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Savino v. Astrue

July 8, 2009


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge


Plaintiff Michael Savino brings this action pursuant to 42 U.S.C. § 405(g), challenging the final decision of defendant, the Commissioner of the Social Security Administration ("SSA"), that plaintiff was not disabled within the meaning of the Social Security Act ("the Act") from November 29, 1994, when he first claimed disability, until the expiration of his insured status on December 31, 2000. Defendant moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of his denial of benefits, and plaintiff cross-moves for judgment on the pleadings. For the reasons set forth below, defendant's motion is denied, the decision of the SSA is reversed, and plaintiff's motion is granted to the extent that the case is remanded for further administrative proceedings.

I. Background

a. Prior Proceedings

Plaintiff applied for disability insurance benefits ("DIB") on April 19, 1995, alleging that he had been disabled since November 29, 1994 due to neck, back, and arm problems resulting from osteoarthritis. (Admin. Transcript ("Tr.") at 31, 76-79.)

His application was denied initially and after reconsideration. (Tr. at 80-83, 86-89.) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 90-92.) ALJ Manuel Cofresi held the hearing on June 12, 1996, at which plaintiff testified. (Tr. at 45-75.) By a decision dated August 29, 1996, ALJ Cofresi found that plaintiff was not disabled within the meaning of the Act. (Tr. at 28-35.) On February 26, 1998, that decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. (Tr. at 19-20.)

Plaintiff then sought judicial review in this court of the denial of benefits pursuant to 42 U.S.C. § 405(g). Savino v. Apfel, CV-98-3229. On January 20, 1999, the court held oral arguments. (Tr. at 448.) On January 25, 1999, the court remanded the case for further proceedings in order to resolve two conflicting opinions (dated May 23, 1995 and March 25, 1996) of the patient's treating physician, Dr. Arthur E. Farkash.*fn1 (Tr. at 440, 447-48.) On May 11, 2001, the Appeals Council vacated the final decision of the Commissioner and remanded the case to ALJ Cofresi for further proceedings consistent with the court's order. (Tr. at 462-65.) ALJ Cofresi held a second hearing on July 2, 2002, at which plaintiff and Dr. Justin Willer, an independent medical expert, testified. (Tr. at 944-1009.) On August 21, 2003, ALJ Cofresi ruled that plaintiff was not disabled within the meaning of the Act during the relevant period, from November 29, 1994 to December 31, 2000. (Tr. at 740-51.) With respect to the conflicting opinions, ALJ Cofresi found "that the discrepancies between Dr. Farkash's assessments are not supported by objective clinical or diagnostic findings." (Tr. at 749.)

On October 23, 2003, plaintiff appealed, and the Appeals Council, by order of August 6, 2005, remanded the case to a new ALJ for an additional hearing to: (1) review all evidence received after July 2, 2002; (2) obtain new medical testimony from a new expert; (3) resolve any conflicting evidence; and (4) use a vocational expert to assist in determining whether plaintiff could perform his prior work. (Tr. at 753-767.) On November 22, 2005, ALJ Seymour Fier presided over the third administrative hearing on this matter. (Tr. at 1010-27.) On January 25, 2006, he issued a decision finding that plaintiff had not been disabled on or before December 31, 2000. (Tr. at 421-29.) ALJ Fier found that throughout the relevant period, plaintiff was able to perform sedentary work and therefore, was able to perform his prior work. (Id .) On August 11, 2007, ALJ Fier's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. (Tr. at 258-60.) Plaintiff has appealed that decision to this court.

b. Non-Medical and Testimonial Evidence

Plaintiff was born on May 23, 1951 and was 43 years old when he first applied for disability insurance benefits. (Tr. at 948.) For approximately 17 years, he worked for New York Hospital in Queens. (Tr. at 951.) Plaintiff was a sergeant supervisor in charge of the hospital's security guards. (Tr. at 951.) In this capacity, he "scheduled the men, put them on post, did [his] log work, checked the men on post, [and] watched the monitors." (Id .) Occasionally, plaintiff had to restrain unruly patients. (Tr. at 952.) According to plaintiff, the job involved six hours of sitting and two hours of walking a day. (Tr. at 50.)

On November 11, 1992, plaintiff underwent a surgical fusion of the cervical vertebrae with bone graft at C4-5 and C5-6. (Tr. at 952-53.) Plaintiff returned to work three months after the surgery. (Tr. at 953.) According to plaintiff, when he first returned to work, the pain "wasn't too bad, but then as time went, as it kept on going . . . [he] couldn't sleep and the pain was really horrendous, and . . . the headaches wouldn't go away." (Id .) Plaintiff stopped working on September 29, 1994 due to "terrible pain" in his neck, arms, and head as well as "terrible headaches." (Tr. at 50.) Plaintiff testified that the headaches occurred daily and would "last for hours." (Tr. at 954.) The neck pain radiated to both arms and would cause numbness in his right arm and weakness in both hands. (Tr. at 955.) Plaintiff also suffered from arthritis in his left knee, on which he had cartilage and ligament surgery in 1992. (Tr. at 958.)

These symptoms continued after plaintiff stopped working. (Tr. at 955.) Additionally, plaintiff testified that he suffers from "more pains now in different areas of [his] body . . . [including his] lower back [and] legs." (Id .) Plaintiff testified that "every day there's some sort of pain running down [his] leg," and he suffers from back pain "a couple of times a week." (Tr. at 956-58.) Plaintiff testified that his "right hand is always numb," and because he is right handed, "a couple of times a week," he drops light objects such as keys or silverware. (Tr. at 957.) Plaintiff testified that he is never able to sit comfortably, and if he sits for an hour or more, he needs to "move around," take pain killers, like Darvocet or Vicodin, and lay down with a heating pad. (Tr. at 961.) Plaintiff testified that, at most, he could stand for fifteen minutes, and he cannot stand straight. (Id .) On a "good day," plaintiff testified that he can walk two blocks. (Tr. at 962.) Pain and weakness in his legs prevent him from walking farther. (Id .)

At the June 12, 1996 hearing, plaintiff testified about his day-to-day activities. The only chores he does are cook dinner, light shopping, and washing pots and dishes. (Tr. at 70-71.) Plaintiff testified that while he can attend to his personal care, shaving is difficult because of weakness and numbness in his right arm. (Tr. at 71.) "A couple of times a week," he drives to the supermarket that is two blocks from his house to do light grocery shopping for dinner, "if the pain isn't too bad." (Tr. at 64, 70.) Sometimes, he drives to the park and sits by the lake. (Tr. at 70.)

The longest distance that plaintiff has driven since 1994 was "roughly a half hour [sic ] ride" from Flushing, Queens to Huntington, Nassau County. (Tr. at 64.) He has taken long-distance driving trips, with his wife driving, to the Poconos and Atlantic City. (Tr. at 73-74.) The former lasted for about "an hour, hour and a half[,]" and the latter lasted for about two-and-a-half hours. (Id .) Plaintiff took stops every "half hour, forty-five minutes," during both trips and the trips made him feel "terrible" and "crippled." (Id .) Plaintiff testified that, while in the Poconos, he stayed at the hotel most of the time and sat by the pool. (Tr. at 65.) While in Atlantic City, he occasionally played the slot machines for short periods and sat in the pool. (Tr. at 66.)

At the July 2, 2002 hearing, plaintiff testified that the only meals he prepares are simple lunches, such as "a sandwich or something," and that he "do[es] a little dishes sometimes." (Tr. at 963.) Plaintiff testified that, although driving is "a little tough," he has adjusted to it: for example, he uses his mirrors to drive because he "can't turn [his] head like all the way." (Tr. 964.) He typically drives six blocks or less. (Tr. at 964-65.) Plaintiff routinely needs to lie down twice a day. (Tr. at 965-66.) Since the last hearing, plaintiff went on a seven-day cruise from New York to Bermuda. (Tr. at 972-73.) During the cruise, he spent most of his time sitting on the deck. (Tr. at 972.) He also played the slot machines, danced with his wife, and disembarked the ship once to make a phone call. (Tr. at 973-74.)

c. Medical Evidence Prior to November 29, 1994

From July to November 1992, plaintiff suffered neck and arm pain with numbness in his arms caused by herniated disks in his neck. (Tr. at 181.) On November 3, 1992, plaintiff underwent a C4-5 and C5-6 anterior cervical discectomy with iliac bone graft to treat these herniated disks. (Id. The hospital discharged him eight days later in a stable condition. (Id .)

On April 7, 1994, a magnetic resonance image ("MRI") of plaintiff's cervical spine revealed "status post surgical changes at the 4-5 and 5-6 level with mild stenosis at the 4-5 level and mild to moderate stenosis at the 5-6 level." (Tr. at 530.) On August 16, 1994, plaintiff's physician examined him for recurring neck pains. (Tr. at 247-48.) The examination revealed a limited range of motion. (Tr. at 248.) The doctor ruled out radiculopathy and prescribed physical therapy. (Id .) In November 1994, plaintiff had renewed pain in his neck, right shoulder, and right arm, as well as upper extremity numbness and weakness. (Tr. at 243.)

d. Medical Evidence from November 29, 1994 to December 31, 2000

On November 29, 1994, plaintiff was treated in the emergency room for nausea, dizziness, shortness of breath, and heart palpitations. (Tr. at 213.) On November 30, 1994, a Computerized Axial Tomography scan of plaintiff's cervical spine revealed status post fusion of his C4-5, C5-6, and C6-7 and mild indentation of the thecal sac at C5 and C6 from vertebral body osteophytes. (Tr. at 219.) A cervical myelogram performed on the same day revealed post surgical changes at C5-6 and C6-7. (Tr. at 220.)

On December 23, 1994, Dr. Norman Marcus, the director of the pain treatment program at Lennox Hill Hospital, conducted an upper body examination of plaintiff. (Tr. at 132-34.) The examination showed that plaintiff could not fully rotate his body. (Tr. at 133-34.) Dr. Marcus recommended trigger-point injections, physical therapy, and a comprehensive pain rehabilitation program. (Tr. at 134.) On February 23, 1995, Dr. Marcus found that plaintiff "responded dramatically to trigger point injections to his right shoulder girdle," and that he had a full range of motion in his right shoulder. (Tr. at 128.) Dr. Marcus noted that plaintiff continued to complain of persistent pain deep in his posterior cervical region. (Id .) Dr. Marcus observed "intermittent spasms in his shoulders and cervical paraspinal region." (Id .) The doctor indicated that these spasms "could be associated with his persistent complaints of deep tension-like pain in his neck." (Id .)

On May 23, 1995, Dr. Farkash completed a residual functional capacity assessment of plaintiff. (Tr. at 164-73.) He reported that plaintiff had minimal response to trigger-point injections. (Tr. at 164.) Dr. Farkash concluded that plaintiff has "no limitation" to stand, walk, or sit. (Tr. at 172.) He also concluded that plaintiff has "limited" ability to lift, carry, push, and pull due to "hand weakness." (Id .)

On July 14, 1995, Dr. Roger Antoine, an orthopedist, performed a consultative examination of plaintiff. (Tr. at 174-77.) During the examination, plaintiff walked independently with a limp in his lower left extremity. (Tr. at 175.) Plaintiff could barely stand up and walk on his toes. (Id .) Plaintiff could do a half squat while holding objects and was able to get on and off of the examination table independently. (Id .) Dr. Antoine found plaintiff's shoulder and elbow muscle strength to be 4/5 on the right and 5/5 on the left. (Tr. at 176.) Plaintiff's muscle strength in both wrists was 5/5. (Id .) Dr. Antoine's impressions were status post left knee arthrotomy, status post cervical anterior fusion with right iliac bone graft at C4-5 and C5-6, cervical spinal stenosis, lumbar spinal stenosis, right cervical radiculopathy, and bilateral lumbar radiculopathy. (Tr. at 177.)

On July 31, 1995, Dr. C. Ladopoulos performed a residual functional capacity assessment on behalf of the SSA. (Tr. at 121-27.) He concluded that plaintiff could: (1) occasionally lift and/or carry 20 pounds; (2) frequently lift and/or carry ten pounds; (3) stand and/or walk with normal breaks for about six hours in an eight-hour workday; and (4) sit, with normal breaks, for about six hours in an eight-hour workday. (Tr. at 122.) The doctor also found that plaintiff's ability to push and pull was limited. (Id.)

Dr. Alan Kaye, another state medical agency consultant, produced a similar residual capacity assessment on November 9, 1995, concluding that plaintiff was capable ...

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