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MANNEY v. BARNHART

January 15, 2004.

CAPRISE MANNEY, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant



The opinion of the court was delivered by: IAN LEVIN, Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Caprise Manney (hereinafter "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 denying her application for Social Security Income (hereinafter "SSI") benefits under Title XVI of the Social Security Act (the "Act"). Before the Court are the parties cross-motions for summary judgment in the cause. For the reasons set forth below, the Court recommends that the cause be remanded for further proceedings consistent with this opinion.

  PROCEDURAL HISTORY

  On November 20, 1998, Plaintiff applied for SSI benefits alleging inter alia that she became disabled due to back impairments and a lung disease.*fn1 (R. 30-36, 65-67.) Plaintiff's application for benefits was initially denied on August 27, 1999. (R. 30-33.) Subsequently, on October 29, 1999, Plaintiff's request for reconsideration was also denied. (R. 34-38.) Plaintiff then filed a timely Page 2 request for an administrative hearing and, on February 27, 2001, Plaintiff appeared with counsel and testified at a hearing before an Administrative Law Judge ("ALJ"). (R. 39, 192-223.) A vocational expert also testified at the administrative hearing. (R, 223-30.)

  On March 28, 2001, the ALJ issued her decision finding that Plaintiff was not disabled. (R. 15-21.) Plaintiff then filed a request for review of the ALJ's decision, and, on January 31, 2003, the Appeals Council denied Plaintiff's request for review making the ALJ's decision the final decision of the Commissioner. (R. 5-6, 8-11.) Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil action for judicial review of the Commissioner's final decision.

  BACKGROUND FACTS

 I. PLAINTIFF'S BACKGROUND/TESTIMONY

  Plaintiff was born on January 12, 1965, and was thirty-six years old at the time of the administrative hearing. (R. 20.)

  At the hearing, Plaintiff testified that she lived in subsidized housing with her three children and boyfriend. (R. 193-94.) She stated she had attended an alternative high school and completed approximately the eleventh grade. (R. 195.) Plaintiff testified she had worked at several jobs in the past,*fn2 but she had not held any of them for any length of time because the jobs were "too strenuous Page 3 on [her] back." (R. 196.) Plaintiff took each job assuming that she was going to work for long periods of time, but due to her back problems, she found herself calling in often or not going into work at the scheduled time because her back hurt to the point where she could not stand. (R. 196.) She testified she thought she could do a job where she could alternate between standing up and sitting down, but she was unable to do even these types of jobs because her back pain was getting progressively worse, and when she alternated between standing up and sitting down, she found that "the pressure [was] still on [her] back. [H]er leg [also] [became] numb and it [got] real uncomfortable to sit or stand." (R. 196.)

  Plaintiff stated she frequently went to either the emergency room or hospital for medical treatment. (R. 198, 203.) For instance, Plaintiff was last treated in the hospital, in December of 2000, when she was admitted after an emergency room visit for back pain and muscle spasms in her leg. (R.198.) During her hospitalization, Plaintiff testified that she underwent several tests which also revealed she had pneumonia, high blood pressure and her lung disease was out of control. (R. 198.)

  Plaintiff testified that her orthopedist, Dr. Smith, who worked at Mercy Hospital and Medical Center, advised her to quit her job because her back was not going to get any better. (R. 201.) She also indicated that Dr. Smith had given her a back brace to wear. (R. 201.) Plaintiff testified she would wear the back brace most of the day for support, however, it did not relieve her back pain once it had begun. (R. 202.) She indicated, however, that the only thing that eased her back pain were hot baths. (R. 202.)

  Plaintiff stated she experienced extreme pain in her lower back, particularly on the left side, "as if something is rubbing and pressing up against a nerve." (R. 204.) She indicated that this pain also caused trembling and numbness in her legs. (R. 204.) Plaintiff testified she had muscle spasms Page 4 in her left leg and her leg muscles would become very sensitive to touch. (R. 204.) She stated that while walking she experienced constant pain in her leg and walked with a limp. (R. 204.) Plaintiff indicated she experienced pain in her back and leg which was severe enough to affect her concentration. (R. 219.) She testified that during these painful periods, she was "usually trying to think of ways to relieve [the] pain. And at that point nothing else . . . is important, because it's such a terrible pain." (R. 219.) Plaintiff stated she is never able to relieve the pain totally; rather, she is only able to stop the pain from "hurting to an extreme." (R. 219.) She indicated her daughter massages her leg and she takes between five and six baths a day to relieve the pain in her leg. (R. 220.) Plaintiff testified that when she was standing or sitting, she bore her weight primarily on her right side to keep pressure off of her left side (i.e., left knee).*fn3 (R. 221.) She indicated that she would "press down on the low[er] part of [her] back" in order to "keep[] the pain in an isolated position." (R. 221.) Plaintiff further stated that when she needed to pick things up off the floor, she would bend at the knees (stoop) rather than at the waist. (R. 221-22.)

  Plaintiff testified that she had difficulty sleeping due to pain in her left leg. (R. 218.) She indicated she typically went to bed between 9:00 p.m. and 10 p.m. and during the night she would wake up at around 1:00 a.m. because either her leg was hurting or she just could not sleep. (R. 218.) Plaintiff would stay up for a couple of hours and then go back to sleep. (R. 218.) She stated that she would then have to get up because she needed to get her kids ready for school. (R. 218.) Plaintiff indicated she felt sluggish and tired during the day because of lack of sleep. (R. 219.) She testified she attempted to sleep during the day, but she was not able to sleep because she is restless and her Page 5 leg hurt to the point where "it's really uncomfortable." (R. 219.)

  Plaintiff stated she had uncontrolled blood pressure which caused her to have a constant headache. (R. 202, 205.) She indicated she also had constant heartburn due to the medications she took, her chest hurt due to her lung disease, her left arm was sometimes sore, and her muscles and joints were always achy. (R. 205-06.) Plaintiff further testified that she was told she has severe arthritis and that when the weather changes and it rains, she is constantly aching. (R. 206.)

  With respect to Plaintiff's lung disease, in addition to her lungs causing her chest to hurt, she testified she coughed up mucus several times throughout the day. (R. 205, 217.) She also stated it was difficult for her to walk outside when the weather was cold because cold air irritated her chest which caused her to spit up mucus. (R. 206.) Plaintiff testified that Dr. Ray, her pulmonologist, asked her to keep track of the color of her mucus to determine if she had had respiratory infections and, in fact, she had several such infections in the past. (R. 203, 217.) She further indicated that before the administrative hearing, she had vomited a lot of mucus because she was walking to the hearing at a somewhat accelerated pace which caused her to gag and choke. (R. 217.) Plaintiff also testified that on the way to the hearing, she "had to keep going inside buildings because it was cold." (R. 211.) Moreover, Plaintiff stated her lungs were irritated by dust and certain household cleaning products. (R. 217-18.)

  Plaintiff indicated she was able to walk "maybe a block depending on the weather." (R. 206.) She testified she walked "slower than the average person." (R. 217.) Plaintiff stated that walking and talking at the same time caused her to become short of breath. (R. 206.) She testified she is unable to stand in one spot for more than about a half an hour to an hour because she would begin to "feel [] pressure" in her back. (R. 207.) Plaintiff stated she could sit for about forty-five minutes Page 6 before she would need to get up and move around. (R. 207.) She also indicated she does not lift more than five pounds because the weight "pulls on [her] back and it hurts." (R. 207.) Moreover, she testified that she tried not to carry anything. (R. 207.)

  When asked about her daily activities, Plaintiff stated, that in the morning, she typically made her children breakfast before they went to school, took a hot bath, and "attempt[ed] to pick up around the house." (R. 208.) Plaintiff testified that, after she completes these activities, she would need to sit in her recliner with her feet elevated. (R. 208.) After sitting for a while, she would need to get up and walk around the house because of her back and leg pain. (R. 208.) Plaintiff stated her four year old son would be at home with her during the day, but when her boyfriend (i.e., her son's father) was not working, he cared for their son.*fn4 (R. 208-09.) She indicated her boyfriend would give their son baths and play with him. (R. 209.) Plaintiff testified she was unable to give their son baths or play with him because she "can't bend over." (R. 209.)

  Plaintiff indicated that she and her daughter cooked the meals and sometimes she was able to wash the dishes, but her children did the cleaning, vacuuming, and dusting. (R. 209-10.) Plaintiff stated she did laundry some of the time, could make her bed, and bathed and dressed herself. (R. 210.) She indicated that sometimes she would go grocery shopping or she would send her daughter to get the groceries. (R. 210.) Plaintiff testified she lives two blocks away from the grocery store and typically takes her daughter to the store with her. (R. 210.) She stated she could not walk and carry a bag of groceries at the same time and if she goes to the store, she is accompanied by "someone [who] can carry the bags." (R. 206-07.) Plaintiff indicated she is no longer able to window Page 7 shop, but she takes her children out to eat. (R. 212.) She further testified she would attend church two to three times per month, if her back and legs were not hurting. (R, 212.) Plaintiff also indicated that the church bus would pick her up for church services. (R. 212.) She stated she would occasionally go to her daughter's chorus club performances if she was able to get a ride to her daughter's school. (R. 213.) Plaintiff testified she would sometimes attend parent-teacher conferences, but the school would usually contact her by telephone because they knew about her health problems. (R. 213-14.)

  Plaintiff stated that every day she took Prednisone*fn5 for her lung disease, Atenolol*fn6 for high blood pressure, Prevacid*fn7 for acid reflux disease (twice a day), and used an inhaler (Albuterol)*fn8 (two puffs twice a day). (R. 200.) She testified she was also prescribed Atrovent*fn9 (inhaler) and Flonase*fn10 Page 8 (nasal spray), but she no longer had any of these medications because she had exhausted all of her refills. (R. 200-01.) Plaintiff further indicated she had been prescribed about four different pain medications, but she had also exhausted these refills and had been told by her physicians to take various over-the-counter medications in a combination that would alleviate her pain. (R. 201.) She stated she attempted to control her pain with Motrin (nonsteroidal anti-inflammatory pain reliever), Aleve (nonsteroidal anti-inflammatory pain reliever) and Tylenol (pain reliever) using various dosages and combinations, but these medications "[did] not stop the pain. [They] make[] it bearable." (R. 205.) Plaintiff further indicated that her medications caused her to have difficulty sleeping. (R. 206.)

  Plaintiff testified that she did not have health insurance; however, she did have a medical card from public aid. (R. 215, 221.)

 II. MEDICAL EVIDENCE

  On May 22, 1998, Plaintiff sought medical treatment for back pain at Mercy Hospital and Medical Center. (R. 127.) Plaintiff reported, at the time, she was always picking up heavy objects that she should not be carrying. (R. 127.) Moreover, the medical record from that day indicates that Plaintiff had not seen a physician since August of 1997. (R. 127.)

  On May 28, 1998, Plaintiff again sought medical treatment at Mercy Hospital and Medical Center for back pain. (R. 128.) At that time, Plaintiff reported she began having back pain after she had received an epidural*fn11 during the delivery of her first child. (R. 127.) She indicated that the pain was in her lower back and it was aggravated by movement, especially when bending down. (R. 127.) Page 9 Plaintiff also stated that she had injured her left knee two years earlier and her knee was painful, particularly when she climbed stairs. (R. 127.) Plaintiff further reported that her back pain was relieved when she took Motrin (i.e., 400 milligrams) two to three times a day. (R. 128.)

  Upon examination, Plaintiffs sensory and motor function were intact. (R. 128.) Plaintiff had good extension and sideways movement, but was unable to bend beyond 140 degrees due to back pain. (R. 128.) An examination of Plaintiff's left knee showed no swelling or tenderness, and she had good range of motion. (R. 128.) An X-ray examination of Plaintiff's lumbosacral spine showed a marked narrowing of the L5-S1 vertebral disc spaces and a deficit in the left side of L5-S1, with Grade I spondylolisthesis*fn12 of L5-S1. (R. 128.) Plaintiff was diagnosed with chronic back pain, prescribed pain medication, given back exercises to perform, and instructed not to lift any objects over ten pounds. (R. 128.)

  On June 25, 1998, Plaintiff underwent further evaluation for her back and knee pain. (R. 129.) Upon examination, Plaintiff was unable to bend beyond 140 degrees due to her back pain. (R. 129.) An examination of Plaintiff's left knee showed no swelling and she had good range of motion. (R. 129.) In addition, Plaintiff was referred for an orthopedic evaluation. (R. 129.)

  On July 14, 1998, Plaintiff underwent an orthopedic evaluation for her back pain. (R. 130.) At that time, Plaintiff reported she had suffered from back pain since 1985 when she received an epidural during the birth of her first child. (R. 130.) She also reported that she had left knee pain, however, the pain was "not as bad." (R. 130.) Upon examination, Plaintiff's straight leg raising was Page 10 negative, and her reflexes were brisk and symmetrical. (R, 130.) At the evaluation, Plaintiff was advised to lose weight and perform back exercises. (R. 130.)

  On July 30, 1998, Dr. Suvant Suvanich, M.D., performed a consultative examination of Plaintiff. (R. 131-34.) During the examination, Plaintiff stated she had suffered from lower back pain and numbness in her left calf area for about nine years. (R. 131.) She indicated that the pain is rather constant in her lower back area and radiates to the back of her left calf. (R. 131.) Plaintiff reported she has difficulty getting up in the morning due to stiffness. (R. 131.) She stated that the pain is constant at night when she is lying down and she has two to three episodes per week of getting up at night crying because of the pain. (R. 131.) Plaintiff further reported that her pain is relieved by taking Motrin. (R. 131.) She also stated that she was seen by orthopedic surgeons in 1997 and 1998 and was given physical therapy manuals to do exercises at home. (R. 131.) Moreover, Dr. Suvanich noted that Plaintiff never had a diagnostic work up; such as computed tomography ("CT") and/or magnetic resonance imaging ("MRI") evaluations. (R. 131.)

  At the time of the examination, Plaintiff reported that she could stand for about an hour and then needed to sit down due to pain. (R. 132.) Plaintiff indicated that she was able to walk about half of a mile and then needed to sit down due to numbness in her leg. (R. 132.) She stated that she had difficulty going up and down the stairs to her third floor apartment and had to stop two to three times while going up or down the stairs. (R. 132.) Plaintiff also reported ...


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