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Gonzalez v. Astrue

March 20, 2008


The opinion of the court was delivered by: John Gleeson, United States District Judge



On June 12, 2007, the Commissioner of Social Security denied Gonzalez's remanded application for disability benefits. On October 9, 2007, I granted the Commissioner's motion to reopen the case. The Commissioner now moves pursuant to 42 U.S.C. § 405(g) to reverse the final agency decision denying Gonzalez's claim and to remand the claim for further proceedings. Gonzalez has cross-moved for a remand for calculation of benefits. For the reasons stated below, the Commissioner's motion is granted and Gonzalez's cross-motion is denied.


A. Procedural History

On November 12, 1999, Gonzalez applied for disability insurance benefits claiming that he was disabled since November 8, 1999 due to injuries to his back and leg as a result of a motor vehicle accident three years prior. His application was denied. R. 19. Gonzalez then appeared with counsel before Administrative Law Judge ("ALJ") Seymour Fier for a hearing. In a decision dated November 13, 2003, ALJ Fier found that Gonzalez was not disabled because he could perform his past work as a handyman and could also perform a significant number of other jobs existing in the national economy. R. 19-28. In arriving at this conclusion, ALJ Fier elicited testimony from Dr. Thomas Weiss, a medical expert, and Marc Ramnauth, a vocational expert.

On July 16, 2004, the Commissioner denied Gonzalez review of the decision, and Gonzalez thereupon filed a complaint in this district. R. 5. By Stipulation and Order dated September 20, 2004, and "so ordered" by the Honorable Jack B. Weinstein on September 29, 2004, the Commissioner's decision was reversed and remanded pursuant to the sixth sentence of 42 U.S.C. 405(g) for further administrative proceedings in order to locate and reconstruct Gonzalez's disability claims file due to the Commissioner's failure to produce an audible recording of the initial hearing. R. 299-302.

On May 8, 2007, Gonzalez and his counsel again appeared for a hearing before ALJ Fier, along with a medical expert and a vocational expert. R. 329-52. On June 12, 2007, ALJ Fier found pursuant to Medical Vocational Rules 203.26 and 203.27 that even though Gonzalez is severely impaired and cannot perform his past relevant work, he can perform a full range of medium work, and therefore he is not disabled. R. 232-43.

Plaintiff did not file exceptions to this decision, and it became final pursuant to 20 C.F.R. § 404.984(d). On October 2, 2007, the Commissioner moved to reopen this case. By order dated October 9, 2007, I granted that motion.

The Commissioner now moves for remand and reversal of the final agency decision denying Gonzalez's claim for disability insurance benefits and for further administrative proceedings pursuant to 42 U.S.C. § 405(g). In a cross-motion, Gonzalez seeks a remand for the award of benefits.

B. Medical Evidence

1. Dr. Mark Rusek, Gonzalez's Treating Chiropractor, and Dr. Rusek's Referrals

Dr. Mark Rusek, a chiropractor, began treating Gonzalez after his motor vehicle accident in November 1996. Tr. 172. He noted that Gonzalez suffered from cervical radiculopathy*fn1 and lumbar radiculopathy, and has herniated discs at C6-C7, L4-L5, and L5-S1. Id. He further noted that Gonzalez suffered from a 35% loss of function of his cervical spine and a 45% loss of function in his lumber spine, with permanent loss of range of motion in both. R. 172. Dr. Rusek referred Gonzalez to a series of specialists who affirmed that Gonzalez suffered an injury to his cervical and lumbar spine. Id.

Dr. Noel Fleischer, a neurologist, examined Gonzalez on January 15, 1997 and concluded that Gonzalez sustained traumatic lumbar radiculopathy and myofascial pain syndrome. He reported that Gonzalez complained of mid- and lower-back pain radiating with weakness in the left leg. Gonzalez also complained to Dr. Fleischer of difficulty with sitting, bending and sleeping. R. 176. Dr. Fleischer reported dorsal and lumbosacral spasm and tenderness with impaired range of motion in all planes. The straight leg raising test was positive at 50 degrees on the left side. R. 175-76. His gait and station were normal. R. 175. Dr. Fleischer recommended that Gonzalez continue with his chiropractic treatments. R. 174-5.

Dr. Reddy, an orthopedist, examined Gonzalez on January 16, 1997 and according to his measurements, Gonzalez suffered from decreased ranges of motion in his cervical and lumbar spine. Straight leg raising was positive on the left side at 60 degrees. R. 173. Dr. Reddy diagnosed Gonzalez with traumatic paracervical myofascitis*fn2 and traumatic paralumbar myofascitis with left radiculopathy, and concluded that Gonzalez is disabled. R. 173-74.

2. MRI Scan and CT Scan Results

On January 20, 1997, Gonzalez underwent a CT scan of his lumbar spine, and the radiologist, Dr. Ravindra Ginde, noted that the scan revealed rodlike straightening of the lumbar lordosis*fn3 that is consistent with muscular spasm and scoliosis convex to the right as well as a bulging of a disc at L5-S1. R. 181.

Almost a year later on January 2, 1998, Dr. Mark Freilich, a radiologist Gonzalez was referred to by Dr. Rusek, took an MR scan of Gonzalez's lumbosacral spine, which revealed a straightened lordosis suggesting muscular spasm, rotatory scoliosis*fn4 , bulging discs at L1-L4, central herniation discs at L4-L5, L5-S1, hypertrophic changes articulating facets at all levels at L1-S1, neural foramina*fn5 stenosis*fn6 at all levels at L1-S1, and lateral recess stenosis at level L5-S1. R. 178.

At the request of Cathy Cuesta of the Greater New York Insurance Companies, on April 12, 1999, Gonzalez was examined by another chiropractor, Dr. Ivy Zelanka, for the purpose of reporting to the Workers' Compensation Board. R. 153-55. After reviewing Dr. Rusek's notes and performing her own examination of Gonzalez, Dr. Zelanka concluded that Gonzalez suffers from a mild partial disability to the lumbar spine consistent with a degenerative and stenotic spine. His cervical range of motion was within the normal limits during flexion, extension, rotation, and lateral bending. An examination of his lumbar spine revealed a weakness of Gonzalez's dorsal and left plantar flexion. Gonzalez was able to squat half way to the floor, and his straight leg raising was limited. R. 154. He could flex and extend his fingers fully, but an active range of motion in the lumbar spine was restricted in all directions, and he walked on heels and toes with difficulty. In Dr. Zelanka's opinion, Gonzalez had achieved maximum benefit from his course of supervised manipulative therapy. R. 153-54.

3. Examinations After Filing Workers' Compensation Claim

On August 24, 1999, Dr. Sylvan Stillman also examined Gonzalez for the purpose of reporting to the Workers' Compensation Board. Gonzalez arrived with a cane, favoring his right leg when walking. After examining Gonzalez, Dr. Stillman noted Gonzalez suffered from mild scoliosis of the dorso-lumbar spine. Additionally, he noted a spasm of the paravertebral muscles on the right and tenderness about the right lumbosacral region and tenderness over the C6. Motions of his trunk were moderately restricted and painful, as was straight leg raising. Dr. Stillman diagnosed Gonzalez with a partial moderate disability, and directed that Gonzalez be under the care of an orthopedist. R. 151.

Dr. John Bendo examined Gonzalez on September 10, 1999 pursuant to a referral by Dr. Marc Silverman, who had treated Gonzalez for the first time on November 27, 1998. R. 81, 142, 148. Dr. Bendo's examination revealed that the range of motion of Gonzalez's lumbar spine is extremely limited. Studying the MRI scan of January 1998, Dr. Bendo concluded that it showed evidence of a central herniated disc at L4-5 and L5-S1, as well as hypertrophic facet at the level of the lumbar spine. Straight leg raising produced hamstring pain on the right side. R. 142. Additionally, standing x-rays revealed that the disc space narrowed at L5-S1. He ...

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