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King v. Astrue

October 14, 2009

CORINTH KING, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

Corinth King sues the Commissioner of Social Security Michael Astrue under 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that she is not entitled to a period of Disability and Disability Insurance ("DDI") benefits under Title II of the Social Security Act ("the Act"). The parties have cross-moved for judgment on the pleadings, the Commissioner seeking affirmation of his final decision that King is not disabled and King seeking a reversal. For the reasons that follow, the Commissioner's motion is denied and King's motion is granted. The case is remanded solely for the calculation of benefits.

BACKGROUND

A. King's Claim of Disability

Corinth King was born in New York City on July 8, 1960, and is now nearly 50 years old. King completed the tenth grade and did not obtain her GED. She is a single mother of two daughters. The older one was born when King was 15yearsold. In 1980, King began work as a traffic agent for the New York City Department of Transportation, a position she held for 17 years. While employed as a traffic agent, King suffered injuries to her shoulder from directing traffic and carpal tunnel syndrome from writing traffic summonses. In 1984, she was hit by a vehicle while working and was out of work for approximately nine months. In 1992, King was in a car accident on the FDR Drive and suffered injuries to her shoulder, bleeding in her stomach, bruising on her chest and a ruptured pelvis. She was out of work for nine months. In February 1993, King was struck in the eye by a motorist who was upset with King's traffic direction. King was out of work for four months as a result.

In October 1995, King was working and was forced to jump out of the way of a moving bus. In the process, King injured her left foot. She went to work several times after the incident, but could not work for a consistent period of time without pain. After about a year of working with her injury, King's supervisor told her that she could not keep coming to work with her injury. King told her supervisor that she had to continue working in order to pay for her elder daughter's college tuition. Thereafter, two of King's supervisors informed King that they could not have her working with her injuries because if something else happened to her they would be at fault. As a result, they forced King to stop working. At the time of her application, King stated that she had pain in her left hand and wrist, in her forearm, upper arm and shoulder as well as in her left foot. She stopped working as of January 1997.

At the time of King's hearing in April 2006, King was living with her younger daughter. King is unable to walk more than a block and a half in New York City without pain. Prior to her injuries, King was able to rollerblade, go for bike rides, to the movie theater and baseball games with her youngest daughter. King is unable to participate in any of these activities as a result of her injuries.King can no longer walk the five blocks to church and is only able to attend church (which she does once a month) by taking the bus or taxi. She is unable to travel anywhere on the subway.

She cannot lift or carry more than five pounds and cannot sit for more than five or six minutes at a time without feeling tension in her back. She testified that she can stand for only seven minutes at one time and cannot hold a cup for a long period of time without it sliding out of her hand. King experiences pain at a level of seven on a ten point scale in her left and right ankle, left and right knee, back, buttocks, neck, shoulders and hands.

B. Procedural History

On April 10, 1997, King applied for DDI benefits, claiming that she was disabled due to injuries to her left foot when she had to jump out of the way of the speeding bus in October 1995. R. 18, 182. It was the first application she filed with the Social Security Administration. R. 182. Her application was denied. R. 18. King then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 22, 1998. R. 18. ALJ David Z. Nisnewitz found that King was not disabled. R. 18. King subsequently filed a request for review with the Appeals Council. R. 18. On January 5, 2001, the Appeals Council vacated the hearing decision and remanded the case for further proceedings. R. 18. Another hearing was held on May 15, 2001 before ALJ Nisnewitz. R. 18, 26. On June 21, 2001, ALJ Nisnewitz again found that King was not disabled. R. 19, 405. On December 12, 2002 the Appeals Council denied King's request for review. R. 405.

On April 20, 2004 Judge Nicholas Garaufis remanded King's case for further administrative proceedings and directed that a different ALJ be assigned. In an order dated June 9, 2004, the Appeals Council remanded the case for proceedings before ALJ Manuel Cofresi. R. 405. On January 23, 2007, ALJ Cofresi denied the claim. R. 405. In July 2007, the Appeals Council again remanded the case for further proceedings. R. 405. A hearing was held on April 30, 2008. R. 405. On June 25, 2008, ALJ Cofresi found that King was not disabled from the period January 15, 1997 through June 30, 2002. R. 407. Specifically, ALJ Cofresi found that King had the residual functional capacity to perform the full range of sedentary work. R. 409. On January 22, 2009, the Appeals Council affirmed ALJ Cofresi's decision and extended his findings from June 30, 2002 through December 31, 2002.*fn1

King filed a second complaint in this district on March 25, 2009, alleging that the Commissioner's decision is not supported by substantial evidence and that she is disabled. The Commissioner now moves for affirmation of his final decision that King is not disabled and therefore is not eligible for benefits. In a cross-motion, King seeks a reversal of the Commissioner's decision and a remand solely for the calculation of benefits. Oral argument on the motions was held on October 2, 2009.

C. Medical Evidence

1. Dr. Louis C. Rose -- Treating Orthopedic Surgeon

Dr. Louis Rose, a board certified orthopedic surgeon, began treating King on March 6, 1996, for complaints of pain in her left ankle. R. 249. Rose treated King approximately every six weeks until at least 2002 and continued to see her until at least 2004. R. 1524. After an examination in March 1996, he reported that there was moderate swelling along the lateral ligament complex of King's ankle, along the medial aspect of the posterior to the medial malleolus as well as along the dorsal aspect of the proximal mid foot. Id. Dr. Rose determined that King was unable to come to neutral in dorsiflexion and lacked approximately five degrees of terminal dorsiflexion. Id. Rose also reported tenderness in various areas around King's leg. Rose's impression was that King suffered from lateral ligament complex disruption with possible disruption of a portion of the deltoid ligament. R. 250. In October 1996, an MRI of King's left ankle revealed an abnormal amount of fluid surrounding the medial ankle tendons, extensive tenosynovitis, and a possible tear of the tendon. R. 255.

In April 1997, King again saw Rose, who observed severe swelling along the lateral ligament complex, residual tenderness and decreased range of motion throughout. R. 248. His impression was that King suffered from status post lateral ligament complex rupture. Id. This impression remained the same through August of 1997, at which point Rose indicated King suffered from tenosynovitis of the flexor hallux longus as well.*fn2 R. 243-47. In August 1997, another MRI of King's ankle again revealed abnormal fluid in the ankle as well as flexor hallux longus tenosynovitis, confirming Rose's earlier diagnosis.

In September 1997, Rose indicated that, in addition to her previous symptoms, King had a posterior tibial tendon rupture in her right ankle. R. 242. At this time, Rose prescribed 600 mg of Daypro. Id. In December 1997, Rose examined King again. R. 378. Rose's impression was that King was suffering from post lateral ligament complex rupture with tenosynovitis of the hallux longus of the left ankle with possible intra-articular injury, possible tibial tendon rupture of the right ankle and possible internal derangement of the left knee involving the medial meniscus with sural nerve entrapment secondary to a transfer lesion. Id. In January 1998, Rose recommended, in addition, arthroscopic authorization for her left ankle and arthroscopic authorization for her left knee. R. 376.In February, March, April and June 1998, Rose's impressions of King's condition remained unchanged. R. 305-06, 369, 373-75.

In August 1998, Rose indicated that King's condition was essentially unchanged, except that King also suffered from L5 radiculopathy manifested into the left lower extremity.*fn3 R. 362. EMG results from July 1998 confirmed this diagnosis. R. 365. Rose's impressions in September 1998, October 1998, November 1998, January 1999, March 1999, May 1999, August 1999 and October 1999 after examining King remained essentially the same. R. 351-61. Rose generally advised that King continue to use a heating pad as well as avoid forceful or strenuous activity. Id., 362.

In May 2001, Rose examined King again. R. 541. Rose indicated that King was suffering from significant pain in both ankles as well as in her left knee. Id. Rose stated that King was unable to walk more than two or three blocks or stand for any prolonged amount of time without experiencing pain. R. 541. Rose determined that King was "totally disabled . [and] unable to work at any job currently available to her in the marketplace." Id.

On February 21, 2002, Rose performed arthroscopic surgery on King's left knee. R. 676, 703-04. In March 2003, Rose examined King and observed that King had difficulty standing from a seated position. R. 674. Rose's impression was that King was suffering from lateral ligament complex sprain of the left ankle, right ankle sprain which continued to be symptomatic and lumbar radiculopathy secondary to multiple bulging discs. R. 676. In June 2003, Rose recommended that King wear air casts on both ankles. R. 678. In October 2003, Rose determined King continued to suffer from the same conditions. R. 684. He also stated that King should avoid any forceful or strenuous activities and that she should be cautious while walking on slippery or uneven surfaces. R. 684. In 2004, Rose performed arthroscopic surgery on King's left ankle and foot. R. 1550, 1569.

In November 1998, Rose completed a physical residual functional capacity questionnaire regarding King. R. 344-49. Rose categorized King's pain as chronic and stated that the pain worsens with a change in the weather and with any extended activity. R. 344. Rose stated that King could walk no more than two blocks without rest, could sit no more than 20 minutes and stand no longer than 15 minutes at one time and that she should not sit or stand more than two hours in one work day. R. 346. Rose indicated that King could carry no more than ten pounds. R. 347.

On May 28, 2003, Rose completed a bilateral manual dexterity impairment questionnaire. R. 389-94. Rose indicated that King should never lift or carry more than ten pounds. R. 391. Rose indicated that he believed King's symptoms and functional limitations would persist for at least an additional 12 months. R. 392-93.

In 2004, Rose completed a multiple impairment questionnaire with regard to King. R. 663. Rose rated King's level of pain at an eight on a ten point scale. R. 665. Rose indicated that King should not sit, stand or walk for more than two hours every day and that she could not sit continuously in a work setting. R. 665. ...


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