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Jones v. Astrue

February 10, 2009

CHARLES W. JONES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiff Charles W. Jones ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which partially denied his claim for disability benefits. Specifically, the Commissioner found that Plaintiff has not had the residual functional capacity to perform even sedentary work as of February 7, 2006*fn1, and was therefore disabled as of that date, but was not disabled for the period of February 26, 2002 to February 6, 2006. Presently before the Court are Plaintiff's and Defendant's motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). For the reasons discussed below, Defendant's motion is denied and Plaintiff's motion is granted to the extent that this matter is remanded for further administrative proceedings.

BACKGROUND

I. Procedural Background

Plaintiff applied for disability benefits on September 24, 2002. (Tr. at 38-40.)*fn2

Plaintiff claimed that he was disabled and unable to work since February 26, 2002 due to an injury he suffered to his lower back. (Id. at 50.) After his application was denied by decision dated December 16, 2002, (id. at 16-21), Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 22.) A hearing was held before ALJ Emanuel Poverstein on November 2, 2004, at which time Plaintiff, who was represented by counsel, testified. (Id. at 135-54.)

ALJ Poverstein considered Plaintiff's claims de novo, and on November 30, 2004, issued a decision finding that Plaintiff was not disabled. (Id. at 7-14.) The ALJ found that although Plaintiff suffered from a severe impairment which imposed limitations, Plaintiff had the residual functional capacity to perform his past relevant work as a school social worker or alcohol and drug counselor. (Id. at 14.)

Plaintiff requested that the Appeals Council review the ALJ's decision. (Id. at 5.) By letter dated March 31, 2005, the Appeals Council declined to review the claim, making the ALJ's decision the final decision of the Commissioner. (Id. at 2-4.) Thereafter, Plaintiff filed a civil action in this Court under docket no. 05-CV-2652 (ADS) seeking reversal of the prior decision by the Commissioner dated November 30, 2004. (See docket no. 05-CV-2652.) By Memorandum of Decision and Order dated April 27, 2006, District Judge Arthur D. Spatt remanded the action to the Commissioner of Social Security for further administrative proceedings. (Tr. at 180-96.)

On remand, the Appeals Council vacated the final decision of the Commissioner and remanded the case to an ALJ for further administrative proceedings on July 8, 2006. (Id. at 199.) The Appeals Council Order instructed the ALJ to offer Plaintiff the opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision. (Id.)

On January 22, 2007, a hearing was held before ALJ Michael S. London, at which time Plaintiff, who was again represented by counsel, testified. (Id. at 252-82.) ALJ London considered Plaintiff's claims de novo and on March 9, 2007, issued a decision finding that Plaintiff was not disabled prior to February 7, 2006, but that he was disabled as of February 7, 2006. (Id. at 158-63.) Plaintiff did not file written exceptions to the ALJ's decision, and the Appeals Council declined to act on its own motion to review the claim, (id. at 155-63), thereby rendering the ALJ's most recent decision the final decision of the Commissioner. Plaintiff filed the instant action on July 5, 2007.

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on July 27, 1950 and completed college with a Master's Degree in Social Work. (Id. at 38, 56.) He is single and has never married. (Id.) He worked as a drug rehabilitation counselor from1986 to 1988, as a drug educator from 1988 to 1990, and his most recent employment was as a school social worker from 1990 to 2002. (Id. at 51.) In his disability report dated October 18, 2002, Plaintiff reported that as a school social worker, he counseled students in individual and group settings, attended CSE meetings, and made home visits for students. (Id.) In this position, he stated that each day he walked for two hours, stood for two hours, sat for one and a half hours, climbed for one and a half hours, handled objects for one hour, reached for half an hour and wrote for three hours. (Id.) As a school social worker, Plaintiff reported that he carried student files to meetings and arranged chairs in a room after sessions. (Id.) As an educator, Plaintiff stated that each day he walked two hours, stood four hours, sat for one hour, and carried program materials to classrooms that weighed less than ten pounds. (Id. at 61.) Finally, as a counselor, he reported that each day he walked/stood for one hour and sat for six hours and that in this position, lifting and carrying heavy items was not required. (Id. at 60.)

On February 26, 2002, Plaintiff injured his lower back while bending over to adjust a thermostat that was near the base of a wall in an office where he was working. (Id. at 140.) Plaintiff has not worked since February 26, 2002.

Plaintiff reported in October 2002 that on a daily basis he took care of his personal needs, took care of his pets, prepared his meals, did his laundry, retrieved his mail, read, wrote poetry, managed his finances, watched television, and visited with friends and family. (Id. at 68-73.)

At the first hearing, on November 2, 2004 before ALJ Poverstein, Plaintiff testified that he suffers from, inter alia, "consistent pain in the lower back," "total numbness in the right leg," numbness in his right arm and a loss of fine motor skills and numbness in his right hand. (Id. at 141-42.) Plaintiff reported that he "can bend down and pick things up" but that these activities exacerbate the pain in his lower back. (Id. at 143.)

Medications did not help alleviate the pain. (Id.) Plaintiff stated that he had participated briefly in physical therapy and heat stimulation treatments but had discontinued these treatments two years prior to the hearing when his former employer's insurance carrier refused to continue to authorize the treatments. (Id. at 143-44.) His pain affected his ability to sit or stand, and he reported that he could sit or stand up for a period of fifteen to twenty minutes at a time, and then needed to lay down to take the pressure off his lower back. (Id. at 145.) Plaintiff estimated that he could walk approximately 100 yards before having to stop and that he could go shopping "without total discomfort" if the trip involved going from the parking lot to the store, walking a few aisles and then returning to his car. (Id.) Following such an activity would require Plaintiff to rest and relax for approximately an hour due to the pain to his back from the trip. (Id. at 145-46.) Plaintiff testified that he could bend down and pick up a five pound bag and that he would have no problem lifting "something that was waist high." (Id. at 146.) Plaintiff reported that he could drive with no difficulty so long as it is not for more than fifteen to twenty minutes at a time. (Id. at 150.)

Although Plaintiff reported at the November 2, 2004 hearing that he suffers from consistent pain, he stated that "I'm kind of like used to the pain now, after, you know, more than two years with it, you know. I have to function. I have to be able to do things. So I, you know, I do it with pain." (Id. at 143.)

Plaintiff was injured in a car accident on February 7, 2006.

At the second hearing before ALJ London on January 22, 2007, Plaintiff testified briefly*fn3, stating that he had not worked since his injury in February 2002 and that his pain and symptoms had not changed since that time. (Id. at 252-82.)

B. Medical Evidence Prior to February 7, 2006

1. Dr. John Shimkus - Orthopedic

The record reveals that Dr. Shimkus examined Plaintiff on March 1, 2002. (Tr. at 113-14.) Plaintiff had stated that he had injured his lower back when he was sitting at work and bent forward a couple of weeks earlier, and had pain and numbness that had not subsided. (Id. at 113.) On examination, Dr. Shimkus reported that Plaintiff had a restricted range of motion from mild to a moderate degree in flexion, extension, left and right lateral bending and rotation. He c[ould] stand on heels and toes. Trendelenburg signs [we]re negative. Gait [was] normal. Reflexes [we]re trace bilaterally.

Power and tone [we]re grossly normal and symmetrical. Sensation [was] grossly normal to simple touch in both feet. Straight leg raising [was] negative seated. There [was] no calf tenderness.

Tenderness and spasm appear[ed] present in the lumbar region.

There [was] no guarding in the lumber region. (Id. at 114.) X-rays of the lumbar spine revealed no fractures. (Id.) Dr. Shimkus diagnosed "lumbosacral spine sprain, rule out herniated disc," prescribed physical therapy three times, wrote a note excusing Plaintiff from working for two weeks and directed an evaluation with Dr. Robert Hecht in two weeks to determine the need, if any, for neurological testing. (Id.)

2. Dr. Robert Hecht - Board Certified Orthopedic Specializing in Physical Medicine and Rehabilitation

Dr. Robert Hecht saw Plaintiff for a follow-up visit on March 18, 2002 and reported that Plaintiff complained of persistent back pain, radiating down his right leg. (Id. at 110.) He observed tenderness in the lumbar spine, with restricted flexion (75 degrees), extension (20 degrees), bilateral rotation, and bilateral lateral bending. (Id. at 110-12.) There was no muscle spasm, lordosis was normal and sensation was intact. (Id. at 110-11.) Straight leg raising was positive on the right side, and all other ranges of motion in the neck, shoulders, hips, knees and ankles were full. (Id.) Motor strength and reflexes were normal. (Id.) Dr. Hecht recommended that Plaintiff continue physical therapy, requested authorization for an electromyogram ("EMG") to rule out radiculopathy, and completed a form indicating that Plaintiff was "totally disabled at this time." (Id. at 110-12.)

Dr. Hecht reported the same clinical findings on June 6, 2002 as his prior examination, with the exception that his lumbar motion had increased to 80 degrees flexion. (Id. at 108-09) Dr. Hecht noted that he was still waiting for authorization for an EMG and additional physical therapy, and he again completed a form indicating that Plaintiff was "totally disabled at this time." (Id.)

On July 11, 2002 and August 22, 2002, Dr. Hecht stated the same clinical findings as his previous examinations and again noted that he was waiting for authorization for an EMG and physical therapy. (Id. at 101-06.) On August 22, 2002, Dr. Hecht completed a form indicating that Plaintiff was "totally disabled at this time." (Id. at 100.)

Dr. Hecht reported the same clinical findings on October 3, 2002 as his previous examinations with the exception that his straight leg raising was now negative and his lumbar motion had decreased to 75 degrees flexion. (Id. at 96-99.) Dr. Hecht noted that he was still waiting for authorization for an EMG and additional physical therapy, and he again completed a form indicating that Plaintiff was "totally disabled at this time." (Id.)

Dr. Hecht's treatment reports dated November 14, 2002, December 19, 2002, February 13, 2003, April 9, 2003 and August 20, 2002 indicated that Plaintiff complained of persistent lower back pain, radiating down the right leg. (Id. at 210-12, 215-16.) During each visit, Dr. Hecht observed tenderness in the lumbar spine with restricted flexion, extension, bilateral rotation and bilateral lateral bending. (Id.) There was no muscle spasm, lordosis was normal, straight leg raising was negative, and Plaintiff had full active range of motion in the hips, knees and ankles. (Id.) Dr. Hecht noted that he was still waiting for authorization for an EMG and additional physical therapy, and indicated that Plaintiff remained disabled. (Id.)

In a Functional Capacity Evaluation dated March 6, 2003 to Cunha Mutual Group, Dr. Hecht reported that Plaintiff could sit and drive for one hour and could walk for thirty minutes, could use his hand for repetitive motion but ...


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