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Webster v. Commissioner of Social Security

United States District Court, E.D. New York

January 2, 2020

AUDRA WEBSTER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          For Plaintiff: Christopher James Bowes, Esq. Law Office of Christopher James Bowes

          For Defendant: Matthew Mailloux, Esq. Paulina Stamatelos, Esq. United States Attorney's Office Eastern District of New York

          MEMORANDUM & ORDER

          JOANNA SEYBERT, U.S.D.J.

         Plaintiff Audra Webster (“Plaintiff” or “Webster”) brings this action pursuant to Section 205(g) of the Social Security Act (42 U.S.C. § 405(g)), challenging the Commissioner of Social Security's denial of her application for disability insurance benefits. Presently pending before the Court are Plaintiff's motion for judgment on the pleadings, (Pl. Mot., D.E. 10), and the Commissioner's cross-motion for judgment on the pleadings, (Comm'r Mot., D.E. 13). For the following reasons, Plaintiff's motion is GRANTED and the Commissioner's cross-motion is DENIED.

         BACKGROUND[1]

         Plaintiff applied for disability insurance benefits on December 31, 2014, alleging disability from May 23, 2014. (R. 10.) After her application was denied on July 22, 2015, Plaintiff requested a hearing before an administrative law judge (“ALJ”), which took place on October 16, 2017. (R. 10.) At the hearing, Plaintiff was represented by counsel, and she and a vocational expert testified. (R. 10.) On October 24, 2017, the ALJ issued her decision finding that Plaintiff was not disabled. (R. 10-21.) The Appeals Council denied Plaintiff's request for review and the ALJ's decision became the final decision of the Commissioner. (R. 1-3.) This action followed.

         I. The Administrative Record

         A. Plaintiff

         Plaintiff was 41 years old at the time of the hearing. (R. 31.) She had a high school degree. (R. 32.) She lived with her husband, six-year-old son, and mother. Her husband supported them and worked full-time. (R. 31-32.) For approximately 15 years before the hearing, Plaintiff worked as a shift supervisor at CVS. The job included opening and closing the store, stocking shelves, ringing up customers, counting money, and supervising staff. (R. 32.) She stopped working on May 23, 2014. (R. 34.) According to Plaintiff, she could not work because she had “a lot of joint pain and a low-grade fever . . . [and was] very stiff in the morning.” (R. 34.) She further explained that “[s]tanding for a long period of time is uncomfortable, sitting for a long period of time is uncomfortable.” (R. 34.) She took pain medication and did not “want to drive on those [because they made her] a little loopy.” (R. 34.) In an average week, she usually had “three good [days], four bad [days].” (R. 38.) Days following her monthly infusion were “pretty rough” due to “excessive joint pain. It's almost like having the flu because you run a low-grade fever from it . . . it's severe joint pain.” (R. 39.) For those days every month, she was “pretty much in bed.” (R. 39.) She did not get full nights of sleep “because of pain.” (R. 136.)

         As to her daily activities, she got her son ready for school and put him on the bus. She did “light laundry” where her husband brought the laundry down, her mom put it in the machine, and Plaintiff put it in the dryer. (R. 36.) She could not carry the laundry up or down stairs. (R. 138.) She napped in the afternoon before her son returned from school. Then they did “homework, bath, dinner, bed.” (R. 36.) Washing and brushing her hair could be a problem for her. (R. 136.) If she ran errands, she would do them first thing and wait to take her pain medication, because she did not want to drive on the pain medication. (R. 36.) She was “petrified to get behind the wheel of a car . . . driving on those kind of meds.” (R. 43.) She made dinner “occasionally” and “help[ed] to the best of [her] ability.” (R. 37.) She had switched to paper plates because she kept “breaking them.” (R. 138.) Although she occasionally went to dinner or a movie, she had cut down on socializing because it was “just too much.” (R. 37.) She tried “to keep [things} as normal as possible for [her son]” and attended his parent teacher conferences and sometimes took him to the park. (R. 36-37.) She had not taken any trips in the past several years. She used to enjoy gardening, but did not do it as much. (R. 37.)

         Despite her medical issues, diagnosed as lupus and fibromyalgia, Plaintiff testified she would “love to go back to work.” (R. 34.) She was in pain and often bed-ridden, and stated that “[i]t's not that I want to stay home, I want to go back. I just don't physically feel that I can do it.” (R. 43.)

         B. Dr. Harley Cohen

         Plaintiff first saw treating physician and rheumatologist Dr. Harley Cohen in July 2014. (R. 251-55.) Plaintiff's chief complaints were joint pain and fever. (R. 251.) Cohen saw Plaintiff monthly for office visits and infusions. (R. 476.) Cohen gave Plaintiff Benlysta, a lupus medication injection, which can “cause very serious reactions during or after treatment, ” (see “Benlysta Vial, ” available at https://www.webmd.com/drugs/2/ drug-155458/benlysta intravenous/details) several times over the course of treating her. (See, e.g. R. 507, 510.) She was also prescribed serious medications such as Vicodin, Hydrocodone, and Flexeril. (R. 507.) Cohen often noted tender points. (R. 216, 224, 244, 254, 513.)

         In an April 2016 Residual Functional Capacity Questionnaire (R. 476-80), Cohen diagnosed Plaintiff with fibromyalgia and lupus (R. 476). His “predominant clinical finding [was] widespread soft tissue tender points.” (R. 476.) Cohen opined that in an eight-hour workday, Plaintiff could sit for less than 15 minutes at a time and stand for less than 15 minutes at a time. (R. 477-78.) In total, she could sit or stand less than two hours in an eight-hour workday. (R. 478.) She could occasionally (6% to 33% of a workday) lift less than 10 pounds, rarely lift 10 pounds, and never lift over 20 pounds. (R. 477, 479.) She could occasionally twist, rarely stoop or crouch, and never climb ladders or stairs. (R. 479.) She could grasp, turn, manipulate, and reach for less than 30% of a workday. (R. 479.)

         According to Cohen, Plaintiff's pain was “frequently” severe enough to interfere with her attention and concentration to even simple work tasks. (R. 477.) “Frequently” is defined as 34% to 66% of an eight-hour workday. (R. 477.) Plaintiff was “incapable of even ‘low stress' jobs.” (R. 477.) She would “frequently” need to take unscheduled 15 to 20 minute ...


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