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PIZZO v. BARNHART

July 20, 2004.

KATHLEEN PIZZO, Plaintiff,
v.
JO ANNE BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: DENNY CHIN, District Judge

OPINION

Plaintiff Kathleen Pizzo brings this action pursuant to 42 U.S.C. § 405(g), challenging the final determination of defendant Commissioner of the Social Security Administration (the "Commissioner") that plaintiff was not entitled to disability insurance benefits under the Social Security Act (the "Act"). Plaintiff moves for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). The Commissioner cross-moves for judgment on the pleadings. For the reasons set forth below, the Commissioner's determination is remanded for further administrative proceedings consistent with this decision. Plaintiff's motion is granted to the extent of the remand, and the Commissioner's cross-motion is denied.

  BACKGROUND

  A. Prior Proceedings

  Plaintiff filed an initial Title II application for disability insurance benefits in August 1982 that was denied on November 22, 1982. (Tr. at 86, 106, 16). That application qualified for reopening under the Stieberger settlement.*fn1

  In March 1993, plaintiff requested review of the November 1982 denial. (Id. at 82). Six years later, in March 1999, the Social Security Administration (the "SSA") contacted plaintiff regarding her Title II Stieberger claim. (Id. at 76). The period of time under consideration began on March 27, 1989. (Id. at 82). Plaintiff's supplemental application was denied in August 1999. (Id. at 77). The denial was based on the SSA's determination that plaintiff was able to perform a wide range of light level work during the Stieberger period. (Id. at 78-79, 196-202).

  Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ") and on June 7, 2000, an administrative hearing was held before ALJ Kenneth Scheer. (Id. at 91-95, 122-23). Plaintiff, represented by counsel, appeared and testified at the hearing. (Id. at 26-64). On March 16, 2001, the ALJ denied the application, finding that plaintiff had not been disabled at any relevant time. (Id. at 16-22). The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on July 19, 2003. (Id. at 4-6). This action followed.

  B. The Evidence

  1. Plaintiff's Age, Education, and Experience

  Plaintiff was born on January 10, 1953 and was 48 years old at the time of the March 16, 2001, ALJ decision. (Id. at 38). Her onset date of disability was February 9, 1981, and she had not worked since March 1981. (Id. at 16, 31, 41).

  Plaintiff completed twelve years of school and worked for various employers as a secretary/typist prior to 1979. (Id. at 39, 118). From 1979 until 1981 plaintiff worked for Mobil Oil Co., first preparing manuals and in the mail room and later as a record/file clerk. (Id.). According to plaintiff's testimony at the hearing on March 16, 2001, her job as a record clerk required her to fill large cartons with files and place them in the center of the room. (Id. at 40-41). Plaintiff discontinued working in 1981 when she slipped and fell after exiting an elevator at her place of employment. (Id. at 30-31, 41-43). At the time of the hearing on June 7, 2000, plaintiff was living with her sister. (Id. at 38). Plaintiff testified that she did not do any of the food shopping because she could not lift anything. (Id. at 48). Her daily activities included watching television and reading. (Id. at 47-48). According to plaintiff, she had driven only a few blocks in the month before the hearing and could drive the car straight but had difficulty turning. (Id. at 39). She did not use public transportation. (Id.). Additionally, plaintiff took occasional trips to a relative's home at the New Jersey Shore. (Id. at 47).

  2. Medical Evidence

  a. Treating Physicians

  i. Dr. Richard Memoli

  In March 1981, plaintiff was treated for severe pain in the emergency room of Westchester Square Hospital by Dr. Richard Memoli. (Id. at 42-43). Since March 1981, plaintiff has received her medical treatment from Dr. Memoli for her work-related injuries. (Id. at 31, 108). The record, however, does not contain any treatment records or progress notes from Dr. Memoli. The record only contains for this period the forms that he submitted to the Workers' Compensation Board, prescription receipts, and a Medical Assessment of Ability to do Work-Related Activities form. (See id. at 128-74, 176-82, 184-92, 216-18, 219-32). Documentation of plaintiff's emergency room visit is not in the record, but the record does contain a form filled out by Dr. Memoli based on an examination of plaintiff on May 8, 1981. (Id. at 192). Dr. Memoli's diagnoses included cervical spine sprain with right radiculopathy, lumbosacral spine sprain, paraspinal muscle spasm, pain and weakness of the dominant right arm and hand, and restricted range of motion. (Id. at 128-74, 176-82, 184-92, 216-18, 219-31). Treatment rendered and planned future treatment mostly included examination, home traction, keeping plaintiff off duty, and medication. (Id.). In July 1992 Dr. Memoli added that he was requesting hospitalization and traction, along with a cervical collar. (Id. at 159). From August 1992 to May 1995, Dr. Memoli also recommended that plaintiff use hot packs for her neck. (Id. at 145-54). In October 1996, January 1997, February 2000, and April 2000, Dr. Memoli noted "positive physical findings" (Id. at 137, 139, 229, 231).

  Dr. Memoli classified plaintiff as being totally disabled from June 1981 through February 1993, and later classified plaintiff as partially disabled from June 1993 through April 2000. (See id. at 155-82, 128-54, 184-92, 219-31). There was no explanation for this change of classification. (Id.). In December 1998, Dr. Memoli reported that plaintiff used a splint on her right wrist. (Id. at 128). There is no explanation of the need for this treatment in his documentation. (Id.). Dr. Memoli referred plaintiff for EMG and nerve conduction tests in June 1981. (Id. at 175, 191). The results of these tests, however, are not in the record. (Id. at 46). Dr. Memoli also referred plaintiff for physical therapy sessions starting in September 1999. (Id. at 206). Further, Dr. Memoli prescribed various medications beginning in 1981 including Carisoprodol (Soma) and Elavil for muscle spasm and Tylenol with Codeine for pain. (Id. at 116). Beginning in 1995 Dr. Memoli prescribed Hydroconone/APAP (Vicodin) for plaintiff's pain. (Id.). Plaintiff took all of these medications on a daily basis. (Id.).

  At the ALJ hearing, plaintiff submitted a Medical Assessment form completed by Dr. Memoli on June 6, 2000. (Id. at 216-18). Dr. Memoli estimated that in a regular work setting, plaintiff could occasionally lift and/or carry a maximum of 5 to 10 pounds. (Id. at 216). Dr. Memoli also reported that plaintiff could only stand up to 1 hour, because standing could increase spinal pressure. (Id. at 216-17). Further, plaintiff could only sit for up to 2 hours because prolonged sitting could cause increased stiffness. (Id. at 217). The basis of this assessment was Dr. Memoli's diagnosis of cervical spine radiculopathy and a chronic cervical sprain. (Id. at 216). He added that plaintiff had persistent pain in her neck, radiating pain down her arms, restricted range of motion, tenderness, and spasm. (Id.). Dr. Memoli also reported that plaintiff could not lift or carry without pain, could not stoop, kneel, crouch, or crawl, and could only climb stairs as needed. (Id. at 216, 217). Dr. Memoli characterized plaintiff as totally disabled. (Id. at 218). He reported that plaintiff required ongoing care, medication, and use of a cervical collar, pillow, and splint. (Id.).

  ii. Dr. Elias Savitsky

  On April 8, 1981, plaintiff was evaluated by a psychiatrist, Dr. Elias Savitsky. (Id. at 33, 193-95). According to Dr. Savitsky, plaintiff suffered from persistent post traumatic pain syndrome, characterized by anxiety and depression. (Id. at 194). He reported that her personality characteristics sometimes caused predisposition to somatization of feelings of tension. (Id.). Dr. Savitsky recommended continued orthopedic care and antidepressant medications, with systematic counseling as an option if she failed to make clinical progress. (Id. at 195). His diagnosis was anxiety reaction, depressive features, post traumatic, and he reported a continued disability, causally related. (Id.).

  Dr. Savitsky reexamined plaintiff on August 3, 1983. (Id. at 183). Plaintiff reported that that her condition was relatively static, and she felt she was getting "worse." (Id.). She complained of persistent pain syndrome involving the neck, especially on turning, prolonged sitting, and traveling. (Id.). Radiation to spine and back were also noted, along with numbness and weakness of the right arm along with a sense of pressure in the low back. (Id.). There were no gross disturbances in plaintiff's sleep, appetite, digestion, and no undue intake of tobacco, alcohol, or drugs. (Id.).

  Further, Dr. Savitsky reported a high level of persistent anxiety and depressive moods, especially when plaintiff was in pain. (Id.). He noted that plaintiff continued to ruminate about her situation. (Id.). Dr. Savitsky also found no gross impairment of memory or capacity for concentration. (Id.). Dr. Savitsky reported that plaintiff continued to show a relatively static clinical course with anxiety and many somatic features. (Id.). He affirmed his prior recommendations for treatment and if there were no response in three months, he advised systematic psychiatric treatment because of the significant psychoneurotic aspect to her symptoms. (Id.).

  iii. Dr. Barbara Colon

  In January 1986, plaintiff was examined by Dr. Barbara Colon, a physician employed by the Workers' Compensation Board (the "WCB"). (Id. at 175). In her Report of Medical Examination, Dr. Colon noted that plaintiff complained of constant pains across the back and neck; numbness of both hands, especially the right; difficulty sitting, walking, standing, and lying down; and limited motion of the neck. (Id.).

  Plaintiff removed her cervical collar for examination of her neck by Dr. Colon, who found tenderness throughout the cervical spine with marked limitation of all motions of the neck. (Id.). Dr. Colon also reported tenderness across the upper back and limitation of motions of the right shoulder joint due to neck and upper back pains. (Id.). Dr. Colon reported that plaintiff walked slowly and had difficulty dressing, undressing, and getting on and off the examining table. (Id.).

  Additionally, Dr. Colon found tenderness to palpation of the lumbar muscles and the lumbar spine. (Id.). Motions of the trunk were markedly restricted due to pain, and straight leg raising bilaterally was markedly limited. (Id.). Plaintiff could not lie with the knees extended and flexion of the hips in supine could not be done because of pain. (Id.). Dr. Colon found no quadriceps inequality and the reflexes were ...


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