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Wilkins v. Astrue

May 8, 2009


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



On March 28, 2006, plaintiff Sharon Wilkins filed an application for Supplemental Security Income ("SSI"), alleging that she was disable due to cervical radiculopathy*fn1 and asthma. Wilkins's application was denied on April 11, 2005, and she requested a hearing before an administrative law judge ("ALJ"). Wilkins was represented by counsel at the December 11, 2007 hearing before ALJ Hazel Strauss. On February 14, 2008, the ALJ concluded that Wilkins was not disabled within the meaning of the Social Security Act ("the Act") because she remained able to perform substantial gainful work that exists in the national economy. The Appeals Council denied Wilkins's request for review on May 2, 2008. The adverse decision thus became the decision of the Commissioner of Social Security ("Commissioner").

Wilkins appeals that decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based upon the record before the Commissioner, the parties have cross-moved for judgment on the pleadings. I heard oral argument on May 8, 2009.

Because the ALJ erroneously disregarded Wilkins's testimony about her symptoms on the ground that it was incredible, I grant Wilkins's cross-motion for judgment on the pleadings, deny the defendant's motion, and remand for further proceedings.


A. Wilkins's Medical History

Wilkins was born in 1959. Beginning in 2002, she began to experience pain radiating from her neck into her right arm. She was evaluated by Dr. Mitchell E. Levine, a neurosurgeon, on June 23, 2003. Although an electromyogram ("EMG") demonstrated cervical radiculopathy bilaterally, a previous MRI showed no significant nerve root entrapment that would account for Wilkins's severe pain. Administrative Record ("Tr.") at 91. Levine ordered a follow-up MRI, in which the C4-5 disc in Wilkins's spine was "demonstrated." Tr. 90. Levine opined that this disc was "central and could be accounting for the majority of [Wilkins's] symptomatology." Id. He recommended an anterior cervical diskectomy, fusion, and plating, id., which was performed on September 25, 2003. Id. at 92.

On October 13, 2003, Dr. Levine reported that Wilkins was doing well following the surgery. She had a full range of motion in her neck and no complaints of pain in her arm. Levine recommended that she continue to wear a neck collar. Id. at 89. On November 24, 2003, Levine reported that Wilkins was doing "very nicely" and that an x-ray of her cervical spine looked excellent. Id. at 88. Wilkins complained of neck spasm and pain in her right shoulder, and Levine noted a significant paracervical spasm on the right and pain when elevating her arm. Id. On December 1, 2003, Dr. Levine reviewed another x-ray and noted that it appeared "perfectly fine." Id. at 87. Wilkins continued to complain of shoulder pain, and Levine noted that she demonstrated pain on abduction and rotation of the shoulder. He suspected "some concomitant shoulder pathology" and referred Wilkins to Dr. James Henry for evaluation of her shoulder. Id. The record does not reflect the result, if any, of this referral.

On January 9, 2006, Wilkins complained to Menashe Newhouse, a registered physician's assistant, of ongoing right shoulder pain. Newhouse renewed a prescription for Tylenol #4. Tr. 118-20. She also complained of neck pain to Dr. Kyi Yu, a general practitioner, on February 13, 2006. Yu diagnosed her with radiculopathy at the C4-5 disc, continued her Tylenol #4 prescription, and recommended a neurosurgical consult. Id. at 123. Wilkins returned to Dr. Yu with similar complaints of pain on March 7, 2006, and requested "a shot." Id. at 122. Yu noted decreased range of motion in her neck and pain on palpation and spasm of the trapezius muscles. Yu diagnosed osteoarthritis of the cervical spine and gave Wilkins a 60mg injection of Toradol. During this month, Wilkins filed her disability claim.

On April 11, 2006, Wilkins was seen in the orthopedics department at St. John's Hospital with complaints of right-sided back pain radiating down her arm. She told Dr. Imran Karim that her pain was worsening and that she could not sleep on her right side. Karin observed that Wilkins could not turn her head to the right, that her right shoulder was lower than her left and tender to the touch, and that she had a decreased range of motion in her shoulder and elbow. Karim ordered an x-ray and referred Wilkins to Dr. Levine. Tr. 112. The x-ray appeared normal, id. at 104, and Dr. Levine recommended another MRI and x-ray on May 1, 2006. Id. at 92. The x-ray revealed anterior plate and screw fixation at the C4-C5 vertebral bodies and disc narrowing at C5-6 with multilevel spondylosis*fn2 of C5-6 and C6-7, as well as posterior joint hypertrophy at C5-6. Tr. 113. The MRI revealed central disc bulges at C2-3, very minimal smooth disc bulges at C3-4, bilateral uncovertebral joint hypertrophy at C4-5, a fused disc at C5-6 with a 3-millimeter broad-based disc herniation, and anterior osteophyte spondylosis and bilateral uncovertebral joint hypertrophy with associated disc protrusions at the C6-7 level. Tr. 124.

On August 6, 2006, Wilkins complained of left and right shoulder pain to Dr. Yu, who advised her to follow up with her neurosurgeon. Wilkins made similar visits on August 23 and August 30, at which time Yu made various adjustments to her pain medication.

Dr. Yu competed a medical assessment of Wilkins's ability to do work on September 22, 2006. Yu indicated that, due to cervical spine fusion and C5-6 spondylosis and the severe pain it caused, Wilkins could only lift two pounds during an eight-hour work day. He also indicated that radiculopathy limited Wilkins's ability to reach, handle, feel, push, and pull.

During 2007, Wilkins made further complaints of pain to Dr. Yu, who made several adjustments to her pain medications. She also received regular injections of Toradol for her pain. On September 10, 2007, Yu noted that "at the present time no neurosurgeon [is] willing to do surgery again for [Wilkins's] condition." Tr. 147.

On June 13, 2008, at the request of the Commissioner, Wilkins was examined by Dr. Steven Calvino. Dr. Calvino observed that Wilkins's finger dexterity was intact and her grip strength in both hands was normal. He also observed that Wilkins had a decreased range of motion in her right shoulder due to pain. He ultimately diagnosed "failed neck surgery syndrome" and right knee pain, and opined that Wilkins had moderate limitations for heavy lifting, frequent squatting, climbing, or ...

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