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Horohoe v. Astrue

July 14, 2009


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


John J. Horohoe ("Plaintiff") brought this action under §205(g) and §1631(c)(3) of the Social Security Act, codified as 42 U.S.C. §405(g) and §1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") that denied Plaintiff's application for disability insurance benefits. Before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


A. Procedural History

Plaintiff applied for Supplemental Security Income ("SSI") on May 20, 2004. He was denied benefits on September 8, 2004 and filed a request for a hearing before an Administrative Law Judge ("ALJ"). Plaintiff was represented by counsel at the hearing held on September 19, 2006. On October 17, 2006, ALJ Michael S. London denied Plaintiff's request for Social Security benefits.

A request for review by the Appeals Council was submitted on behalf of Plaintiff on November 13, 2006 and was subsequently denied on November 2, 2007. The decision of the ALJ became the Commissioner's final decision in the case. Plaintiff commenced this civil action on December 17, 2007 requesting review of the Commissioner's decision.

B. Medical History

Plaintiff was born April 14, 1961 and has completed three years of college. Tr. at 185-86.*fn1 Plaintiff is married with three children. Tr. at 115, 186. He worked as a police officer from 1986 until April 15, 2004. Tr. at 186. Plaintiff was in an automobile accident in the line of duty on September 5, 1994, which resulted in an injury to his neck. Tr. at 99, 187.

Plaintiff first sought treatment for his neck injury on November 15, 1994. Tr. at 102. An MRI was performed and showed straightening of the cervical lordosis, a herniated disc at the C4-C5 level near midline and slightly to the left and also showed prominence of the annulus at the C6-C7 level. Id. On December 2, 1994, Plaintiff visited Dr. Robert Parker, an orthopedic surgeon. Tr. at 103. Dr. Parker took x-rays of the cervical spine and the left wrist. Id. The x-rays were unremarkable. Id. He noted that his impression was cervical derangement and shoulder and left wrist sprain. Id. Also included in the report was that Plaintiff had full range of motion of his shoulder but that there was pain with this motion. Id.

Additionally, Dr. Parker completed two reports for the Workers' Compensation Board on December 14 and 21, 1994. Tr. at 104, 105. On each of these he noted a formal request for an MRI. Id. On December 14, Dr. Parker described the Plaintiff's injury as a sprain/strain of the cervical spine and the arm/shoulder. Tr. at 104. On the December 21 form, he described it as a rotator cuff tear. Tr. at 105.

Plaintiff next visited a chiropractor, Dr. Dennis Mutell, on November 28, 1995. Tr. at 106. Dr. Mutell reported that the Plaintiff had restricted movement of the cervical joint at the C2-C3, C3-C4 and C5-C6 levels. Id. Next, on January 12, 1996, Dr. Scott Scheer performed an ultrasound examination of Plaintiff's cervical spine. Tr. at 107. The results of this showed myofascitis and inflammation at the facet joint and C4 nerve root. Id.*fn2 He recommended further electrodiagnostic testing. Id.

At the request of the Workers' Compensation Board, Dr. Robert Camoia, a chiropractor, examined the Plaintiff on July 23, 1997. Tr. at 108-11. He reported that, from a chiropractic point of view, the Plaintiff had a mild, partial disability. Tr. at 110. He noted that as a result of both the injury sustained in 1994 and another work-related accident in 1992, Plaintiff suffered from a chronic cervical sprain and derangement. Id.Dr. Camoia's recommended treatment was for symptomatic chiropractic treatment two times a month for six months. Tr. at 111.

On September 14, 1998, Dr. Parker examined Plaintiff for a work-related injury to his left foot. Tr. at 112. Plaintiff had difficulty standing and walking and Dr. Parker stated that the impression was that of a left foot fracture. Tr. at 113. He stated that there was full range of motion and recommended ice, Tylenol and crutches. Id.

Plaintiff began treatment with Dr. Jeffrey Kornreich on March 20, 2002. Tr. at 114-116.*fn3 Dr. Kornreich reviewed the Plaintiff's medical records and performed a physical examination. Id. He reported that there was mild restriction in cervical flexion and extension and restriction in the cervical range of motion. Id. The report states that sensation was intact, isolated strength was normal and that reflexes were 2 and symmetric. Id.*fn4 Dr. Kornreich stated that the Plaintiff was disabled from his prior occupation as a police officer. Id.

On September 17, 2003, Dr. Arnold Illman, an orthopedist, examined Plaintiff to complete an Orthopedic Independent Medical Examination. Tr. at 117-118. He reported that Plaintiff had limited extension of his neck and full range of motion of his shoulder, but that he complained of pain. Tr. at 118. Plaintiff's reflexes were noted to be 4 bilaterally and sensation was normal over both upper extremities. Id. Muscle testing (flexion, abduction and extension) and grasp strength were noted at bilaterally. Id.*fn5

Dr. Illman ordered and analyzed an MRI. Id. This was performed on October 21, 2003. Id. The MRI showed a disc ridge complex at the C4-C5 level with neural foraminal narrowing suggested, spurring and neural foraminal narrowing at the C5-C6 level, straightening of the normal lordosis and disc desiccation. Tr. at 118, 157.*fn6 Dr. Illman stated that there appears to be a progression of the degenerative changes and neural foraminal narrowing at the C5-C6 level in the Plaintiff's cervical spine and, as a result of his diminished range of motion, the Plaintiff would not be capable of safely performing his full duties as a police officer. Tr. at 118.

At the request of the Division of Disability Determination, Dr. Mohammad Iqbal performed a consultative orthopedic examination of the Plaintiff on August 10, 2004. Tr. at 121-124. He reported that Plaintiff's left shoulder was sore and that he had declined to do full flexion because of the neck pain. Tr. at 123. There was no muscle atrophy or sensory abnormality and reflexes were physiologic and equal. Id. Plaintiff's hand and finger dexterity were intact and his grip strength was 5/5 bilaterally. Id. Dr. Iqbal noted that in his opinion, Plaintiff had no limitation with walking or standing and no limitation of fine motor skills with his right hand. Tr. at 124. He did note that Plaintiff had some mild to moderate limitations of fine motor skills on his left side above the shoulder level with left shoulder and left elbow extension and flexion at 4/5, but no fine motor limitations below shoulder level. Id. It was ...

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