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T Racey L Osquadro v. Michael J. A Strue

September 21, 2012


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


The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Plaintiff Tracey Michael Losquadro, Civil Procedure 12(c). Plaintiff opposes the ("plaintiff" or "Losquadro") brings this Commissioner's motion and cross-moves for action, pursuant to 42 U.S.C. § 405(g) of the judgment on the pleadings, alleging that the Social Security Act, challenging the decision Administrative Law Judge ("ALJ") erred by: of the Commissioner of Social Security (1) failing to give controlling weight to the ("defendant" or "Commissioner"), dated July opinions of plaintiff's treating physicians; (2) 30, 2010, partially denying the plaintiff's failing to properly consider plaintiff's application for Disability Insurance Benefits credibility; and (3) failing to properly ("DIB"). The Commissioner found that consider the opinion of the treating plaintiff became disabled on November 10, chiropractor. 2008, when the plaintiff's age category changed to an individual approaching For the reasons set forth below, the case is advanced age (20 C.F.R. § 404.1563). The remanded to the ALJ for further proceedings Commissioner found that, prior to the consistent with this Memorandum and Order. established onset date, plaintiff's residual In particular, given that (1) the ALJ afforded functional capacity allowed him to engage in little weight to the opinion of the treating unskilled sedentary work, which existed in chiropractor solely because he is a significant numbers in the national economy. chiropractor and (2) the Court would simply be speculating as to how the ALJ would have opined that plaintiff was totally disabled and otherwise weighed the chiropractor's opinion advised continued chiropractic treatment. (Id.) under the applicable factors pursuant to S.S.R. In August 2006, plaintiff also began receiving 06-03p, the case must be remanded to the ALJ cortisone injections. (Id. at 409.) for further consideration of the chiropractor's opinion as an "other source" under the In January 2008, Dr. Goldstein opined in a applicable factors. The Court finds the other letter that plaintiff remained permanently and arguments put forth by plaintiff, however, to totally disabled. (Id. at 535.) In February be without merit. 2008, Dr. Goldstein assessed that in an 8-hour workday, plaintiff could sit for 0-1 hour,

I. BACKGROUND stand/walk 0-1 hour, and lift/carry up to 5 pounds occasionally. (Id. at 544-46.) He also

A. Facts opined that plaintiff could not push, pull, kneel, bend or stoop and that plaintiff's pain

The following summary of facts is based was often severe enough to interfere with upon the administrative record ("AR") as attention and concentration. (Id.) On October developed by the ALJ. A more exhaustive 8, 2008, Dr. Goldstein again reported that recitation of the facts is contained in the plaintiff was unable to work and remained parties' submissions to the Court and is not disabled (Id. at 605) and reiterated, in August repeated herein. 2009, that plaintiff was totally disabled. (Id. at 24.)

1. Medical Evidence

ii. Dr. James Liguori

a. Treating Physicians

Dr. Liguori, a neurologist, first examined

i. Dr. Mitchell Goldstein plaintiff on October 26, 2004, and an additional eight times ending on March 7,

Dr. Goldstein, plaintiff's orthopedist, 2007. (Id. at 402-03, 355-56, 352-53, 349-began treating plaintiff on February 28, 2006, 350, 344-45,341, 338-39, 489, 492-93.) Dr. following a work injury four days earlier. (AR Liguori diagnosed cervical and lumbosacral 415.) He examined plaintiff on 20 separate radiculopathy. (Id. at 403.) He confirmed his occasions from March 23, 2006, through diagnoses in subsequent examinations with October 8, 2008, on a nearly monthly basis. the plaintiff. (Id. at 376-80.) From February (Id. at 404-13, 530-34, 570-72, 593-605.) 2005 to January 2006, he administered trigger Plaintiff complained of right shoulder and point injections to the left cervical spine. (Id. lower back pain with numbness and tingling at 380-85.) In March 2006, Dr. Liguori down to his left leg. (Id.)Physical opined that plaintiff was totally disabled from examination led Dr. Goldstein to report that his work duties. (Id. at 367.) plaintiff had low back pain, left sciatica and myofascitis, right shoulder tendonitis, and a Dr. Liguori's follow-up examination in right arm strain. (Id. at 416.) He July 2006 showed that plaintiff still recommended a therapy program. (Id.) complained of neck pain radiating to his right shoulder, lower back pain radiating to his left In March 2006, Dr. Goldstein noted that lower extremity, and left leg numbness. (Id. at plaintiff was additionally having tremors, and 349-50.) Physical examination revealed diagnosed a cervical and lumbosacral sprain muscle spasm in the cervical and lumbosacral and right shoulder tendonitis. (Id. at 413.) He spine and decreased pinprick sensation in his "markedly limited" in a few tasks, but only left lower back and lower extremity. (Id.) "moderately" or "mildly limited" in many others. (Id.)

On January 16, 2007, Dr. Liguori added an additional diagnosis of questionable early On May 5, 2010, Dr. Gadaleta completed Parkinson's disease. (Id. at 373-74.) an assessment that indicated moderate limitations in plaintiff's ability to perform In the period between April 14, 2006 and several work-related tasks and opined that March 7, 2007, Dr. Liguori completed several plaintiff was unable to work. (Id. at 696-97.) Workers' Compensation Board forms reporting his diagnoses of radiculopathy and iv. Dr. Howard Rosner his opinion that plaintiff was totally disabled from all work duties. (Id. at 358, 337, 340, Dr. Howard Rosner, a chiropractor who 342, 348, 351, 354, 494.) treated plaintiff one to three times a week since November 2004, assessed the patient in On August 27, 2007, Dr. Liguori assessed January 2007. (Id. at 420-32.) In an undated that, in an 8-hour workday, plaintiff could sit note, Dr. Rosner wrote that patient remained and stand/walk for 15 minutes at a time and totally disabled due to spinal disc bulges and less than 2 hours total. (Id. at 488.) herniations with subsequent leg and arm radiculopathy. (Id. at 559.) He reported that, On February 12, 2008, Dr. Liguori in an 8-hour workday, plaintiff could sit for assessed that, in an 8-hour workday, plaintiff less than 6 hours, stand/walk less than 2 could sit for 0-1 hour, and stand/walk for 0-1 hours, and lift/carry up to 10 pounds hour. (Id. at 563.) occasionally. (Id. at 429.) He also opined that plaintiff had decreased grip and dexterity, and iii. Dr. Dominic Gadaleta limited ability to push and pull with his upper extremities. (Id.)

Dr. Gadaleta, a psychiatrist, completed a questionnaire in May 2007, indicating that he v. Dr. Jasjit Singh first began treating plaintiff in September 2006. (Id. at 444.) He reported that plaintiff On March 6, 2009, Dr. Singh, a was extremely depressed, had a history of neurologist, indicated that the plaintiff depression, and maintained symptoms of continued to get chiropractic care for his insomnia, anxiety, fearfulness, hopelessness cervical-lumbosacral radicular complaints and and anhedonia. (Id.) He diagnosed patient a request for acupuncture was made to relieve with major depressive disorder and secondary the plaintiff's severe pain. (Id. at 573.) On panic attacks with agoraphobia, and noted that June 5, 2009, Dr. Singh assessed cervical and patient was easily distracted, self-isolating, lumbosacral radiculitis. (Id. at 584.) Dr. Singh and limited in concentration, adaptation, and continued treating plaintiff until March 9, social interaction. (Id. at 448.) Dr. Gadaleta 2010, and administered trigger point opined that plaintiff could not function in a injections on three occasions. (Id. at 684-86.) work setting. (Id.)

b. Diagnostic Tests

On February 12, 2008, Dr. Gadaleta assessed plaintiff's mental residual functional In November 2004, an MRI of plaintiff's capacity to perform work-related tasks. (Id. at cervical spine revealed subligamentous 551-58.) He reported that plaintiff was posterior disc herniations impinging on the anterior aspect of the spinal canal, but there disc herniation with encroachment upon the was no evidence of spinal abnormality. (Id. at thecal sac and displacement of the left nerve 300.) An MRI of the brain was normal. (Id. at root, shallow right disc herniation with 388.) EMG and NCV studies of the upper encroachment, small central posterior extremities were within normal limits. (Id. at herniations, and a mild bulging disc. (Id. at 396-98.) However, EMG and NCV studies of 582.) An MRI of the cervical spine on June the lower extremities in December 2004 20, 2009 revealed disc degeneration and showed radiculopathy of the left lower shallow desiccated disc herniations extremities. (Id. at 389.) accompanied by bony spurring and mild bone narrowing. (Id. at 591.)

An MRI in January 2005 revealed lumbar lordosis, disc herniations, and a c. Consulting Physicians subligamentous herniation. (Id. at 301.) i. Dr. Tasneen Sulaiman

An EMG performed in January 2006 revealed bilateral mild carpal tunnel In February 2007, Dr. Sulaiman, an syndrome. (Id. at 377.) An EKG performed in internal medicine physician, conducted a one-February 2006 revealed nonspecific T-wave time consultative examination on behalf of fluttering, and was considered borderline and the Social Security Administration ("SSA"). an echocardiogram showed adequate left (Id. at 437.) He diagnosed plaintiff with ventricular function and mild mitral cervical and lumbar radiculitis and histories regurgitation. (Id. at 305, 322, 478.) of hypertension, anxiety and depression. (Id.)

A physical examination revealed that plaintiff An MRI performed in March 2006 could not squat and that he experienced showed significant chronic acromioclavicular, limitations in his range of motion in the joint hypertrophy and rotator cuff tendonitis, cervical and lumbar spine. (Id. at 435-36.) but no signs of a labral tear, fracture, or However, Dr. Sulaiman noted that plaintiff dislocation. (Id. at 335.) could walk on heels and toes without difficulty, had a normal gait, required no An MRI performed in April 2006 revealed assistance changing or getting on and off the reversal of the normal cervical curvature, examination table, and had no difficulty cervical spondylolisthesis and discogenic sitting, standing, or walking. (Id.) Dr. changes, but no evidence of spinal cord Sulaiman concluded that, although plaintiff compression. (Id. at 336.) Electrodiagnostic had mild difficulty bending, he maintained the studies revealed evidence of radiculopathy of capacity for more than moderate exertion. the lower extremities, however, the upper (Id.) extremities were within normal limits. (Id. at 359-65.) In March 2007, a State Agency medical consultant assessed that, in an 8-hour VNG testing on April 27, 2009 was workday, plaintiff could sit up to 6 hours, abnormal and consistent with possible central stand/walk up to 6 hours, and lift/carry up to pathology, possible benign paroxysmal 20 pounds occasionally and 10 pounds ...

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