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Malarkey v. Astrue

October 30, 2009


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


The plaintiff in this action, Daniel Malarkey, seeks review under 42 U.S.C. § 405(g) of a determination by the Commissioner of Social Security (the "Commissioner") denying his application for disability insurance benefits. Both parties consented to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c), and each has now moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. In the alternative, the plaintiff requests a remand.

For the reasons set forth below, the decision of the Commissioner is reversed and the case is remanded to the Social Security Administration for further proceedings consistent with this opinion.


A. Personal History

Daniel Malarkey is forty-seven years old. (R. at 38).*fn1 He completed an associate degree in electrical technology in 1987. (R. at 101, 360). From 1990 to 2005, Mr. Malarkey worked a variety of jobs, including as an electro-mechanical technician, apartment manager, maintenance worker, taxi driver, night auditor, and construction laborer. (R. at 64). As a night auditor at a hotel from December 2001 to March 2002, the plaintiff sat at a desk, balanced the books, and did "nothing physical." (R. at 129, 362).

For the next three years, Mr. Malarkey was employed as a laborer for a private firm working at the United States Military Academy. (R. at 129). His responsibilities included various construction work, including painting, masonry, and electrical work. (R. at 129, 361). While working on December 6, 2004, Mr. Malarkey slipped on some icy steps and fell on the right side of his buttocks, thereby injuring his right leg, his left knee, lower back, and right buttock. (R. at 253, 361, 368). The accident occurred just before the end of the work season, which did not resume for another "few months." (R. at 361). The plaintiff returned to work in April 2005 only to find that his condition had worsened and that he could not safely perform his construction duties. (R. at 361). Mr. Malarkey reports that he was laid off on May 20, 2005, when he went to his boss about his injury and informed him he would be seeking medical assistance. (R. at 96).

The plaintiff claims that his injury severely limits his physical abilities. He has difficulty staying seated because he has to change positions frequently. (R. at 58-59, 374). He can stand, but not for much longer than fifteen minutes at a time. (R. at 375). He can lift a gallon of milk (approximately eight pounds), but cannot stoop to get it. (R. at 375-76). In general, he cannot stoop, bend, or crawl. (R. at 376).

In the summer of 2005, Mr. Malarkey attempted to work again as a taxi driver, only to quit because of discomfort from sitting and his inability to lift heavy luggage into the trunk. (R. at 56, 367-68). Since then, he has lived at home without working. (R. at 358, 361, 367-68). He has difficulty taking care of his house, especially since his brother --- who had moved in with him to provide assistance -- moved out in November 2007. (R. at 53, 56, 378). The plaintiff struggles to perform routine tasks, including maintaining personal hygiene, doing laundry, carrying groceries, and cleaning. (R. at 54-58, 378). He spends most of his time at home. (R. at 54, 57-58).

The plaintiff's injury, however, is not completely debilitating. Mr. Malarkey has done light exercise in an attempt to rehabilitate himself, including walking on a treadmill. (R. at 54, 380). Although it is difficult for the plaintiff to drive longer than ten minutes, he has driven up to thirty miles at a time. (R. at 56, 379). He drives short distances to the post office and store on a daily basis, and he frequents the library.

(R. at 54, 58, 377, 379-80). He is able to shop for clothes and necessities. (R. at 57).

B. Medical History

On January 20, 2005, almost six weeks after his accident, Mr. Malarkey visited the emergency room at Keller Army Hospital at West Point. (R. at 253). He was experiencing continuous pain in his right buttock and leg, radiating to his foot, as well as pain and swelling in his left knee. (R. At 253) He had no lumbar*fn2 tenderness, but he did have tenderness in his right sacroiliac joint.*fn3 (R. at 253). His left knee was painful and had some effusion*fn4 in the medial joint space and postpatellar*fn5 region. (R. at 253). X-rays of his spine, left knee, and right hip were all considered normal. (R. at 226-28). Mr. Malarkey was prescribed Mobic and Tramadol. (R. at 253).

On April 13, 2005, Mr. Malarkey consulted with Dr. Mark S. Pfaff, of Orthopedics & Sports Medicine, PC, about his fall. (R. at 176-77). Dr. Pfaff observed that the plaintiff walked with a minimally antalgic gait*fn6 but did not use assistive devices for walking. (R. at 177). Dr. Pfaff did not find any evidence of radicular symptoms*fn7 or instability but did note tenderness and swelling in the left knee as well as mild pain from right hip rotation and tenderness in his right posterior gluteal region. (R. at 177). The doctor's diagnoses were a right hip contusion*fn8 and a left knee medial meniscus tear.*fn9 (R. at 177). Dr. Pfaff recommended that Mr. Malarkey take Motrin and offered a doctor's note for light-duty work, but the plaintiff declined, explaining that for financial reasons he only wanted full-duty work. (R. at 177). The doctor also noted that the plaintiff suffered from depression. (R. at 177).

Mr. Malarkey had another appointment with Dr. Pfaff on June 3, 2005, during which his symptoms seemed to have worsened. (R. at 174). Again, he walked with a mildly antalgic gait but with no assistive devices. (R. at 174). His lumbar spinal motion was restricted on all planes, and he experienced some tenderness in his paraspinal*fn10 and posterior right gluteal regions which radiated to his right thigh. (R. at 174). Raising his leg into a straight position elicited pain in his posterior gluteal region. (R. at 174). Dr. Pfaff's diagnoses this time were that Mr. Malarkey had sciatica,*fn11 hip pain, and a left knee medial meniscus tear. (R. at 174). Dr. Pfaff suggested physical therapy as well as an MRI scan of the left knee. (R. at 174-75). However, Mr. Malarkey explained that he could afford neither, having been denied Workers' Compensation benefits. (R. at 174).

Despite his continued inability to attend physical therapy, Mr. Malarkey returned twice in August to see Dr. Pfaff. (R. at 172-73, 209). The doctor's findings and recommendations remained essentially the same. (R. at 172-73, 209). However, during a visit on August 17, 2005, the plaintiff described thoughts of suicide. (R. at 209). Because of his suicidal ideations and financial inability to comply with treatment recommendations, Dr. Pfaff discharged Mr. Malarkey from his practice and referred him to another provider. (R. at 209).

On September 6, 2005, Mr. Malarkey met with Dr. Victor Khabie, an orthopedic surgeon at Somers Orthopedic Surgery and Sports Medicine Group. (R. at 249). Dr. Khabie noted that Mr. Malarkey walked with a "severely" antalgic gait, this time using a cane.

(R. at 249). Mr. Malarkey explained to Dr. Khabie that he had been placed on moderate disability. (R. at 249). He complained of pain in the right hip, lumbar region and left knee. (R. at 249). The lumbar spine area was tender and his left knee had restriction of motion, but x-rays showed no abnormalities. (R. at 250). Dr. Khabie concluded that Mr. Malarkey was suffering from lumbar disc herniation,*fn12 right hip internal derangement,*fn13 a possible osteochondral lesion,*fn14 and a left knee medial meniscus tear. (R. at 250). The doctor classified the plaintiff as "moderately disabled," and stated that Mr. Malarkey was unable to be employed in any type of labor involving lifting, climbing, stooping, or bending. (R. at 250). Dr. Khabie did indicate, however, that it would be "reasonable" for Mr. Malarkey to drive a taxi. (R. at 250).

On Dr. Khabie's order, Mr. Malarkey had MRI examinations on October 24, 2005. (R. at 152-154). The MRI of his lumbar spine revealed disc desiccation,*fn15 but no herniation or spinal stenosis.*fn16

(R. at 154). Additionally, an MRI of his left knee revealed a complex multi-directional medial meniscus tear as well as a "high signal" in the medial meniscus and capsule. (R. at 152). An MRI of the right hip was normal. (R. at 153).

During a follow-up visit in November, Dr. Khabie noted that the MRI revealed a torn left meniscus, and he recommended physiotherapy as well as arthroscopic knee surgery.*fn17 (R. at 248). Dr. Khabie discussed the surgery with Mr. Malarkey who, at the time, appeared willing to proceed. (R. at 248). They planned to schedule the surgery once it was authorized by the Workers' Compensation Board. (R. at 248). On the Workers' Compensation billing form for the MRI, Dr. Khabie checked the boxes on the form indicating that Mr. Malarkey was totally disabled from his regular duties. (R. at 193).

Mr. Malarkey saw another orthopedist, Dr. Yair Rubinstein, on January 30, 2006, for a second opinion. (R. at 245). Dr. Rubinstein noted that Mr. Malarkey did not appear to be in acute distress, but he walked with a mildly antalgic gait and reported persistent pain. (R. at 245). In addition, the doctor documented that Mr. Malarkey's left knee showed mild effusion but no significant swelling, although it was tender in three different areas. (R. at 245). The doctor's overall impression was that Mr. Malarkey had a left medial meniscus tear and chondromalacia*fn18 in the patella with hypermobility.*fn19 (R. at 245). Like Dr. Khabie, Dr. Rubinstein discussed arthroscopic surgery with the plaintiff, but Mr. Malarkey expressed a desire to undergo physical therapy first.

(R. at 246). Dr. Rubinstein referred him to physical therapy for his knee and prescribed Naprosyn. (R. at 246). Although the doctor thought it was reasonable for Mr. Malarkey to first try physical therapy, he stated, "This does not look like a repairable tear on the MRI." (R. at 246).

A month later, Mr. Malarkey had another visit with Dr. Rubinstein. (R. at 244). This time, Mr. Malarkey reported that he was attending physical therapy and that his knee was feeling much better. (R. at 244). He said that taping the knee was helpful and asked Dr. Rubinstein to prescribe a brace, which he did. (R. at 244). Although Mr. Malarkey's condition had improved, Dr. Rubinstein still anticipated surgery if the knee deteriorated again. (R. At 244). Dr. Rubinstein indicated on a Workers' Compensation billing form for this appointment that Mr. Malarkey was still totally disabled from regular work. (R. at 194).

Mr. Malarkey continued to visit Dr. Rubinstein over the next several months on average once a month. (R. at 304-11). During this time, Mr. Malarkey reported increasing pain in his right hip, often radiating to his lower extremities. (R. at 305-11). Although physical therapy did appear to be relieving his knee pain, it did not help the plaintiff's hip. (R. at 310). Dr. Rubinstein then began to administer cortisone injections into the hip. (R. at 309). The injections minimized Mr. Malarkey's hip pain but not the pain radiating down his right leg, leading the doctor to suspect a radiculopathic*fn20 problem that would call for an orthopedic spine consultation. (R. at 308). Thus, Dr. Rubinstein referred the plaintiff to Dr. Barry Krosser in the same practice. (R. at 307-08).

Mr. Malarkey met with Dr. Krosser on May 9, 2006. (R. at 307). The doctor concluded that Mr. Malarkey indeed had lumbar radiculopathy and recommended a lumbar steroid injection. (R. at 307). The doctor discussed this with the plaintiff and made a plan to request authorization for coverage of the injections by a pain management doctor. (R. at 307).

On May 25, 2006, the plaintiff sought treatment from St. Luke's Cornwall Hospital. (R. at 159). The treating physician noted that Mr. Malarkey had hip and knee pain, with pain in his right leg radiating to his foot. (R. at 159). The plaintiff received a cortisone injection to the right hip but stated he did not want a spinal ...

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