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Samuel H. Provisero v. Michael J. Astrue

February 15, 2012

SAMUEL H. PROVISERO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Samuel H. Provisero ("Plaintiff") appeals the decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff's application for disability benefits. Plaintiff and the Commissioner cross-moved for judgment on the pleadings; for the following reasons, Plaintiff's motion is GRANTED and the Commissioner's motion is DENIED. Plaintiff's case is remanded to the Commissioner for further evaluation consistent with the discussion below.

BACKGROUND

Plaintiff is a Vietnam veteran who began a career as a crane operator after he was discharged from the Army. (R. 23, 37-38, 115-16, 269.) His career included an approximately thirty-one month stint at the World Trade Center recovery and cleanup site, where he was exposed to dust, fumes, and other respiratory irritants. (R. 137.) Plaintiff was injured on the job when he fell from his crane in May 2006. He applied for disability benefits thereafter, claiming that asthma and depression made it impossible for him to return to his regular duties. (R. 23.) The Commissioner denied Plaintiff's application and this appeal followed. (R. 25-27.) The following discussion summarizes the relevant evidence in the administrative record.

I. Medical Evidence

A. Treating Physician Evidence

Dr. Stanley Rabinowitz was Plaintiff's treating

physician. He examined Plaintiff on December 29, 2004 and noted that Plaintiff complained of significant dyspnea on exertion, including wheezing and difficulty walking in the mall. He noted that Plaintiff suffered from gastrointestinal esophageal reflux disorder ("GERD") and that he wakes up during the night. Dr. Rabinowitz diagnosed Plaintiff with World Trade Center syndrome, including reactive airway disease, GERD, nasal congestion, post- traumatic stress syndrome, and depression. (R. 137.) On the New York Workers' Compensation Board Billing Form that he filled out for this visit, Dr. Rabinowitz checked "yes" to the question "Is patient unable to perform regular duties of work?" and indicated that the degree of Plaintiff's impairment was "partial." (R. 369.)*fn1

On January 4, 2005, tests revealed that Plaintiff had below-normal pulmonary function. (R. 138.) Dr. Rabinowitz characterized the test results as showing "mild obstructive ventilator impairment without significant response to inhaled bronchodilators." (R. 140.) He indicated "respiratory distress" on the Workers' Compensation billing form and again checked the boxes indicating that Plaintiff was partially impaired from resuming his regular work duties. (R. 370.)

Plaintiff returned to Dr. Rabinowitz on March 7, 2005, where Dr. Rabinowitz reiterated many of his observations from Plaintiff's December 29 visit. Dr. Rabinowitz observed that Plaintiff was exposed to dust and fumes during the World Trade Center recovery and cleanup. (R. 140.) He noted that Plaintiff smoked a pack of cigarettes a day and that he has "severe dyspnea on exertion while walking and wheezing." (R. 140.) He observed that Plaintiff "claims to be 'addicted' to Afrin nasal spray because of severe nasal obstruction." (R. 140.) He stated that Plaintiff "has significant acid reflux, which wakes him at night" and that Plaintiff was taking medication for depression and seeing a psychiatrist. (R. 140.) Dr. Rabinowitz diagnosed Plaintiff "with World Trade Center syndrome presenting as reactive airway disease, acid reflux, nasal congestion, post-traumatic stress syndrome and depression." (R. 140.) He recommended that Plaintiff quit smoking and prescribed Spriva "because the patient does appear to have an element of [chronic obstructive pulmonary disease 'COPD']." (R. 140.) On the Workers' Compensation billing form for this visit, Dr. Rabinowitz again indicated that Plaintiff was partially impaired from resuming his regular work duties. (R. 372.)

On April 22, 2006, Plaintiff had another pulmonary function test. The results of this test appear to be similar to, or in some instances slightly worse than, Plaintiff's January 4, 2005 test. (R. 141-42.)

Plaintiff fell from his crane on May 16, 2006. He was put on light duty (i.e., no crane work) for approximately two weeks after the accident, and then he stopped working altogether. (R. 23-24.)

Plaintiff saw Dr. Rabinowitz again on December 4, 2006. Dr. Rabinowitz diagnosed World Trade Center syndrome and noted that Plaintiff "appears to have developed symptoms of sleep apnea." (R. 251.) During this visit, Plaintiff reported "several episodes of dizziness while at work resulting in falling." (R. 251.) Dr. Rabinowitz prescribed a sleep study, a repeat pulmonary function test, and a chest CT scan. (R. 251.) He also prescribed Prevacid and Combivent. (R. 251.)*fn2 Once again, Dr. Rabinowitz indicated that Plaintiff was partially impaired from resuming his regular work duties. (R. 381.)

Plaintiff had another pulmonary function test on December 6, 2006. The results revealed "very minimal obstructive ventilator impairment mostly small airways in nature without change following inhaled bronchodilators." (R. 247.) Plaintiff's pulmonary functioning had improved since an earlier, January 2002 test. (R. 247.) It is not clear whether the December 2006 results were compared with the results from Plaintiff's April 22, 2006 or January 4, 2005 tests.

Plaintiff saw Dr. Rabinowitz again on December 12, 2006 and was diagnosed with "World Trade Center syndrome, reactive airway disease, acid reflux, chronic sinusitis, post traumatic [sic] stress syndrome, chronic depression, and probable obstructive sleep apnea syndrome." (R. 247.) Again, Dr. Rabinowitz indicated that Plaintiff was partially impaired from resuming his regular work duties. (R. 384.)

A sleep study was performed on January 5, 2007. Among other things, the data revealed that Plaintiff's sleep efficiency was "mildly abnormal," and that his oxygen desaturation was "moderate," with a low oxygen level of eighty percent. (R. 236.) Dr. Giuseppe Caruso diagnosed Plaintiff with "[s]evere obstructive sleep apnea" (R. 236), and he checked the boxes on the Workers' Compensation billing form indicating that Plaintiff was partially disabled from resuming his regular work duties (R. 368).

Plaintiff returned to Dr. Rabinowitz on January 23, 2007. Dr. Rabinowitz noted that Plaintiff complained of feeling tired and fatigued. Dr. Rabinowitz prescribed C-PAP (continuous positive airway pressure) titration and directed Plaintiff to wear the C-PAP machine every night. Dr. Rabinowitz also advised Plaintiff that he "[m]ust avoid driving when drowsy and must avoid alcohol." (R. 245.) As he did several times before, Dr. Rabinowitz indicated that Plaintiff was partially disabled from performing his regular work duties. (R. 385.)

Dr. Caruso fitted Plaintiff for a C-PAP/BiPAP machine on January 29, 2007. (See R. 350.) Dr. Caruso noted that the device "was successful in eliminating respiratory events and maintaining oxygen saturation." (R. 350.) He diagnosed severe obstructive sleep apnea and directed Plaintiff to avoid sedatives, alcohol, anti-histamines, and hypnotics. (R. 350.) He also directed Plaintiff to lose weight. (R. 350.)

Plaintiff saw Dr. Rabinowitz again on February 2, February 13, May 16, and October 31, 2007 and March 25, 2008. At the February 2 visit, Dr. Rabinowitz noted that Plaintiff's oxygen saturation rate was ninety-two percent and that he had a "minimal wheeze." (R. 347.) At the February 13 visit, Dr. Rabinowitz noted that Plaintiff's severe obstructive sleep apnea was "titrated successfully" with BiPAP. (R. 342.) At the May 16 visit, Dr. Rabinowitz advised Plaintiff that he had a life-threatening condition and that he must use the BiPAP device.

(R. 342.) He diagnosed Plaintiff with World Trade Center syndrome, reactive airway disease, acid reflux, chronic sinusitis, post-traumatic stress syndrome, chronic depression, ...


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