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Mezzacappa v. Astrue

November 5, 2010

ANTHONY MEZZACAPPA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Anthony Mezzacappa, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("the Commissioner") denying Mezzacappa Disability Insurance Benefits. (Dkt. No. 1: Compl.) Mezzacappa has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dkt. No. 10: Notice of Motion) and the Commissioner has cross-moved for judgment on the pleadings (Dkt. No. 14: Gov't Notice of Cross-Motion). The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 8.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is DENIED and Mezzacappa's motion for judgment on the pleadings is GRANTED and the case is remanded to the Commissioner for further proceedings.

FACTS

Procedural Background

On July 23, 2007, Mezzacappa applied for Social Security Disability Insurance Benefits, alleging that he was disabled since January 19, 2007. (See Dkt. No. 7: Administrative Record Filed by the Comm'r ("R") 76-78.) In his application, Mezzacappa claimed to suffer from back, knee ("meniscus problem") and right shoulder pain. (R. 93.) Specifically, Mezzacappa stated that he "can't bend or do much lifting. [He has] some problems using [his] right arm due to shoulder injury. Both [his] knees are bad which sometime affects [his] walking." (R. 93.)

On September 19, 2007, the Social Security Administration ("SSA") conducted an initial review of Mezzacappa's claim and found him not disabled. (R. 36-40.) Mezzacappa requested an administrative hearing. (See R. 44-45.)

Administrative Law Judge ("ALJ") James B. Reap conducted a hearing on October 7, 2008. (R. 21-35.) Mezzacappa appeared with counsel. (R. 21-23.) On March 19, 2009, ALJ Reap issued a written decision finding that Mezzacappa was not disabled. (R. 10-20.) ALJ Reap's decision became the Commissioner's final decision when the Appeals Council denied Mezzacappa's request for review on January 5, 2010. (R. 1-3.)

The issue before the Court is whether the Commissioner's decision, that Mezzacappa was not disabled between January 19, 2007 and March 19, 2009, is supported by substantial evidence.

Non-Medical Evidence

Mezzacappa was born on January 20, 1956 and was fifty-one years old at the alleged onset of his disability. (R. 23, 76.) Mezzacappa attended high school through the eighth grade. (R. 23, 97.) Between 1979 and January 19, 2007, Mezzacappa worked as a laborer for the New York City Department of Transportation ("DOT"). (R. 24, 94.) During his twenty-seven years with the DOT, Mezzacappa performed various jobs including paving streets, repairing potholes and operating a jackhammer. (R. 34, 94.) Mezzacappa "spent pretty much the whole day" shoveling asphalt or operating the jackhammer. (R. 34, 94.) This work required Mezzacappa to regularly lift up to 50 pounds and occasionally lift 100 pounds. (R. 94-95.) His job required him to walk seven hours a day and stand for an hour, and also to stoop for six hours. (R. 94.) Persistent pain in Mezzacappa's back, knees and shoulder eventually prohibited him from continuing to work, so he retired. (R. 25, 93.) He receives a pension of $3,000 a month and also receives Workers' Compensation benefits of $200 a week. (R. 26-27.)

Mezzacappa wears a brace on his right knee and stated in his disability application that knee pain causes him difficulty bending, lifting, and sometimes walking. (R. 25, 26, 93.) Mezzacappa testified that his knees feel "swol[len]" and when he turns, "it feels like it's going to snap." (R. 25.) Although Workers' Compensation had approved Mezzacappa for right knee surgery on July 26, 2006, he testified at the ALJ's October 7, 2008 hearing that he was still awaiting authorization. (R. 26, 64-65.)

Mezzacappa described his back as being "shot," and explained that although he had right shoulder surgery in 2003, it was "bothering [him] again." (R. 25, 33-34.) According to Mezzacappa, the pain in his back is "constant" and prevents him from getting more than four hours of sleep each night. (R. 25, 32, 101.) Mezzacappa does not take anything beyond Tylenol for pain because he does not like "taking any medication." (R. 29, 34.) He also noted that he had "not had any testing on either [his] shoulder or [his] back in many years." (R. 98.)

Mezzacappa lives with his wife and two children, ages thirteen and seventeen. (R. 26.) Although he stated in his Social Security Disability Insurance Benefits application that he is able to perform "light household" chores (R. 103), Mezzacappa told the ALJ that he did not "do anything" in the way of house or yard work (R. 30-31). Mezzacappa passes a typical day mainly "laying down on the couch" and watching sports on television. (R. 29, 33.) He testified that he can only walk a block or two. (R. 30.) Mezzacappa visits friends' houses about twice a week and recently drove an hour or two, 80 or 90 miles, "[u]pstate" to visit a friend. (R. 27-28, 30, 105.) Mezzacappa was able to drive himself to the hearing before the ALJ. (R. 27.) According to Mezzacappa, he is capable of lifting about five to ten pounds and can sit or stand for about two hours. (R. 32-33.)

Medical Evidence: Treating Physicians

As ALJ Reap noted, Mezzacappa has a "long history of generally symptomatic treatment with Dr. Richard Memoli and chiropractor Robert Petersen secondary to various work-related injuries." (R. 15.)

Dr. Memoli began treating Mezzacappa in October 1998. (R. 167.) Mezzacappa had injured his right elbow in 1993 while pulling a "power ray box" and complained that he still could not extend his right arm without "pain" and "some numbness." (R. 167-68.) Dr. Memoli diagnosed a "ligament sprain," "[a]ggravating [d]eg[enerative] [a]rthritis" and "epicondylitis." (R. 167-68.)

In October 1999, Mezzacappa was injured on the job while pulling a cover over an asphalt truck. (R. 172.) He reported pain in his right shoulder radiating to the right side of his neck, "clicking" in his shoulder and "tingling" in his right hand, and that he "cannot lift or carry objects without pain." (R. 172.) Dr. Memoli diagnosed a ligament sprain in Mezzacappa's right shoulder, cervical spine strain and "muscle/tendon rupture" of the right rotator cuff. (R. 219.) Dr. Memoli concluded that Mezzacappa was partially disabled for purposes of Workers' Compensation. (R. 219.) A November 22, 1999 radiologist report found "no fracture or dislocation" of Mezzacappa's right shoulder. (R. 173.)

Mezzacappa continued to experience pain in his elbow, shoulder and back, and in February 2000, chiropractor Robert Staropoli concluded that Mezzacappa had a 50-75% permanent loss of the use of his back. (R. 144.) Nevertheless, Dr. Staropoli concluded that Mezzacappa was able to work and suggested that Mezzacappa exercise "caution when lifting[,] bending etc." (R. 144.)

In August 2000, Dr. Memoli referred Mezzacappa to physical therapy, and ordered EMG studies and nerve conduction tests for Mezzacappa's upper extremities, and an MRI for Mezzacappa's right shoulder. (R. 212.) In December 2000, Dr. Memoli noted that Mezzacappa continued to experience "persistent right shoulder pain with difficulty lifting and raising" his right arm. (R. 209.) Dr. Memoli reported that an MRI of Mezzacappa's right shoulder showed inflammation and impingement syndrome. (R. 209.) Mezzacappa was given an injection of Celestone in his right shoulder and Dr. Memoli requested authorization for arthroscopic surgery for Mezzacappa's right shoulder. (R. 209.)

In October 2002, Mezzacappa slipped on oil and fell, injuring his left wrist and right elbow. (R. 221, 224.) Dr. Memoli diagnosed a sprain of Mezzacappa's left wrist and thumb and a contusion of his right forearm. (R. 224.) Dr. Memoli reported a 30 percent schedule loss to Mezzacappa's left thumb and determined that Mezzacappa was partially disabled for purposes of Workers' Compensation. (R. 222.)

In January 2003, Mezzacappa underwent surgery for his right shoulder. (R. 174-75.) On May 5, 2003, four months after the surgery, Dr. Memoli reported that Mezzacappa's right shoulder was "doing well" and noted that Mezzacappa had returned to work four weeks after the surgery. (R. 192.) Dr. Memoli reported continued weakness in Mezzacappa's right arm and instructed Mezzacappa to continue physical therapy twice a month. (R. 192.)

On July 30, 2003, Mezzacappa injured his left knee when stepping down from a truck.

(R. 231.) During his August 8, 2003 appointment with Dr. Memoli, Mezzacappa complained of pain in his left knee. (R. 250.) Dr. Memoli diagnosed a sprained knee with "internal derangement" and a "probable torn lateral meniscus." (R. 249-50.) Dr. Memoli requested authorization for an MRI of Mezzacappa's left knee. (R. 247-50.) Follow-up examinations in September and December 2003 revealed "no change both in [Mezzacappa's] complaints and physical findings," but Dr. Memoli noted improvement in Mezzacappa's shoulder despite "mild restricted range of motion and clicking."

(R. 187, 189.)

A December 4, 2003 MRI of Mezzacappa's left knee showed a "[t]ear of the posterior horn of the medial meniscus." (R. 254.) On December 30, 2003, Dr. Memoli noted "pain, swelling and buckling of [the] left knee," as well as "restricted range of motion of left knee." (R. 245.) Dr. Memoli prescribed "physical therapy [two] times weekly" and requesed authorization for "hospitalization and arthroscopic surgery." (R. 245.)

In February 2005, Mezzacappa returned to Dr. Memoli with "persistent complaints" regarding his left knee. (R. 235.) Although Mezzacappa had been approved for surgery (R. 235), by August 2005 he expressed that there had been "mild improvement" and declined the surgery on his left knee (R. 122, 233, 253).

On July 15, 2005, Mezzacappa injured his right knee when he slipped off of a step while climbing onto a truck. (R. 275.) Dr. Memoli diagnosed Mezzacappa with a sprain, "internal derangement" of his right knee and a "prob[able] torn medial meniscus." (R. 275-76.) Dr. Memoli described Mezzacappa as "totally disabled" for purposes of Workers' Compensation and ordered an MRI of Mezzacappa's right knee. (R. 276.) At a November 1, 2005 follow-up visit, Dr. Memoli noted that Mezzacappa's right knee "lack[ed] 20 degrees flexion" and that he experienced "persistent pain, swelling and buckling of the right knee." (R. 274.) Dr. Memoli also reported "pain [at the] medial joint line" and an "equivocal ...


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