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Abney v. Astrue

March 31, 2009


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



Plaintiff Horace H. Abney ("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 denied his claim for disability benefits. 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.


I. Procedural Background

Plaintiff applied for disability benefits on August 3, 2006. (Tr. at 55, 67-70.)*fn1

Plaintiff claimed that he was disabled and unable to work since January 1, 1999 due to arthritis, collapsed feet and a back condition. (Id. at 71-72, 94.) After his application was denied by decision dated January 5, 2007, (id. at 38-41), Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 46-48.) A hearing was held before ALJ Seymour Raynor on October 11, 2007, at which time Plaintiff, who was represented by counsel, testified. (Id. at 231-63.)

ALJ Raynor considered Plaintiff's claims de novo, and on October 30, 2007, issued a decision finding that Plaintiff was not disabled since August 3, 2006, the date his application was filed. (Id. at 8-18.) The ALJ found that although Plaintiff suffered from severe impairments which imposed limitations, Plaintiff had the residual functional capacity to perform the full range of sedentary work. (Id. at 13-18.)

Plaintiff requested that the Appeals Council review the ALJ's decision. (Id. at 6.) By Notice dated December 4, 2007, the Appeals Council declined to review the claim, making the ALJ's decision the final decision of the Commissioner. (Id. at 3-5.) Thereafter, Plaintiff timely filed the instant civil action.

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on August 18, 1961, and obtained a general equivalency diploma ("GED") in 1999 while in prison. (Id. at 34, 67, 234-35.) He previously worked as a roofer for a construction company, a backhoe driver for a town cemetery, a commercial truck driver, a construction laborer, and a shipping and receiving clerk for a book binding company. (Id. at 73, 78-85, 108.) Plaintiff was incarcerated from 1990 to1996 and more recently from November 1998 to August 1, 2006. (Id. at 63, 238, 252-53.) While incarcerated, he obtained a chef's certificate, and worked as a chef, a clerk in the prison's auto mechanics building, and as a bathroom porter cleaning sinks and toilets. (Id. at 235-38, 253-55.) None of these positions required heavy lifting. (Id. at 237, 254-55.)

In his function report dated August 21, 2006, Plaintiff reported that the pain in his ankles, lower and upper back first occurred and affected his activities on April 1,1999. (Id. at 94.) He stated that he presently lived with his family in a house. (Id. at 86.) During the day, Plaintiff reported that he took care of his "personal business" and did "a lot" of the household chores, including cleaning the house and cooking for his parents. (Id. at 87, 96.) When he was in pain, he would move slowly when preparing meals. (Id. at 88.) His condition did not affect his ability to care for his personal needs. (Id. at 87-88.) Plaintiff went outside as often as he could, usually alone, using public transportation. (Id. at 89, 96.) Once a week, he would attend basketball games in the park and meet friends at their house. (Id. at 90-91.) Plaintiff reported that his condition had not affected his ability to get along with others, follow instructions, pay attention, finish what he started, stand, sit, use his hands or handle money. (Id. at 90-92.) He indicated that stress or changes in a schedule did not affect him because he would adjust to the situation. (Id. at 93.)

Plaintiff testified before ALJ Raynor on October 11, 2007. (Id. at 231-63.) At the hearing, Plaintiff reported that because he had rheumatoid arthritis, bulging discs in his spine and fallen foot arches requiring the use of ankle braces, he no longer could drive a tractor trailer. (Id. at 238-39, 246.) During the day he used extra-strength Tylenol, before bedtime he took Flexeril (a muscle relaxant), and approximately three times a week, when in severe pain, Plaintiff wore a back brace. (Id. at 246-48, 260-61.) A pain management specialist and physical therapist treated him. (Id. at 239, 246.)

Plaintiff stated that he lived with his parents in the basement of the house. (Id. at 244.) On a daily basis, Plaintiff testified that he took care of his personal needs, prepared his own meals, cleaned, made his bed, changed the sheets, washed laundry at the laundromat with assistance from his nephews, washed his dishes, and swept his room, although he said it took him longer than a normal person. (Id. at 243-45, 257-58.) In addition, Plaintiff reported that he could open an envelope, eat with a fork and knife, hold a cup, pick up coins from a table, squeeze toothpaste onto a toothbrush, talk on a telephone and open a can with a can-opener. (Id. at 258-60.) He got along with his family and relatives. (Id. at 255, 257.) Plaintiff used public transportation. (Id. at 245.) Plaintiff went outside of his home almost every day, either to go to the store, to meet with his parole officer, or to keep his other appointments. (Id. at 251-52.)

He testified that he had good days and bad days, depending on the severity of his condition. (Id. at 245, 249-50.) On good days, Plaintiff reported that he could stand approximately one hour without needing to sit down, could sit for forty five minutes up to almost one hour before needing to switch positions, and could walk about six to seven blocks. (Id.) He could carry a two liter bottle of soda and could lift and carry less than ten pounds at any given time. (Id. at 252.) He could walk the flight of approximately ten stairs from his apartment in the basement to the first floor of his parents' house. (Id. at 258-59.) Approximately four days a week, on bad days, he can barely walk, stand or sit, even with the braces, and repeatedly has to alternate between these activities because of the extreme pain in his ankles, feet and back. (Id. at 245-50.) On these days, Plaintiff stated that he could walk only three to four blocks at a time before having to stop, rest and sit down. (Id. at 250.) Four or five times a month, Plaintiff reported that there are days he is unable to get his braces on because of severe pain and he stays in his room, usually in bed. (Id. at 261-62.)

Plaintiff reported that Flexeril and extra strength Tylenol helped alleviate the pain. (Id. at 260-61.) He testified that his treating physician, Dr. Ledon, had advised him that one of his bulging discs was touching a nerve and that he might need to have either lumbar injections or surgery if his condition did not improve. (Id. at 241.) Plaintiff reported that Dr. Ledon told him that there was a 50/50 chance he could become paralyzed with lumbar spine injections.*fn2 (Id. at 240-41.)

B. Medical Evidence/Treating Physicians

1. New York State Department of Correctional Services

A Comprehensive Medical Summary Form, prepared in September 2005 by the New York State Department of Correctional Services revealed that since 1993, Plaintiff had a history of bunionectomy*fn3 and since 2005, he had right spermatocelectomy,*fn4 bilateral foot braces and a history of left shoulder pain. (Id. at 111-14.) Plaintiff was prescribed Naprosyn. (Id.)

2. Nassau University Medical Center/ Health Care Corporation ("NUMC")

On September 1, 2006, Plaintiff went to the NUMC's emergency department complaining of lower back, leg and ankle pain and requested a renewal of a prescription for Naprosyn. (Id. at 186-90.) The attending physician diagnosed musculoskeletal pain, prescribed Naprosyn, and discharged Plaintiff. (Id. at 186.)

On September 5, 2006, Plaintiff went to the NUMC's outpatient clinic to complete a disability form. (Id. at 180-85.) Plaintiff was wearing braces on his feet and had difficulty walking. (Id.) Dr. V. Cappello examined Plaintiff, noted that his past medical history was significant for flat feet, and recommended diagnostic studies and an orthopedic consultation. (Id.)

On September 7, 2006, Plaintiff went to the NUMC's orthopedic clinic complaining of pain in his lower back radiating down both legs. (Id. at 178-79.) The examiner noted that Plaintiff was wearing bilateral braces for pain in his legs. (Id.) Straight leg raising on examination produced sharp pain on the back of his right and left leg at about 80 degrees bilaterally. (Id.) The examination indicated full strength at grade 5/5. (Id.) The examiner ordered an MRI. (Id.) Plaintiff reported that while he was in prison, his foot problem was not being treated properly. (Id.)

The following day, Plaintiff was evaluated at the physical medicine/rehabilitation department. (Id. at 175-77.) He complained of bilateral foot pain and back pain and stated that he wanted to apply for disability benefits because his foot deformity had left him "incapacitated." (Id. at 175.) Plaintiff stated that his foot deformity was based on the prison giving him the wrong boots for his feet. (Id.) The examiner noted that Plaintiff was wearing circumferential ankle foot othoses, which he felt were comfortable, could walk independently and was taking Naprosyn. (Id.) Examination by the attending physician, Dr. Walter Gandino, revealed full range of motion in his lower extremities; full motor strength of the lower extremities with the exception of dorsiflexion, which was 4/5 bilaterally; full motor strength throughout, with intact sensation; and lumbosacral ranges of motion grossly within normal limits. (Id. at 176.) Straight leg raising was negative bilaterally; feet were pronated bilaterally; and back spasm was noted with flexion to forty degrees and extension to fifteen degrees. (Id.)

On September 8, 2006, an x-ray of Plaintiff's spine revealed minimal thoracic dextroscoliosis of the lower thoracic spine. (Id. at 194.) On that same day, blood testing indicated a positive rheumatoid factor. (Id. at 193.)

On September 22, 2006, an MRI of the lumbosacral spine showed degenerative changes and revealed "diffuse disc desiccation and Schmorl's nodes at multiple levels." (Id. at 194-95.) There was mild disc bulging at the L5-S1 level and disc bulging and facet hypertrophy producing mild stenosis at the L4-L5 level. (Id.)

Plaintiff was treated on October 6, 2006 for pes planus, arthritic changes of the lumbosacral spine and rheumatoid arthritis. (Id. at 169-170.) Dr. Gandino reported on examination that Plaintiff had equinovarus*fn5 deformities and hammer toes and showed bilateral ankle pronation. Dr. Gandino noted that Plaintiff needed new ankle-foot orthotics and requested a rheumatological consult. (Id.)

On October 6, 2006 an x-ray of Plaintiff's feet revealed exostosis of the left first metatarsal medially. (Id.)

On November 16, 2006, Plaintiff complained of pain in his lower back and ankles and was referred to the physical medicine and rehabilitation clinic. (Id. at 171-72.)

On December 26, 2006, Plaintiff complained of pain and numbness in his ankles and stated that he had been in pain for two days with relief from Naprosyn. (Id. at 167-68.) The examiner questioned whether Plaintiff had rheumatoid arthritis, noting that the only clinical evidence was collapsed arches. (Id.) Plaintiff was referred to the orthopedic clinic for hand and wrist x-rays. (Id.)

On December 26, 2006 an x-ray of Plaintiff's wrists showed bilateral symmetric narrowing of the radiocarpal joints, an abnormally short middle phalangeal joint in the fifth finger and bilateral vulgus deviation of the second proximal interphalangeal joint. (Id. at 198.)

On January 29, 2007, Dr. Gandino reported that Plaintiff had bilateral pes planus equinovarus deformities and calcaneal valgus*fn6 due to rheumatoid arthritis. (Id. at 201.) Dr. Gandino advised that Plaintiff was being followed by the rheumatology clinic for further management and needed new braces made for his legs due to the deformities caused by the arthritis. (Id.

On March 20, 2007, Plaintiff complained of chronic pain in his lower back and bilateral ankles, and the following day he had a follow-up at the adult clinic. (Id. at 164-65.) Plaintiff reported joint pain in his ankles and lower back, morning stiffness, numbness and tingling in his legs after prolonged sitting. (Id. at 165.) Examination of his wrists showed symmetric narrowing of the radiocarpal bones of the hands and a bilateral valgus deviation of the second proximal interphalangeal joints. (Id.) Plaintiff tested positive for rheumatoid ...

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