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Jennifer Pluck v. Michael J. Astrue

March 9, 2011


The opinion of the court was delivered by: John Gleeson, United States District Judge


Jennifer Pluck seeks review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the Social Security Commissioner's determination that she is not entitled to disability insurance benefits under Title II of the Social Security Act. The Commissioner moves for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), asking the Court to affirm his decision respecting Pluck's alleged disability. Pluck cross-moves for judgment on the pleadings, seeking an order remanding the case solely for the award of disability benefits from March 20, 1998. For the reasons stated below, the Commissioner's motion is denied and Pluck's motion is granted, but only to the extent that the case is remanded to the Commission for further proceedings consistent with this decision.


A. Procedural History

Pluck applied for disability benefits under Title II of the Social Security Act on March 4, 2002, claiming disability as of March 20, 1998. R. 123-25. She claimed that she became unable to work as of that date because of pain in her back, neck, hip, and shoulders, and swelling of her right hand resulting from an accident at work that occurred on March 20, 1998 and an automobile accident that occurred on February 5, 2002. R. 147, 160, 282. On March 22, 2005, more than three years after Pluck made her application, a hearing was held before Administrative Law Judge ("ALJ") Martin Kahn. R. 779-811. Pluck, who was represented by counsel throughout the administrative proceedings, testified at the March 22 hearing. Id. ALJ Kahn retired prior to deciding Pluck's application. A second hearing was held before ALJ Hazel C. Strauss on October 27, 2005. R. 673-731. Pluck again testified. Id. On November 22, 2005, ALJ Strauss found that Pluck was not disabled within the meaning of the Social Security Act because she retained the residual functional capacity ("RFC") to perform a reduced range of light work, which left her unable to perform her past relevant work as a nurses' aide but able to perform jobs existing in significant numbers in the national economy in light of her age, education, and work experience. R. 29E-M.

After a fifteen month gap, on February 21, 2007, the Appeals Council vacated ALJ Strauss's decision and remanded the case for further administrative proceedings. R. 73-76. The Appeals Council specified two issues to be addressed on remand. First, in determining Pluck's RFC, ALJ Strauss relied at least in part on the findings and opinions of Dr. Mohammad Khattak, a consultative examiner. Subsequent to ALJ Strauss's decision, but prior to the Appeals Council's vacateur, Khattak was removed from the New York State Agency panel of physicians eligible to perform consultative examinations in Social Security cases. The ALJ was thus instructed on remand to disregard all evidence from Khattak and supplement the record accordingly. R. 75. Second, the ALJ was directed to recalculate Pluck's date last insured in light of previously unaccounted-for work activity in 2003 and 2004. Id.

On remand, additional hearings were held on July 24 and October 21, 2008. R. 723-78, 640-72. Pluck testified at the July hearing and was present, with her attorney, at the October hearing.*fn1 Id. On December 2, 2008, twenty months after remand, ALJ Strauss again concluded that Pluck was not disabled, finding that she retained the RFC to perform medium work and was therefore capable of performing her past relevant work as a nurses' aide as well as other jobs existing in significant numbers in the national economy. R. 20-29. More than one year later, the Appeals Council denied Pluck's request for review on January 8, 2010, R. 7-9, rendering the ALJ's December 2, 2008 decision the final decision of the Commissioner, see DeChirico v. Callahan, 134 F.3d 1177, 1179 (2d Cir. 1998). On April 16, 2010, the Appeals Council granted Pluck an extension of time to seek district court review of the Commissioner's decision. R. 6. Pluck filed the instant action on May 4, 2010, and the parties subsequently filed cross-motions for judgment on the pleadings. Oral argument of the motions was heard on January 28, 2011. Pluck is represented in these proceedings by new counsel.

B. Pluck's Age, Education, Family and Work History

Jennifer Pluck was born on June 2, 1962 in Guyana and moved to the United States in 1985. R. 123, 782. She completed high school and one year of college in Guyana. R.782. She has reported having received a General Equivalency Diploma. R. 153. As of March 2005, Pluck was divorced with five children between the ages of fifteen and twenty-five. R. 792. The two youngest children, ages fifteen and sixteen, lived with her, and the other three lived in Guyana. Id. Her sole source of income was child support payments. R. 793. She had previously received worker's compensation benefits, but only from 1998, following a fall at work, until 2002, when she was paid a lump-sum settlement in place of continuing benefits. R. 687-89, 793.

From 1992 until March 20, 1998, the alleged onset date of her disability, Pluck worked as a nurses' aide in a nursing home, which she described as heavy work that involved lifting patients in her arms in order to bathe them or to move them from their beds to their wheelchairs. R. 147-48, 721. From August 2003 until April 2004, several years after she had filed for disability benefits, Pluck again worked as a nurses' aide. R. 162, 678. In her new capacity, Pluck's duties involved "absolutely no lifting." R. 681. Instead she performed what she described as light work, such as monitoring patients on breathing apparatuses, escorting patients throughout the hospital, supervising patients who could bathe themselves, and assisting in dressing and grooming patients. R. 162, 678, 721. Nonetheless, Pluck testified that she had to stop working in April 2004 because the work was still too strenuous. R. 684.

From August 2004 until October 2004, Pluck worked as a home health aide or companion to individual patients who were able to walk, escorting them to their doctors' appointments, helping them to dress and groom themselves, and serving (and sometimes preparing) their meals. R. 162, 681-82. Pluck testified that she was not required to lift or carry anything as part of her job as a home health aide and that she spent sixty percent of her time lying down, although she was not supposed to. R. 682-83. Pluck testified that she lost her job as a home health aide due to her disabilities. R. 683. At the end of the October 21, 2008 hearing, when asked by ALJ Strauss whether she was working at that time, Pluck indicated that she was performing temporary work. R. 671.

C. Pluck's Description of Her Medical Condition

On her application for benefits, Pluck claimed she was limited in her ability to work because of pain in her back, neck, hip, and shoulders, and swelling of her right hand, which rendered her unable to sit or stand for extended periods of time, to bend, or to lift weights, and which required her to take pain medications that made her drowsy. R. 147. She also reported on her application having suffered from shortness of breath, an elevated heart rate and dizziness, as well as pain in her ankles, head, hands, and jaw, but she did not identify these ailments as limitations on her ability to work. R. at 148-49. At the March 22, 2005 hearing, Pluck testified that she was 5'3" tall and weighed 181 pounds, but had been much heavier -- at one point weighing as much as 242 pounds -- before having gastric bypass surgery. R. 658, 796, 806.

Pluck testified that she originally stopped working on March 20, 1998, following a slip-and-fall accident. R. 784. She spent one night in the hospital after the accident and subsequently suffered from headaches and constant pain in her neck, her upper and lower back, her right wrist, her knees, her shoulders, and her hips. R. 784, 786-87, 802-03. Pluck claimed that she had been unable to walk or use her right leg for about six months following the fall, and she could not drive for a period of time because she had trouble controlling her hands. R. 686-87, 690. She was treated for injuries sustained in the accident with physical therapy and prescription painkillers and anti-inflammatory medications, which eased her pain. R. 785-86. Pluck did not have surgery at this or any other time to treat her injuries. R. 693. In February of 2002, Pluck was involved in a car accident in which she hit her head, injured her right shoulder and otherwise exacerbated the injuries she had sustained in her 1998 fall. R. 691, 802-03. A law suit ensued and was resolved by a settlement in 2004, pursuant to which Pluck received either $19,000 or $28,000. R. 691, 803-04.

In 2003, despite her injuries, Pluck returned to work, first as a nurses' aide in a nursing home and then as a home attendant, a position that gave her more of an opportunity to lie down if she needed to. R. 787-88, 681. Pluck was not expected to work every day and was instead called on an as-needed basis. R. 788. Even so, Pluck testified that sometimes she was unable to work on the days she was called because her pain prevented her from getting up. Id. On other days, she reported to work but had trouble fulfilling her responsibilities, including those that required her to bend, and she spent what she approximated to be sixty percent of her time lying down, even though she was not supposed to. R. 789, 682-83. She had to lie down that often because her pain made it hard for her to function and her medication -- Hydrocodeine and a muscle relaxant -- made her drowsy. R. 683, 690. On some days when she went to work, she had to leave early and return home. R. 788-89. Even so, Pluck testified that she sometimes worked eight -- or even twelve -- hour days. R. 697.

Pluck testified that she left her nursing home job in April 2004 because she could not function due to her pain and the side effects of her medicine. R. 684. She explained that she "was trying to . . . just support [her] family somehow, but then I find that I can't do what I started . . . ." Four months later, in August 2004, she took a new, less strenuous job as a companion, but in October 2004, she lost that job as well because she was found sleeping while on duty; she claimed she had fallen asleep under the influence of her medication. R. 683. At the July 24, 2008 hearing, Pluck described the incident that led to her termination. R. 749-50. She was preparing food for the patient she was attending and while it was cooking, she became drowsy and lay down. R. 749. The food began to burn, and the house filled with smoke, but Pluck was asleep and unaware of the problem. R. 749-50. When the smoke alarm went off, the patient turned off the stove, woke Pluck with some difficulty, and helped her out of the house. R. 750.

At the 2005 hearings, Pluck reported that since her slip-and-fall accident at work in 1998, she had been unable to sit for more than an hour or stand for more than a half-hour due to back pain, and that she could not walk more than a block or a block and a half without her right leg and foot becoming numb. R. 692, 789-90. If she tried to sit for too long, she experienced severe pain in her hips; if she tried to stand or walk for too long, her back would hurt and her right leg would get heavy. R. 692-93. Pluck indicated that her condition and degree of suffering had not changed between 1998 and 2005. See R. 692-93. She said in March 2005 she was making approximately monthly visits to a clinic at Queens Hospital Center in order to have her prescription for the painkiller Hydrocodone renewed. R. 796-98. Although she had been prescribed Vicodin in the past, Hydrocodone was the only medication she was taking at the time of the March 22, 2005 hearing.*fn2 R. 798. She was taking it as needed. Id. Pluck was still taking Hydrocodone at the time of the October 27, 2005 hearing; she reported that she had been taking it "off and on" since 1998. R. 690. She had also been receiving physical therapy off and on since 1998.

At the March 22, 2005 hearing, Pluck said that she tried to "function like a person should" and complete household chores, but she spent most of her time -- an average of eight hours each day between 7:00 a.m. and 7:00 p.m. -- lying down, easing her "excruciating" pain by walking around a little or sitting still, taking medicine, or placing on her back a vibrating device given to her by her doctor. R. 790-91. Pluck occasionally prepared sandwiches for the two children who lived with her, but otherwise they prepared meals for her. R. 794. Fellow members of her church helped her to maintain her home. Id. Pluck attended church weekly. R. 795-96. On October 27, 2005, Pluck testified that she drove her car regularly -- at least once or twice a week -- and sometimes drove her children to school every day when the weather was bad.R. 693.

D. The Medical Evidence

1. 1998-2001: From the Alleged Onset Date Until the Automobile Accident After she fell on March 20, 1998, Pluck was taken to Brunswick Hospital, where she had x-rays taken before being discharged. R. 282. Pluck visited Dr. Ajendra Sohal, who would become a treating physician, once in March and twice in April 1998 for follow-up examinations. R. 282-83, 318-21. 278-89. She complained of headaches, severe cervical pain, pain and swelling of her right wrist, neck pain radiating to the right upper extremity, lower back pain, right gluteal pain, right hip area pain and discomfort as well as an inability to stand from a supine position. Id. Sohal found reduced range of motion in her leg, back and shoulder and reduced deep tendon reflexes in her knee, biceps, triceps and brachioradialis region. R. 282, 320. On March 23, Sohal, who was unable to complete a full exam due to Pluck's pain and spasms, R. 282, diagnosed cervical, lumbar and wrist contusion and sprain and strain, and possible radiculopathy and carpal tunnel syndrome, and he prescribed physical therapy, rest, a cervical collar, and Vicoprofen, a narcotic pain reliever and anti-inflammatory. R 321. He deemed her temporarily totally disabled, recommending re-evaluation every two weeks. Id.

On April 3, Dr. Sohal's impression was severe cervical and lumbar sprain and strain, right hand injury with possibility of fracture, possible cervical radiculopathy, gluteal sprain and strain, hip contusion, and post-concussion syndrome. R. 283. He prescribed continued physical therapy, the narcotic pain reliever Vicodin and the non-steroidal, anti-inflammatory Anaprox. Id. Sohal again deemed Pluck temporarily totally disabled and called for further evaluation every two weeks. R. 283. X-rays taken of Pluck's right hip and pelvis on April 4, 1998 indicated mild degenerative arthritis but no fracture or dislocation and no lytic or sclerotic lesions or abnormal soft tissue calcifications. R. 308. X-rays of her right hand and wrist also revealed no fracture or dislocation, but minimal degenerative arthritis of one joint. Id. At the April 22, 1998 exam, Sohal diagnosed status-post work-related injury, cervical strain and sprain, possible cervical radiculopathy, cervical myofasciitis, right shoulder derangement with probable rotator cuff tendonitis, right wrist sprain and strain, and lumbar sprain and strain. R. 278. Sohal prescribed Vicoprofen and Flexeril, a muscle relaxant. Id. He also suggested trigger point injections for the right shoulder and scapular region, but Pluck refused. Id. Sohal recommended Pluck continue physical therapy for her back, shoulders and right wrist, and that she see an orthopedist for her right shoulder. R. 278-79. This time, Sohal found Pluck "partially totally disabled." R. 279.

In addition to the x-rays taken on April 4, 1998, Pluck had a CT scan of her cervical spine on May 5, 1998, an MRI of her cervical spine on June 25, 1998, and an MRI of her right shoulder on July 2, 1998. R. 309-11. The May CT scan revealed straightened lordosis, suggesting muscular spasm, and rotator scoliosis; bulging discs at C2-C4; a bulging disk at C4-C5, accompanied by posterior bony ridges; stenosis of the neural foramina of all levels from C2-T1l and an enlarged thyroid gland. R. 310. The June MRI showed posterior disc bulges at C4-5 and C5-6 with muscle spasm. R. 311. The July MRI of the right shoulder revealed supraspinatus tendinitis and supraspinatus muscle impingement related to spur formation in the acromioclavicular joint. R. 309.

Pluck continued to visit Dr. Sohal throughout the summer of 1998; he conducted four examinations between June 10, 1998 and September 25, 1998. R. 280-81, 284-87, 322. He repeatedly diagnosed status-post work related injury, possible cervical radiculopathy, cervical strain and sprain, right shoulder derangement and impingement, and right wrist injury. R. 280, 284, 286. Sohal continued to opine that Pluck was temporarily disabled, and he continued to prescribe pain medications and to recommend physical therapy. R. 280-81, 284-86. Though he noted on July 6, 1998 that her lumbar sprain and strain were resolving, R. 284, Sohal believed throughout 1998 that Pluck was totally disabled. On April 13, 1998, after Pluck's first two visits to Sohal, and again on April 29, 1998, after her third visit, Sohal wrote letters in which he stated that Pluck was unable to function in a home or work environment due to severe pain and drowsiness induced by her pain medication. R. 276-77. On November 25, 1998, Sohal again wrote a letter stating that Pluck was totally disabled and unable to work due to the injuries sustained to her neck, lower back, and right shoulder, and due to drowsiness. R. 275.

In June 1998, Dr. Sohal referred Pluck to a hand surgeon, Dr. Rogers, for consultation on her right wrist. R. 280. Rogers advised x-rays, but those were never done because of transportation problems; he also prescribed a splint, but Pluck did not purchase one due to financial problems. R. 199. On July 17, 1998, Pluck an consulted orthopedist, Dr. Donald Forman, complaining of constant pain and spasms in her neck and back, constant pain in her right hand and right leg, difficulty walking for a prolonged period of time, difficulty sleeping, blurred vision, and depression. Id. After a physical examination and a review of Pluck's records, Forman concluded that Pluck suffered from residual sprain of the cervical spine, of both shoulder girdles, and of the lumbosacral spine. R. 201. He recommended continued physiotherapy and further observation by her physician for eight weeks. Id. According to Forman, Pluck was experiencing "a moderate degree of disability," and he anticipated that she could return to work as a nurses' aide in six to eight weeks from the date of the examination, although she might need to avoid heavy lifting and repeated bending for several weeks after that. Id.

Pluck visited Dr. Sohal regularly throughout the following year, paying him nine visits between March 17 and October 25, 1999. R. 288-97, 323. At the first consultation on March 17, Sohal observed that Pluck had gained 40 to 50 pounds in the past year. R. 288. He also found it "difficult to assess patient's return to work" at that time. Id. In March and April of 1999, Sohal's impression remained chronic right shoulder derangement, adhesive capsulitis, cervical derangement, cervical radiculopathy, and right hand injury. R. 288, 290, 293. On April 26, 1999, Sohal diagnosed carpal tunnel syndrome in Pluck's right hand, and noted that her condition had worsened. R. 293. He also observed that her pain medication made her drowsy and unable to function. Id. Nonetheless, throughout 1999, Sohal continued to prescribe narcotic pain medication, specifically Vicodin. R. 288-97, 323. Despite the drowsiness Pluck complained of, on June 24, 1999, Sohal noted that he had not observed any side effects or abuse.

R. 294. He also consistently advised Pluck to attend physical therapy and to move her right shoulder in order to increase its range of motion. R. 288-90, 293-97, 323. In April 1999, he recommended arthroscopic decompression surgery to increase her range of motion and reduce her pain, and he referred Pluck back to the hand surgeon Rogers, but he noted in July 1999 that she had refused to follow-up with either the hand surgeon or an orthopedic surgeon. R. 288, 295-95A. He also noted in September 1999 that Pluck had been noncompliant with physical therapy and was refusing the injection therapy he had recommended. R. 296.

Dr. Sohal's notes prior to April 26, 1999 contain reports of the physical examinations he conducted and his impressions, as well as a brief medical history and a list of recommendations and prescriptions. R. 293. However, Sohal's notes from Pluck's visits on June 24, July 12, July 28, September 13, and September 27, 1999 include only the medical history and recommendations; he did not provide any diagnoses in 1999 after the April 6 consultation. R. 294-97 Meanwhile, on June 28, 1999, Pluck reported to the Queens Hospital Center emergency department complaining of intermittent chest pain, shortness of breath, and heart palpitations. R. 349. An electrocardiogram ("EKG") revealed no abnormalities. R. 350. Pluck was examined, diagnosed with musculoskeletal pain, and discharged with the advice that she take Advil or Tylenol and that she take a brisk thirty-minute walk each day. Id.

After a gap of seven months, Pluck returned to Dr. Sohal in the summer of 2000, visiting him once each in May, June, August, and September. R. 298-301. His observations were consistent with those he made during her most recent previous visits: Pluck complained of pain in her neck, back, right shoulder, and right wrist; Sohal observed limited range of motion in her back and right shoulder and weakness on her right side; and he continued to prescribe narcotic pain relievers, first Percocet and then Vicodin. Id. On September 23, 2000, two days before one of her visits to Sohal, Pluck returned to the Queens Hospital Center emergency department with complaints of wheezing, productive cough, and shortness of breath. R. 351-52. She was diagnosed with asthmatic bronchitis and provided with prescriptions for Bactrim, an antibiotic, and Proventil and Aerobid, both used to treat asthma. Id. On October 5, 2000, Pluck was seen at the primary care clinic of Queens Hospital Center for a physical examination. R. 325-26. She was diagnosed with asthma and obesity. Id. Three months later, on January 4, 2001, she received counseling at the Queens Hospital Center nutrition clinic, where her weight was recorded at 273 pounds. R. 334.

In 2001, Pluck continued to visit Dr. Sohal sporadically. She saw him twice in February, and once each in April, July, October, and December. R. 302-307. As in previous years, Sohal observed that as the result of her work-related injury, Pluck was suffering from right shoulder tendonitis and capulitis, right-sided cervical radiculopathy, and lumbar sprain and strain and myofascial pain. R. 302. He also diagnosed her with right carpal tunnel syndrome. R. 302. The prescriptions for narcotic pain medication continued throughout 2001, despite a recorded warning on February 26, 2001 that she might lose her prescriptions. R. 302-03. On April 12, 2001, Pluck complained that Vicodin was not helping her pain, and her prescription was changed to Percocet. R. 304. On July 25, Sohal wrote that Pluck was denying side effects from and abuse of the pain medication. R. 305. On October 24, 2001, the prescription was changed back to Vicodin, and Pluck continued to deny side effects. R. 306. Sohal reported on December 3, 2001 that Pluck was "tolerating medication well." R. 307. On July 25, Sohal wrote that Pluck was participating in physical therapy intermittently with some relief for her symptoms, but otherwise, throughout 2001, Sohal reported that Pluck was refusing any intervention for pain management other than medication and was not compliant with physical therapy. R. 302-07. At the February and April visits, Sohal observed that Pluck was temporarily totally disabled; there is no comment in his notes from the other 2001 exams about Pluck's ability to work. R. 302-304.

From July through September of 2001, Pluck was seen at the medical clinic at the Queens Hospital Medical Center in an effort to obtain clearance for gastric bypass surgery. R. 335-3401. On July 26, her asthma was found under control, her extremities were found to have a full range of motion, and she reported no complaints; on August 16, she received diagnoses of hyperlipidemia, anemia, stable asthma, and obesity; and on September 7, when screened for pain, she complained of a three-and-a-half year history of neck and shoulder pain, which she rated at a severity of seven out of ten and described as burning and/or throbbing. R. 337-38. Pluck did not receive the gastric bypass surgery until March 6, 2002. See R. 224.

2. 2002-2005: From the Automobile Accident Until the Date Last Insured Following a car accident on February 5, 2002, Pluck was taken to the Mary Immaculate Hospital emergency room with neck and back pain. R. 204-06. She was diagnosed with cervicalgia,*fn3 lumbago,*fn4 pain in a limb, and pain in a joint involving her ankle and foot, and was discharged. R. 205; Def. Mem. 13, Oct. 7, 2010, ECF No. 17. On March 22, 2002, Pluck saw Dr. Enrico Fazzini of Five Towns Total Medical Care ("Five Towns") for a neurology consultation in light of the accident. R. 224-25. According to Fazzini, Pluck sustained a head injury in the accident, as well as injuries to her left shoulder, left knee and left ankle. R. 224. She complained of headaches; dizziness; ringing in her ears; neck pain with numbness; tingling and weakness in the shoulders, arms and hands; low back pain with numbness, tingling, and weakness in her buttocks, hips, thighs, legs, and feet; left shoulder pain; left knee pain and stiffness with difficulty walking, standing, and climbing stairs; pain and swelling in her jaw from a tooth broken in the accident; and pain in her ankles. Id.

Following a physical examination, Dr. Fazzini found Pluck to be "in moderate distress" because of her symptoms. R. 225. He also found significant tenderness and spasm in the cervical, dorsal and lumbar spines, bilaterally; significant weakness in the left deltoid and bilateral soleus; absent deep tendon reflexes bilaterally, decreased sensation to pinprick; a slow gait; and significantly decreased ranges of motion and function in her back, as well as decreased ranges of motion and function in her left leg. R. 224A-25A. He concluded that Pluck was "partially disabled at present." R. 225A. Although the precise ranges of motion varied, Fazzini made similar findings at examinations that took place on April 5 and April 26, 2002, and again approximately once a month between July 2002 and April 2003 and on May 21 and August 13, 2004.*fn5 R. 228-63. He also consistently prescribed Vicodin. Id. Each time he saw her, Fazzini determined that Pluck was partially disabled. R. 228. An instruction given by Fazzini on March 22, 2002 that Pluck refrain from any physical activity including lifting, bending and twisting, R. 225, was not repeated, and on November 22, 2002, Fazzini directed Pluck to lift, bend and twist "with caution," R. 248.

MRIs taken of Pluck's spine on March 29 and April 12, 2002 showed diffuse straightening of the spine, disc bulges effacing the thecal sac and impinging the epidural fat. R. 271-72. An April 12, 2002 MRI of her left knee revealed a first-grade signal change in the posterior horn of the medical meniscus, a knee joint effusion with a Baker's cyst and a cystic lesion in the proximal tibia. R. 274.

On July 2, 2002, Pluck saw orthopedist Dr. Robert Copulsky complaining of generalized discomfort following the February 5, 2002 car accident, and particular discomfort in her neck, lower back, and left knee. R. 553-54. Copulsky observed that Pluck had full ranges of motion in her shoulders, elbows and wrists, although she experienced some discomfort with shoulder motion and had mildly restricted motion in her spine and left knee. R. 553. He found some straightening of the normal lordotic curvature indicative of muscle spasm, and an MRI indicated several bulging discs and discogenic disease, but no herniated discs. Id. An MRI of the left knee indicated a possible meniscal pathology of the posterior horn of the medial meniscus, but showed no definite tears. R. 554-55. A cystic lesion was revealed in the proximal tibia, but it appeared benign. R. 554. Copulsky diagnosed Pluck with cervical and lumbosacral sprains and a sprain of the left knee and recommended continued physical therapy and reevaluation if symptoms persisted. Id.

On August 1, 2002, Pluck returned to the Queens Hospital Center medical clinic and was examined in connection with her obesity following her gastric bypass surgery; asthma, which was found asymptomatic; anemia; and hyperlipidemia. R. 342-45. Pluck had no complaints, but when asked about any pain she was experiencing, she reported having had onand-off cramps since that morning with a pain level of eight to ten out of ten. R. 342-43. She was again seen for her asthma on September 3, 2002 at the Queens Hospital Center emergency department, R. 357-58, where she returned on October 1, 2002, complaining of right ear and a right-sided headache that had persisted for three weeks. R. 359-60. The impression was possible right ear tinnitus, and Pluck was referred to an ear, nose and throat ...

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