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Matthew Gillespie v. Michael J. Astrue

August 23, 2012

MATTHEW GILLESPIE
PLAINTIFF,
v.
MICHAEL J. ASTRUE, AS COMMISSIONER OF THE UNITED STATES SOCIAL SECURITY ADMINSITRATION
DEFENDANT.



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

FILED CLERK pm

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE MEMORANDUM OF DECISION AND ORDER 8/23/2012 12:07

Matthew Gillespie ("Gillespie" or "the Plaintiff") commenced this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging a final determination by Michael J. Astrue, the Commissioner of Social Security ("the Commissioner") that he was ineligible for Social Security disability benefits. Presently before the Court is the Defendant's unopposed motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(c). For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted.

I.BACKGROUND

A.Procedural History

On April 20, 2005, Gillespie filed an application for Social Security disability benefits, alleging a disability and inability to work since May 15, 2004, due to the impairment of his neck, back, right arm, and right hand. (Administrative Transcript ("Tr.") at 282.) On July 15, 2005, the Social Security Administration ("SSA") denied his application and Gillespie made a timely request on August 1, 2005 for a hearing before an Administrative Law Judge ("ALJ)". (Tr. at 41.)

On July 5, 2007, a hearing was held before ALJ Seymour Rayner (the "ALJ"). (Tr. at 256.) Following the hearing, in a decision dated August 2, 2007, ALJ Rayner denied Gillespie's claim for disability benefits. (Tr. at 38.) Gillespie sought review of the ALJ's decision by the Appeals Council. (Tr. at 49.) On December 21, 2007, the Appeals Council remanded the case back to the ALJ because ALJ Rayner had erroneously considered December 31, 2005 as the date the Plaintiff was last insured for disability benefits, instead of the correct date of December 31, 2006. (Tr. at 57.) The Appeals Council also ordered the ALJ to give further consideration to the "treating and examining source opinion" and "nonexamining source opinion"; the Plaintiff's subjective complaints; and the Plaintiff's maximum residual functional capacity. In addition, the Appeals Counsel instructed the ALJ to provide more rationale in support of his evaluations. (Tr. at 57--58.) Also, the ALJ was to enlist the help of a vocational expert to ascertain appropriate jobs for the Plaintiff and these jobs' availability in the national economy. (Tr. at 58.)

On August 5, 2008, a subsequent hearing was held before ALJ Rayner. (Tr. at 8.) On September 4, 2008, ALJ Rayner again issued a decision denying Gillespie's claim for disability, finding him not disabled. (Tr. at 19.) On March 26, 2009, the Appeals Council denied the Plaintiff's request for review of the ALJ's decision, thus making ALJ Rayner's decision dated September 4, 2008, the final decision of the Commissioner. (Tr. at 2.) On or about May 27, 2009, Gillespie commenced the present appeal from that decision.

B.The Administrative Record

1.The Plaintiff's Background and Testimony

Gillespie was born on April 16, 1962, and was 43 years old at the time he filed his claim for disability benefits. (Tr. at 259.) He has a high school diploma and was working as a painter/foreman for Long Island Wallpaper when he sustained the injury that forms the basis of his claim. (Tr. at 282--83.) His employment required him to supervise a crew, lift heavy objects, and do manual labor, such as painting and sanding. (Tr. at 283.) His supervisory duties included giving employees assignments and assuring that the workers had the proper materials at the work site. (Id.)

According to Gillespie's testimony before the ALJ, on or about May 14, 2004, he injured his back, neck, right arm and right hand in a workplace injury while carrying a forty foot extension ladder. (Tr. at 263.) Gillespie is right hand dominant. (Tr. at 286.) He claims that he damaged a nerve in his right arm and suffered two herniated discs in his back. (Tr. at 282.)

On or about May 18, 2004, three days after the Plaintiff's workplace injury, he sought medical treatment from Mather Memorial Hospital. (Tr. at 14.) A physical examination revealed that Gillespie was suffering from a muscle spasm and that the range of motion in his back had decreased. (Tr. at 15.) X-rays of his "cervical spine revealed discogenic disease and degenerative arthritic changes of the lower cervical spine as well as some loss of the normal curvature. He was diagnosed with acute cervical and dorsal myofascial strain." (Id.) At no time since the date of the Plaintiff's injury has he been employed. (Tr. at 259.)

The Plaintiff contends that following the injury, he suffered pain emanating from his right shoulder blade to his right hand due to the herniated discs in his back. (Tr. at 285.) Gillespie testified at the relevant underlying hearing that he is incapable of fully extending his fingers on his right hand and that his motor skills and strength in his right hand have weakened due to the nerve entrapment in that hand. (Tr. at 286.)

In October 2006, Gillespie underwent carpel tunnel surgery. However, he testified that "[i[f anything it made it worse." (Tr. at 287.) Gillespie stopped pursing rehabilitation for the carpel tunnel after being told by doctors that the nerve was dead and would require exploratory surgery to fix. (Id.) Gillespie stated that he can sit for thirty minutes before needing to stand up. (Tr. at 298.) Once he stands, Gillespie claims that he is able to stand for about thirty minutes and can walk three to four blocks. (Tr. at 290.) The Plaintiff also stated that he has difficulty with repetitive motions with his right hand and can only lift about five pounds with his right hand. (Id.) The Plaintiff testified that he receives workers' compensation benefits. (Tr. at 295, 298.

2.Relevant Medical Evidence

a.Paul Levin, M.D.-

On May 20, 2004, Dr. Levin began treating the Plaintiff for complaints "of right scapular and right index finger pain with right-hand weakness." (Tr. at 15.) Dr. Levin's examination revealed that Gillespie had a full range of motion in his neck, but suffered from mild tightness around the trapezial area. (Tr. at 213.) Gillespie's shoulders had a full range of motion, but had pain on elevation. (Id.) The Plaintiff had difficulty flexing his fingers on his right hand when that wrist was extended, and had decreased sensation around his right index finger. (Id.) Dr. Levin's initial impression was cervical radiculopathy, and this was supported by further examinations. (Tr. at 211--13.) Dr. Levin found the Plaintiff unable to return to work. (Tr. at 213.)

On a May 27, 2004 examination by Dr. Levin, testing revealed that Gillespie had tingling in his hand and fifth finger. (Tr. at 212.) Gillespie continued to suffer from tenodesis of the fingers. (Id.) The Plaintiff was prescribed Vicodin for the pain. (Id.) On June 3, 2004, Dr Levin found decreased sensation in the hand and around the fourth and fifth fingers, but manual motor testing of the upper extremity and tinel testing of the elbow were both negative. (Tr. at 211.) Dr. Levin advised the Plaintiff to receive a magnetic resonance imaging (MRI) on his cervical spine, which revealed "multilevel herniations and/or osteophytes throughout the cervical spine." (Tr. at 175.) On June 10, 2004, Dr. Levin referred the Plaintiff to Dr. Golpariani for pain management and Dr. Gutman for a spine surgical consultation. (Tr. at 210.)

b.Frederick Gutman, M.D.-Neurologist

On June 22, 2004, Dr. Gutman examined the Plaintiff for complaints of right-sided neck and shoulder pain radiating down his right arm, numbness in the fourth and fifth fingers of his right hand, difficulty extending his fingers, and moderate lower back pain. (Tr. at 149.) At that time, the Plaintiff said that the pain had improved, and he had switched from Vicodin to Tylenol. (Id.) A physical examination revealed "mild weakness of finger extension on the right and very mild weakness of wrist extension on the right." (Id.) Dr. Gutman noted that Gillespie's wrist flexion, confrontational motor exam, and bilateral grip were normal. (Id.) The range of motion in Gillespie's neck was nearly normal, and the deep tendon reflexes at his wrists and elbows bilaterally were present. (Id.) Dr. Gutman diagnosed Gillespie with "a cervical pain syndrome including his right shoulder and arm with a distribution most mimicking C7-8." (Id.) Although Gillespie had discogenic changes and a small disc herniation, Dr. Gutman did not see compression in the neural canal and did not think surgery was necessary. (Id.) Dr. Gutman referred Gillespie for physical therapy. (Id.)

c.Mehran Golpariani, M.D.-

Dr. Golpariani was referred to the Plaintiff for purposes of pain management by Dr. Levin. At the hearing in front of the ALJ, it was established that Dr. Golpariani injected the Plaintiff with cervical epidural steroids on July 1, and July 22, 2004. (Tr. at 215--16, 220--21.)

d.Patrict Poole, M.D.-Neurologist

On August 24, 2004, Dr. Poole examined Gillespie at the request of Dr. Gutman and noted that while Gillespie's neck had considerably improved, his right hand had weakened. (Tr. at 138.) The examination also revealed that Gillespie "had full muscle strength, tone and coordination in all muscle groups of the upper and lower extremities with the exception of the right hand where marked wasting was noted of all the intrinsic muscles of the right hand." (Id.) Tinel tests on Gillespie's right wrist and left elbow were positive, but negative at his right elbow. (Id.) Dr. Poole's impression was that the Plaintiff was suffering from posterior interosseous nerve entrapment on the right. (Tr. at 139.)

On September 3, 2004, the Plaintiff underwent an electromyography ("EMG") and nerve conduction velocity ("NCV") study. (Tr. at 140.) The results were "consistent with a denervation of the deep radial nerve musculature on the right." (Tr. at 140A.) The results also indicated "bilateral entrapments of the median nerves in the carpal tunnels" and "evidence of entrapment of the ulnar motor nerves at the level of the elbow bilaterally." (Id.)

On September 10, 2004, Dr. Poole revised his earlier impression and found that tests were more indicative of radial nerve palsy, bilateral carpal tunnel syndromes, and bilateral ulnar nerve entrapments. (Tr. at 141.) On October 21, 2004, Dr, Poole noted that the Plaintiff's radial nerve distribution was strengthening, but that ulnar nerves and carpal tunnel problems persisted. (Tr. at 137.) On workers' compensation forms from August 24, 2004 to October 21, 2004, Dr. Poole checked off boxes indicating that the Plaintiff was totally disabled from regular duties or work. (Tr. 144--48.) A June 12, 2006, an EMG/NCV report by Dr. Poole indicated an entrapment of median nerves and both wrists. (Tr. at 187--88.)

In an April 23, 2007 examination, Dr. Poole noted that Gillespie could extend his fingers when his right wrist was in its normal position, but when the wrist was extended, the Plaintiff could not extend his fingers. (Tr. at 243.) An EMG test performed on May 3, 2007 on the right upper extremity was normal. (Tr. 240--41.)

In July 2008, Dr. Poole stated on workers' compensation forms that the Plaintiff was partially disabled from performing regular duties or work. (Tr. at 50, 251, 254.) On a July 1, 2008 examination, the Plaintiff complained of hand weakness and Dr. Poole found a diminished range of motion in his neck. (Tr. at 255.) The Plaintiff had loss of strength of the extensor indicis proprius, the extensor digitorum communis, and the extensor digiti quinti proprius in the right upper extremity. (Id.) Dr. Poole's assessment was partial neuroetmesis of the right radial nerve in the spiral groove and that this was a permanent and severe partial injury. (Id.)

On July 29, 2008, Dr. Poole noted that the results of an EMG did not support a radial nerve injury diagnosis, and that the results were consistent with damage to the medial cord of the brachial plexus. (Tr. at 250.) On the workers' compensation form for July 29, ...


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