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Lopez v. Commissioner of Social Security

September 8, 2009


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


Pursuant to 42 U.S.C. § 405(g),*fn1 plaintiff Franklin P. Lopez ("plaintiff") seeks to reverse a determination of the Commissioner of the Social Security Administration ("Commissioner") that he was not disabled within the meaning of the Social Security Act ("the Act"). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, the decision of the Commissioner is reversed and the case is remanded for further proceedings consistent with this opinion.


The following facts are taken from the parties' submissions in connection with this motion and the record of the proceedings before the Social Security Administration ("SSA").

I. Non-Medical Evidence

A. General Background

Plaintiff was born on August 16, 1970. Transcript of the Administrative Record ("Tr.") at 105. Plaintiff has an eleventh grade education, which he completed in Equador. Id. at 112, 521. At the time of his hearing, plaintiff was married and had two children, ages four and 11, both of whom resided with him in Woodhaven, New York. Id. at 521-22. From 1991 until August 2002, plaintiff worked as a parking attendant. Id. This job required him to stand and walk for seven hours per day and sit for one hour per day. Id. at 115. He also wrote, typed or handled small objects for four hours per day, and frequently lifted 10 pounds as part of his job duties. Id. The heaviest weight plaintiff was required to lift on his job was 50 pounds. Id.

In August of 2002, plaintiff stopped working due to back pain and began to collect unemployment compensation. Id. at 522-23. On November 15, 2003, plaintiff was injured in a motor vehicle accident. Id. at 345. Plaintiff reported that as a result of the accident, he suffered pain in his neck and back. Id. at 523.

B. Plaintiff's Application For Benefits

In his June 4, 2005 application for disability benefits, plaintiff described his pain as "stabbing" and located in his lumbar region, neck, right leg, right heel, and arms. Id. at 137. Plaintiff stated that his condition affected his ability to lift, stand, walk, sit, climb stairs, kneel, and squat. Id. at 134. He could not drive, walk or socialize for any extended period of time due to pain. Id. at 139. However, in a typical day, he could drop off and pick up his daughter from school, walk no longer than 20 to 30 minutes, watch television, feed his dog, and watch over his youngest child until his wife came home. Id. at 129, 135. Plaintiff reported that he had difficulty sleeping at night due to numbness in his hand, arms, legs, and back, and that he iced his back and took medication daily. Id. at 130. Plaintiff also stated in his application that he could not cook because he was unable to stand for long periods of time. Id. at 131. However, he reported that he was able to perform light household dusting, drive a car, and shop for food and baby needs in 15 to 20 minute intervals. Id. at 132-33. Plaintiff did not report any problems with his memory or paying attention. Id. at 135-36.

C. Plaintiff's Testimony At Hearings Before The ALJ

Subsequent to the submission of his application for disability benefits, plaintiff was involved in a second motor vehicle accident on September 5, 2006. Id. at 307. At a hearing before the ALJ on January 14, 2008, plaintiff, through an interpreter, testified that the primary pain stemming from the two accidents was his back pain which extended down to his legs causing "needles and pins" in his heels. Id. at 523, 530. On the advice of his doctor, plaintiff stopped taking pain medication due to liver damage that the medication caused. Id. Plaintiff reported that he could sit for 30 minutes before needing to stand, and that he could stand for 30 minutes before needing to sit. Id. at 532. In addition, plaintiff testified that he could only walk for five to seven blocks before experiencing pain, that he could lift 20 pounds, and that he could drive for 15 to 20 minutes to and from his child's school. Id. at 532, 536. He stated that he had traveled to Equador to sell land two weeks before the hearing, as well as in September 2007 for two weeks, in 2005 for one week to visit family, and in 2003 before the car accident. Id. at 533-35.

D. Procedural History

Plaintiff applied for disability insurance benefits on June 4, 2005, claiming that he had been unable to work since November 15, 2003, due to a "lumbar spine impairment,*fn2 severe back pain, [and] herniated disk." Id. at 107-08. The claim was denied, and plaintiff filed a timely request for hearing before an administrative law judge ("ALJ"). Id. at 91. A hearing was held before ALJ Manuel Cofresi on January 14, 2008 and February 13, 2008. Id. at 480-516, 517-66. On March 18, 2008, ALJ Cofresi denied plaintiff's application for benefits, finding that plaintiff retained the capacity to perform a full range of sedentary work. Id. at 38. Plaintiff appealed the ALJ's decision to the Commissioner's Appeals Council. On October 9, 2008, the Appeals Council denied review, making the ALJ's decision the final determination of the Commissioner. Id. at 4-7. Plaintiff then commenced this proceeding seeking review of the Commissioner's determination.

II. Medical Evidence

During the relevant time period, plaintiff's treating physicians included Dr. John J. McGee, Dr. Giovanni Marciano, and Dr. Carlisle St. Martin. Plaintiff has also been examined by other doctors, including Dr. Richard W. Johnson and Dr. Joseph R. Merckling Jr., as well as acupuncturist Hong Zhu Wu. At the Commissioner's request, consulting physician Dr. Steven Calvino examined plaintiff, and medical expert Dr. Louis Lombardi opined on plaintiff's medical records.

A. Medical Evidence Relating To First Car Accident

On November 15, 2003, plaintiff was injured in a motor vehicle accident and brought by ambulance to the Jamaica Hospital Emergency Room. Id. at 151-53. Hospital intake records state that plaintiff complained of numbness, dizziness, tenderness, and lower abdomen and back pain on his left side, which radiated to his lower extremity. Id. at 152-53. Plaintiff rated his pain as a "8" on a scale from 1-10. Id. Examination revealed a normal gait and full muscle strength.*fn3 Plaintiff was diagnosed with musculoskeletal lower back pain. Id.

i. 2003-2005 Findings Of Dr. John J. McGee, Treating Physician, And Associated Practitioners

On November 19, 2003, plaintiff began initial acupuncture and chiropractic treatment at Advanced Medical Rehabilitation P.C. in Rego Park, New York. Id. at 235-40. In his consultative examination with chiropractor Joseph R. Merckling, Jr., on November 19, plaintiff complained of headaches, dizziness, neck stiffness and pain, shoulder stiffness and pain, left wrist pain, mid-thoracic pain, chest wall pain, lower back stiffness and pain radiating to the buttock and lower extremities, right leg pain, difficulty sleeping, and increased pain with any movement of the neck and back. Id. Dr. Merckling noted that plaintiff walked with a normal gait but had poor posture. Id. at 239. Cervical orthopedic,*fn4 lumbar, and pelvic testing resulted in positive results. Id. He diagnosed plaintiff with, inter alia, cervical, thoracic,*fn5 and lumbar sprain/strain.*fn6 Id. at 239. Dr. Merckling recommended that a Magnetic Resonance Imaging ("MRI")*fn7 of the cervical and lumbar spine, neurological testing, and muscle and vertebral range of motion*fn8 testing be performed, and that plaintiff begin a comprehensive rehabilitation program. Id. at 240. He further opined that plaintiff was completely disabled.*fn9


On December 10, 2003, Dr. John J. McGee performed a comprehensive medical evaluation of plaintiff at Advanced Medical Rehabilitation P.C. Id. at 370. Plaintiff complained of headaches, insomnia, visual disturbance, neck pain and stiffness radiating to both shoulders, middle and lower back pain radiating to the right leg with numbness and tingling, difficulty rising to walk after sitting, and difficulty standing, walking and bending. Id. Dr. McGee examined plaintiff, noting that he was in severe distress, anxious, had difficulty concentrating, and suffered from episodes of insomnia and flashbacks. Id. at 371, 227. Dr. McGee's physical examination revealed diminished range of motion and pain on extremes of motion in the cervical spine, lumbar spine, and both shoulders. Id. at 371-72. Dr. McGee also observed tenderness in plaintiff's thoracic spine, lumbar spine, and shoulders. Plaintiff's lower extremities had full range of motion and his reflexes and sensation were intact. Id. at 226. A straight leg test was positive on the right side at 35 degrees.*fn10 Id. at 372. Plaintiff's Spurling's Test was also positive.*fn11 Id. at 371.

Dr. McGee diagnosed 12 conditions including post-traumatic thoracic, cervical, and lumbar strain/sprain. Id. at 373. He recommended physical therapy, acupuncture, chiropractic treatment and follow-up diagnostic tests. Id. at 375. Dr. McGee concluded that plaintiff's symptoms were consistent with radiculopathy*fn12 and opined that plaintiff was completely disabled. Id. at 227-28. He recommended that plaintiff begin physical therapy and prescribed a cervical collar, lumbar support and heat pads. Id.

On December 16, 2003, Dr. McGee conducted a computer-assisted range of motion examination. Id. at 376-90. Each test, in each subcategory of the cervical and lumbar spine, revealed abnormal results. Id. Dr. McGee concluded that plaintiff suffered from a 35 percent impairment. Id. at 389. Plaintiff returned to Dr. McGee's office the following day for an x-ray examination of the spine. Id. at 204-05. Interpreting the xray, Dr. McGee observed spinal abnormalities including mild osteophyte formation,*fn13 moderate lumbar scoliosis at 10 degrees,*fn14 and irregular spinal curvature. Id. Dr. McGee further recommended that plaintiff begin biofeedback treatment to facilitate recovery and to control pain and muscle spasms.*fn15 Id. at 197.

That same day, interpreting an MRI of plaintiff's lumbar spine, Dr. McGee observed moderate disc herniation*fn16 and straightening of the lumbosacral spine due to muscle spasm. Id. at 182. A December 29, 2003 MRI of the plaintiff's shoulder interpreted by Dr. McGee revealed a small amount of joint effusion*fn17 and moderate swelling around the shoulder joint. Id. at 181. On an MRI taken January 6, 2004, Dr. McGee observed straightening of the cervical spine and a generalized bulge of the thecal sac of the spine.*fn18 Id. at 180.

On January 30, 2004, plaintiff was again evaluated by Dr. McGee. Id. at 189. Plaintiff complained of continual neck, back and shoulder pain. Id. Dr. McGee's examination showed decreased range of motion and tenderness in the spine and affected extremities, as well as muscle spasms. Id. at 189, 354. Spurling's Test and straight leg test were positive. Id. Dr. McGee prescribed a Transcutaneous Electrical Nerve Stimulation ("TENS") unit,*fn19 a whirlpool, massager, car seat, and Robaxin, a pain reliever. Id. at 190. Dr. McGee also ordered a somatosensory study ("SSEP") and an electromyography ("EMG") test,*fn20 which returned normal results. Id. at 191.

On April 15, 2004, Dr. McGee issued an "intermediate report" summarizing plaintiff's treatment to date, including chiropractic, acupuncture, physical therapy, and diagnostic testing. Id. at 169-79. Dr. McGee noted that plaintiff had failed to achieve a full recovery and opined that he had a permanent restriction in function and ability to perform daily activities. Id. at 354-55.

Dr. McGee issued "Disability Certificates" on October 13, 2004 and October 20, 2004, indicating that plaintiff had been "totally incapacitated" since November 13, 2003 due to cervical and lumbar strain. Id. at 168.

On December 17, 2004, Dr. McGee examined plaintiff for continuous complaints of neck and back pain. Id. at 166-67. Dr. McGee noted that plaintiff's daily activities continued to be affected due to pain, and that plaintiff was taking pain medications, Naprosyn and Flexeril. Id. at 166. Plaintiff continued to have muscle spasms and restriction in motion of the spine. Id. Dr. McGee opined that plaintiff was unable to work due to pain and that his disability had lasted for 12 months. Id.

Dr. McGee also completed a spinal impairment questionnaire provided by plaintiff's attorney. Id. at 159-65. He noted that plaintiff had daily neck and back pain due to cervical, lumbar and right shoulder sprain, spinal disc herniation, and disc bulge.*fn21 Id. at 159. In support of his diagnosis, Dr. McGee cited his clinical findings during plaintiff's treatment. Id. at 160-61. With respect to plaintiff's residual functional capacity ("RFC"),*fn22 Dr. McGee stated that plaintiff could sit for less than one hour and stand/walk for less than one hour in an eight-hour workday. Id. at 162. He also noted that plaintiff would have to move around every 15 minutes, was unable to lift or carry five pounds, and incapable of handling even low stress. Id. Dr. McGee opined that plaintiff was unable to perform a ...

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