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Connie J. Rapsin v. Michael J. Astrue

August 22, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


This matter is before the Court on a motion for judgment on the pleadings [20], filed by Plaintiff Connie J. Rapsin, seeking judicial review of a decision of Defendant Michael J. Astrue, Commissioner of the Social Security Administration, denying her application for disability insurance benefits ("DIB"). Plaintiff asks the Court to reverse the decision of the Administrative Law Judge denying her benefits or, alternatively, remand for further proceedings. Defendant has filed a memorandum in support of the Commissioner's decision [26], to which Plaintiff has replied [27]. For the following reasons, the Court remands this matter for further proceedings consistent with this opinion.

I. Procedural Background

On January 20, 2006, Plaintiff applied for disability insurance benefits, alleging that she became disabled as of September 21, 2005. See Administrative Record at 210.*fn1 Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested a hearing, which was held on April 2, 2008, before an Administrative Law Judge ("ALJ"). R. at 24. The ALJ denied Plaintiff's claim. R. at 13-22. Plaintiff sought review of the ALJ's decision and the Appeals Council denied this request, leaving the ALJ's decision the final decision of the Commissioner. R. at 1-4, 9. Plaintiff now seeks judicial review of a final decision of the Commissioner of Social Security. This Court has jurisdiction pursuant to 28 U.S.C. § 405(g).

II. Facts

A. Background

Plaintiff, born in 1954, was 53 years old as of the date of hearing. R. at 29. Plaintiff has a high school education and worked as a bank teller from 1989 through 2005. R. at 30, 215. Plaintiff indicated that she was unable to work due to back surgery, arthritis, inability to hear with her right ear, high blood pressure, gastroesophageal reflux disease, and migraines.

B. Medical Evidence

Plaintiff has had a history of back problems. Beginning in 1996, Plaintiff underwent a microdiscectomy at L5-S1. R. at 47, 371. In 2001, problems resumed, affecting Plaintiff's lower back, legs, and hip. R. at 371. In September 2002, Plaintiff consulted with neurosurgeon Thomas Hurley, M.D., and reported that sitting for prolonged periods, as well as other movements, increased her pain. Id. A myelogram showed evidence of a bulging disc at L4-5, with a well-decompressed L5-S1 region (the same area as the prior surgery), and prior treatment records showed that Plaintiff suffered from severe degenerative changes in the lumbar spine at L5-S1 that caused bilateral neural foraminal stenosis.*fn2 R. at 367-69. Conservative treatment did not provide significant relief, so in August 2003 Dr. Hurley performed spinal fusion surgery on Plaintiff at L5-S1. R. at 34, 359, 367-68. After the spinal surgery, Plaintiff wore a back brace and underwent physical therapy.

In February 2004, Plaintiff continued to have back and leg symptoms; however, she was released by Dr. Hurley to return to work on a part-time basis (three to four hours per day). R. at 366. Over the next three months, Plaintiff increased her working hours to 30 hours per week. R. at 35, 36. She continued to experience back problems and numbness in her foot, especially standing for more than four hours per day. R. at 35, 36, 365. Dr. Hurley indicated that Plaintiff's persistent numbness, especially with standing and walking, resulted from an underlying nerve injury at S1, secondary to her degenerative disc disease. R. at 365, 364. Dr. Hurley prescribed various medications, and adjusted those medications over time. R. at 359-64.

In November 2004, Plaintiff went to the emergency room. R. at 333-39. A pulmonary function study demonstrated normal spirometry and there was borderline bronchodilator response and some reduction in mid-expiratory flows. A November carotid ultrasound was normal bilaterally without any significant stenosis. R. at 292, 334. Plaintiff's provisional diagnoses were angina and shortness of breath. R. at 333, 335.

In view of Plaintiff's report of pain in both feet, in December 2004 an MRI was taken of Plaintiff's lumbar spine. R. at 283. This MRI showed surgical changes, a possible midline disc protrusion at L5-S1, and a mild diffuse posterior disc bulging at L4-L5. Id. Plaintiff's provisional diagnosis was lumbar degenerative disc disease. R. at 330.

Dr. Hurley saw Plaintiff in February 2005 for routine follow up of her L5-S1 posterior lumbar interbody fusion from August 2003. R. at 349-50. He noted Plaintiff's medications and diagnosed lumbar degenerative disc and hip pain. R. at 349. Dr. Hurley planned to have Plaintiff return in six months. R. at 350. In March 2005, Plaintiff went to the emergency room.

R. at 327-29. The provisional diagnoses were hypertension, GERD (gastroesophageal reflux disease), and a family history of diabetes mellitus. R. at 327.

In 2004-05, Plaintiff also was having additional problems, including angina, shortness of breath, dizziness, weakness, migraines, left side paresthesias, and numbness, for which she received emergency room care and care from her primary physician. R. at 302-07, 312-39. Some of the tests performed during this period did not show significant abnormalities. R. at 289-91, 292, 293, 314, 317-18. Plaintiff's primary care physicians diagnosed conditions including hypertension, GERD, migraine headaches, and DJD (degenerative joint disease). R. at 298-99.

Plaintiff continued to have back pain. Radiological studies in June 2005, while not appreciably different from earlier studies, revealed moderate degenerative spondylosis at L5-S1.*fn3

R. at 295, 302. Plaintiff worked the reduced schedule of 30 hours per week until September 2005. At that point, she stopped working due to fatigue and an inability to keep up with work. She began taking Vicodin every couple hours. R. at 31, 36, 48-49. Also in September of 2005, Plaintiff presented to the emergency room complaining of some shortness of breath that began about one week prior to her visit. R. at 314-23. Her chest x-ray was negative, and Plaintiff was given an IV with normal saline and a Xanax prescription and was discharged in stable condition.

R. at 318.

Pascal Bordy, M.D., examined Plaintiff on behalf of the Social Security Administration in April 2006. Dr. Bordy noted that Plaintiff was 5'1" tall and weighed 201 pounds. Dr. Bordy observed discomfort changing from a sitting to standing position, limited flexion of the lumbar spine, and an abnormal gait. R. at 353-57. An x-ray of Plaintiff's lumbar spine revealed that the lumbar vertebral alignment was intact, moderate disc space narrowing, and degenerative disc disease changes at the L5-S1 level. R. at 357. Dr. Bordy indicated that musculoskeletal examination revealed a full, painless range of motion in degrees of all joints except flexion of the lumbar spine, which was performed to seventy degrees with pain at L5-S1. R. at 354. There was no heat, redness, swelling, thickening, or deformity of any joints, but there was tenderness at L5-S1. Id. Plaintiff's ability to bear weight was abnormal without the use of an assistance device, as Plaintiff limped. Id. Plaintiff had normal grip strength bilaterally, and her ability to grasp, finger, and manipulate with each hand was within the normal range. She was able to walk on toes and heels, squat, rise, and walk a tandem gait without difficulty. R. at 354. Dr. Bordy diagnosed Plaintiff with chronic L5-S1 degenerative disc disease status post fusion with hardware, intermittent sciatica, recurrent hypertension, GERD, and obesity. R. at 355.

In May 2006, Dr. Smalley, a state agency physician, reviewed the record evidence and concluded Plaintiff could perform light exertional work, with frequent climbing of ramps and stairs and balancing; occasional stooping, kneeling, crouching, and crawling; never climbing ladders, ropes, or scaffolds; and needed to avoid concentrated exposure to vibration. R. at 373-80. Dr. Colmey, also a state agency physician, reviewed the record evidence later in May 2006 and concluded that Dr. Smalley's assessment was reasonable. R. at 381-83.

In July 2006, Plaintiff returned to Dr. Hurley and reported that she was having more problems with her back, including a stabbing pain in the central lower back, and in the lower extremity, particularly on the left side. R. at 394, 246. Dr. Hurley noted that, despite physical therapy, Plaintiff still had persistent symptoms. However, examination revealed no pain with straight leg raising, flexion, abduction, and external rotation of either hip. Plaintiff's strength was normal (5/5) throughout all groups tested in the lower extremities. He diagnosed chronic lower back pain and recommended an MRI. R. at 394-95. He noted that if ...

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