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Valerio v. Commissioner of Social Security

August 5, 2009


The opinion of the court was delivered by: Sifton, Senior Judge.


Teresa A. Valerio ("plaintiff") commenced this action against Michael J. Astrue, the Commissioner of Social Security ("defendant" or "Commissioner") on October 10, 2008, seeking review of defendant's decision denying her application for Social Security disability insurance benefits ("SSDI") under Title II of the Social Security Act. Plaintiff claims that she is entitled to receive SSDI benefits due to severe medically determinable impairments, specifically low back pain radiating to her legs, neck, shoulders, and arms, resulting from an injury on May 27, 1990, which she alleges prevents her from performing any work. Now before the Court are the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g). For the reasons set forth below, judgment on the pleadings is granted in plaintiff's favor, and this case is remanded to the Commissioner solely for the calculation of benefits.


The following facts are drawn from the administrative record of proceedings relating to this case and the parties' submissions in connection with these motions.

Non-Medical Evidence

Plaintiff, a citizen of the United States, was born on August 28, 1958, in the Dominican Republic. Administrative Record ("R.") at 84, 282, 365. She attended school there through age 18 and the completion of twelfth grade. R. 105, 282, 371. Plaintiff came the United States in 1984, and became a citizen between 1991 and 1992. R. 282, 285, 365. She studied English in the United States and passed the English language test as required for naturalization, but required the assistance of an interpreter for the administrative hearings relating to her SSDI claims. R. 280, 293, 333, 349, 359, 365, 371.

Beginning in 1985, plaintiff worked as a housekeeper cleaning residents' rooms at the YMCA. R. 333-34, 372. She maintained similar employment at the Sheraton Center as a hotel maid from February 1987 to May 1990. R. 105, 118-121, 174, 284. There, plaintiff's job entailed cleaning bedrooms and bathrooms by sweeping, mopping, vacuuming, washing windows, changing sheets, bedding, and other laundry, and refilling toiletries and other supplies. R. 119, 285, 343-44, 372. In the course of her work, plaintiff also lifted mattresses and rearranged hotel bedroom furniture such as tables and bureaus. R. 121, 285, 342-45. Plaintiff's occupation is categorized by the Dictionary of Occupational Titles ("DOT" or "DICOT") as an unskilled job with a Specific Vocational Preparation level of 2 and a Strength Rating of light work.*fn1 DICOT 323.687-014. Her additional work requirements involving lifting mattresses and moving furniture likely constituted a functional physical exertion rating of medium.*fn2 R. 342.

On May 27, 1990, plaintiff, while conducting her work, caught her foot in bedding and fell, hitting her knee and striking her lower back on the metal bed frame. R. 285-86, 372, 376. She sought and received medical treatment. R. 286-87, 373-74. Plaintiff was 31 years old at the time of her injury, and 39 when she first filed for benefits on July 23, 1998. R. 84-87. Plaintiff ceased employment as a housekeeper following her injury, but attempted to return to work at the Sheraton as an elevator operator; she held that position for about two months in June and July 1992. R. 332, 284. Plaintiff met the insured status requirements of the Social Security Act through December 31, 1996. R. 98.

Plaintiff testified that, subsequent to her injury, she experienced constant medium to severe pain in her neck, back, left leg and ankle, and right hand, loss of flexibility in both legs, numbness in her left leg, left ankle stiffness and swelling, and headache; and that, consequently, she could not bend her body, raise her arms, or walk. R. 163-65, 303, 376-78, 388. She reported that her pain persisted despite therapy, that she had great difficulty walking and could not walk more than two or three blocks, that she had been unable to maintain a pain-free position while standing or sitting for longer than twenty to twenty-five minutes, and that she could not sleep through the night due to pain. R. 291-93, 376-78, 380, 390.

During the relevant period, plaintiff lived with her husband, their two children, and a niece. Her niece was approximately eight years old in 1991, her son was born on November 16, 1986 and her daughter on December 26, 1989. R. 364-65, 385. Plaintiff testified that her husband, who worked evenings and nights as a restaurant waiter, attended to the cooking, cleaning, and shopping, and was able, with the help of plaintiff and her niece, to care for the children. R. 104, 290-91, 381-82, 384-85. Plaintiff further stated that her infant daughter regularly slept though the night. R. 390-91. Plaintiff was able, for short durations, to sit and watch TV, listen to the radio, and read books or newspapers; to walk half a block to accompany her children to their school bus; and occasionally and for short durations to visit restaurants or attend church. R. 292-93, 382-83. As her father had fallen ill, plaintiff and her family traveled to the Dominican Republic in 1997; she was able to endure the three-hour flight by repeatedly standing and reseating. R. 295, 383, 386.

Medical Evidence

Plaintiff's Physicians

The evidence in the record relating to plaintiff's direct medical treatment consists of medical records from plaintiff's treating physicians, rehabilitation specialist William T. Kuiper, M.D., whose records cover the period from June 1, 1990 through April 27, 1999, and physical medicine and rehabilitation specialist Augustin Sanchez, M.D., whose records cover the period from April 25, 2001 through November 29, 2004. R. 136-43, 155-59, 162-70, 176-81, 243-69. Dr. Sanchez's records include an evaluation of Magnetic Resonance Imaging performed on plaintiff by radiologist Sidney David Bogart, M.D., dated November 7, 2001.

R. 249, 264.

Dr. Kuiper

Dr. Kuiper's office notes and reports dated prior to December 31, 1996, the date plaintiff was last insured, show that after an initial emergency admission to St. Clare's Hospital on May 27, 1990, relating to her work injury, plaintiff first saw Dr. Kuiper on June 1, 1990 for follow-up rehabilitative evaluation and treatment. R. 155, 162, 373. At that initial evaluation, Dr. Kuiper reported that plaintiff complained of persistent pain and stiffness in her neck, both arms, and in her back radiating into the right flank and leg, aggravated in any prolonged sitting and standing and preventing bending and lifting, and pain, weakness and instability in the left knee and ankle. R. 155, 162-63.

Physical examination by Dr. Kuiper revealed that plaintiff, measuring 5'5" and weighing 158 pounds, was in significant distress and presented with a guarded*fn3 neck and lower back and an antalgic gait*fn4 favoring the left. Id. Subsequent orthopedic examination showed that plaintiff's cervical paravertebral*fn5 muscles were tender and tight on palpation,*fn6 with a restricted range of motion.*fn7 R. 155, 163. Plaintiff's left shoulder was tender, with range of motion restricted in abduction*fn8 and rotation.*fn9 Id. Her dorsal and lumbosacral*fn10 paravertebral muscles were tender and tight. R. 156, 163. Her lumbar and sacral vertebrae, from L3 to S1,*fn11 were very tender on pressure. Id. Lumbar range of motion was painfully restricted, and straight-leg raise testing*fn12 was positive at 40 degrees on the right and 60 degrees on the left. Id. There was laxity of the cruciate and collateral ligaments in plaintiff's left knee,*fn13 and the right patellar reflex was under active.*fn14 Id. Plaintiff's left ankle was swollen, with pain when the collateral ligaments were stressed. Id. Both Dr. Kuiper's notes and report refer to X-rays of the cervical, dorsal, lumbar, and sacral spine showing a fracture of the L3 pedicle and superior articular process*fn15 of the right and derangement*fn16 at the L5-S1 facet joint on the right.*fn17 R. 156, 163.

Dr. Kuiper diagnosed plaintiff with derangement of the lumbosacral and cervical spine, especially the L5-S1 facet joint; fracture of the pedicule and the superior articular process of L3 on the right; clinically bilateral radiculopathy;*fn18 sprain*fn19 of the dorsal spine; contusion*fn20 and sprain of the left shoulder; sprain and derangement of the left knee; and sprain of the left ankle. Id. He prescribed a Knight spinal brace,*fn21 a cervical collar,*fn22 and non-steroidal anti-inflammatory medication,*fn23 and placed plaintiff on a program of physiotherapy followed by monthly observation. Id.

After her initial intake evaluation and diagnosis, plaintiff was treated by Dr. Kuiper 34 times through December 10, 1990, and 22 times, or roughly once per month, between then and July 31, 1992. R. 163-68. Dr. Kupier's office notes during that period reflect plaintiff's ongoing back, neck, and leg ailments. Id. While plaintiff noted some initial improvement in her condition, she subsequently reported recurrent severe back pain radiating into both legs, stiffness in her neck, and recurrent pain and stiffness in her left ankle which increased on walking or standing. R. 156, 159, 163-68. Examinations revealed that plaintiff's paravertebral muscles were tender and tight, and that she had a painfully restricted range of motion. Id. Her left ankle was swollen, with pain on stress. R. 159. Straight-leg raising was consistently positive bilaterally, plaintiff had difficulty lifting due to diminished right grip strength, and her left knee was unstable. R. 165-67, 169. In May and June 1991, Dr. Kuiper described plaintiff as having mild, partial disability secondary to her accident. R. 166. A Doctor's Initial Report submitted by Dr. Kuiper to the State of New York Worker's Compensation Board, dated November 12, 1991, described plaintiff as totally disabled. R. 159.

From July 1992 to February 1994, plaintiff was not treated by Dr. Kuiper. R. 168. Plaintiff was next treated by Dr. Kuiper in February 1994. Id. The medical records between February 22, 1994 and January 1996 document plaintiff's recurrent pain in her back radiating to both legs and in her neck radiating to both arms, and show that plaintiff's knee gave way when bearing weight. R. 143, 168-69. Dr. Kuiper explained plaintiff's February 14, 1994 examination findings as early spondylarthritis*fn24 resulting in increased radiculopathy and weakness. R. 168. In April 1994, Dr. Kuiper recorded a positive McMurray test,*fn25 indicating a medical tear, and in July 1994 he specified early spondylarthritis with increased radiculopathy and disk*fn26 disease. Id.

The remainder of Dr. Kuiper's medical records are dated in July, August, and September 1998, and January 1999, after plaintiff's last date insured. R. 169-70. Throughout this period, plaintiff's complaints and Dr. Kuiper's diagnoses appear continuous and increasing in severity. R. 156, 158, 169-170.

In a letter dated April 7, 1998, Dr. Kuiper summarized plaintiff's injuries to her neck and back, and noted that she was unable to return to gainful employment. R. 158. On August 18, 1998, plaintiff reported pain in her back and hips radiating into her legs and in her neck radiating to her right shoulder, arm, hand, and face, giving way and swelling of her left knee, numbness in her right foot, and angina*fn27 on exertion. R. 143, 169. Examination revealed a positive Spurling test*fn28 bilaterally, hypoactive reflexes, sensory loss in the right C5 and C6, left L4, and right L5 and S1 dermatomes,*fn29 positive straight-leg raising at 40 degrees on the right and 60 degrees on the left, and ligament laxity in the left knee. Id. Plaintiff had shortness of breath on minimal exertion, and her blood pressure*fn30 decreased from 130/85 to 95/85 while walking to the examining table. Id. She was unable to sit straight, and appeared very depressed. Id. Dr. Kuiper diagnosed plaintiff with cervical and lumbar spine spondylarthritis with bilateral radiculopathy with L3 pedicle fracture status post her fall in May 1990, heart disease, and post traumatic stress disorder with reactive depression. Id. Dr. Kuiper reconfirmed his evaluation, clinical findings, and diagnoses in a letter, dated August 18, 1998, to the State Office of Temporary and Disability Insurance covering his treatment of plaintiff from her injury in May 1990. R. 136-143.

In a report dated April 27, 1999, Dr. Kuiper reiterated that plaintiff's general condition was deteriorating and that she continued to suffer from exacerbations and remissions of the symptoms from cervical and lumbrosacral spine spondylarthritis with radiculopathy and sciatica*fn31. R. 155-56. Root compression tests were positive on the right and deep tendon reflexes were hypoactive on the right. Id. Plaintiff experienced increasing discomfort and instability in her knees, sensory deficit in her arm and leg, and required back support. Id. Her left knee was swollen and warm with crepitation*fn32 on motion. Id. Plaintiff's walking was limited. Id. In a Residual Functional Capacity ("RFC")*fn33 form dated July 23, 1999, Dr. Kuiper specified that plaintiff could not lift or carry at all, could stand or walk for only less than one hour per day, and that her ability to sit was limited to less than two hours per day, noting further that she could not sit straight. R. 157. Plaintiff was last seen by Dr. Kuiper on January 7, 1999. R. 156, 170.

Dr. Sanchez

Dr. Augustin Sanchez, a physical medicine and rehabilitation specialist, first examined plaintiff on April 25, 2001, over four years after the date she was last insured. R. 176, 243, 256. Dr. Sanchez's narrative report of his initial examination and evaluation, dated July 25, 2001, recounted plaintiff's injury and consequent pain and debilitation, as well as her report of Dr. Kuiper's evaluation, diagnosis, and treatment. R. 176. Physical examination revealed acute tenderness at L4-L5 and L5-S1, positive straight-leg raising bilaterally, and forward torso flexing limited to 25-30 degrees with paralumbar spasm extending to the mid-thoracic area. R. 177. Plaintiff ambulated with an unsteady gait. Id. Motor strength was diminished and rated 3 out of 5 at the right quadriceps and on dorsiflexion and plantarflexion.*fn34 Id. Reflexes were diminished at the left Achilles tendon and right quadriceeps indicating bilateral involvement of the lumbar spine in the aforementioned symptoms. Id. X-rays were unavailable for review. Id. Dr. Sanchez diagnosed lumbar derangement, ruling out lumbar herniation and radiculopathy, and determined that plaintiff was totally disabled and unfit for gainful employment. Id. In a subsequent physical capacity evaluation dated August 6, 2001, Dr. Sanchez confirmed that plaintiff's ability to lift and carry was limited to 10 pounds, her ability to stand, walk, or sit to less than 2 hours per day. R. 181. He prescribed the NSAID naproxen at 550 mg twice daily, issued a lumbar corset, and placed plaintiff on a physiotherapy treatment program. R. 176. Dr. Sanchez concluded that plaintiff's condition was causally related to her work injury of May 27, 1990. Id.

Dr. Sanchez's records contain a report of range of motion testing conducted on plaintiff dated May 18, 2001, indicating below-normal right lateral flexation and positive straight-leg raise. R. 179-80, 252-53. Electromyography ("EMG") conducted and documented by Dr. Sanchez on September 26, 2001 yielded results compatible with L4-L5 radiculopathy. R. 250-51. Magnetic Resonance Imaging ("MRI") of plaintiff performed on November 7, 2001 by radiologist Dr. Sidney David Bogart on referral by Dr. Sanchez demonstrated a posterior herination of the L4-L5 intervertebral disk with anterior thecal sac deformity*fn35 and some impingement on the exiting left nerve root, dehydration of the L4-L5 intervertebral disk,*fn36 and Schmorl's node invaginations*fn37 at L2, L4 and L5. R. 249, 264.

Physician's reports completed by Dr. Sanchez for plaintiff's disability claim due to physical impairment, dated November 29, 2004 and January 6, 2006, detail plaintiff's monthly follow-up visits and physiotherapy. R. 243-48, 256-61. The two reports mirror each other. Id. Plaintiff's ongoing symptoms included severe back pain radiating to the lower extremities and bilateral leg weakness and numbness. R. 243-44, 256-57. The reports recount the aforementioned laboratory reports and diagnostic studies, including the EMG and MRI. R. 244, 257. Dr. Sanchez reported that, during an entire 8-hour workday, plaintiff could sit for a total of 1-2 hours, stand or walk for a total of half and hour to an hour, only occasionally lift or carry up to 10 pounds, only occasionally bend or reach, could not squat, crawl, or climb at all, and could not use her feet for repetitive movements. R. 245-46, 258-59. He diagnosed ...

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