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Harris v. Astrue

November 16, 2009

HAROLD HARRIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff, Harold Harris, ("Plaintiff") brings this action pursuant to 42 U.S.C. §405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied his claim for disability benefits. Presently before the Court are Plaintiff's and Defendant's motions for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). Both parties seek reversal of the Commissioner's decision. Plaintiff, however, seeks a remand solely for the calculation of benefits while Defendant seeks remand for rehearing pursuant to the fourth sentence of 42 U.S.C. § 405(g). For the reasons discussed below, the decision of the Commissioner is reversed and the matter is remanded for rehearing pursuant to the fourth sentence of 42 U.S.C. §405(g).

Background

I. Procedural Background

Plaintiff applied for Social Security Disability and Supplemental Security Income benefits on February 1, 2006 alleging he became disabled on March 7, 2005. (Tr.14, 22).*fn1 The claims were denied on March 10, 2006. (Id. 14.) Plaintiff filed a timely request for a hearing by an administrative law judge ("ALJ") on May 11, 2006. (Id. 14, 28.) On October 16, 2007, Plaintiff appeared with counsel at the administrative hearing held before ALJ Andrew S. Weiss. (Id. 204-18.)

ALJ Weiss issued a decision November 28, 2007, denying Plaintiff's claims. (Tr. 20-21.) ALJ Weiss found that Plaintiff was unable to perform his "past relevant work" but was not disabled because he had the residual functioning capacity ("RFC") to perform light work. (Id.) Thereafter, Plaintiff requested the Appeals Council ("AC") to review the decision. (Tr. 10.) By notice dated July 10, 2008, the AC denied Plaintiff's request for review, rendering the ALJ's decision the "final decision" of the Defendant. (Id. 2-7.)

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born September 6, 1953 and was 54 years old at the time of the hearing. (Tr. 20, 22, 44.) He has a limited education, having completed only the 10th grade. From 1986 until 2005, Plaintiff worked at Brunswick Hospital as a dietary aide. (Id. 36, 47, 48, 55.)

Plaintiff testified he lived with his fiancee at the time of the hearing. (Id. 206.)

Plaintiff testified that on March 7, 2005, he slipped at work as a result of a "busted pipe" and injured his back. (Tr. 210.) He has not worked since his injury. (Id. 212.) Plaintiff receives Worker's Compensation benefits in the amount of $156.00 every two weeks. (Id. 211.)

Since his injury, Plaintiff has been going to physical therapy three times a week for two years, for forty-five minutes to an hour each visit. (Tr. 207.) Plaintiff testified to some improvement from physical therapy. (Id. 208.) According to Plaintiff, he is able to walk around but he experiences pain. (Id.) He does not drive and uses public transportation to consult with his lawyer. (Id. 208-09). He walks to and from physical therapy because it is a "five-minute walk" from his home. (Id.).

Plaintiff's daily activities include playing cards, having conversations and going for walks with his fiancee. (Tr. 214.) Plaintiff indicated he and his fiancee would walk for about a mile, although he clarified that after a half mile he experiences pain. (Id. at 214-15.) He also goes shopping with his fiancee, although he does not do any shopping because of his back pain. (Id. 212.) Plaintiff reports that he is unable to help with chores around the house. (Id.) According to Plaintiff, he is only able to lift five pounds before his back begins to bother him. (Id. 213.) He can sit for "awhile" and stand for about fifteen to twenty minutes before he experiences pain. (Id. at 213-15.) He takes medications two to three times a day to relax the muscles in his back. (Id.) In addition, he takes pain medication as needed, which is about twice a week. (Id. 213).

B. Medical Evidence

1. Dr. Michael Carroll - Orthopedic Surgeon

Shortly after his accident, Plaintiff started seeing Dr. Michael Carroll, a board certified orthopedic surgeon. He was referred to Dr. Carroll by his family doctor. (Tr. 93-94.) Dr. Carroll first examined Plaintiff on March 28, 2005. His examination revealed tenderness of the mid-lumbar spine with pain on forward flexion at 45 degrees; straight leg raising and neurologic examination were both normal. (Id. 94, 97.) X-rays taken from three views of the lumbosacral spine showed minimal degenerative changes of the lumbar spine. (Id. 97.) He diagnosed an acute lumbar sprain with possible disc injury and prescribed physical therapy and Naprosyn. (Id.)

Plaintiff was examined by Dr. Carroll again on April 28, 2005. The doctor noted Plaintiff continued to suffer back pain and still could not bend or do heavy lifting, despite physical therapy. (Id. at 91, 98.) He recommended Plaintiff "continue with physical therapy, stay out of work and use Naprosyn as needed." (Id.)

Dr. Carroll examined Plaintiff again on June 2, 2005. (TR. 89, 99.) He noted that Plaintiff was getting relief with physical therapy but was still experiencing back pain and was "still unable to work or do any physical activity." (Id. 89.) His physical examination revealed "flexion to 80 degrees reproducing pain as well as on hyperextension. Straight leg raise is negative and neurologic exam is normal." (Id.) Dr. Carroll recommended another month of physical therapy and no work, following which, he opined, Plaintiff should be able to "resume normal activity." (Id.)

2. Dr. Michael Gramse - Chiropractor

Dr. Gramse, Plaintiff's chiropractor, performed range of motions tests on June 13, 2005, July 26, 2005, and September 6, 2006. The June 2005 test data revealed flexion at 16 degrees (27% of normal); extension at 1 degree (4% of normal); right lateral flexion 13 degrees (52% of normal) and left lateral flexion at 11 degrees (44% of normal). (Tr. 105-06.) The September 6, 2006 test data showed flexion at 22 degrees (37% of normal); extension at 3 degrees (12% of normal); right lateral flexion 17 degrees (68% of normal) and left lateral flexion at 17 degrees (68% of normal). (Tr. 105-06.) Dr. Gramse's treatment notes indicate that plaintiff was treated three times per week from June 9, 2005 through January 30, 2006. (Id. 117-55.) New York State Workers' Compensation Board Attending Doctor's Reports completed by Dr. Gramse indicate that Plaintiff continued to be treated into March 2007.

3. Lumbar Spine MRI

On August 30, 2005 an MRI of the lumbar region of Plaintiff's spine was taken. According to the radiologist's report, it revealed "no fracture, spondylolisthesis, or osseous destructive change. The region of the conus medullaris appears intact. The visual paravertebral soft tissue appear unremarkable." (Tr. 115.) "The L1-2, L2-3 and L3-4 levels are visualized without evidence of disc herniation or canal stenosis. The exiting nerve roots are intact. At L4-5, there is diffuse posterior bulging. There is mild bilateral foraminal encroachment. The exiting nerve roots are intact. The L5-S1 level appear unremarkable. The visualized articulating facets are normally demonstrated at all levels." (Id.)

4. Dr. Gregory Perrier - Orthopedic Surgeon

Plaintiff was examined by Dr. Gregory Perrier, an orthopedic surgeon, on February 2, 2006. (Tr. 177-78.) Doctor Perrier's examination of the lumbar spine showed paraspinal muscle spasm, tenderness, fasciculation, and positive bilateral straight leg raises at 45 degrees. He found Plaintiff's range of motion was as follows: flexion - 85 degrees (normal 90 degrees); extension -20 degrees (normal 30 degrees); left rotation - 15 degrees (normal 30 degrees); right rotation - 10 degrees (normal 30 degrees); left lateral flexion - 5 degrees (normal 20 degrees); right lateral flexion - ten degrees (normal 20 degrees). (Id.)Dr. Perrier recommended pain management, EMG/NCV tests, Lidoderm patch and Zanaflex. (Id.)

The record indicates that Plaintiff saw Dr. Perrier again on July 6, 2007. (Tr. 173-74.) His progress notes are illegible. The Workers' Compensation and Attending Doctor's Report and Billing Form completed by Dr. Perrier for this date indicate a diagnosis ...


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