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E Lizabeth C. S Tokes v. Commissioner of Social Security

March 29, 2012


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:


Judge: requisite "good cause" for rejecting a treating physician's opinion, (3) the ALJ Plaintiff Elizabeth C. Stokes ("plaintiff" failed to properly discuss 20 C.F.R. or "Stokes") commenced this action § 404.1529 factors, and (4) the ALJ did not pursuant to 42 U.S.C. § 405(g) of the Social meet the burden of showing that there was Security Act ("SSA"), challenging the final other work in the national economy that decision of the defendant, Commissioner of plaintiff could perform. In the alternative, the Social Security Administration plaintiff asks this Court to remand pursuant (hereinafter "Commissioner"), denying to 42 U.S.C. § 405(g). For the reasons that plaintiff's application for Disability follow, the cross-motions for judgment on Insurance Benefits. The Commissioner has the pleadings are denied, plaintiff's request moved for judgment on the pleadings for remand is granted, and the case is pursuant to Federal Rule of Civil Procedure remanded to the ALJ for further proceedings 12(c). Plaintiff opposes defendant's motion consistent with this Memorandum and and cross-moves for judgment on the Order. pleadings, alleging that (1) the

Administrative Law Judge ("ALJ") committed reversible error in failing to obtain the advice of a medical expert to assist in determining plaintiff's disability onset date, (2) the ALJ failed to set forth the police department until April 2, 1992. (Id. 19.)


A. Facts

Plaintiff did not work from April 2, 1992

Plaintiff alleges that she was disabled to February 22, 1999. From February 22, from April 2, 1992 through December 31, 1999 to August 18, 1999, plaintiff worked as 1997 as a result of medical conditions an Assistant Equipment Manager at C.W. including a right knee injury, right knee Post for four hours a day, five days a week. pain, right knee surgery failures and (Id. 72, 375.) complications, and Multiple Sclerosis ("MS"). (Administrative Record ("AR") 2. Medical Evidence 107-08, 118.) The following summary of facts is based upon the administrative record a. Dr. Varriale as developed by the ALJ to assess plaintiff's physical state. A more exhaustive recitation Plaintiff's treating physician, Dr. P. Leo of the facts is contained in the parties' Varriale, M.D., F.A.A.O.S., A.B.O.S., is an submissions to the Court and is not repeated orthopedic surgeon. (Id. 148.) Dr. Varriale herein. performed arthroscopic surgery on plaintiff's right knee on July 22, 1991 during

1. Vocational and Other Evidence which he reported chondromalacia of plaintiff's medial patella, hypertrophic

Plaintiff was born on October 14, 1962. synovium, chondral defect of the lateral (AR 43.) Plaintiff graduated high school and femoral condyle, and a loose body in completed three years of college. (Id. 77, plaintiff's right knee. (Id.) Dr. Varriale 374-75.) She then went to the New York reported no complications from the surgery. Police Department Academy. (Id. 78, 375.) (Id.)

Plaintiff worked as a police officer on patrol for the New York City Transit Authority On February 9, 1994, Plaintiff was from 1986 through April 2, 1992. (Id. 375.) admitted to Mercy Medical Center, and Dr. Her job duties entailed patrolling trains and Varriale noted that she had a fever, sinus train stations in New York City. (Id. 72, pressure, was coughing, was feeling 375.) Plaintiff listed in her Social Security lightheaded, and had issues with urination. Disability Report Form that this position (Id. 145.) On February 15, 1994, plaintiff, required her to walk for eight hours, stand after experiencing pain and weakness in her for eight hours, sit for one hour, climb for right knee, underwent elective tibial tubercle six hours, stoop for one hour, kneel for one transfer for her right knee. (Id. 143-44) A hour, crouch for four hours, reach for eight cortical screw was attached to plaintiff's hours, and write, type or handle small tibia during the surgery, after which Dr. objects for six hours per day. (Id. 73.) She Varriale reported no complications. (Id.) also carried her equipment (night stick, gun, and flashlight), and lifted ten pounds. (Id.) On May 20, 2003, plaintiff visited Dr. Plaintiff testified she was injured after a Varriale regarding pain in her right knee at work-related injury where she slipped and the request of another doctor who treated fell on an oil spot on December 15, 1989 plaintiff, Dr. Jackie Orfanos. (Id. 305.) On and injured her knee. (Id. 375-76.) After her examination, Dr. Varriale revealed crepitus injury, plaintiff engaged in desk work for the with range of motion of the knee and x-rays revealed osteoarthritis of the patella. (Id.)

Dr. Varriale's impression was of 350.) Plaintiff also reported she was "unable patellofemoral arthritis and he prescribed to perform activities like before and does not physical therapy, strengthening exercises, feel she has the same strength as before." and Advil as needed. (Id.) Dr. Varriale (Id.) Dr. Patcha found no weakness, rating explained that plaintiff should return to him 5/5 motor power, and found no sensory loss. as needed. (Id.) (Id.) Dr. Patcha noted that heal, toe and tandem walking were difficult due to On September 19, 2006, Dr. Varriale plaintiff's right knee injury, but deep wrote a letter opining that plaintiff has had tendon reflexes except for plaintiff's right problems with her right knee since 1989 and knee which was 0 as well as slight dysmetria opined that significant arthritis of her knee on the finger to nose. (Id.) Dr. Patcha's disabled her from working. (Id. 142.) Dr. initial impression was to rule out Varriale's letter stated: demyelinating disease, but she advised plaintiff to have an MRI done. (Id.)

Elizabeth Stokes is a 43-year-old woman who has had problems with On May 24, 1995, after evaluating the her right knee since 1989. Her MRI scan, Dr. Patcha noted acute and problems necessitated arthroscopic chronic lesions and found signals consistent surgery in 1991 and reconstructive with the demyelinating process. (Id. 351) patella surgery in 1994. Dr. Patcha explained that "the patient has, besides the paresthesia, no definite objective Since the time of her surgery, she has problems." (Id.) Dr. Patcha could not rule continued to have significant out demyelinating disease and noted she problems with her knee. She has would re-evaluate plaintiff again in two to crepitus with range of motion and three months. (Id.) weakness of the quad muscles with frequent giving way. On June 8, 1995, Dr. Patcha saw plaintiff again and while patient indicated X-rays of the knee reveal severe she is "feeling slightly more tired during the osteoarthritis of the patellofemoral summer months and has slight difficulty joint. using her hands," Dr. Patcha found no definite weakness and brisk reflexes. (Id. It is my opinion that Ms. Stokes has 352) Dr. Patcha ordered visual evoked/brain significant arthritis of the knee and is stem auditory response testing, and disabled from working. discussed the possibility of a spinal tap, but plaintiff was reluctant to undergo the spinal (Id.) tap. (Id.)

b. Dr. Shalini Patcha On July 27, 1995, Dr. Patcha saw

On May 10, 1995, Dr. Shalini Patcha, a plaintiff again and once again reported an neurologist with the Queens Long Island impression of possible demyelinating Medical Group, examined plaintiff to disease. (Id. 353.) Plaintiff showed delayed evaluate a one-month long period of response in the brain stem and medication paresthesias, numbness in her upper and was prescribed. (Id.) Dr. Patcha noted that lower extremities, as well as dizziness which plaintiff had ...

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