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Larkins v. Astrue

September 24, 2009


The opinion of the court was delivered by: Gershon, United States District Judge


Claimant Christine Larkins brings this action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits. Claimant and respondent each move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

After filing for disability benefits on April 1, 1997, claimant received a hearing before Administrative Law Judge ("ALJ") David Nisnewitz on June 22, 1998. On August 17, 1998, the ALJ determined that claimant was not disabled. The Appeals Council denied review, but later vacated that order so that it could consider additional reports by claimant's doctors. Upon reconsideration, the Appeals Council again denied review on October 31, 2001.

After claimant appealed the action to this court, another judge of this court affirmed the ALJ's decision. The Court of Appeals for the Second Circuit vacated that decision and ordered that the case be remanded to the ALJ in order to develop the record to determine (i) whether claimant is impaired within the meaning of Listing 11.09 or, if not, (ii) whether claimant retained the residual functional capacity to perform sedentary work. The Circuit also instructed the ALJ to resolve the inconsistencies between neurologist Dr. Charles Bagley's, March 4, 1998, report and Dr. Bagley's other reports together with neurologist Dr. David Rabinovici's 1999 report.

On remand, a second administrative hearing was held on May 3, 2006, before ALJ Nisnewitz, who again found that claimant was not disabled within the meaning of the Act. Then, claimant filed the present action challenging the ALJ's determination that claimant possessed the residual functional capacity to perform certain available jobs.*fn1


The administrative record contains the following facts.

Claimant's Background

Claimant, born in 1941, completed high school and some college and then worked at Verizon (or its predecessors) for over thirty years. She was employed as a trunk assignor (locating telephone circuits on lines via computer and connecting one circuit to another), as a circuit designer and as a supervisor of trunk assignors. Claimant stopped her work with Verizon in June 1995 when she temporarily lost vision in her right eye and could no longer perform her duties, which required the use of a computer. Although claimant regained her sight, she alleges that she could not return to work because of disabling symptoms related to her multiple sclerosis (or, "MS").*fn2 Claimant resides with her son and his wife.

Medical Evidence

In June 1995, claimant began receiving treatment from neurologist Dr. Charles Bagley of the Queens-Long Island Medical Group ("QLIMG"). Dr. Bagley noted claimant's complaints: blurred vision, lack of balance, urinary incontinence and weakness on her left side. Dr. Bagley also completed a neurological exam which demonstrated abnormalities, including brisk tendon reflexes, bilateral ankle clonus*fn3 and a Marcus Gunn pupil*fn4 in the right eye. One month later, in July 1995, an MRI brain exam revealed abnormalities consistent with multiple sclerosis.

Dr. Bagley's notes from a November 6, 1996, examination, reflect claimant's paresthesias of the hands, slurred speech and "a lot" of fatigue in her legs. Dr. Bagley's notes from a March 11, 1997, examination reflects claimant's complaint of "chronic fatigue" as well as continued paresthesias, clumsiness of the upper extremities and weakness of the legs. According to Dr. Bagley, these complaints correlated with abnormalities on the neurological exam, including hyperflexia*fn5 and bilateral Babinski*fn6 signs. Dr. Bagley noted that claimant's "fatigue was the most disabling symptom as it often is in this condition."

As of April 30, 1997, Dr. Bagley opined, based on his examinations between 2005 and 2007, that claimant could perform only work-related physical activities that involved standing or walking for less than two hours per day and sitting less than six hours per day. On November 12, 1997, Dr. Bagley completed a "Residual Functional Capacity Form," based upon these same examinations, opining that claimant could perform only work-related physical activities that included sitting for three or less hours and standing and walking for less than two hours per day. Dr. Bagley further opined that claimant could occasionally lift between five and ten pounds and that claimant had difficulties handling low levels of stress. In addition, Dr. Bagley stated that an MRI showed brain lesions that were consistent with MS.*fn7

An examination by claimant's general physician, Dr. Vanita Kaul, also of the QLIMG, dated January 6, 1998, indicates that claimant continued to complain about weakness and fatigue.

A form entitled "Request for Neurological Information From Any Cause" completed by neurologist Dr. Bagley, dated March 4, 1998, indicates that Dr. Bagley had again observed both bilateral ankle clonus and bilateral Babinski signs. Dr. Bagley continued to opine that claimant's major limitation is "chronic fatigue" and that her ability to walk "is limited by fatigue." However, Dr. Bagley indicates that her ability to sit was not significantly impaired at that time and that claimant could sit eight hours without interruption.

Claimant visited Dr. Bagley multiple times during 1998 and Dr. Bagley's notes indicate a waxing and waning of claimant's symptoms. During an April 1998 visit, Dr. Bagley noted that claimant felt her legs were "stronger"; however, by June 1998, Dr. Bagley again noted claimant's fatigue, weakness, blurred vision and periodic incontinence.

On July 1, 1998, Dr. Bagley completed another "Residual Functional Capacity Questionnaire." He indicated that claimant suffered from an unsteady gait, blurred vision and chronic fatigue correlated by "hyperflexia" and "babinskis." With respect to claimant's capacity for work, Dr. Bagley opined that claimant could sit continuously for 45 minutes and could stand continuously for one hour, but that claimant could sit and stand/walk only for less than two hours each during each work day. Dr. Bagley further opined that claimant's condition would require her to take unscheduled breaks during each work day, each hour for at least fifteen minutes. Dr. Bagley concluded that claimant's prognosis for multiple sclerosis was "fair." Notably, Dr. Bagley did not consider claimant to be a "malingerer." Finally, Dr. Bagley opined that claimant had been disabled since July 1, 1997.

On February 3, 1999, a medical examination was conducted by neurologist Dr. David Rabinovici. Dr. Rabinovici received claimant's complaints that she was experiencing dizziness, memory and concentration difficulties, "constant problems with balance" and frequent numbness in both her hands as well as both of her legs. Claimant also complained of "constant weakness in both legs . . . constant problem with urinary incontinence and constipation, and a constant problem with gait."

Upon physical examination, Dr. Rabinovici observed weakness in claimant's lower left extremities and a difficulty extending or flexing portions of her left hip and leg. Dr. Rabinovici also observed claimant's unsteady gait, which necessitated the use of a cane. Dr. Rabinovici did not observe problems with claimant's memory or speech, although he did observe a mild overshoot on the right hand/finger to nose test. After physical examination and review of claimant's medical records, Dr. Rabinovici concluded that claimant "appears to have a relapsing form of multiple sclerosis [and claimant] appears to be totally disabled." He further found that claimant's prognosis was "poor."

On February 17, 1999, Dr. Bagley noted that claimant's only complaint concerned her left leg and that her fatigue was "much improved." On February 9, 2000, claimant reported no new complaints to Dr. Bagley. On October 3, 2000, however, Dr. Bagley reported a mild exacerbation of claimant's multiple sclerosis, including claimant's unsteady gait, paresthesias in her left leg and in both arms, worsening of blurred vision, fatigue and urinary incontinence. A Marcus Gunn pupil and difficulty with heel to heel walking were observed during a neurological exam.

On May 30, 2001, following a medical examination, Dr. Bagley completed a "Multiple Sclerosis Impairment Questionnaire." Dr. Bagley indicated findings of fatigue, balance problems, unstable walking, weakness in the left arm and leg, blurred vision, bladder problems and sensitivity to hearing. Dr. Bagley opined that the "fatigue is most limiting symptom" and that claimant's prognosis had deteriorated to "poor." Dr. Bagley also opined that claimant could not perform repetitive activity of "any kind", was incapable of handling "even 'low stress,'" and that her condition frequently interfered with ability to concentrate.

Dr. Bagley reported that, in a competitive work environment, claimant could sit only for one hour and stand/walk for an hour or less during an eight hour work day. Further, claimant's condition required her to break every thirty minutes, in order to move about, and she would likely be absent from work "more than three times per month."

According to claimant, Dr. Bagley left the QLIMG in either 2001 or 2002. However, "Progress Notes" by Dr. Kaul indicate that claimant continued to seek medical treatment through the QLIMG at least eight times during 2002 and 2003. While references to "MS" are scattered throughout claimant's medical records for 2002 and 2003, the notes are substantially illegible.

Claimant's next examination by a neurologist occurred on May 17, 2004. Dr. Haldea of the QLIMG received claimant's complaints that she had weakness in her leg and urinary incontinence, but noted that claimant's multiple sclerosis was "stable." On examination, Dr. Haldea observed a Marcus Gunn pupil in the right eye, hyperflexia and a dragging of the left leg.

On November 10, 2005, neurologist and MS specialist Dr. Brian R. Apatoff reviewed claimant's medical records and performed a "detailed neurological exam."*fn8 Dr. Apatoff observed many symptoms previously noted by Dr. Bagley, including paraparesis, weakness in the legs, an unsteady gait and bilateral Babinski responses. Dr. Apatoff also noted claimant's "difficulties with bowel and bladder dysfunction," right arm weakness, reduced dexterity in the upper extremities and that "cranial nerve testing reveals an optic neuropathy with disc pallor, and involuntary eye movements."

Dr. Apatoff opined that "[i]t is highly probable that Ms. Larkins was unable to work in a normal and full and unlimited capacity since her diagnosis in June 1995."

On November 15, 2005, neurologist and MS specialist Dr. Andrew Sylvester reviewed claimant's medical records and conducted an "independent medical examination."*fn9 Dr. Sylvester also observed many of the symptoms previously noted by Dr. Bagley, including moderate weakness in the lower extremities, Babinski responses "indicating nerve damage to nerves ...

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