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Aas v. Astrue

September 29, 2010


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Plaintiff Timothy Aas filed an application for disability insurance benefits under the Social Security Act (the "Act") on June 6, 2005, claiming disability due to back pain beginning February 28, 2002. (A.R. at 67-73.)*fn2 Plaintiff's claim was denied initially because he was found capable of performing light work. (Id. at 32-35.) Plaintiff requested an administrative hearing, and on June 13, 2006, appeared before administrative law judge ("ALJ") David Nisnewitz. (Id. at 500-65.) On February 8, 2007, the ALJ denied plaintiff's claim, finding he was not disabled because he could perform light work. (Id. at 18-29.) This determination became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review of the ALJ decision on October 8, 2008. (Id. at 3-5.)

Plaintiff brought the instant action to challenge the portion of the Commissioner's decision finding him "not disabled." Pursuant to Fed. R. Civ. P. 12(c), the Commissioner now moves for judgment on the pleadings, affirming the determination that plaintiff was not disabled because he possessed the residual functional capacity ("RFC") to perform light work. Plaintiff cross-moves for judgment on the pleadings, seeking remand for additional administrative proceedings. For the reasons set forth below, the plaintiff's motion is granted, and this case is remanded for further proceedings consistent with this Order. The Commissioner's motion for judgment on the pleadings is denied.


A. Non-medical and Testimonial Evidence

Plaintiff was born on March 5, 1958, and was 48 years old at the time of the ALJ's decision. (A.R. at 502.) He became a firefighter with the New York City Fire Department ("FDNY") in 1981, and obtained a liberal arts Associates Degree from Queensborough Community College in 1996. (Id. at 68, 503.)

Plaintiff first injured his back in the fall of 1997 while working as a firefighter, pulling masks off an apparatus. (Id. at 396.) As a result, he underwent a laminectomy*fn3 and discectomy*fn4 on January 26, 1998. (Id. at 505.) Following the surgery, plaintiff returned to work as a firefighter, initially on light duty and eventually on full duty. (Id.) Subsequently, plaintiff re-injured his back on September 6, 2000, when he was propelled down a flight of stairs while fighting a fire. (A.R. at 506.) Following the second back injury, plaintiff returned to work in various light-duty assignments for the FDNY, such as a desk job, driving a training bus, and teaching. (Id. at 523-25.) On January 23, 2001, plaintiff applied for disability retirement from the FDNY due to "constant pain in lower back radiating down through left leg into foot aggravated by sitting, lifting, driving and strenuous and mild activity." (Id. at 371.) The FDNY granted plaintiff full disability due his back injury, "which is causally related to the injury of 11/13/97, and aggravated by the injury of 9/6/00." (Id. at 213.)

Since the second injury, plaintiff reported suffering from back spasms, shooting pains, daily hot sensations and pins and needles down his left leg and to his foot. (Id. at 515-16.) Plaintiff also described a loss of sensation in his left foot, which he called "drop foot." (A.R. at 534.) Additionally, plaintiff said this pain and discomfort can last for hours at a time. (Id.) To alleviate some of the pain, plaintiff frequently had to lie down, but had to change positions often, since "lying down is not a real solution." (Id. at 516.) Plaintiff also took over-the-counter medications, including Naprosyn, Aleve and aspirin, but claimed none of the medications significantly helped or lessened the pain. (Id.) He claimed that nothing he tried stopped the pain, but conceded he had never had an electromyography*fn5 ("EMG"), nor has he received any treatment for the pain related to the second injury. (Id. at 516-18.) Additionally, plaintiff acknowledged that he never tried trigger point injections to alleviate the pain because of negative side-effects associated with the procedure. (A.R. at 546.) Plaintiff testified that although doctors recommended he undergo a surgical procedure for his back pain, he has refused this option even though he described it as the "only solution," and admitted that surgery is "going to happen. I guess I'm just prolonging it." (Id. at 518, 545.)

Plaintiff also testified to his physical capabilities. He stated he could only sit for one to two hours in an eight-hour day, and reported, "I sit on my elbows. I don't really sit on my butt." (Id. at 520.) Additionally, he said he could only walk about three blocks before experiencing discomfort, and carry ten pounds of weight. (Id. at 520, 515.) He also experienced difficulty doing simple tasks, such as tying his shoelaces and cutting his toenails. (A.R. at 73, 520.) Plaintiff, however, admitted to engaging in recreational activity, including freshwater fishing, (Id. at 520), and traveling to his house in Pennsylvania multiple times, to Long Island, and to New Mexico at least two times since retiring (Id. at 511-12.)

Plaintiff identified Dr. Flavio Crisari as his primary care physician. (Id. at 510.) He also received treatment from neurologist Dr. Paul Cooper, who performed surgery on plaintiff's back after the first injury. (Id. at 508.) However, plaintiff conceded he did not pursue further back treatment with respect to his second injury, and he stated he had not seen a doctor for treatment for two years prior to the administrative hearing. (A.R. at 517.)

Plaintiff also identified Dr. Linda Berman and Dr. Margie Solovay as his treating psychologists. Dr. Berman treated plaintiff on a weekly basis from April 1, 1999 through March 8, 2002, for marital problems and depression, which may be related to his back injury. (Id. at 527-28.) Plaintiff disagreed with Dr. Berman's assessment that he was alcohol dependent, and her recommendation for more intensive treatment for alcoholism. (Id. at 528-29.) This disagreement led to the termination of Dr. Berman's treatment of plaintiff. (Id. at 529.) Although plaintiff disagreed that he was alcohol dependent, and claimed he had never entered an alcohol program, he later admitted to having attended Alcoholics Anonymous meetings because he was concerned with his drinking. (Id. at 530-32.) Plaintiff also denied ever discussing alcohol related issues with his primary care physician, Dr. Crisari. (A.R. at 556.) Most recently, plaintiff attended weekly treatment with Dr. Solovay, starting in March 2006, for depression, anxiety and sleeplessness. (Id. at 551-52.)

B. Medical Evidence

1. Medical Evidence Prior to Plaintiff's Alleged Disability Onset Date

Plaintiff started seeing Dr. Crisari in 1991, primarily for allergy treatment. (Id. at 448.) Following plaintiff's first back injury, Dr. Crisari noted his complaints of lower back pain that radiated throughout his lower left side, on September 3, 1997. (Id. at 460.) There were no further remarks regarding plaintiff's back pain in Dr. Crisari's treatment notes through September 7, 2000, the date of the second back injury. (Id. at 460-66.) Although plaintiff claimed not to have discussed his drinking habits with Dr. Crisari, there were multiple references to his drinking in Dr. Crisari's notes. (Id. at 464-65.) On April 21, 1999, Dr. Crisari noted that plaintiff was drinking six to eight beers per week. (A.R. at 464.) At that time, Dr. Crisari advised plaintiff to discontinue drinking alcohol, and, one month later, the doctor noted plaintiff had indeed ceased drinking. (Id. at 465.)

After plaintiff's first back injury, the FDNY took an X-ray of his lower back on November 17, 1997, which showed no fracture or dislocation. (Id. at 250.) An MRI taken on November 26, 1997 showed a large left posterolateral disc herniation at the L5-S1 level that was impinging on the S1 root. (Id. at 211.) Plaintiff saw Dr. Paul Cooper, a neurosurgeon, for this back injury. On January 22, 1998, Dr. Cooper performed a L5-S1 laminectomy and discectomy on plaintiff, in which he removed a large herniated fragment and multiple smaller fragments from the disc space. (Id. at 166-67.) Following the surgery, Dr. Cooper noted plaintiff was doing well and was experiencing much less pain. (A.R. at 162.) One month later, in March 1998, Dr. Cooper reported plaintiff was doing well and recommended he return to light duty on April 15, 1998 because he was feeling "virtually no pain." (Id. at 219.) On October 14, 1998, Dr. Cooper stated plaintiff could return to work as a firefighter on "full duty without restrictions." (Id. at 223.)

Plaintiff received post-surgical orthopedic aftercare from the FDNY from February 23, 1998, to October 16, 1998. (Id. at 283, 286-94.) On October 16, 1998, Dr. Kelly, the FDNY's Chief Medical Officer, examined plaintiff after he requested to return to full duty. (Id. at 386.) Dr. Kelly found plaintiff had normal reflex, strength and sensation in his lower extremities. (A.R. at 386.) Thus, Dr. Kelly cleared plaintiff to return to full duty on November 23, 1998, after he completed a retraining course. (Id.)

On September 6, 2000, plaintiff was examined again by the FDNY due to the second back injury. (Id. at 272.) Plaintiff was noted to have fallen down a flight of stairs at a fire scene and to have piriformis syndrome*fn6. (Id. at 271.) An MRI performed on September 20, 2000 showed disc degeneration at L4/L5 and L5/S1, with greater degeneration occurring at the L5/S1 location. (Id. at 209.) The impression from the MRI was "L4/L5 disc ...

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