie Evans brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for disability benefits under the Social Security Act. Evans has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and the Commissioner has cross-moved for judgment on the pleadings.[1] The parties consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's motion is granted, and Evans's motion is denied.

I. BACKGROUND

A. Evans's Claims for Benefits and Procedural History

Evans filed applications for Social Security Disability benefits and for Supplemental Security Income payments. See Administrative Record, filed Aug. 14, 2014 (Docket # 6) ("R."), at R. 113, 213-25. In the applications, Evans alleged disability as of October 1, 2010. R. 213, 218, 220. Evans was previously employed as a contract negotiator, executive assistant, facilities assistant, and legal assistant. R. 267. Evans stopped working on June 7, 2010, because her employer "went out of business." R. 278.

Evans's applications were denied. R. 120-27, 138-43. Evans then requested a hearing before an Administrative Law Judge ("ALJ"), R. 149-50, which was held on July 11, 2013. R. 66-73. At the July 11 hearing, the ALJ concluded that the record was incomplete. See R. 68-72. Another hearing before the ALJ was held on August 23, 2013, R. 74-112, after the submission of additional evidence, R. 77. At the August 23 hearing, Evans, through counsel, amended the alleged onset date to September 30, 2011. R. 78-79. On September 27, 2013, the ALJ issued a decision finding that Evans was not disabled. R. 14-26. The Appeals Council denied Evans's request for review on April 17, 2014, making the ALJ's determination the Commissioner's final decision. R. 1-6.

B. The Administrative Record

Evans and the Commissioner have each provided a summary of the medical evidence contained in the administrative record. See Pl. Mem. at 2; Def. Mem. at 2-13.[2] The Court adopts the parties' summaries, which do not conflict in any material way, as accurate and complete for purposes of the issues raised in this suit. We discuss the portions of the medical record pertinent to the adjudication of this case in section III below.

C. The Hearings Before the ALJ

A hearing before ALJ Michael J. Stacchini was held on July 11, 2013. R. 66-73. Evans was represented at the hearing by attorney Robin Duncan. R. 66. Before going on the record, the ALJ had a brief conversation with counsel to discuss a "new treating source" whose records were missing. See R. 68-72. The ALJ stated that he felt he needed the records in order to conduct a fair hearing. R. 69.

A second hearing before ALJ Stacchini was held on August 23, 2013. R. 74-112. Evans was again represented by Duncan. R. 74. New evidence had been submitted since the initial hearing. R. 77. Duncan believed the record before the ALJ was complete with respect to Evans's alleged disability. Id . The ALJ heard testimony from Evans as well as Esperanza Distefano, a vocational expert. R. 75.

Evans amended her disability onset date to September 30, 2011. R. 78-79. Evans testified that she lives in a house with a roommate and a dog, R. 80, and that she had no problems living with the roommate, R. 106. She does not walk the dog but she lets him out in the yard and feeds him. R. 82-83. She has not done any of the cleaning around the house since the alleged onset date. R. 80-81. Evans goes food shopping once every week or two and cooks using the microwave. R. 81. Her only hobby since the alleged onset date has been watching movies. Id . She has been to museums approximately three times since the alleged onset date, and she has been able to go to the movies and the beach with friends. R. 81. They also go over to her house. R. 82. Evans does not use public transportation but she sometimes drives. R. 87-88.

Evans testified that she began taking classes part-time online in 2009, while she was still working. R. 82. When she lost her job, she started taking classes full-time. Id . Prior to having surgery, Evans attended one class that required her to go to museums. R. 90. At the time, Evans was receiving spinal shots and had to miss some of the classes and make them up later. Id . After her surgery, Evans took all of her classes online at home. Id . Evans graduated cum laude in May 2013, with a degree in fashion merchandising. R. 82.

According to her attorney, Evans was assaulted on September 30, 2011. R. 78-79. The record indicates that this was the result of a "road rage" incident where a man got out of his car and "struck [Evans] in the face." R. 374, 379. Evans suffered a "combination of severe neck and back pain with radiculopathy status post cervical intervention as well as panic and anxiety disorder." R. 79. Evans testified that she had cervical spine surgery on August 14, 2012, but reported that she felt worse afterwards. R. 85-86, 103. While the surgery "took away the tingling in [her] arms and [her] left leg, " she developed "new tingling at the bottom of [her] feet" and the pain in her neck was worse than before the surgery. R. 86. She also has less range of motion when rotating her head. Id . The pain does not go down her arms. R. 91. Her lumbar pain has largely resolved, and although she gets "a little bit" once in a while, "it's never been a problem." Id . However, her neck bothers her unless she is lying down. R. 92.

At the time of the hearing, Evans was receiving "pain management" treatment. R. 87. She stated the pain medication only helps for a couple of hours after she takes it. Id . The medication also makes Evans tired and she sometimes gets headaches from it. Id . The only comfortable position where she is not in any pain is when she is lying down. R. 97. Evans stated at the hearing that she was "dying right now with muscle spasms" and that the medication she took for them does "nothing." Id . When it gets to "a certain point in the day, " Evans testified that she is "kind of done for the day." Id . Evans reported that she cannot predict when she will get up in the morning or what she is going to feel like for the day. Id . She stated that she "basically... ha[s] no life." Id.

The ALJ asked about Evans about her mental impairments - referring to Evans's diagnosed ADHD, anxiety, and panic, as well as references in the record to her depressed moods. R. 92. Evans's anxiety and panic got worse when she began to "have trouble walking" in May 2012. Id . Evans was afraid to go out because she feared she could fall and would not be able to get up or no one would be around to help her and her cell phone would die. Id . She also gets irritated and edgy because of the constant pain she has been in for two years, and she is more indecisive than she was before. R. 92-93. However, minor changes in her routine do not affect her anxiety in any significant way. R. 93-94.

The ALJ asked whether Evans's hypertension was under control. R. 94. Evans replied that "[i]t goes up and down." Id . She takes medicine for it but she sometimes gets dizzy, though she does not know if that is attributable to the hypertension or something else, such as her neck problems. R. 94-95.

Evans testified that she has tried to exercise since her motor vehicle incident in September 2011. R. 90, 358. She tried a "Fitness Boot Camp, " and she does yoga and uses the elliptical machine "a couple times a week" each. R. 90-91.

Evans has not applied for a job since September 2011. R. 88. At the time of the hearing, Evans was not looking for work, but she was looking to continue with school for her bachelor's degree in fashion merchandising. R. 95-96. At the time, she was registered for three classes scheduled to begin on August 26, 2013. R. 96. Evans had not tried to get an internship because she could not promise that she would be at the job at 9:00 a.m. Id.

Evans's attorney also questioned her. See R. 97-103. First, he asked her about her online classes. R. 97-98. Evans spent about two hours a day at home studying while she was taking classes. Id . She took the classes on her laptop, which she props up on her knee while she is lying down in bed. R. 98. She has to take breaks during the course of her studying because her mind gets foggy, she gets frustrated, and she has difficulty concentrating. Id . She did not physically go to her professors for extra help, even though they were available to meet. R. 105-06.

While she was testifying, the ALJ noticed Evans was "cupping" her neck. R. 98. When asked about it by her attorney, she stated that it makes it hurt less. R. 98-99. Even though she had taken two Dilaudid, a medication prescribed to her for her pain, Evans rated her pain at the hearing as a six on a 10-point scale. R. 99. She testified that she experiences the neck pain every day and that she has had one day since her surgery where she did not experience pain without taking a painkiller. Id . Some days are worse than others. Id . On bad days, which she estimates occur two to three times per week, she cannot leave her house. R. 100. On the remaining days of the week, Evans typically spends the day watching TV. Id.

Evans's attorney asked about the numbness and tingling in her feet. Id . Evans reported that she started getting numbness and tingling in the bottoms of her feet after her surgery. Id . While the surgery corrected some of her prior numbness, it did not correct the numbness in her feet. R. 100-01. She stated that it feels like "pins and needles, like if your foot fell asleep" when she walks. R. 101. Her neck pain also affects her ability to walk. Id . She will feel good for a couple of hours after she takes Dilaudid in the morning, but after that she will experience pain no matter what she does, and lying down is the only way to relieve the pain. Id . Evans estimated that she could walk a couple of blocks with the pain before she had to rest for an hour. R. 101-02.

Evans testified she that spends most of the day - around 80 percent of it - watching TV while lying down on her side. R. 102. She stated that the reason why she cannot get an internship, travel to work, or work full-time was because of the pain. Id . The ALJ asked Evans whether she had any problems moving her head up and down or side to side. Id . Evans replied that she can do it, but some days were better than others and it is easier to do when she is standing because sitting puts pressure on her spine. R. 102-03. The ALJ noted that Evans had been turning her head to look at her attorney during the hearing. R. 103.

Evans's attorney asked about her pain management treatment. Id . Evans testified she was receiving pain management treatment at Mount Kisco. Id . Evans had been prescribed Dilaudid and, following the hearing, Evans was going to receive "facet injections." Id . Evans had previously tried physical therapy but it made the pain worse. Id.

The ALJ asked Evans about her prior work history. R. 104. Evans was a contract negotiator from August 2001 until her employer went out of business in June 2010. Id . Evans's responsibilities included finding garbage haulers to "service" locations for different customers of her employer. Id . From June 2001 to April 2001, Evans was an executive assistant at a real estate company. Id . Prior to that, she was a legal assistant. Id.

Vocational expert Esperanza Distefano testified that she was familiar with jobs that exist in both the region and the national economy. R. 105. She defined the region as the "White Plains, New York metropolitan area, " which includes Westchester County, the county where Evans lives. R. 107. The vocational expert classified Evans's past work as follows: contract negotiator, Dictionary of Occupational Titles ("DOT") code 162.117-018, which is a "light exertion, skilled position with a specific vocational preparation ["SVP"] of 8"; executive assistant, DOT code 186.167-066, which is a "light exertion, skilled position with a specific vocational preparation of 8"; and legal assistant, DOT code 119.267-022, which is a "sedentary, skilled position with an SVP of 7."[3] R. 108.

The ALJ asked the vocational expert whether there were jobs that could be performed by a hypothetical individual of Evans's age, education, and work experience, who is able to do the full range of sedentary work, except that she is limited to occasional climbing ramps or stairs; no climbing ladders, ropes or scaffolds; occasional balancing, stooping kneeling, crouching, and crawling; and up to frequent rotation, flexion, or extension of the neck; and who is unable to perform her past work and is limited to low-stress jobs defined as involving only occasional decision-making and interaction with coworkers, the general public, and supervisors. R. 108-09. The vocational expert testified that such an individual could perform the following jobs: order clerk, DOT code 209.567-014, which is a "sedentary, unskilled position with an SVP of 2" and has 208, 800 positions nationally and 6, 310 regionally; addresser, DOT code 209.587-010, which is a "sedentary, unskilled position with an SVP of 2" and has 95, 560 positions nationally and 5, 360 regionally; document preparer, DOT code 249.587-018, which is a "sedentary, unskilled position with an SVP of 2" and has 2, 808, 100 positions nationally and 134, 100 regionally. R. 109.

The ALJ also asked the vocational expert about a second hypothetical individual that had the same limitations as the first hypothetical individual with the added limitation of needing to be "off task for 20 percent of the work period in addition to regularly scheduled breaks" - regularly scheduled breaks being defined as "15 minutes in the morning, 15 minutes in the afternoon and then a half hour to an hour for lunch." R. 109-110. The ...


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