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Lorraine Credle v. Michael J. Astrue

September 19, 2012


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Plaintiff Lorraine Credle filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act") on May 16, 2006, alleging disability caused by a workplace injury on October 21, 2005. (R. 203-07.) A hearing was held on July 19, 2007 before Administrative Law Judge Jay Cohen ("ALJ Cohen"). On December 7, 2012, ALJ Cohen determined that plaintiff was not disabled within the meaning of the Act. (R. 129.) On March 26, 2009, the Appeals Council ("AC") remanded to further develop and assess the mental impairment. (R. 130-134.) On January 7, 2010, Administrative Law Judge Hazel Strauss ("ALJ Strauss") conducted a second hearing. On May 13, 2010, ALJ Strauss determined that plaintiff was not disabled within the meaning of the Act. (R. 1-83, 114.) This became the Commissioner's final decision on October 8, 2010, when the Appeals Council denied plaintiff's request for review. (R. 84.)

On December 6, 2010, plaintiff commenced the instant action seeking review and reversal of the Commissioner's decision, pursuant to 42 U.S.C. § 405(g). The Commissioner now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), to affirm the denial of benefits. (Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem.") at 1.)

For the reasons set forth below, the Commissioner's motion is denied, and the case is remanded to give proper weight to plaintiff's testimony, medical evidence not limited to the right hand, and examinations and assessments made by plaintiff's treating physicians.


Plaintiff was born on January 29, 1955 and worked as a dental assistant at Jamaica Hospital since 1994. On October 21, 2005, plaintiff suffered a workplace injury, when a cabinet fell on her as she was assisting a doctor with a patient. (R. 5, 12.) Hospital records indicate an injury to her right hand and bruises to her neck and left shoulder, but the diagnosis was limited to an avulsion of her right middle finger. (R. 304, 309.) Plaintiff is right-handed. (R. 6.) In early 2006, plaintiff attempted to resume work, but her supervisor would not hire her for any position, "not even answering a telephone." (R. 35.) She has not worked since. (R. 7-8.)

I.Medical Evidence

A.Medical Evidence on Plaintiff's Physical Condition

On October 21, 2005, after plaintiff's workplace accident, she was treated at the Emergency Room of Jamaica Hospital. (R. 304-16.) Plaintiff suffered an injured right hand with x-rays indicating a possible avulsion of the third finger. (R. 304, 309-10.) Records from Jamaica Hospital also indicate bruises or redness to the forehead, neck, and left shoulder, and tests were ordered as to the left shoulder. (R. 304, 307, 310.)

1.Dr. Gary S. Bromley and Physical Therapy Sessions in 2006

From October 26, 2005 to November 9, 2005, hand surgeon Dr. Gary S. Bromley conducted plaintiff's initial treatments for her workplace injury to her right hand. The right hand had mild swelling and decreased range of motion ("ROM"), but swelling had lessened by November 9. (R. 408-09.) On January 18, 2006 and April 12, 2006, Dr. Bromley prescribed a right hand splint and physical therapy sessions three times a week for eight weeks. (Id.) He filled out disability certificates on November 9, 2005, December 14, 2005, and April 12, 2006.

(R. 318.) On September 20, 2006, Dr. Bromley stated that "claimant should not return to the profession of Dental Assisting." (R. 339.)

Plaintiff attended five physical therapy sessions at Jamaica Hospital from December 24, 2005 to January 30, 2006 and cancelled twice. (R. 314-15.) She was discharged because of cancellations and lateness. (Id.) Plaintiff resumed physical therapy on March 27, 2006 at Theradynamics Physical Therapy. (R. 410.) The session report indicated "mild swelling" and "tenderness" to her right middle finger, "fair grip strength," "constant pain," and diminished ROM. (Id.) Between her sessions at Jamaica Hospital and Theradynamics, plaintiff saw osteopath Dr. A. Shusterman on February 13, 2006 and March 21, 2006. (R. 340, 411-13.) He diagnosed a right middle finger fracture and right wrist sprain, found her gait unimpaired, Tinel's sign negative bilaterally, and no abnormalities to the head, neck, or spine. (R. 412-13.) An MRI on her right wrist on March 8, 2006 was normal. (R. 340.)

2.Consultative Examination By Dr. Steven Calvino

On July 18, 2006, plaintiff had a consultative examination with orthopedist Dr. Steven Calvino at the request of the Social Security Administration ("SSA"). (R. 319-22.) Dr. Calvino noted complaints of continued pain and numbness of the right middle finger, and that plaintiff took ibuprofen and wore a splint. (R. 319-20.) Plaintiff had an inability to cook, clean, do laundry, or shop by herself, but she was able to shower and dress herself independently. (R. 320.) Dr. Calvino found hand and finger dexterity intact, and grip strength to be full in the left hand (5/5), but limited in the right hand (4/5) due to pain. (Id.) Appearance, spine, and extremities were normal, with no significant restrictions. (R. 320-21.) He diagnosed "right hand pain," a fractured right middle finger, and gave a "good" prognosis. (R. 321.) Dr. Calvino assessed a mild limitation in the right upper extremity for repetitive gripping, heavy lifting and carrying, but no restrictions to the left upper extremity, and no restriction for standing, walking, sitting, or fine motor activities of the bilateral upper extremities. (R. 322.)

3.Hand Surgeon -- Dr. Ignatius Roger

Plaintiff began treatment with hand surgeon Dr. Ignatius Roger on September 12, 2006.

(R. 335.) She considered him her primary physician, as she visited him more consistently than any other doctor between 2006 and 2010. (R. 15, 422-26.) Dr. Roger initially noted the right hand had moderate diffuse edema, a tremor, decreased wrist motion and finger flexion, and felt cooler than the left hand. (R. 423.) Tinel, Compression and Phalen's tests of the right hand were positive. (R. 422.) He diagnosed right hand and wrist contusion, fractured right middle finger, neuroplaxia of the dorsal radial sensory nerve, right CTS, and possible right hand reflex sympathetic dystrophy ("RSD") and prescribed Lyrica, Licoderm patches, and physical therapy.

(R. 423.)

Plaintiff next saw Dr. Roger on January 30, 2007 and told him that she had not received therapy for her hand since August 2006. (Id.) Dr. Roger prescribed Neurontin, because Lyrica had caused drowsiness and weight gain. (Id.) On February 27, 2007, Dr. Roger advised a home exercise program and use of a Transcutaneous Electrical Nerve Stimulation ("TENS") unit; he also referred her for psychological evaluation and vocational counseling. (Id.)

At her March 27, 2007 visit, plaintiff reported the pain had worsened in her right upper extremity and was radiating to her neck, with a "cold sweaty feeling" at the dorsal and volar aspects of the right forearm and hand. (Id.) There was moderate edema of the right hand and middle finger, and reduced flexion. (Id.) He re-examined the plaintiff on May 16, 2007 and there was positive right hand Tinel's, carpal compression, and Phalen's signs, diffuse tenderness in her right hand, wrist, and forearm, and decreased ROM of the right wrist, with pain in all extremes. (Id.) On June 13, 2007, plaintiff complained of significant pain associated with therapy. There was hypoesthesia at the dorsum of the right hand and the right index, middle, and ring fingers as well as pain and decreased sensation in the right median distribution. (R. 424.) Plaintiff had decreased ROM in the wrist, and had developed a right hand tremor at rest. (Id.) She was referred to occupational therapy and pain management. (Id.)

On July 17, 2007, plaintiff told Dr. Roger that she had gone to the Emergency Room at Franklin Hospital after a fall on July 10 when her left leg went numb and gave out. (Id.) Plaintiff complained of pain to bilateral upper extremities, back and neck. (Id.) On July 18, 2007, he completed a "Physician's Report for Claim of Disability Due to Physical Impairment" ("2007 Physician's Report"). (R. 355-60.) In it, he reported plaintiff's symptoms as pain and "sweaty feeling" in her right upper extremity, and clinical findings as tenderness and decreased ROM. (Id.) Lab results were a positive bilateral carpel tunnel syndrome EMG and a negative MRI. A bone scan was not taken due to contraindication, and plaintiff's medical conditions could be expected to last at least twelve months. (Id.) The medication, Neurontin, caused plaintiff drowsiness. (Id.) Plaintiff could "occasionally" lift and carry five pounds, but could not use her right hand for simple grasping, pushing and pulling of arm controls, and fine manipulation. (R. 359.) Dr. Roger noted a mild driving limitation, but did not know whether plaintiff could travel alone daily via public transit. (Id.)Dr. Rogers wrote "N/E" regarding plaintiff's restrictions for the following: sit, stand, walk, bend, squat, crawl, climb, reach, use feet for repetitive movements, activities with environmental limitations, dietary restrictions and whether the plaintiff had to lie down during the day. (R. 356-59.)

On August 3, 2007, plaintiff complained to Dr. Roger of pain in all her digits bilaterally, with the right hand worse than the left, and in both wrists. (R. 424, 438.) Dermal coloration and temperature were equal in both upper extremities; there was a mild tremor of the right hand and an inability to flex completely any digit of the right hand to the palm, but no edema. (Id.) He continued the past treatment regimen of Neurontin and pain management. (Id.)

On November 6, 2007, Dr. Roger observed paresthesias in both hands, decreased finger flexion in both hands, and decreased pinch strength bilaterally. (R. 424, 439.) Carpal Tinel and Phalen's tests were positive bilaterally. (Id.) He again noted symmetrical dermal coloration in the upper extremities with diffuse edema, and hands and wrists were tender bilaterally. (Id.) Dr. Rogers indicated that plaintiff had RSD symptoms, and recommended continued rehab and psychiatric treatment. (Id.) On December 18, 2007, Dr. Roger detected tremors in both hands, diffuse paresthesias of both upper extremities and neck, and noted complaints of neck and bilateral shoulder pain. (R. 424-25, 440.) An EMG was positive for cervical spine involvement. (Id.) He prescribed splints to both hands and recommended she visit a spine specialist. (R. 440.)

Plaintiff next saw Dr. Roger on February 19, 2008, and told him that she had been unable to go to pain management, because psychiatric medications prevented her from traveling. (R. 425, 441.) She continued to complain of pain in both upper extremities. (Id.) Dr. Roger observed high sensitivity to touch in the right middle finger, with mild diffuse edema and sweating in both hands. (Id.) He recommended a pain management specialist and prescribed Lidoderm patches. (Id.) On May 14, 2008, plaintiff complained of "burning" in both hands, with right worse than the left. (R. 425, 442.) Dermal color and temperature were symmetrically equal in both hands, with increased sweating of the right hand. (Id.)Dr. Roger noted that surgical intervention would be contraindicated due to plaintiff's RSD. (Id.) Plaintiff saw Dr. Roger again five months later on October 8, 2008 -- his notes concerned only the right hand. (R. 425.)

Plaintiff visited Dr. Roger a year later, on October 20, 2009. (R. 425, 443.) She reported that she had not secured pain management care, but was taking Neurontin, Lexapro, Seroquel, and Motrin, and using a TENS unit at home. (R. 426.) Plaintiff was able to approximate the tips of the right index, ring, and fifth digits to the proximal palm, and had a three-centimeter deficit on composite flexion of the right middle digit. (R. 425.)She had mild edema in the right upper extremity, with derma slightly darker in the right than left. (R. 425-26.)

On November 23, 2009, Dr. Roger drafted a letter for a lawsuit plaintiff filed against the installer of the cabinet that had injured her at work in 2005. (R. 22, 422-26.) Dr. Roger summarized his treatment over the last three years and diagnosed multiple contusions, subsequent development of RSD, neuropraxia of the right radial nerve, flexor tenosynovitis, and CTS. (R. 426.) He gave a "poor" prognosis and wrote that, "[d]ue to the clinical manifestations of these diagnoses, the patient must rely upon the assistance of her family for routine activities of daily living and is totally disabled." (Id.)

Dr. Roger next saw plaintiff on January 4, 2010. (R. 430.) Plaintiff complained of inability to hold objects with her right hand, decreased sensation to all digits, and bottles "sliding through" right hand. (Id.) Dr. Rogers observed that plaintiff had edema of both hands, as well as ecchymotic bruises along her right forearm. (Id.) Dr. Roger completed a 2010 Residual Function Capacity ("RFC") Questionnaire ("2010 questionnaire") regarding plaintiff's shoulders, arms, and hands, and indicated problems with: fine and gross manipulations in both hands with lifting, objects falling, and carrying less than a pound; using fingers for ADLs such as cutting food, dressing, opening windows, drinking from containers, opening soda cans or turning bottle caps; stretching, pushing, pulling, and reaching with both arms. (R. 445-46.)

4.Dr. Carlisle St. Martin, the Electromyogram, and Dr. Dante A. Cubangbang

Plaintiff visited neurologist Dr. Carlisle St. Martin on May 1, 2007, and complained of severe right hand pain, pulsating pain and swelling of her hands. (R. 337.) A motor exam indicated decreased ROM of the right hand and right upper extremity due to pain, and an inability to flex or extend the right hand due to pain. (Id.) Dr. St. Martin found no abnormalities from examining her head, eyes, ears, cranial nerves, and gait. (Id.) A sensory exam indicated decreased sensation in the right hand, primarily to the third finger. (Id.) AnEMG of the upper extremities revealed bilateral CTS. (R. 338.)

On August 18 and October 3, 2007, plaintiff saw physiatrist Dr. Dante Cubangbang per Dr. Roger's physical therapy referral. (R. 373-76.) Plaintiff complained of headaches, bilateral shoulder and hand pain, neck pain radiating to the upper extremities, and lower back pain radiating to the lower extremities, numbness, tingling, and weakness to both upper extremities (right worse than the left) and her hands and legs. (R. 373.)

The doctor conducted an array of tests to the bilateral upper extremities, back, and neck. (R. 374-75.) For the spine, plaintiff tested positive for the Gaenslen test, positive bilaterally for the Spurling test, and straight leg raising elicited pain and paresthesia down the left lower extremity. (R. 374.) Shoulders and muscle strength testing was decreased but limited by pain.

(R. 375.) Plaintiff was unable to maintain the arm in abduction with minimal force applied on the drop art test and was unable to resist a downward force on the empty can test, indicating possible supraspinatus tendon tear. (Id.) Plaintiff tested positive for the impingement sign and painful arc tests, but negative for the lift-off sign and Yergason's/Speed's tests. (R. 375.) Dr. Cubangbang observed increased spasms, limited ROMs, and tenderness to plaintiff's back, neck, and bilateral shoulders, as well as positive Tinel's, Phalen's, Compression, and Finkelstein tests for the hands and wrists. (R. 374-75.) Plaintiff exhibited normal ROMs in the lower extremities, "except for bilateral hip which is slightly limited by pain." (R. 375.) Neurological examination showed no abnormalities to cerebrum, cranial nerves, cerebellum, and gait, but plaintiff did have decreased pinprick and light touch sensation in the antero-and postero-lateral aspect of arms down to the first 3.5 digits and in the bilateral L3-L5 dermatomal distribution, left worse than right, in the legs. (Id.)

Dr. Cubangbang's diagnosis indicated the following possible ailments: cervicalgia, cervical radiculopathy, bilateral shoulder adhesive capsulitis, tendinitis, myofascial pain syndrome, RSD, moderate right sensorimotor median neuropathy in the wrist, mild left sensory median neuropathy in the wrist, lumbar sprain/strain, bilateral sacroiliac joint dysfunction, and left trochanteric bursitis; and ruled out the following ailments: rotator cuff tear, herniated disc, and lumbar radiculopathy. (R. 376.) He advised physical therapy, pain medication and muscle relaxants, steroid injection to joints and to carpal tunnel, trigger point and epidural injections. He suggested an EMG/NCS of the lower and upper extremities, especially if her CTS got worse. (Id.) Dr. Cubangbang gave a guarded prognosis and indicated a total disability status. (Id.)

5.Consultative Examination By Dr. Stanley Mathew

At the request of the SSA, plaintiff saw orthopedist Dr. Stanley Mathew on July 18, 2009 for a consultative examination. (R. 103, 387-90.) Dr. Mathew observed a normal gait and no assistive devices. (R. 388.) He reported that plaintiff had difficulty squatting and walking on heels and toes, but needed no help changing for the exam or getting off the exam table, and that she could rise from a chair without difficulty. (Id.)Dr. Mathew noted impaired right hand and finger dexterity, difficulty zipping, tying, and buttoning on the right, and a right hand grip strength of 3/5. (Id.) There was decreased ROM in the bilateral shoulder, cervical and lumbar spine, though to a lesser extent than Dr. Cubangbang found, with pain to all planes. (R. 388-89.) Plaintiff had tenderness in the cervical spine, but had no spasms or trigger-points, and was negative bilaterally on the straight-leg raising test. (Id.)Plaintiff had full ROM of her elbows, fingers, forearms, wrists. She had pain in her right wrists and fingers, and mild erythema and swelling of the right hand, but no muscle atrophy. (Id.) Plaintiff's reflexes in the upper extremities were intact, though she had decreased sensation throughout the right upper extremity. (Id.)Plaintiff had full ROM of her bilateral lower extremities, with strength at 4/5. (Id.) Dr. Mathew diagnosed possible chronic Complex Regional Pain Syndrome ("CRPS") of the right upper extremity, as well as "chronic bilateral neck and shoulder pain, possible rotator cuff injury versus cervical radiculopathy, chronic low back pain, myofascial pain, and possible lumbar radiculopathy." (Id.) He opined that plaintiff was moderately limited for walking, standing, climbing, lifting, and squatting, and severely limited in her right upper extremity for fine motor activities, lifting, carrying, reaching, and overhead activities. (R. 389-90.)

On July 19, 2009, Dr. Mathew completed the SSA's form regarding plaintiff's ability to do work-related activities. (R. 392-98.) According to his assessment, plaintiff was occasionally limited in her ability to lift and carry up to ten pounds because of weakness of the right upper extremity with severe numbness and tingling. (R. 392.) Plaintiff could sit and stand for two hours without interruption, and walk for three hours without interruption. (R. 393.) In an eight-hour workday, she could sit for four hours, and stand and walk for two hours. (Id.) Plaintiff occasionally could reach, handle, finger, feel, and push/pull with the right hand; and frequently could reach, and continuously handle, finger, feel, push/pull with the left hand. (R. 394.) Plaintiff was right-handed with symptoms of CRPS in the right upper extremity and had no real restraints for feet operations. (Id.) Plaintiff could occasionally operate a motor vehicle and occasionally work with environmental limitations, but never should be exposed to unprotected heights. For postural activities,plaintiff could occasionally climb stairs and ramps, balance, stoop, and kneel, but never could climb ladders or scaffolds, crouch, or crawl. (R. 395.) She had low back pain radiating down right lower extremity that was aggravated by bending. (Id.) His basis for these conclusions were findings of "tenderness to L-S, cervical spine, limited ROM of B/L shoulders, tenderness to right upper extremity, [and ...

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