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March 20, 2003


The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge


Plaintiff Linda S. Brennan-Kenyon ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405 (g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the "SSA") denying her application for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). Before the Court is Plaintiffs Motion for Summary Judgment or Remand and Defendant's Motion for Summary Judgment in the cause. For the reasons set forth below, the Court remands the cause for further proceedings consistent with this opinion.


On August 24, 1999, Plaintiff applied for DIB*fn1 alleging that, as of April 1, 1996, she became disabled.*fn2 (R. 26-27, 47-49.) Plaintiffs application for benefits was initially denied on October 15, 1999. (R. 28.) Subsequently, on November 23, 1999, Plaintiffs request for reconsideration was also denied. (R. 36.) Plaintiff then filed a timely request for an administrative hearing and, on February 29, 2000, Plaintiff appeared with counsel and testified at a hearing before an Administrative Law Judge ("ALJ"). (R. 40, 198-228.) There was, no testimony, however, from either a Vocational Expert or Medical Expert. (R. 198.)

On January 23, 2001, the ALJ issued his decision finding that Plaintiff was not disabled because she has the residual functional capacity ("RFC") to perform her past relevant work. (R. 17-24.) Plaintiff then filed a request for review the ALJ's decision, and, on April 24, 2002, the Appeals Council denied Plaintiffs request for review making the ALJ's decision the final decision of the Commissioner. (R. 6, 10.) Pursuant to 42 U.S.C. § 405 (g), Plaintiff initiated this civil action for judicial review of the Commissioners s final decision.



Plaintiffs allegations of disability are based inter alia on the following conditions: degenerative disc disease; low back, neck and knee pain; major depression; and cervical spondylosis.*fn3 (R. 100, 101, 104.)

Plaintiff was born on April 11, 1949, and was fifty-one years old at the time the ALJ issued his decision. (R. 14-24.) Plaintiff graduated from high school, attended college for one year, and received specialized training as a travel agent. (R. 68.)

Plaintiff began working as a waitress, bartender and hostess in 1984. (R. 75-76.) In 1998, Plaintiff worked as a mail carrier for approximately one month. (R. 75, 77.)

Plaintiff testified, that in early 1996, while employed as a waitress, bartender and hostess at Fellinis Restaurant, she worked "full weeks" which she defined as working "maybe 3, 4 days" up to thirty or more hours per week.*fn4 (R. 202-05.) She stated that, at that time, she worked mostly lunch shifts because she "couldn't handle [working] the heavy dinners." (R. 204, 207.) Plaintiff stopped working on April 1, 1996 because she felt her body was starting to deteriorate and that after a day of work, the next day, she "could hardly move." (R. 204.) Starting in June 1996, however, Plaintiff returned to Fellinis Restaurant where she worked a reduced schedule of only two to three days per week.*fn5 (R. 206-07.) Plaintiff testified that she reduced the number of hours she worked because of pain in her neck, back and knees. (R. 204.)

At the administrative hearing, Plaintiff stated that she was currently working at Fellinis Restaurant as a waitress, but that she only worked two days a week (four hours each day). (R. 162, 207, 210.) She indicated that she was working "[two] heavy dinners" on the weekends because she made more money working at dinner time.*fn6 (R. 206-08.) Plaintiff testified that she does not lift anything heavy*fn7 because her back will go out and she has the bus boys bring the large trays of food to the tables. (R. 210, 220.) She indicated that she could lift "maybe a glass or something to put it on."*fn8 (R. 210-11.) Plaintiff takes the customers' orders, places the orders, and brings the soup and salad to the table because these were "small little dish[es].*fn9 (R. 219-20.) She indicated that during her four hour shift, she was on her feet, `[t]he whole time' and [she] never had a break . . . even on the full time times." (R. 220-221.) After a four hour shift, Plaintiff has pain all over, numbness, and collapses because she cannot do anything more than recuperate before working her shift, the next day. (R. 221-22.) Plaintiff stated that she is "beat up" after working, her body is very sore and she is never able to recover. (R. 222.)

Plaintiff testified that she has difficulty sitting for long periods because her back stiffens up to the point where she cannot straighten up and her right knee bothers her. (R. 209.) She cannot walk more than one-half of a block because she can "hardly move [her] back and [her] knee together." (R. 209, 227.) Plaintiff further states that she cannot walk too far or stand too long without triggering pain in her lower back, neck and right knee. (R. 209-10.) Plaintiff refrains from bending over, stooping and crouching and, moreover, her pain is constant whether she is standing, sitting or walking. (R. 209-11.) Furthermore, Plaintiff moves around when she is seated because she is uncomfortable and she is unable to sit on a stool or alternate between sitting and standing without pain. (R. 226-28.)

In November 1999 and January 2000, Plaintiff indicated that she saw a counselor for depression. (R. 218.) She testified that she took Zoloft*fn10 "off and on" for her depression. (R. 227.)

Plaintiff further testified that while she had health insurance coverage, her deductible was very high. (R. 219.)

With regard to Plaintiffs daily activities of living, she testified that she cooks, does light household chores (e.g., laundry) and shops. (R. 212-14.) Plaintiff stated that she shops for food because it is hard for her to go out to a restaurant, since she cannot sit for very long. (R. 212.) She testified that other than shopping she essentially stays at home. (R. 212-13.) Plaintiff stated that she no longer participated in sports or bowled and, she. could not remember the last time she went to a movie. (R. 212-13.) Moreover, she indicated that a movie is too long to sit through and that she preferred to watch television at home because that way she could lay down or move around. (R. 212-13.) Plaintiff further testified that she attends to her personal hygiene; however, it is difficult for her to take a shower and get dressed. (R. 212.) She stated that she drives only about five miles per week because it is hard for her to get out of the car due to her back problems. (R. 211.) Plaintiff further indicated that her daughter comes to visit once a month and helps her take care of things. (R. 213-14.)


In April of 1996, Plaintiff was involved in an automobile accident. (R. 100.) On May 29, 1996, Dr. Samar S. Jaglan, M.D. (orthopaedic surgeon evaluated Plaintiff for back and neck pain caused by a jarring trauma from the accident. (R. 100.) In his medical assessment of Plaintiff, Dr. Jaglan noted that Plaintiff had previously incurred injuries to her back and neck which had caused occasional discomfort, but subsequent to the accident, she has had progressive pain in her lower back and cervical spine area. (R. 100.) Plaintiffs physical examination revealed that her range of motion in her lumbar spine was fairly well preserved. (R. 100) Moreover, Dr. Jaglan noted that Plaintiffs cervical spinal range of motion was fairly normal, and she had normal forward bending, extension and rotation. (R. 100.) Plaintiff experienced pain when turning her neck to the right; however, Dr. Jaglan did not note any weakness. (R. 100.) Plaintiffs muscles were normal in strength and her reflexes were intact. (R. 100.) Furthermore, her grip strength and elbow flexion/extension and wrist flexion/extension were normal. (R. 100.) Plaintiff was able to walk on her tip toes and heels. (R. 100.)

At the direction of Dr. Jaglan, Plaintiff underwent an X-ray evaluation of her lumbar and cervical spines. (R. 100.) Plaintiffs lumbar spine X-ray revealed some mild degenerative changes and anterior spur and osteophytes. (R. 100.) An X-ray of Plaintiffs cervical spine, however, revealed moderate to severe disk degeneration of the C5-6 interval with osteophyte spurring, narrowing of the disc and posterior osteophyte formation. (R. 100.) Dr. Jaglan diagnosed Plaintiff as suffering from cervical spondylosis with. disc degeneration of C5-6. (R. 101.) Dr. Jaglan recommended that Plaintiff continue with activity, physiotherapy, range of motion exercises, and use anti-inflammatory medication. (R. 101.)

On January 4, 1999, Plaintiff saw her treating physician, Dr. Samuel Goldstein, M.D. and underwent a comprehensive physical examination. (R. 166.) At that time, Plaintiff reported that she was generally feeling fine, but that she had occasional back pain. (R. 21, 166.) Dr. Goldstein's clinical findings revealed that Plaintiff did not have any pain or swelling in her neck. (R. 166.) Dr. Goldstein further noted that Plaintiff did not have joint pain or swelling, muscle spasms, weakness, or difficulty walking. (R. 166.) Plaintiffs sensory responses and reflexes were also intact. (R. 166.)

On September 10, 1999, Plaintiff underwent an X-ray of her lumbosacral spine which revealed mild degenerative disease, disk space narrowing at L3-S1 and mild demineralization. (R. 105.)

Dr. Michael T. Wagner, M.D., a state consultative examiner, performed a psychiatric evaluation of Plaintiff on September 10, 1999. (R. to 102-04.) Plaintiff stated that her husband had died five years ago and since that time she had been very depressed. (R. 102.) Plaintiff reported that for the past five years she had had a depressed mood much of the time, anhedonia,*fn11 excessive guilt over her husband's death, fatigue, insomnia, and decreased concentration. (R. 102.) Plaintiff further stated that she had previously taken Zoloft for her depression and that she saw a psychiatrist and therapist in 1997 for her depression. (R. 102.) In addition, Plaintiff indicated that she has significant neck and back pain due to a spinal degenerative disk disease. (R. 102.)

With respect to her daily activities, Plaintiff told Dr. Wagner that she only does what she has to do and that she is somewhat able to cook, clean, shop and do laundry. (R. 103.) Plaintiff reported having many friends and that she occasionally goes to movies and restaurants. (R. 103.) She stated, however, that she spends the majority of her day in her home doing housework. (R. 103.) Plaintiff also indicated that she worked two days per week as a waitress. (R. 103.) In his assessment of Plaintiff, Dr. Wagner determined that Plaintiffs poor motivation and depressive symptoms impaired her daily activities. (R. 103.)

Dr. Wagner found that while Plaintiff's mood was depressed, her thought processes were clear. (R. 103.) With respect to Plaintiffs mental status examination, Plaintiff inter alia had a good ability to relate on a personal level, answered all questions competently, did not have any delusions or hallucinations, and possessed good insight and judgment. (R. 103.) Dr. Wagner, however, diagnosed Plaintiff with a major depressive disorder of moderate intensity, with moderate impairment in social and occupational functioning. (R. 104.)

On September 10, 1999, Plaintiff also underwent a physical examination with Dr. Peter Biale, M.D. (internist), a state consultative examiner. (R. 115-17.) Plaintiff told Dr. Biale that she had been suffering from back pain for several years. (R. 115.) Plaintiff stated that her back pain is aggravated when bending over, lifting more than ten or twenty pounds, walking more than a block, climbing a flight of stairs, and sitting or standing for ...

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