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GONZALEZ v. BARNHART

August 9, 2005.

LUZ GONZALEZ, Petitioner,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Respondent.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  Luz Gonzalez appeals from a December 27, 2000 decision denying her request for Social Security disability benefits. Gonzalez's case was initially filed in this Court on January 10, 2000, but was remanded to the Commissioner of Social Security for further consideration on May 23, 2000. The Commissioner issued a final decision again denying benefits on August 23, 2003, and Gonzalez renewed her suit on February 2, 2005. Gonzalez now moves for judgment on the pleadings reversing the Commissioner's decision; the Government opposes her motion and cross-moves for judgment on the pleadings affirming the Commissioner's decision. For the following reasons, Gonzalez's motion is granted and the Government's motion is denied.

  II. BACKGROUND

  A. Facts

  Luz Gonzalez is a fifty-two-year-old woman. She was born on January 2, 1953 in the Dominican Republic, where she attended school through the third grade.*fn1 Gonzalez does not speak English although she has a limited ability to read and write in English.*fn2 Gonzalez alleges that she is permanently and totally disabled as a result of a workplace injury sustained on November 21, 1996. At the time of her injury, Gonzalez worked as a shipping clerk; she claims to have injured her back while lifting a heavy box.*fn3 Following her injury, Gonzalez was seen by a number of medical professionals and received a variety of diagnoses and treatment recommendations.

  On December 12, 1996, Gonzalez filed a claim for disability benefits, alleging that she was permanently and totally disabled. She stated that she was under the care of Richard Weinberg, a chiropractor, that she was not taking any medication for her injury, and that she was not interested in rehabilitative services that would enable her to return to work.*fn4 On January 10, 1997, Weinberg stated that Gonzalez suffered bilateral trapezius and SCM spasms, bilateral erector spinal spasms, L4-S1 disc tenderness, and bilateral gluteal spasms.*fn5 Weinberg opined that Gonzalez was totally disabled.*fn6 He noted that the only treatment Gonzalez had received thus far was chiropractic manipulation.*fn7

  On March 5, 1997, Gonzalez was examined by Dr. Peter Graham, a consultant for the Social Security Administration. Graham observed that Gonzalez walked and stood normally, and that she was able to dress and undress herself and get on and off the exam table without a problem.*fn8 He also opined that Gonzalez was "able to sit, stand, walk, lift, carry, handle objects, hear, speak, and travel."*fn9 On March 18, 1997, Gonzalez stated that she was able to care for her own personal needs but that she had to move slowly.*fn10 On March 27, 1997, Dr. Hughes, a physician with the Social Security Administration, completed a "Physical Residual Functional Capacity Assessment" although he never examined Gonzalez.*fn11 He opined that Gonzalez was able to lift fifty pounds or more frequently; that she could stand, walk, or sit for about six hours of an eight hour workday; that she had unlimited capacity to push and pull; and that she had no other significant physical limitations.*fn12 On March 28, 1997, Dr. Danza, another physician with the Social Security Administration, reviewed the file.*fn13

  At Weinberg's request, Dr. Gondolo, a neurologist, evaluated Gonzalez on June 9, 1997.*fn14 Dr. Gondolo noted that Gonzalez had "5/5" strength in all four of her extremities.*fn15 She listed her impressions as: "1 — Cervical sprain and strain; 2 — Rule-out cervical radiculopathy; 3 — Lumbosacral sprain and strain; [and] 4 — Rule-out lumbosacral radiculopathy."*fn16

  Gonzalez underwent an MRI test on February 21, 1998. Dr. Ronald Staron, the attending radiologist, listed the following impressions: "Evidence of increased hematopoetic marrow within the cervical spine. Disc osteophyte complex at the C5-6 level results in spinal stenosis. Smaller disc osteophyte complexes at the C3-4 and C4-5 levels result in mild spinal stenosis. . . . Hemangioma in the L4 vertebral body. Mild spinal stenosis at the L4-5 level as described, and the sagittal views demonstrate minimal dessication of L4-5 disc."*fn17

  On June 12, 1998, Weinberg reiterated his opinion that Gonzalez was totally disabled. He also noted that she was suffering emotional difficulties as a result of her health problems and he referred her for psychological evaluation.*fn18 If such an evaluation was ever made, it has not been included in the record.

  On July 15, 1997, Dr. Ploski, an orthopedic surgeon who examined Gonzalez at Weinberg's request, also recommended that she receive a psychological evaluation.*fn19 Dr. Ploski performed a physical examination of Gonzalez and formed an impression of "1 — Cervical derangement; 2 — Low back derangement; 3 — Headaches and dizziness of unknown etiology; [and] 4 — Multiple reaction and anxiety regarding her neck and back injury."*fn21 Dr. Ploski opined that Gonzalez was "totally disabled" as of the examination date but he did not recommend treatment by an orthopedic sugeon.*fn22

  On November 21, 1998, Gonzalez fell down the stairs of her building and suffered injuries to her right knee and ankle.*fn23 On December 3, 1998, she was seen by Dr. Klara Sosina, who performed a full exam. Dr. Sosina noted "[c]ervical range of motion produced the following result: Full range of motion in flexion and extention. Rotation to the right anf left were full. Range of motion of the lumbosacral spine produced the following result: Full range of motion in the flexion and extension. Lateral bending to the right and left were full. . . . Palpation of the spine muscles resuled in: Normal Cervical paraspinal muscles. Normal cervical interspinous space."*fn24 Dr. Sosina also examined Gonzalez's shoulders and noted that "range of motion was full in flextion, abduction and internal rotation. Acromio-clavicular joint was not tender. There was no pain with shoulders and noted that "range of motion was full in flexion, abduction and internal rotation. Acromio-clavicular joint was not tender. There was no pain with resisted external rotation. There was no tenderness at the rotator cuff insertion site or in the bicipital groove."*fn25 Dr. Sosina's exam is the last exam on record that took place before the expiration of Gonzalez's insurance on December 31, 1998.

  Subsequent to December 31, 1998, Gonzalez was seen regularly by Dr. Sosina and Dr. Petraco for treatment of her ankle and knee injuries.*fn26 She was prescribed a course of physical therapy, pain medication, and eventually received arthroscopic surgery on her knee.*fn27 Dr. Sosina's records from December 1998 until November 1999 show a steady decrease in Gonzalez's pain coupled with an increase in range of motion.*fn28 Dr. Petraco, a second treating physician, made similar observations.*fn29 Neither ...


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