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Gill v. Astrue

September 5, 2008

MICHAEL GILL, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Michael Gill's ("Plaintiff") application for disability insurance benefits. Now before the Court is Plaintiff's motion for judgment on the pleadings [#3] and Defendant's cross-motion [#4] for the same relief. For the reasons stated below, Defendant's application is denied, Plaintiff's application is granted, and this matter is remanded for the calculation of benefits.

PROCEDURAL HISTORY

Plaintiff applied for disability benefits on or about November 28, 2005, claiming to be disabled due to, inter alia, "right shoulder injury" and "shingles," with an alleged onset date of November 15, 2004. (119).*fn1 The Commissioner denied the application, and on August 24, 2006, a hearing was held before Administrative Law Judge Timothy McGuan ("ALJ"). On September 8, 2006, the ALJ issued a decision denying benefits, finding that Plaintiff was able to perform less than a full range of light work. (74-83, 82). On February 5, 2007, the Appeals Council remanded the action to the ALJ, finding that "[t]here [was] no vocational evidence in the record regarding the extent to which the claimant's [non-exertional] limitations erode the occupational base for light work." (85). On remand, the ALJ obtained testimony from a Vocational Expert ("VE"). Following the second hearing, the ALJ once again concluded that Plaintiff was not disabled. (40-41). Plaintiff appealed the ALJ's determination, and on October 12, 2007, the Appeals Council denied review. (7). On October 30, 2007, Plaintiff commenced the subject action.

VOCATIONAL HISTORY

Plaintiff was born on September 26, 1978 and has a twelfth-grade education. His employment history includes work as a construction laborer and landscaper.

MEDICAL EVIDENCE

Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here. It is sufficient for purposes of this Decision and Order to note that Plaintiff's two most significant impairments are a chronic injury to his right shoulder, and chronic pain in his right side which doctors have attributed to Postherpetic neuralgia ("PHN"). With regard to Plaintiff's shoulder condition, he has undergone four surgeries for shoulder impingement syndrome, with little or no improvement with respect to pain. For example, on October 13, 2005, Dr. Helen Wong, M.D. ("Wong"), Plaintiff's treating orthopedic surgeon, stated: "Impression: Status post right shoulder arthroscopy and decompression with persistent scapulothoracic type pain." (285). On August 31, 2006, Wong stated, with regard to Plaintiff's right arm, that Plaintiff could lift less than ten pounds, that he was unable to reach, push, pull, or work repetitively with small objects, and that he would need to rest his right hand frequently. (405-406).

As already mentioned, in addition to his chronic shoulder injury, Plaintiff suffers from pain in his right upper quadrant. In that regard, Plaintiff previously suffered from a shingles (herpes zoster) rash that "covered the whole right side of [his] body from the middle of [his] stomach all of the way to the middle of [his] back" (525; 184), and doctors have concluded that Plaintiff's right-side pain is the result of PHN. According to the Mayo Clinic's internet website, PHN is a painful condition affecting your nerve fibers and skin. Postherpetic neuralgia is a complication of shingles, a second outbreak of the varicella-zoster virus, which initially causes chickenpox.

During an initial infection of chickenpox, some of the virus remains in your body, lying dormant inside nerve cells. Years later, the virus may reactivate, causing shingles.

Once reactivated, the virus travels along nerve fibers, causing pain. When the virus reaches your skin, it produces a rash and blisters. A case of shingles (herpes zoster) usually heals within a month. But some people continue to feel pain long after the rash and blisters heal - a pain called postherpetic neuralgia. A variety of treatments for postherpetic neuralgia exist, although you may not experience complete relief from pain.

The symptoms of postherpetic neuralgia are generally limited to the area of your skin where the shingles outbreak first occurred. They may include: * Sharp and jabbing, burning, or deep and aching pain * Extreme sensitivity to touch and temperature change * Itching and numbness * Headaches In rare cases, you might also experience muscle weakness or paralysis - if the nerves involved also control muscle movement.

***

In some cases, treatment of postherpetic neuralgia brings complete pain relief. But most people still experience some pain, and a few don't get any relief. Although some people must live with postherpetic neuralgia the rest of their lives, most people can expect the condition to gradually disappear during the first three months. http://www.mayoclinic.com/health/postherpetic-neuralgia/DS00277; see also, THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 1295 (Mark H. Beers, M.D. et al. eds., 1999) ("The pain of postherpetic neuralgia may be sharp and intermittent or constant and may be debilitating."). Several years after the shingles outbreak, Plaintiff began experiencing severe pain in his right side. Plaintiff's treating doctors have, almost-uniformly,*fn2 concluded that such pain is the result of PHN.*fn3 For example, on May 5, 2005, Dr. Rajbala Thakur, M.D. ("Thakur"), of the Pain Center at Strong Memorial Hospital, examined Plaintiff and concluded that Plaintiff's "right thorax pain" was due to "post-herpetic neuralgia." (324-25). Thakur also reported that Plaintiff's pain was aggravated by "sitting still" and by "any physical activity using the right side of his body." (324). On March 7, 2005, Dr. Scott Yoder, M.D. ("Yoder") examined Plaintiff and reported:

Of note, the patient does have significant tenderness in the muscle and skin over the lateral aspect of the right side. This extends from the middle of his ribcage down into his abdomen and includes the muscle groups as well as the skin. There are some mild scarring changes from what the patient states is a zoster [shingles] episode. These are in the same area as the tenderness. (332). Yoder concluded that Plaintiff's pain was "most likely musculoskeletal," and that "[s]ome of this may be postherpetic neuralgia." (333). Another treating pain specialist, Dr. Donovan Holder, M.D., similarly concluded that Plaintiff's pain was due to his right shoulder injury and "postherpetic neuralgia." (340, 351). Before being diagnosed with PHN, Plaintiff, as a result of his right-side pain, was referred to numerous specialists, including urologists, neurologists and gastroenterologists, had various diagnostic testing, and underwent surgical procedures including a liver biopsy and cholecystectomy. Plaintiff has also participated in an experimental study for the treatment of PHN at Strong Memorial Hospital, and has tried alternative treatments such as acupuncture. (515-516). None of Plaintiff's doctors have stated that they believe him to be malingering.

On December 16, 2005, Holder completed a report stating that Plaintiff could not lift more than ten pounds, could not perform overhead work with his right shoulder, and should avoid temperature extremes, but also stating that Plaintiff could "perform sedentary type work." (348). On July 24, 2006, Holder completed another report, in which he stated that Plaintiff could lift only ten pounds, was unable to reach, push or pull, and was unable to work repetitively with small tools or small objects. (399-400). Holder also stated that, during an eight-hour workday, Plaintiff was limited to sitting for a total of four hours, sitting for four ...


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