The opinion of the court was delivered by: DENISE COTE, District Judge
On February 3, 2003, Mark Dyckoff ("Dyckoff") filed this action
pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g),
to obtain review of the final decision of the Commissioner of Social
Security ("Commissioner") denying his application for disability
benefits. Dyckoff brings this motion under Rule 12(c), Fed.R. Civ. P.,
arguing that he is unable to perform even sedentary work and asking that
the Commissioner's decision be reversed, or that the action be remanded
for a new hearing. The Commissioner has cross-moved for judgment on the
pleadings. For the reasons that follow, the decision of the Commissioner is affirmed.
The following facts are taken from the administrative record. Mark
Dyckoff was born on December 21, 1949. Upon finishing high school, he
participated in a union apprenticeship for machinists. He is married and
lives with his wife and son. From 1974 until 1989, Dyckoff worked as a
machinist at Reader's Digest. In 1989, he opened his own deli, where he
worked until 1994, when the business closed. Dyckoff worked as a
production operator at Englehard Corporation from June 10, 1995, until
September 15, 2000. In November of 1999, while employed there, he injured
Overview of Application History
On April 11, 2001, Dyckoff submitted an application for disability
benefits to the Social Security Administration based on his shoulder
injury. He asserted that the injury has resulted in chronic shoulder,
neck and back pain. On June 15, 2001, the application was denied. Dyckoff
requested a hearing, and on May 2, 2002, appeared and testified before
Administrative Law Judge James B. Reap ("ALJ"). On June 26, 2002, the ALJ
determined that Dyckoff was able to perform light work. The decision of
the ALJ became the final decision of the Commissioner when the Appeals
Council denied Dyckoff's request for review on November 8, 2002.
Throughout this time and at the time he filed the instant action Dyckoff
proceeded pro se. On August 22, 2003, Dyckoff retained counsel. Medical History
Dyckoff's relevant medical history begins on November 16, 1999. While
carrying buckets up a ladder at work, Dyckoff injured his right shoulder.
This injury caused him aggravation for several months. On April 19 and
May 12, 2000, he was evaluated by a physician at Englehard Corporation.
The company physician felt that Dyckoff could return to full duty with
the exception of heavy lifting.
Dr. Jeffrey Yormak ("Yormak") of the Olympic Orthopaedic Group,
P.C. began treating Dyckoff for his persistent pain on May 16, 2000. In
his post-examination report from that day, Yormak stated that Dyckoff
suffered from pain and weakness in his right shoulder. X-rays of the
shoulder indicated no bony anomalies. A cervical spine examination showed
full range of motion but with stiffness in all planes, and a negative
head compression test. Yormak's impression was that Dyckoff suffered from
a right shoulder rotator cuff strain with secondary cervical strain. He
prescribed a course of the drug Celebrex and recommended that Dyckoff
perform only light duty work not involving any heavy lifting. Yormak
recommended that Dyckoff return for a follow up examination in two weeks.
At a second consultation with Yormak on June 1, Dyckoff reported that
although he had improved, he still suffered from severe weakness and
pain. Yormak recommended that Dyckoff obtain a magnetic resonance imaging
scan ("MRI") of his shoulder and advised that he remain on light duty. The MRI, which took place on
June 19, 2000, revealed some "narrowing of the subacromial space with
supraspinatus tendinitis, but no tear, no labral injury, or biceps tendon
injury." On June 21, Yormak referred Dyckoff for physical therapy and
asked that he return for another evaluation in six weeks.
At the follow up consultation on July 19, Yormak reported that,
although there was some improvement of the pain in the right shoulder,
Dyckoff continued to have pain in his paraspinal musculature on the right
side. Yormak's impression was that Dyckoff suffered from "[c]ervical
degenerative disk disease with resolving right rotator cuff impingement."
Yormak prescribed the drug Medrol Dosepak and suggested that if symptoms
continue, an MRI of the cervical spine should be considered.
A week later, on July 27, Dyckoff returned to Yormak complaining of
pain in the neck and right shoulder region radiating around his right
scapula. Yormak referred Dyckoff for the MRI of his cervical spine to
rule out any underlying problem. This MRI revealed "severe right neural
foraminal stenosis at C5-6 and at C6-7." Yormak concluded that Dyckoff's
symptoms were not consistent with a significant rotator cuff problem. On
September 8, Yormak referred Dyckoff to Dr. Ezriel E. Kornel ("Kornel"),
a neurosurgeon, for evaluation.
On September 18, Kornel examined Dyckoff and noted "stiffness of
regular motion of the cervical spine" and "tenderness in the right
suprascapular region." Dyckoff's strength was rated at "5/5" throughout in the upper and lower
extremities. Kernel noted that muscle tone and deep tendon reflexes were
normal and that Dyckoff's sensory exam was intact. Kernel's impression
was that the symptoms were related to cervical spondylosis. He discussed
both surgical and more conservative options with Dyckoff. Kernel
recommended cervical spine films, a course of cervical epidural steroid
and facet blocks, and chiropractic management with Dr. Timothy Slominski,
D.C. ("Slominski"). Kornel also prepared a "To Whom It May Concern"
letter that day stating, "[a]t the present time [Dyckoff] is totally
disabled from work. It is undetermined when he may return." Dyckoff
started chiropractic care at Katonah Chiropractic Center with Slominski
on September 21, and underwent his first of three epidural steroid
injections on November 13.
On January 31, 2001, on the referral of Slominski, Dyckoff obtained a
pain management evaluation from Dr. Jacob Handszer ("Handszer") at Putnam
Hospital Center. Handszer's impression was that Dyckoff suffered from
cervical radiculopathy. Noting that Dyckoff benefitted from the prior
epidural steroid injection, Handszer recommended continuing that course
of treatment. He performed two additional steroid injections, one in
February and one in March of 2001.
On March 7, Yormak once again examined Dyckoff. Yormak stated that
Dyckoff's disability "should restrict him from doing any job the requires
lifting, pushing, pulling or over shoulder work with his right arm." On
March 26, Dyckoff was examined by Dr. Gregory Lieberman ("Lieberman") at Orlin & Cohen Orthopedic
Associates, LLP. After examination, Lieberman recommended in a letter to
Kornel that Dyckoff have surgery on his cervical spine. As noted above,
at this point Dyckoff applied for benefits.
On November 7, Dr. Andrew Peretz ("Peretz"), an orthopedist, examined
Dyckoff. This examination revealed good range of motion of the neck with
some mild pain. Dyckoff's upper extremities showed "5/5" strength in all
muscle groups. Peretz's impression was that Dyckoff had cervical pain,
shoulder pain and vague radicular symptoms.
On January 31, 2002, Dyckoff received a myelogram and CT scan of his
cervical spine. It revealed grade 2 anterolisthesis at C3-4;
ridges/bulges at C4-5 through C6-7; multilevel stenosis; right osteophyte
at C2-3; and cord deformity at C3-4 and C4-5. On February 26, Kornel
performed an anterior cervical corpectomy, C4, C5 and C6, with diskectomy
C3-C4 to C6-C7, on Dyckoff. Kornel noted that a CAT scan revealed that
there was excellent decompression from C3 down to C7. Following ...