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Pereira v. Astrue

May 25, 2010

JOSE PEREIRA, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff, Jose Pereira, ("Plaintiff") commenced 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 Defendant's motion for remand for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g), and Plaintiff's cross-motion for judgment on the pleadings. Both parties seek remand, but Plaintiff seeks a remand solely for the calculation of benefits. For the reasons discussed below, the decision of the Commissioner is reversed and the matter is remanded for further proceedings 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 ("SSD") on January 4, 2006, alleging he became disabled on January 8, 2004. (Transcript (hereafter "Tr.") 13.) The claim was denied initially on July 3, 2006. (Tr. 26, 28-29.) Plaintiff timely requested a hearing before an administrative law judge ("ALJ") and a hearing was held before ALJ Seymour Raynor, at which Plaintiff appeared represented by counsel. (Tr. 12, 338A-359.) The ALJ issued a decision on July 1, 2008, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 9-16.) Plaintiff requested review by the Appeals Council ("AC"). (Tr. 8.) By notice dated February 18, 2009, the AC denied Plaintiff's request, rendering the ALJ's decision as the "final decision" of Defendant. (Tr. 2-4.)

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on March 4, 1956 and was 52 years old at the time of the hearing. (Tr. 17, 342.) He was born in El Salvador, where he received no formal education, and migrated to the United States in 1987. (Tr. 13, 342.) He speaks very little English, and reads and writes very little Spanish. (Tr. 342-343.) Plaintiff worked from 1988 through January 2004 as an aircraft plater. (Tr. 342-346.) On August 12, 2003,*fn1 Plaintiff was pushing a cart at work, when he slipped and fell injuring his back, which injury caused him to stop working. (Tr. 80, see also Tr. 344.) He has not worked since January 8, 2004. (Id.) Plaintiff receives Worker's Compensation benefits in the amount of $270.00 every week. (Tr. 354, 35.)

Plaintiff testified before the ALJ as follows. He spends his day "walking here and there, sitting down" while his wife takes care of the house. (Tr. 349.) He is unable to help with chores around the house: no shopping, cleaning, cooking, laundry, or washing dishes, although he is able to sweep the kitchen. (Tr. 349, 353-54.) He pays bills, goes to the ATM and the post office, but he experiences pain if he walks, sits, or stand for more than thirty minutes. (Tr. 348-49.) He can perform personal care such as showering, shaving and dressing. (Tr. 353, 357.) He can eat with a knife and fork, hold a cup of coffee, open the doors to his house, car, and closet, open drawers, pick up coins from a table, and talk on the phone. (Tr. 355-57.) He can lift 10 to 15 pounds through the constant pain (Tr. 349), which is being treated by therapy and medication, which causes drowsiness. (Tr. 346-48, 358.) Plaintiff wore a back brace but had not worn it within the 23 days prior to the hearing. (Tr. 357.)

B. Medical Evidence

1. J.R. Medical and Diagnostics*fn2

The record shows that Plaintiff started treatment at J.R. Medical and Diagnostics ("JRM&D") on December 30, 2003, where he was initially seen by Dr. Jose I. Rodriguez. (Tr. 83-90.) The physical examination showed that the Plaintiff did not have antalgic gait.*fn3 It also noted that Plaintiff had diminished patellar and achilles reflexes, normal coordination and sensation. (Tr. 85.) An examination of his lower back revealed a decreased range of motion and tenderness on palpation. (Tr. 87.) Dr. Rodriguez diagnosed low back syndrome, Lumbar Radiculopathy*fn4 , muscle spasms, and prescribed Skelaxin© and Motrin©. (Tr. 90.) Dr. Rodriguez's report to the Workers' Compensation Board indicated that Plaintiff was totally disabled from regular duties of work. (Tr. 80-82.) On April 12, 2004, a nerve conduction exam was performed on the Plaintiff and revealed evidence of a right sided L5-S1 radiculopathy. (Tr. 123-26) Plaintiff was referred for a Magnetic Resonance Imaging ("MRI") of the lumbosacral spine, performed the next day, which showed that at the L3-L4 and L4-L5 levels, there are lateral disc herniations which narrowed the neural foramen. (Tr. 121.)

Dr. Rodriguez continued to treat the Plaintiff until 2005 with the following dates and the diagnoses: (1) May 11, 2004: the Plaintiff's pain was rated 9/10, Celebrex© was prescribed. Diagnosis: disc disp. without myleopathy, low back syndrome, and radiculopathy. Total disability assessed. (Tr. 327-29.); (2) June 9, 2004: Plaintiff's pain was 9/10. Celebrex was prescribed. Diagnosis: disc disp. without myleopathy, radiculopathy, muscle spasm, and parasthesia. (Tr. 323-25.); (3) July 12, 2004: Plaintiff's pain was 9/10. Celebrex was prescribed. Diagnosis: disc disp. without myleopathy, radiculopathy, muscle spasm, and parasthesia. (Tr. 318-20.); (4) August 12, 2004: Plaintiff's pain was 8/10. Celebrex was prescribed. Diagnosis: disc disp. without myleopathy, low back syndrome, radiculopathy, muscle spasm, and myofacial pain syndrome. (Tr. 314-16.); (5) September 21, 2004: Plaintiff's pain was 7-8/10. Celebrex was prescribed. Diagnosis: disc disp. without myleopathy, radiculopathy, muscle spasm, and myofacial pain syndrome. (Tr. 308-10.); (6) October 27, 2004: Plaintiff's pain was 8/10. Celebrex was prescribed. Diagnosis: disc disp. without myleopathy, low back syndrome, radiculopathy, muscle spasm, and myofacial pain syndrome. (Tr. 305-07.); (7) November 24,2004: Plaintiff's pain was 7-8/10. A different medication was prescribed. Diagnosis: disc disp. without myleopathy, low back syndrome, radiculopathy, muscle spasm, and parasthesia. Total disability assessed. (Tr. 302-04.); (8) December 29, 2004: Plaintiff's pain was 8-9/10. Diagnosis: disc disp. without myleopathy, low back syndrome, radiculopathy, muscle spasm, and parasthesia. Total disability assessed. (Tr. 299-301.) (9) February 1, 2005: Plaintiff's pain was 6/10. Diagnosis: disc disp. without myleopathy, low back syndrome, radiculopathy, muscle spasm, and parasthesia. Total disability assessed. (Tr. 296-98.)

Dr. Durant, a board certified orthopedist at JRM&D examined the Plaintiff on April 16, 2004. (Tr. 331.) His diagnosis was low back pain, herniated lumbar disc, and lumbar radiculopathy. (Tr. 332.) Dr. Durant observed that the Plaintiff walked with a limp, had muscle spasms and positive leg raises involving the right lower extremity, had a satisfactory range of motions for the cervical spine, upper and lower extremities as well as full muscle strength. (Tr. 331.) X-rays of the lumbosacral spine showed no evidence of fractures or dislocations and no evidence of blastic or lystic lesions, but found tenderness in the paralumbar spinal muscles associated with muscle spasms with forward flexion of 30 degrees and positive straight leg raising on the right at about 60 degrees. (Id.) Dr. Durant opined that Plaintiff was currently disabled and unable to work. (Tr. 333.)

On August 26, 2004, Dr. Durant re-examined Plaintiff and found him still disabled and unable to work. (Tr. 312-13.) Physical examination showed that Plaintiff was unable to walk on his heels and toes, and had a right lower extremity limp. Forward flexion of the lumbosacral spine was 20 degrees, with positive straight leg-raising at about 50 degrees. Deep tendon reflexes were found to be physiologic throughout.

From February 2005 though August 2008, plaintiff was treated by Drs. Stephanie Bayner and Gary DiCanio, both of whom concluded that plaintiff was totally disabled. (Tr. 127-223, 250-301.) Dr Bayner's findings included low back pain radiating down the right lower extremity, bilateral tenderness, reduced range of motion right lower extremity muscle atrophy, and an antalgic gait. (Tr. 250-301.) Dr. DiCanio's clinical findings were similar and included: lumbosacral paraspinal muscle spasm, tenderness and reduced range of motion, positive bilateral straight leg raises, right quadriceps and hamstring atrophy, right lower extremity weakness and hyperesthesia at the L4-S1 dermatones and 8 out of 10 back pain. (Tr. 127-80.) After his examination of Plaintiff on June 10, 2008, Dr. DiCanio concluded Plaintiff was limited to lifting and carrying 15 pounds, but only 8 pounds occasionally and 6 pounds frequently, and to standing, sitting, and walking for a half hour per day. (Tr. 335.)

2. Dr. Vartkes Khachadurian -- Orthopedic Surgeon

Dr. Vartkes Khachadurian, a board certified orthopedic surgeon, initially examined the Plaintiff in connection with the Plaintiff's Workers Compensation Claim, on March 12, 2004. (Tr. 117.) Dr. Khachadurian noted on his report that Plaintiff could ambulate independently and had a heel to toe gait. Normal sensation and normal power of lower extremities was found as well as negative straight and well leg testing in sitting position. (Tr. 119.) However, decreased lumbar motion and positive straight leg testing on supine position was also found. (Id..) Dr. Khachadurian ...


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