Brennan v. Colvin
| Decision Date | 04 March 2015 |
| Docket Number | 13-CV-6338 (AJN)(RLE) |
| Parties | DEBRA M. BRENNAN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
I. Introduction
Plaintiff Debra Brennan ("Brennan") commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for disability insurance benefits. On June 23, 2014, the Commissioner filed a motion for judgment on the pleadings to affirm her final decision that Brennan is not disabled. (Def.'s Mem. of Law in Supp. of Comm'r's Mot. for Judgment on the Pleadings ("Def. Mot.") at 2.) In response, on July 7, 2014, Brennan filed a motion for judgment on the pleadings, asking the Court to overturn the final administrative decision finding no disability and remand the case solely for a calculation of benefits or, alternatively, to remand the case for reconsideration of the evidence. Brennan argues that the record compels the conclusion that she is disabled and does not have the residual functional capacity to perform her past work. (Pl.'s Reply Memo in Support of Mot. for Judgment on the Pleadings ("Pl. Mot.") at 9.) For the reasons that follow, I recommend that Brennan's motion be GRANTED IN PART, and that the case be REMANDED for further administrative proceedings.II. Background
A. Procedural History
Brennan applied for disability insurance benefits on January 2, 2008. (Transcript of Administrative Proceeding ("Tr.") at 197.) The application was denied on February 25, 2008, id. at 117, and on March 3, 2008, Brennan requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 122.) On June 8, 2009, Brennan appeared before ALJ Dennis G. Katz with non-attorney representative Yemithsou Chery. (Id. at 57.) The ALJ issued a decision on July 28, 2009, finding that Brennan was not disabled under the Act, and was not entitled to disability insurance benefits. (Id. at 98-105.) Brennan requested review by the Appeals Council, which was granted on May 3, 2011, and the case was remanded. (Id. at 107.) Specifically, the Appeals Council asked the ALJ to address the inadequate evaluation of the treating physician's opinion and provide specific references to evidence in the record that supported the determination of Brennan's RFC. (Id.)
Brennan reappeared before ALJ Katz on August 8, 2011, with the same non-attorney representative. (Id. at 35.) The ALJ issued a decision on February 2, 2012, finding that Brennan was not disabled under the Act, and therefore, not entitled to disability insurance benefits. (Id. at 19-28.) Brennan again sought review by the Appeals Counsel, but the request was denied, and the ALJ's decision became the Commissioner's final decision. (Id. at 2-7.) Brennan filed this action on September 10, 2013, and it was referred to the undersigned on September 20, 2013. (Doc. No. 1-2)
B. ALJ Hearing on June 8, 2009
At the time of her hearing, Brennan was a 38 year-old mother of two. (See Tr. at 63, 67.) Before the onset of carpal tunnel syndrome in both hands, she worked for five years as an "endof contracts rep [sic]" at an office equipment leasing company. (Id. at 62.) When she became pregnant with her first child, her hands (Id. at 63.) The symptoms continued after the baby was born and into her second pregnancy. (Id.) Beginning August 2, 1999, and thereafter, Brennan was unable to work because of her symptoms and received disability payments of $1,827 per month from her employer's insurance company. (Id. at 59-61.)
In 2001, Brennan underwent carpal tunnel release surgery, but was still feeling pain, numbness, and tingling in her hands. (Id. at 64 and 67.) Brennan's husband changed his schedule to accommodate her increased need for assistance. (Id.) He stayed home during the day and worked night shifts to care for their infant child. (Id. at 66.) Brennan could not hold a baby bottle or a cellphone long without dropping it, and was afraid of dropping her child. (Id. at 65.) Brennan's husband was responsible for household chores, including cooking, doing laundry, and grocery shopping. (Id. at 64-66.) When Brennan needed help and her husband was not home, his mother, who lived nearby, provided assistance. (Id. at 66.)
When driving to her twice weekly doctor's appointments, Brennan turns on the ignition holding the key with both hands. (Id. at 67 and 74.) Although she can tie her shoelaces, she wears pullover shirts to avoid buttoning anything. (Id. at 67-68.)
Although she is able to open her wallet, Brennan no longer goes grocery shopping because she is unable to take things off the shelves. (Id. at 68-69.) She is able to brush her teeth, but feels discomfort applying make-up and doing her hair. (Id. at 75.) Within the last ten years, Brennan's medications have frequently changed and have caused a variety of side effects, including nausea, dizziness, drowsiness, weakness, tightening of the chest, and diarrhea, which last anywhere from three to four hours, about twice a day. (Id. at 78-79.)
Victor Alberigi, a vocational expert, testified by telephone. The ALJ asked Alberigi whether someone who could not use their hands "at all, for reaching, handling, or fingering," could do Brennan's past work, or any other work in the national economy. (Tr. At 80.) Alberigi responded that the hypothetical person would not be able to do any work, unless an employer provided adaptive equipment, which many are not willing to do. (Id. at 80-81.) The ALJ then asked Alberigi whether someone with the capacity to perform all three functions occasionally (only a third of the time in a typical workday) could hold a job in the national economy. Alberigi responded that a surveillance system monitor position was a sedentary job that only required occasional reaching, handling, and fingering. (Id. at 81-82) He also mentioned photo-finishing counter clerk and usher positions as jobs that only required occasional reaching, handling, and fingering. (Id. at 84, 86.)
Brennan's non-attorney representative, Yemithsou Chery, asked Alberigi whether, in addition to the limited ability of occasional reaching, fingering, and handling, an individual who was distracted from work for a total of three hours in a workday could hold a position. (Id. at 89.) Alberigi answered that such a person would not be able to hold a position. (Id.) Chery also asked whether the inability to carry and hold objects would affect the ability to perform the jobs listed. (Id.) Alberigi replied that, because the job of an usher was listed in the Department of Labor's Dictionary of Occupational Titles (DOT) as requiring carrying, pushing, and pulling up to twenty pounds approximately one-third of the workday, a person with such limitations could not do the job. (Id. at 90.) The ALJ countered that the usher position outside the DOT did not "seem to be a job where you'd be carrying much during the day except some programs perhaps." (Id.) Alberigi replied that as performed in the national economy, the job of an usher, and that of a photo-finishing counter clerk, required the ability to lift less than two pounds. (Id. at 90-91.)
On October 8, 1999, on a questionnaire sent to Brennan's health insurance, neurologist Dr. Ira Neustadt diagnosed Brennan with bilateral carpal tunnel syndrome1 caused by pregnancy (due date in December 1999). (Tr. at 312.) Dr. Neustadt stated that Brennan's symptoms began around July 30, 1999, and noted restrictions in the repetitive use of her hands because of pain and swelling. (Id.) He indicated Brennan's work capacity as "none," and stated that it was "indeterminate" when Brennan could return to work. (Id.)
On April 5, 2000, Brennan visited Dr. Douglas J. Fauser, a physician at Somers Orthopaedic Surgery and Sports Medicine group, complaining of progression of the carpal tunnel symptoms, more pronounced on the right hand than the left. (Tr. at 346.) Dr. Fauser noted that Brennan had previously visited the emergency room for wrist splinting,2 "which did not alleviate her complaints." Although Brennan's pain had reduced by 80%, she still presented marked weakness. Dr. Fauser's examination revealed "no restriction of carpal range of motion, positive Tinel3 bilaterally, negative Phalen4 bilaterally," marked weakness in grip strength and thumbrotation that was equal bilaterally. (Id.) Side and diagonal x-rays of the wrist did not show the syndrome. (Id.) Dr. Fauser recommended a course of hand therapy, and if Brennan's hands showed no improvement within a month, he suggested carpal tunnel release surgery. (Id.)
On a follow-up visit on May 5, 2000, Dr. Fauser examined Brennan and concluded that there was no "significant change in her clinical condition." (Tr. at 345.) His examination revealed "a mildly positive Tinel sign, no negative Phalen," and a range of motion that was "minimally restricted." (Id.) Dr. Fauser recommended that Brennan continue hand therapy and a re-examination if the symptoms did not improve within four to five weeks. (Id.)
On June 26, 2000, Brennan saw Dr. Fauser and complained of symptoms in her left hand. (Tr. at 343.) Dr. Fauser found marked weakness and positive Phalen's and Tinel's signs on the left side, but not on the right. (Id.) Dr. Fauser recommended that Brennan continue therapy and have carpal tunnel release surgery in the fall. (Id.)
On September 18, 2000, Brennan complained to Dr. Fauser about pain, mostly in her left hand. (Tr. at 341.) Dr. Fauser found positive Tinel's and Phalen's signs in her left hand, but not in her...
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