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Simone v. Astrue

September 16, 2009


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



Plaintiff Stephen Simone commenced this action against Michael Astrue, the Commissioner of Social Security ("defendant" or "Commissioner"), seeking review of defendant's decision denying his claim for Social Security disability benefits. Plaintiff claims that he was disabled following an accident that caused injury to his neck, back, knees, and shoulder, which he alleged prevented him from performing any work. Now before the Court is a motion by defendant 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 stated below, defendant's motion is denied and the matter is remanded to the Commissioner for further proceedings consistent with this decision.


The following facts are drawn from the record of proceedings before the Commissioner and the parties' submissions in connection with this motion. The record includes medical reports and diagnostic tests submitted to the Administrative Law Judge ("ALJ"), as well as additional evidence submitted by plaintiff's counsel to the Appeals Council following the ALJ hearing, including deposition testimony from two of plaintiff's doctors.

A. Plaintiff's Condition Non-Medical Evidence

Plaintiff is 41 years old. Transcript of Administrative Record at 25 ("Tr."). He attended school through the tenth grade, which he completed in 1984. Tr. 53. In his application for disability benefits, plaintiff reported that he worked as a cable installer from 1988-1990, a car dealer from 1991-1998, a fast food cook from 1998-2002, and a construction worker in 2004. Tr. 49. Each of these jobs required plaintiff to walk or stand for several hours a day, and the two latter jobs required heavy lifting. Tr. 50, 75, 74.

On September 14, 2004, plaintiff while employed in construction was injured on the job at a construction site when a wood column fell on his head. Tr. 49. The Worker's Compensation Board of New York awarded plaintiff benefits in connection with this injury. Tr. 288-89.

Plaintiff reports that, as a result of the accident, he suffers from pain in his neck, lower back, knees, and right shoulder when he looks up, moves too far, sits too long, or walks down stairs. Tr. 89. At times his pain lasts for days. Tr. 90. His hands grow numb. Tr. 86. Plaintiff testified that he suffers headaches daily that sometimes last the entire day. Tr. 378. On occasion sneezing or coughing causes "terrible pain" in his neck, and he has difficulty sleeping at night. Tr. 378, 386. Plaintiff takes pain killers and uses heating pads and ice to relieve the pain. Tr. 91, 91. Plaintiff states that he cannot kneel, squat, or look up, that he can stand for only five or ten minutes at a time, and that he cannot lift anything without triggering pain. Id. He needs assistance tying his shoes and does everything slowly. Tr. 59. He has difficulty going up and down stairs, raising his arm to shave, and raising himself from the toilet.

Tr. 83, 86. His wife performs all of the household chores. Tr. 59. Plaintiff leaves the house four days a week, engages in light shopping once a week, attends doctor's appointments, and helps take care of his children. Tr. 82-85. He drives a car very rarely and only for short distances. Tr. 378, 385.

Plaintiff testified that he has received epidural injections to treat his pain. Tr. 380. He visits a chiropractor once a week, Dr. Joseph Fricano, who performs adjustments. Tr. 383. Plaintiff further testified that although surgery was recommended for his neck pain, he has chosen not to undergo the surgery for financial reasons and because he fears the risks associated with neck surgery. Tr. 380.

Medical Evidence

Plaintiff's primary physicians are Dr. Igor Stiler, a neurologist, who has treated plaintiff's back and neck, and Dr. Daniel Wilen, an orthopedist, who has treated plaintiff's shoulder and knees. Plaintiff has also regularly seen Dr. Joseph Fricano, his chiropractor. In addition, reports from the following doctors who have examined plaintiff are in the record: Dr. Burton Diamond and Dr. David Benatar, who saw plaintiff in connection with his workman's compensation claim, Dr. David Zelefsky, and Dr. Roma Raja-Nepominiashy. The assessments by plaintiff's doctors and the workman's compensation board doctors differ markedly. In the following sections, I describe the various diagnostic exams made of plaintiff's injuries, the assessments by Dr. Stiler and Dr. Wilen, and the assessments of the remaining doctors.

1. Diagnostic Exams

Following his construction accident, plaintiff visited Staten Island University Hospital, where a CT scan of the lower back showed no fracture or dislocation and no blockage of the nerve pathways in the spine. Tr. 119, 120. However, the scan did reveal disc bulges*fn1 between the bottom three vertebrae. Id. A CT scan*fn2 of the neck also showed no fracture or dislocation, and no evidence of soft tissue swelling. Tr. 122. The scan did reveal mild to moderate narrowing of the nerve passage on the right side between two vertebrae. Tr. 123. There was no evidence of brain damage. Tr. 124. The x-rays were reviewed by a second doctor, who came to the same conclusions. Tr. 117-118.

An October 19, 2004 MRI of plaintiff's cervical spine showed a herniated disc and a disc bulge in the lower neck, which pressed on the membrane surrounding the spinal cord. Tr. 115. There was no displacement of the vertebrae or compression fractures. Tr. 115. Plaintiff also had an MRI of the lumbar spine, which revealed straightening of the spine and evidence of damaged discs between two of the vertebrae with a disc bulge that appeared to abut one of the nerve roots. Tr. 116.

On March 2, 2005, plaintiff underwent MRI scans of his knees and right shoulder, which were reviewed by Dr. Stephen Herskowitz. Tr. 110. Dr. Herskowitz reported that plaintiff's left knee showed minimal swelling around the joint and a Baker's cyst,*fn3 but no evidence of a tear and no problems in the soft tissues. Tr. 110. However, another doctor who reviewed the MRIs, Dr. Chess, saw evidence of a tear. Tr. 108. Dr. Herskowitz reported that the MRI of plaintiff's right shoulder showed impingement of the rotator cuff, but that it was not serious. Tr. 111. He also found minimal joint degenerative disease,*fn4 but no evidence of joint effusion or a rotator cuff tear. Id. The other reviewer, a Dr. Chess, also found no evidence of a rotator cuff tear. Tr. 109.

2. Dr. Stiler

Dr. Igor Stiler first examined plaintiff in September 2004. Tr. 127-29. Dr. Stiler noted that plaintiff's lower back pain was relieved with rest and Advil, and that plaintiff was taking no medicine for hypertension, despite the indications in his medical history that he should do so. Tr. 127. Plaintiff's muscle groups showed normal strength except in his right bicep. Tr. 128. Plaintiff's knees had full range of motion, but could only be moved with pain, and emitted popping sounds. Id. Plaintiff's neck, lower back, and shoulder were tender and also exhibited a decreased range of motion. Id. A sensory examination revealed decreased sensation in the areas of skin connected to the nerves of the lower back. Id. Dr. Stiler diagnosed post-concussion syndrome,*fn5 cervical and lumbar radiculopathy,*fn6 post-traumatic cephalgia,*fn7 internal derangement of the right shoulder,*fn8 and knee pain. Tr. 129. He scheduled plaintiff for physical therapy three times a week. Id.

In December 2004, Dr. Stiler again examined plaintiff. Tr. 125-26. Dr. Stiler observed tenderness and spasm*fn9 in the discs of the neck and lower back, tenderness and reduced motion in the right shoulder, and reduce sensation in the right upper and lower extremities. Id. The exam found no muscle problems. Tr. 126. Dr. Stiler concluded that plaintiff had cervical and lumbar radiculopathy with derangement of the right shoulder and knees and deemed plaintiff "totally disabled from working." Id.

In March 2005, Dr. Stiler observed tenderness and spasm in the cervical and lumbar spine and tenderness in the right shoulder. Tr. 105-06. Dr. Stiler found diminished sensation in the upper and lower right extremities. Tr. 106. He found no problems with muscle control or strength. Id. Dr. Stiler stated that plaintiff had a "total disability." Id. at 106.

In May 2005, Dr. Stiler performed a nerve conduction study*fn10 and an electromyography study ("EMG study")*fn11 on plaintiff's lower and upper extremities. Tr. 153-56. The results of the lower extremities study were normal, revealing no evidence of compression or perhipheral neuropathy.*fn12 Tr. 155. The study of the upper extremities showed mild acute radiculitis*fn13 in the neck. Tr. 159. The test results were otherwise normal.

In November 2005, Dr. Stiler interpreted an ultrasound of plaintiff's cervical spine, which revealed inflamation and fibrous growth in the ligaments. TR. 195-96. Dr. Stiler also reviewed an ultrasound of the muscle between the spine and the shoulder,*fn14 which showed moderate to severe muscle degeneration and spasm.*fn15

Dr. Stiler examined plaintiff in January and February 2006, and found normal sensory responses and good muscle strength and control and flexation. Tr. 169, 253. He observed tenderness and spasm in the cervical and lumbar spine. Id. Dr. Stiler again stated that plaintiff had a total disability, and recommended epidural injections for pain. Tr. 169, 254.

On August 23, 2006, Dr. Stiler again noted tenderness and spasm in plaintiff's cervical and lumbar spine, knees, and shoulder. Tr. 269-70. He recommended that plaintiff continue to receive injections for pain, and stated that he would refer plaintiff to a neurosurgeon if the injections did not work. Id. Dr. Stiler stated that plaintiff had not yet reached "maximal" improvement. Id. Dr. Stiler twice repeated that plaintiff was totally disabled from working. Id. One month later, on September 30, 2006, Dr. Stiler stated that plaintiff had "a moderate to marked permanent partial disability." Tr. 273. Plaintiff's muscle strength, reflexes, and sensory responses were normal. Tr. 272. Dr. Stiler again found tenderness and spasm in the cervical and lumbar spine and ...

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