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CASERTO v. BARNHART

March 25, 2004.

PAUL CASERTO, Plaintiff, -against- JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant


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. Page 2

Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ("Fed.R. Civ. P.").

  I. BACKGROUND

 A. Procedural History

  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 Page 3 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 position.

  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 Page 4 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

  a. Dr. Shafi Wani

  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. Page 5

  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 therapy.

  In a February, 1999 Workers Compensation report, Dr. Wani opined that the plaintiff had a permanent, partial disability since January, 1996.

  b. Dr. Charles E. Argoff

  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 Page 6 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 better.

  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 Page 7 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 ...


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