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Michael Zentack v. Michael J. Astrue

September 21, 2012

MICHAEL ZENTACK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Michael Zentack ("Plaintiff") commenced this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), challenging the Defendant Commissioner of Social Security's (the "Commissioner") denial of his application for Supplemental Security Income ("SSI"). Presently before the Court is the Commissioner's motion for judgment on the pleadings. For the reasons explained below, the Commissioner's motion is DENIED, and this matter is remanded for further consideration in accordance with this Memorandum and Order.

BACKGROUND

On April 5, 2007, Plaintiff was assaulted by three teenagers in front of his home in West Sayville, New York. (R. 25-26.)*fn1 He went to the emergency room and was treated for neck and back pain. (R. 151.) On August 1, 2007, Plaintiff applied for SSI benefits, asserting that he had been disabled since January 1, 2007*fn2 due to a joint problem, a back problem, depression, and nervousness. (R. 54, 95.) This application was denied on November 20, 2007. (R. 51-54.) On January 17, 2008, Plaintiff requested a hearing before an administrative law judge ("ALJ") (R. 55), which took place on May 11, 2009, before ALJ Brian J. Crawley (R. 20). Plaintiff waived his right to be represented by counsel and was the only witness to testify at the hearing. (R. 22-47.)

The Court will first summarize the relevant evidence that was presented to the ALJ. Then the Court will summarize the ALJ's findings and conclusions.

I. Non-Medical Evidence

Plaintiff was born in 1970 in Suffolk County, New York. He completed school through the tenth grade and dropped out when he was fifteen years old; he returned to get his general equivalency diploma ("GED") in 1993 when he was twenty-three years old. (R. 40-41.)

Plaintiff had no reported income prior to 1993. (R. 115.) That year, he obtained employment as a "driver's helper" for a window installation company. (R. 110, 120.) His responsibilities included providing directions to the driver and loading and unloading windows from the truck. (R. 120.) The job required him to walk for five hours per day, sit for three hours per day, and lift 100 to 200 pounds at a time. (R. 120.) The following year, Plaintiff worked as an air conditioner installer which involved standing and walking for eight hours per day and lifting 50 to 150 pounds. (R. 117.) Then, from 1994-1995, in 2000, and again in 2005, Plaintiff worked as a roofer, walking, standing, and climbing up to ten hours per day and lifting 80 to 100 pounds. (R. 110, 111, 119.) Plaintiff then worked as an air conditioner installer again for three months in 2006 (R. 110), and for two months in 2007 Plaintiff worked for a power washing and painting company (R. 147). Plaintiff stopped working after he was assaulted on April 5, 2007 and has not returned to work. (R. 25.)

Plaintiff testified that he lives with his mother and younger brother. (R. 25.) Although he used to be very social, he now spends most of his time alone, has no friends, and no longer attends family events. (R. 31-32, 36, 128.) Plaintiff spends most days at home watching television with his mother and brother, reading self-help books, and writing in a journal. (R. 31, 33-34, 36.) He is capable of bathing and dressing himself, and he occasionally helps out around the house by washing dishes, mowing the lawn, and doing laundry. (R. 34, 41, 123.)

II. Medical Evidence

There is evidence in the record that Plaintiff

received treatment for both psychiatric and physical impairments. The Court will discuss the treatment Plaintiff received for his physical and psychiatric conditions separately.

A. Neck, Back, and Shoulder Impairments Plaintiff went to the emergency room at Brookhaven

Memorial Hospital Medical Center on April 5, 2007, complaining of neck and back pain from being assaulted. (R. 151.) A physical examination revealed that Plaintiff had tenderness and muscle spasms in his back and neck and a limited range of motion. (R. 152.) He was diagnosed with a sprain of the neck and thoracic spine and discharged that same day. (R. 152.)

Plaintiff followed up with Dr. Raymond Ebarb of the Great South Bay Family Medical Practice on May 18, 2007. (R. 157.) He told Dr. Ebarb that he had been "jumped" and complained of pain between his shoulders and radiating down both arms. (R. 157.) Dr. Ebarb observed that Plaintiff's upper extremity strength was 5/5 but that there was exquisite tenderness of the trapezius and interscapular musculature bilaterally. Dr. Ebarb diagnosed Plaintiff with cervical radiculopathy, ruled out herniated nucleus pulposus, and cervical strain. He prescribed Voltaren, physical therapy, and ordered an MRI of Plaintiff's cervical spine. (R. 157.) There is no evidence in the record that Plaintiff began physical therapy or had an MRI.

The record reflects that Plaintiff did not see another doctor for his neck and back pain until October 10, 2007 when he was examined by a consultative examiner for the Social Security Administration ("SSA"), Dr. Samir Dutta of Industrial Medicine Associates. (R. 174-176.) Dr. Dutta noted that Plaintiff's ability to sit was not limited and his ability to stand, walk, and lift heavy weights was mildly limited. (R. 176.) An x-ray of Plaintiff's right shoulder was unremarkable. (R. 177.) Dr. Dutta diagnosed Plaintiff with rule out degenerative disk disease of the dorsal and cervical spines, tendinitis or acromioclavicular joint impingement of the right shoulder, and a history of depression. (R. 176.)

On January 9, 2008, Dr. Ebarb diagnosed Plaintiff with cervical radiculopathy, prescribed six weeks of physical therapy as well as Flexeril and Neurontin, and ordered an MRI of the cervical spine. (R. 211.) The record only contains Dr. Ebarb's prescriptions. There is no evidence in the record documenting any additional examinations performed by Dr. Ebarb. Plaintiff had an MRI of his cervical spine on March 1, 2008, which revealed "[s]mall bulging discs from C5 to C7," "[d]egenerative disc disease from C2 to T1," and "[s]traightening of the normal cervical spine lordosis consistent with muscle spasm." (R. 214.) There is no evidence in the record that Plaintiff followed-up with Dr. Ebarb after receiving the results of his MRI.

On March 21, 2008, Plaintiff was examined by Dr. Marsha Alger, a family practitioner at the Stony Brook University Medical Center. Plaintiff complained of neck and back pain at a level eight in intensity on a scale of one to ten. (R. 244.) Dr. Alger observed that Plaintiff's neck exhibited no crepitus or deformity and had a full range of motion and that the strength of Plaintiff's upper extremities was 5/5. Dr. Alger diagnosed Plaintiff with neck pain and major depressive disorder. She prescribed physical therapy, Neurontin, Norflex, and Vicodin. She also recommended a psychiatric evaluation. (R. 245.)

Plaintiff met with Dr. Alger again on May 1, 2008 complaining of neck and stomach pain. (R. 248.) Plaintiff had been receiving physical therapy for two weeks, but he felt that it made the pain worse (although then better the next day). (R. 248.) Dr. Alger referred Plaintiff to an orthopedist and a pain clinic and refilled his prescriptions for Neurontin and Norflex. Plaintiff also requested ...


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