The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Paul Caserto ("Caserto" or the "plaintiff") commenced this action
pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
challenging the final determination of the Commissioner of Social
Security (the "Commissioner") denying disability benefits to him.
Both parties move for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure. ("Fed.R. Civ. P.").
On March 7, 2000, Caserto filed an application for social security
disability insurance benefits, alleging an inability to work since August
3, 1998. After his application was denied initially and on
reconsideration, he requested a hearing before an administrative law
judge. On May 16, 2001, a hearing was held before Administrative Law
Judge Sy Raynor (the "ALJ"). At the hearing, the plaintiff was
represented by an attorney.
In a decision dated June 12, 2001, the ALJ found that Caserto failed to
sustain his burden of proving that he was prevented by his impairment
from performing past relevant light work as an automobile salesman or
service manager. Therefore, the ALJ concluded, Caserto was not disabled
within the meaning of the Act and was therefore not entitled to
disability insurance benefits. Subsequently, Teta filed a request for
review with the Appeals Council. On September 13, 2002, the Appeals
Council declined to review the claim, making the ALJ's decision the final
administrative determination. This appeal followed.
1. Caserto's Testimony at the Hearing
The plaintiff was born on June 1, 1961 and has a 10th
grade education. From approximately 1992 to February, 1997, the plaintiff
worked as an auto repair shop service
manager. Caserto's back pain began on January 11, 1996, when he
slipped and fell on a wet cement floor. He was seen by Charles J.
Mascioli, M.D. The plaintiff testified that as a result of this accident
he suffered from disc damage to his lower back and cervical spine which
caused muscle spasms, numbness and tingling in his hands, and constant
pain in his neck, back and left leg. The plaintiff also injured his right
shoulder and right wrist in that accident. As a result of the injuries
caused by the fall, the plaintiff could no longer work as an auto repair
shop service manager. In February, 1997, the plaintiff left that
In November, 1997, the plaintiff commenced work as an automobile
salesman. On February 8, 2000, the plaintiff completed a Disability
Report in which he indicated that this position required him to walk five
hours, stand five hours, sit five hours during the course of the workday,
bend, kneel, crouch and crawl. The plaintiff testified that was not able
to concentrate, had to lie down for four to five hours a day, had
constant tingling in his hands and constant pain in his neck, back, left
leg and right wrist. As a result, on or about August 3, 1998, the
plaintiff left this job.
On July 18, 1999, the plaintiff was struck by a car while filling his
motorcycle with gas at a gas station. The plaintiff indicated that from
the time the he left his employment as an automobile salesperson he rode
his motorcycle only about three to four times so that he could keep the
battery charged. The plaintiff testified that he was filling his
motorcycle with gas so that a prospective purchaser could test drive it
and that the gas station was a mile and
a half from his house.
The plaintiff testified that he received trigger point and Botox
injections, but did not have surgery. The plaintiff is separated from his
wife and has visited his children in Florida one time and occasionally
visits friends. The plaintiff indicated that he cared for his personal
needs and dressed himself, but stated that he had difficulty putting on
clothes because he could not bend or move. He paid bills, wrote checks
and did his own banking. He drove as tolerated, including to the hearing
and to physical therapy five times per week. The plaintiff testified that
he could walk one and one half blocks at a time, could sit for twenty
minutes at a time and lift ten to fifteen pounds. He has difficulty going
up and down stairs. He makes his bed and tries to do chores but does not
cook or grocery shop. The plaintiff's father assists him with these
tasks. The plaintiff also has difficulty climbing stairs. He also read,
listened to the radio and watched television.
2. The Treating Physicians
Shafi Wani, M.D. ("Dr. Wani"), a neurologist, treated the plaintiff on
a monthly basis from April 4, 1998 through April 19, 1999. On April 4,
1998, Dr. Wani reported that the plaintiff's condition was normal but
noted bilateral neck muscle stiffness and tenderness. On June 8, 1998,
Dr. Wani indicated that the plaintiff's condition had not changed and
that he was still experiencing stiffness and tenderness of the right
cervical shoulder and arm muscles.
In November, 1998 and in January and February 1999, Dr. Wani found
sensory deficits in the plaintiff's upper extremities. From August to
October 1998 and in April 1999, sensation was grossly intact.
During the time that Dr. Wani treated the plaintiff, lumbar flexion
ranged from 45 to 60 degrees out of ninety, and extension and lateral
flexion were generally possible to fifteen degrees out of forty-five. The
straight leg-raising test was generally negative when performed in a
seated position and was to sixty degrees out of ninety while supine.
Cervical extension and right rotation were forty-five degrees out of
ninety on one occasion and cervical extension and left rotation were once
full. On two occasions, lumbar flexion was thirty degrees out of
forty-five on the right. Lasegue's sign was either negative or could not
be evaluated. Dr. Wani also found cervical, lumbar and extremity
stiffness and tenderness. He continued to recommend exercises and massage
In a February, 1999 Workers Compensation report, Dr. Wani opined that
the plaintiff had a permanent, partial disability since January, 1996.
Charles E. Argoff, M.D. ("Dr. Argoff"), a pain management specialist,
treated the plaintiff from September 1998 to April 2001. On September 25,
1998, Dr. Argoff found paracervical trigger points and pain on
palpatation of the paralumbar, sacroiliac and sciatic regions. He noted
post-traumatic cervical and lumbar myofascial and radicular complaints
since 1996. Dr. Argoff found pain on palpatation of his paralumbar
region at L3-4 and L4-5 bilaterally, decreased motion in the cervical
spine and the back with paraspinal tenderness. Forward flexion of the
lumbar spine was possible to sixty degrees. The plaintiff was alert and
oriented and cranial nerve examination was unremarkable. Motor
examination revealed a normal gait and normal heel, toe and tandem
walking. Strength was full in the extremities with no abnormal sensation.
Deep tendon reflexes were normal and symmetrically active. Dr. Argoff
recommended a twelve week pain rehabilitation program, lumbar epidural
steroid injections and, possibly, myofascial trigger point injections.
On July 30, 1999, Dr. Argoff noted that motor examination was normal,
deep tendon reflexes were normally active, and strength was full. There
was significant muscle spasm and cervical, upper extremity and lumbar
myofascial trigger points. Dr. Argoff prescribed Zanaflex to reduce
muscle spasm and Vioxx, an anti-inflammatory medicine.
On August 13, 1999, Dr. Argoff noted that the plaintiff indicated that
his medications had provided little relief. On September 17, 1999, the
plaintiff was ready to participate in the comprehensive pain management
program consisting of physical therapy and behavior therapy and noted
that the plaintiff was not likely to have complete pain relief. On
September 29, 1999 the plaintiff's muscles were less tense and felt
On October 27, 1999 the plaintiff reported that he was benefitting from
the pain management behavioral sessions. He had extremely painful trigger
points in the suboccipital
and paracervical regions. Dr. Argoff gave the plaintiff muscular
injections and stated that the plaintiff could not return to work at that
time. Dr. Argoff prescribed a Liboderm patch.
On November 3, 1999, the plaintiff reported a solid week of pain relief
following his trigger point injections. On November 10, 1999, Dr. Argoff
reported that the plaintiff strained his lower back and neck and had
painful muscle spasms in the lower right thoracolumbar area and in the
right paracervical region. The plaintiff received trigger point
injections which helped relieve this pain.
On December 1, 1999, the plaintiff was doing well and was more
comfortable for almost ten days after the last injection. On December 15,
1999, Dr. Argoff found myofascial trigger points. On December 29, 1999,
the plaintiff was doing relatively well and was ...