The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
REPORT AND RECOMMENDATION
Judith Dahlgren ("Plaintiff") seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration ("Commissioner"). See 42 U.S.C. §§ 405(g),
1383(c)(3). The Commissioner's final decision denied Plaintiff's
application for Disability Insurance Benefits ("DIB") pursuant to
Title II of the Social Security Act (the "Act").
42 U.S.C. §§ 416, 423. This matter is before the Magistrate Judge for Report
and Recommendation pursuant to Rule 72(b) of the Federal Rules of
Civil Procedure and 28 U.S.C. § 636(b)(1)(B).
Plaintiff filed for DIB on August 7, 1997 (Tr. 114), and her
application for benefits was denied on December 5, 1997. (Tr.
91). Plaintiff filed a request for reconsideration on December 9,
1997, and her application was denied after reconsideration on
January 26, 1998. (Tr. 95-96). Plaintiff then filed a request for
a hearing before an Administrative Law Judge ("ALJ") on January
29, 1998. (Tr. 99). Plaintiff appeared, with counsel, before ALJ
J. Robert Brown on December 11, 1998. (Tr. 392). In a decision dated October 22,
1999, the ALJ found that Plaintiff was not entitled to DIB. (Tr.
32-42). Plaintiff's request for a review of the ALJ's decision by
the Appeals Council was received on November 19, 1999. (Tr. 349).
On August 2, 2001, the Appeals Council vacated Plaintiff's
original hearing decision and remanded Plaintiff's case for
further proceedings.*fn1 (Tr. 374-76). Subsequent to the
remand, a hearing was held on April 24, 2002, before ALJ Cynthia
Bretthauer. (Tr. 425-69). On May 30, 2002, ALJ Bretthauer found
Plaintiff was not entitled to DIB. (Tr. 28). Plaintiff filed a
request for review on June 4, 2002. (Tr. 16). Plaintiff's request
for review was denied on November 7, 2003. (Tr. 3-5).
Plaintiff was born on November 15, 1953, making her forty-five
years of age at the time of her December 11, 1998, hearing before
ALJ Brown and forty-nine years of age at her April 24, 2002,
hearing before ALJ Bretthauer. (Tr. 112, 396, 425). Plaintiff
completed her education through high school, plus two years of
college. (396). At the time of her hearings, Plaintiff lived with
her boyfriend. (Tr. 466). Plaintiff was approximately five foot
three inches tall and weighed approximately 152 pounds. (Tr. 70).
Plaintiff's primary impairments noted by ALJ Bretthauer were
cervical fusion, bulging disc, fibromyalgia, confusion, decreased
concentration, and elevated liver enzymes. (Tr. 21).
Plaintiff had no reported income since April 24, 1993. (Tr.
13). From 1979 to 1981, Plaintiff worked for UPS as a loader,
driver, and driver supervisor. (Tr. 123). Plaintiff was paid
$2,500.00 per month for her services. (Id.). From 1981 to 1982,
Plaintiff worked for Fed Ex as a delivery driver at a rate of ten dollars per hour. (Id.).
From 1982 to 1985, Plaintiff worked for a food catering business
as a delivery driver on commission. (Id.). From 1985 to 1993,
Plaintiff worked as a delivery driver for an office products and
furniture business, where she was paid nine dollars per hour for
her services. (Id.). Plaintiff worked for Tempro Office
Products as a driver from 1993 to April 24, 2003. (Tr. 145).
Plaintiff worked nine plus hours a day, five days a week.
(Id.). Plaintiff was paid nine dollars per hour for her
services. (Id.). Plaintiff was terminated from her job with
Tempro due to injuries sustained in a work-related automobile
accident, but Plaintiff did return to Tempro for a short time
period after her accident, performing office work until she was
let go. (Tr. 145, 435).
Plaintiff stated at her hearing before ALJ Bretthauer that she
could not do much during her typical day since she stopped
working. (Tr. 450). She reported a daily routine that included
reading newspapers or books propped up at eye level, preparing
dinner by working in shifts of activity, dusting, and taking care
of laundry and shopping with assistance from her boyfriend. (Tr.
451). Plaintiff stated she could not push a grocery cart. (Tr.
451). Plaintiff explained that she could bathe and dress herself,
but noted that doing so made her uncomfortable and tired so she
limited showering to twice a week. (Id.). Plaintiff reported
spending most of her time on the couch laying down, approximately
eighteen hours a day. (Tr. 460).
Though Plaintiff has a driver's license without restrictions,
Plaintiff does not drive much. (Tr. 432-33, 438, 453-54).
Plaintiff took a trip to Florida at the end of 1993, but did not
drive herself. (Tr. 438, 372-73). Plaintiff stated she mainly
stayed on a couch in Florida, but did occasionally go out for
dinner. (Id.). Sometime in 1995 or 1996, Plaintiff rode to
Philadelphia for a funeral. (Tr. 459). Plaintiff reported that
the trip made her feel horrible and that she spent most of her
time on a relative's couch. (Id.). Plaintiff occasionally went
out for dinner and visited family and friends. (Tr. 454-55). Plaintiff also visited
the racetrack with her boyfriend once a week or once a month when
she lived in close proximity to the facility. (Tr. 456).
Plaintiff testified at her hearing that mental and physical
impairments prevented her from working even light duty jobs. (Tr.
435-36). Plaintiff stated that mental confusion, limited use of
her arms and neck, inability to lift, bend, or squat, and
restricted sitting, standing, and walking kept her from being
able to work. (Tr. 436). Plaintiff stated she could not do
assembly line work or desk work because her neck would be in the
wrong position if she had to look down. (Tr. 436-37). Plaintiff
stated she was diagnosed with Fibromyalgia*fn2 by Dr.
Pupillo in 1994. (Tr. 442). Plaintiff expressed that she could
walk one to two blocks, but could not use a cane for assistance
like she wanted to because it hurt to grip the handle. (Tr.
448-49). Plaintiff stated she could stand five minutes at a time
and sit for an hour at a time without moving. (Tr. 449).
Plaintiff thought she could lift ten to twelve pounds on an
irregular basis. (Id.).
Plaintiff explained that she did not seek medical treatment
between 1994 and 1997 because she had no insurance. (Tr. 441).
Also, from 1997 to 1999, Plaintiff stated she did not take
prescription medications because her stomach could not tolerate
pills. (Tr. 443-44). Plaintiff opined that even though she hardly
sleeps, she did not think sleeping pills "were worth it" because
they only made her sleep four hours in a row. (Id.). In the
past, Plaintiff tried pain relievers like Darvocet, Acetaminophen with Codeine, and Motrin.
(Id.). Plaintiff stated she did not seek mental health
treatment for her confusion*fn3 because she did not want "to
be considered a nut." (Tr. 444). Plaintiff also stated her
confusion was not that severe, and that she did not think she
could afford treatment. (Id.). Plaintiff tried an
anti-depressant for her Fibromyalgia symptoms in 1997, but stated
she did not like the way Zoloft made her feel. (Tr. 445).
Plaintiff reported that her pain primarily affected her right
arm during the period of 1997 and 1998. (Tr. 446). She relayed at
her hearing that the pain from her neck was "piercing" when she
moved her right arm or her neck. (Tr. 446-47). Plaintiff thought
her pain got "either worse or the same" in 1997, when she began
seeking medical treatment again. (Tr. 447). By then, Plaintiff
also developed lower back pain. (Tr. 448). Plaintiff stated her
therapy programs caused her to be in so much pain that she would
not be able to do anything on the following day. (Tr. 453).
Vocational Expert ("VE"), Susan Entenberg, was present at
Plaintiff's hearing for questioning. (Tr. 462). The VE described
Plaintiff's past work as a driver as semi-skilled and heavy work.
(Id.). The ALJ then asked the VE whether a hypothetical female,
with the following characteristics, could perform work in the
[A]n individual who as of December '98 was 45 years
old, had the work experience and education of this
claimant, and had the following exertional
limitations: could sit for six hours, stand and walk
for six hours, lift and carry frequently up to 10
pounds, occasionally up to 20 pounds, could do no
repetitive pushing and pulling, further assuming
someone who could only occasionally stoop and
occasionally climb stairs and ramps, but could never
climb any ladders, ropes, or scaffolds. Also someone
who could occasionally crouch and someone who could
do no repetitive reaching above shoulder level with
the right upper extremity. (Tr. 463).
The VE testified that such a hypothetical female could work at
jobs such as a cashier (40,000 jobs in the Chicago Metropolitan
area), packer (8,000 jobs), and assembler (15,000 jobs). (Tr.
463). If Plaintiff could do no overhead reaching, the VE
testified that she would reduce the jobs available to Plaintiff
twenty percent across the board. (Tr. 464). The ALJ further
limited her hypothetical to restrict repetitive grasping with the
right hand and inquired into the impact on Plaintiff's work.
(Id.). The VE stated the assembly jobs would be eliminated.
(Id.). The VE further stated that Plaintiff could not do any of
the jobs if she were limited to only occasionally moving her head
side-to-side or up and down. (Id.).
Plaintiff's attorney posed a new hypothetical to the VE, asking
whether a hypothetical female, with the following
characteristics, could perform work in the economy:
same age, education, and past work experience that
this individual who could stand or walk for no more
than a total of two hours in an eight-hour workday,
lift more than 10 pounds at a time, occasionally
lifting or carrying articles like docket files,
ledgers, small tools, could only perform activities
such as bending, stooping, crouching, kneeling, and
crawling occasionally, with no climbing of ladders,
ropes or scaffolds. She cannot reach with either arm
or hand, say, any significant extent. There is also
limited ability to move the head from side-to-side or
down so that that can be done occasionally.
(Tr. 465). The VE responded that there would not be any jobs that
such an individual would be able to perform. (Id.).
Plaintiff was injured in a work-related automobile accident on
January 4, 1993. (Tr. 215). Though records of Plaintiff's
treatment immediately after her accident are not available,
Plaintiff reported to Dr. Pupillo that she developed an acute
onset of neck pain and developed severely painful paresthesias almost immediately in both hands
after the accident.*fn4 (Id.). Plaintiff also developed
low back pain within a day or two of the accident. (Id.). In a
letter to Dr. Grear, Dr. Pupillo stated Plaintiff's accident
caused an acute cervical disc herniation with some evidence of
cord compression and chronic lumbosacral strain, but also noted
that Plaintiff walked with a normal gait. (Tr. 216).
In January, 1993, Plaintiff under went various exams related to
her injuries from her accident. On January 9, 1993, a radiology
consultation report ordered by Dr. Pupillo indicated normal
cervical alignment with fusion at C5-C6. (Tr. 164). A January 11,
1993, radiology report prepared by Dr. Cottrell indicated no
injury to Plaintiff's lumbar spine. (Tr. 161).
Plaintiff met with Dr. Michael Grear on March 12, 1993. (Tr.
305). Plaintiff noted her pain had not gone away since her
accident. (Id.). Dr. Grear's clinical examination revealed
twenty percent loss of Plaintiff's left and right lateral
rotation. (Id.). Dr. Grear also noted trace paraspinal muscle
spasm in Plaintiff's cervical spine. (Id.). Dr. Grear
prescribed Naprosyn*fn5 and Flexeril,*fn6 and he
recommended mild home stretching exercises. (Id.). He opined
that he believed Plaintiff would improve with conservative
management and that Plaintiff could continue with light duty
work. (Id.). On March 16, 1993, Plaintiff underwent a partial
bone scan ordered by Dr. Grear. (Tr. 211). Images of Plaintiff's
spine, skull, shoulders, ribs, pelvis, and hips were normal.
(Id.). On March 23, 1993, Dr. Grear reported the he felt comfortable
allowing Plaintiff to resume activity as a truck driver with no
lifting greater than twenty-five pounds. (Tr. 308). Dr. Grear
continued Plaintiff on Naprosyn and stopped the Flexeril.
(Id.). On March 30, 1993, Dr. Grear noted that Plaintiff was
experiencing a fair amount of pain and difficulty sleeping.
(Id.). He prescribed Darvocet, Vicodin, and Naprosyn.*fn7
On April 20, 1993, Plaintiff reported doing well with Darvocet
and Naprosyn, but stated Vicodin made her too sleepy. (Id.).
Plaintiff reported mild discomfort in her proximal left humerus.
(Id.). Dr. Grear affirmed that Plaintiff could continue working
without significant restrictions. (Id.). On May 4, 1993,
Plaintiff reported pain in her cervical and lower lumbar spine,
as well as paraspinal muscle spasm. (Id.). Dr. Grear
recommended physical therapy with hot packs, ultrasound, and
dynawave. (Id.). Dr. Grear also noted that Plaintiff's
medications were upsetting her stomach, so he did not give any
new prescriptions. (Tr. 309).
From May 5, 1993, to May 28, 1993, Plaintiff attended physical
therapy. (Tr. 219). On May 5, 1993, Dr. Grear ordered a MRI of
Plaintiff's cervical spine. (Tr. 213). A defect was present
upon the thecal sac at the C5-C6 disc space level and the
cervical cord appeared compressed and indented at the C5-C6 disc
space level. (Id.). The radiologist's impression was recorded
as "[c]entrally herniated C5-C6 disc with cord compression
without cord edema." (Id.). Dr. Grear ordered a MRI of
Plaintiff's lumbar spine on May 21, 1993. (Tr. 212). No defects
were noted, and the radiologist's impression was recorded as
"[n]ormal MRI study of the lumbar spine." (Id.).
On May 19, 1993, Plaintiff's medications were switched to
Motrin and Tylenol #3 because of Plaintiff's stomach distress.
(Tr. 309). Dr. Grear opined that conservative treatment and avoidance of surgical intervention could be successful.
(Id.). Plaintiff was started on cervical traction for the spine
in her physical therapy. (Id.). On June 6, 1993, Dr. Grear
resumed Plaintiff's treatment with Naprosyn and referred her to
Dr. Lou Pupillo. (Id.). Dr. Grear opined that Plaintiff should
not return to work as a truck diver, but stated she could do
clerical activities as long as she did not lift more than fifteen
pounds. (Id.). Plaintiff's physical therapy progress report of
June 8, 1993, stated that Plaintiff was treated with electric
stimulation, cervical traction, ultrasound, and hot packs for
twelve sessions. (Id.). Plaintiff continued to report pain
post-treatment, including muscle spasm in her trapezious and
rhomboid and pain upon rotating her neck. (Id.). Physical
Therapist, Laura Teven, noted that Plaintiff relied on her pain
medication too much, and stated that Plaintiff was given a home
cervical traction unit. (Id.).
On June 28, 1993, Plaintiff was admitted to the Holy Family
Hospital due to neck and left arm pain. (Tr. 210). A myelography
was performed on Plaintiff, indicating a defect at C5-6 and
minimal bulges at 3-4 and 4-5 and 5-1. (Tr. 208-210, 218).
Plaintiff noted persistent low back pain, but her range of motion
was normal. (Tr. 218). Plaintiff's strength was much improved.
(Id.). Dr. Pupillo suggested conservative treatment with
epidural blocks in both the cervical and lumbar areas. (Id.).
In July and August 1993, Plaintiff underwent multiple epidural
blocks with steroid injections for lumbar radiculopathy. (Tr.
219). Plaintiff received her first lumbar epidural block with
steroid injection on July 19, 1993, and later injections on July
27 (cervical), August 4 (lumbar), and August 24, 1993 (cervical).
(Tr. 189, 192, 200, 207, 219).
On September 9, 1993, Plaintiff consulted with Dr. John Ruge, a
specialist in neurological surgery. (Tr. 219-221). Plaintiff
explained that her pain was worse since her accident, and that
she had lost strength in both arms. (Id.). She also felt it was
dangerous for her to drive. (Tr. 219). Dr. Ruge noted that Plaintiff had returned
to light desk-duty at her job from February 15, 1993 to April 27,
1993, and recommended that she not work because of her
progressive symptomatology. (Tr. 219-20). Dr. Ruge also stated
that Plaintiff had signs of codeine addiction or allergy.
(Id.). Dr. Ruge opined that Plaintiff sustained a mild form of
a central spinal cord injury and recommended ...