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DYCKOFF v. BARNHART

May 13, 2004.

MARK DYCKOFF, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

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.

 Background

  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 his shoulder.

 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.

 1. Treating Physicians

  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 ...


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