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Miracolo v. Berryhill

United States District Court, E.D. New York

February 26, 2018

Joseph Miracolo, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO, UNITED STATES DISTRICT JUDGE.

         Plaintiff Joseph Miracolo (“plaintiff”) commenced this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act on February 18, 2015, challenging the final decision of the Acting Commissioner of Social Security (the “Commissioner”)[1] denying plaintiff's application for Social Security disability benefits on December 23, 2014. (ECF No. 1; Administrative Record (“AR”) at 2.) The Court remanded this case to the Commissioner, pursuant to the sixth sentence of 42 U.S.C. § 405(g), to consolidate plaintiff's claims for widow's insurance and disability insurance benefits, conduct a new hearing, and issue a new decision on the consolidated claims. (ECF No. 9.) On remand, plaintiff received a partially favorable decision: on February 24, 2016, he was found not to have been disabled prior to January 17, 2015, but to have been disabled as of that date.[2] (AR at 608, 620.) The Appeals Council affirmed this decision, which therefore stood as the Commissioner's final decision. (AR at 381.)

         Plaintiff now challenges the unfavorable portion of the Commissioner's decision, finding that plaintiff was not disabled under the Social Security Act from March 5, 2012 through January 16, 2015. (ECF No. 17-1 at 1.) In particular, plaintiff challenges the determination that he was capable of performing other work that existed in significant numbers of jobs in the national economy from March 5, 2012 through January 16, 2015. (Id.)

         Plaintiff moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF No. 17.) The Commissioner opposes the motion and cross-moves for judgment on the pleadings. (ECF Nos. 20-21.) For the reasons set forth below, the Court denies plaintiff's motion for judgment on the pleadings, denies the Commissioner's cross-motion for judgment on the pleadings, and remands the case to the Administrative Law Judge (“ALJ”) for further proceedings consistent with this Memorandum and Order.

         I. Factual Background

         The following summary of the relevant facts is based upon the Administrative Record developed by the ALJ hearing plaintiff's case following remand.[3] (ECF Nos. 13-15.) A more exhaustive recitation is contained in the parties' submissions to the Court and is not repeated herein.

         A. Personal and Work History

         Plaintiff was born on January 18, 1960. (AR at 147, 159.) Plaintiff was 52 years old at the onset of his disability on March 5, 2012, and 56 years old at the time of the second hearing before an ALJ in this case on February 2, 2016. (Id. at 389, 392.) Plaintiff received a high school education and completed specialized job training in carpentry I and II. (Id. at 164.) Plaintiff held only one job before the alleged onset of his disability, working as a roofer for a construction company. (Id.) Plaintiff testified that he worked as a roofer for 28 years. (Id. at 400.) In this job, plaintiff used machines, tools, and equipment, and carried roofing materials such as slates and shingles, some of which weighed over 100 pounds. (Id. at 165.) Plaintiff would stoop, kneel, crouch, climb, and crawl for hours each day while performing his job as a roofer.[4] (Id.) Plaintiff was working as a roofer when his alleged disability began as a result of a work-related injury: he testified that he was carrying heavy slate when he “felt the thing pop.” (Id. at 306, 401.) His testimony and written reports regarding his symptoms from the date of alleged onset through the date of his second hearing before an ALJ are discussed in detail in Section D.

         B. Relevant Medical History

         Plaintiff visited David Kim, M.D. (“Dr. Kim”) of Premier Care Levittown on March 6, 2012, and reported that he had been experiencing acute back pain, starting one week earlier. (Id. at 306.) Plaintiff reported at this visit that the pain “d[id] not limit [his] activities, ” and he denied numbness or weakness in his extremities. (Id.) Dr. Kim noted that plaintiff experienced “muscle spasm of back” and prescribed him Flexeril, Naprozyn, and Vicodin for varying lengths of time over the next week and a half. (Id. at 309.) Dr. Kim noted that “services ordered” included “rest 1-2 days.” (Id.)

         Plaintiff's next visit was on March 12, 2012, with Steven Jacobs, D.O. (“Dr. Jacobs”), at Premier Care of Levittown. (Id. at 311-15.) Plaintiff reported that the prescribed medicine had not relieved his acute back pain, which he reported started four months earlier and “moderately limit[ed his] activities.” (Id. at 311.) Dr. Jacobs noted that “[p]ertinent findings include limited range of neck motion and denies athletic activity.” (Id.) Musculoskeletal examination showed tenderness of the thoracic spine. (Id. at 313.) Dr. Jacobs diagnosed a sprain of the thoracic region and prescribed a Lidoderm adhesive patch and physical therapy. (Id. at 313-14.)

         Plaintiff also saw chiropractor Brett Pastuch, D.C. (“Dr. Pastuch”), on March 12, 2012, and reported a pain level of nine out of ten. (Id. at 206, 267-71.) Dr. Pastuch noted that plaintiff described his pain as “achy, burning, dull, sharp, throbbing.” (Id. at 206.) He wrote that his objective findings included that head compression and Soto-Hall testing were both positive, and that spinal subluxation levels were C5, C6, T1, T2, T3, T4, and T7. (Id.) In a report Dr. Pastuch prepared for the New York State Workers' Compensation Board (the “Workers' Compensation Board”) based on this initial examination, he wrote that plaintiff had approximately 67 percent temporary impairment and could not return to work because of his back pain. (Id. at 268, 270-71.) He noted that plaintiff was to return for a follow-up appointment within a week. (Id. at 271.)

         A magnetic resonance imaging (“MRI”) scan of the thoracic spine conducted on March 12, 2012 showed a central disc herniation just touching the spinal cord at the T4-5 level, a left parasagittal disc herniation abutting the spinal cord at the T7-8 level, and an enhancing mass within the epidural space at the level of the T7 vertebral body. (Id. at 367.) Plaintiff was also found to have an enhancing mass within the epidural space along the right posterolateral aspect of the canal at the T7 level. (Id. at 367-68.) The interpreting radiologist wrote that the differential diagnosis included hemangioma, meningioma, and a process extending from the right facet joint. (Id. at 368.)

         Dr. Pastuch examined plaintiff again on April 25, 2012. (Id. at 275.) His findings were the same as at plaintiff's previous visit, including that plaintiff was “not capable of returning to work as a roofer.” (Id.) He wrote that “the continue[d] treatment should allow [him] to have objective functional improvement and allow him to return to work in 4-8 weeks.” (Id.)

         On June 11, 2012, Philip M. Rafiy, M.D. (“Dr. Rafiy”), examined plaintiff for his progressively worsening back pain. (Id. at 201-02.) Dr. Rafiy found mid-thoracic tenderness, lateral bending to 30 degrees bilaterally, flexion to 30 degrees, extension to 20 degrees, [5] full motor strength of L1-S1, positive straight leg raise at 90 degrees, and decreased sensation in the left upper arm. (Id. at 201.) Dr. Rafiy noted that his impression was thoracic discogenic pain, and that he needed to “rule out thoracic mass.” (Id.) Dr. Rafiy also noted that plaintiff had a “moderate partial orthopedic disability, ” and recommended that he continue physical therapy. (Id. at 201-02.) Dr. Rafiy wrote that plaintiff “has an incidental finding of a mass that needs to be worked up . . . we need to see if this is the source of his pain.” (Id. at 201.) Dr. Pastuch also examined plaintiff on June 11, 2012, and found that plaintiff had a reduced cervical range of motion. (Id. at 276-79.)

         Dr. Rafiy examined plaintiff again on June 25, 2012, and noted similar findings: that plaintiff had mid-thoracic tenderness, lateral bending to 30 degrees bilaterally, flexion to 40 degrees, extension to 20 degrees, positive straight leg raise at 90 degrees, and decreased sensation of the left upper arm. (Id. at 262.) Dr. Rafiy diagnosed plaintiff with disc herniation with spasms and incidental epidural mass. (Id.) He noted again that plaintiff had moderate partial disability. (Id.) Dr. Rafiy completed a Workers' Compensation report based on this examination, dated August 13, 2012, in which he reported that plaintiff had 100 percent temporary impairment. (Id. at 258-60.)

         On August 13, 2012, Dr. Pastuch examined plaintiff and noted decreased range of motion and thoracic spine problems due to plaintiff's cervical spine issues, and recommended a cervical MRI. (Id. at 204.) Dr. Pastuch's assessment from this visit was the following:

Patient has changes from baseline function from exacerbation. He has decreased [range of motion] and problems with [activities of daily living] (sitting, lifting and standing). The patient continues to need a[n] MRI to the cervical spine and his thoracic condition is a result of the cervical spine problem not be[ing] treated and diagnosed correctly.

(Id.) Based on plaintiff's August 13, 2012 visit, as well as his visits on August 27, 2012 and August 31, 2012, Dr. Pastuch noted in progress reports prepared for the Workers' Compensation Board that plaintiff had approximately 67 percent temporary impairment and could not return to work because of his back pain. (Id. at 284-86, 288-89.)

         On September 5, 2012, plaintiff had a thoracic spine MRI taken, which showed T9-10 disc desiccation, loss of disc height, and anterior disc herniation. (Id. at 265.) The MRI also showed no cord compression or spinal stenosis. (Id.)

         On September 17, 2012, Dr. Pastuch examined plaintiff again and found that plaintiff had positive head compression testing, positive maximum left lateral compression testing, positive head distraction, positive Soto-Hall testing, decreased range of motion of the cervical spine (flexion 30/50, right lateral bending 18/45), and spinal subluxation at the C5, C6, T1, T2, T3, T4, and T7 levels. (Id. at 287.)

         Plaintiff had additional visits with Dr. Pastuch on October 5, 2012 (id. at 291), October 22, 2012 (id. at 290), November 5, 2012 (id. at 291), November 9, 2012 (id. at 295), November 23, 2012 (id. at 294), December 3, 2012 (id. at 295), December 10, 2012 (id. at 298), December 31, 2012 (id. at 300), January 4, 2013 (id. at 326), February 4, 2013 (id.), February 8, 2013 (id. at 328), and March 4, 2013 (id.). Dr. Pastuch noted thoracic improvement, but also that plaintiff had continued cervical and thoracic pain. (See, e.g., id. at 287, 290, 294, 300.)

         On March 11, 2013, Dr. Pastuch completed a provider note recording his findings from an examination, including that plaintiff continued to have spinal subluxation at the C5, C6, T1, T2, T3, T4, and T7 levels, his range of motion of the cervical spine remained decreased (flexion 37/50, extension 43/60, bilateral rotation 70/80, left lateral bending 35/45, and right lateral bending 40/45), and he had positive head compression testing, positive right lateral compression testing, and positive head distraction testing. (Id. at 331.) Dr. Pastuch also wrote in this provider note that “it [was his] professional opinion” that “[plaintiff's] thoracic pain is from his cervical condition and that both his cervical and thoracic condition is [sic] directly related to his 11/1/11 work injury.” (Id.) Dr. Pastuch wrote in the “Treatment & Plan” section of the note that plaintiff needed a cervical MRI “which still has not been approved by workers['] compensation.” (Id.)

         Dr. Pastuch wrote in his Workers' Compensation Board progress report for plaintiff's March 8, 2013 and March 15, 2013 visits that plaintiff had 100 percent temporary impairment and could not return to work because of his back and neck pain. (Id. at 332-33.)

         On March 21, 2013, plaintiff had a cervical MRI taken, which showed a small central disc protrusion at the C4-5 level effacing the ventral aspect of the thecal sac, a parasagittal disc protrusion at the C5-6 level and osteophyte ridging compressing the right aspect of the spinal cord resulting in mass effect upon the exiting C6 nerve root, and circumferential disc bulging at the C6-7 level, contacting the right ventral aspect of the spinal cord. (Id. at 322.)

         On April 1, 2013, plaintiff visited with Dr. Pastuch and reported thoracic and cervical pain levels of three out of ten. (Id. at 334.) Dr. Pastuch noted that plaintiff's thoracic spine had improved, but that the MRI indicated that plaintiff had a positive disc injury to his cervical spine. Dr. Pastuch again found that plaintiff had positive head compression testing, positive right lateral compression testing, positive head distraction testing, positive Soto-Hall testing for the thoracic spine, decreased range of motion of the spine, and positive spinal subluxation at the C5, C6, T1, T2, T3, T4 and T7 levels. (Id.) Dr. Pastuch reported the same findings at a June 28, 2013 visit. (Id. at 345.) Plaintiff again reported thoracic and cervical pain levels of three out of ten. (Id.) Dr. Pastuch examined plaintiff and reported that he: had “made functional gains from the treatment of his disc injury”; had reduced, but improving, ranges of motion; had problems with activities of daily living, including lifting and sleeping; and had decreased pain. (Id.)

         Plaintiff had additional visits with Dr. Pastuch on August 16, 2013 (id. at 370), August 19, 2013 (id.), August 26, 2013 (id. at 371), September 6, 2013 (id.), September 20, 2013 (id. at 372), October 4, 2013 (id. at 373), October 11, 2013 (id.), and October 18, 2013 (id. at 374). Plaintiff reported increasing levels of thoracic pain-three or four out of ten-and cervical pain-three, four, or seven out of ten. (Id. at 370-74.) As in the past, he described his pain as “achy, burning, dull, sharp, throbbing.” (Id.) Dr. Pastuch noted that cervical range of motion was decreased, head compression and right lateral compression remained positive, and spinal subluxation remained at the C5, C6, T1, T2, T3, T4 and T7 levels. (Id. at 370-73.) On September 6, 2013, Dr. Pastuch reported that plaintiff had made “functional gains” from the treatment of his cervical disc injury, and that he had reached medical improvement and baseline for his condition. (Id. at 372.) In his notes from the September 20, 2013, and October 11, 2013 appointments, Dr. Pastuch reported that plaintiff had “an exacerbation” with loss from baseline functioning, including in his ranges of motion and daily living activities. (Id. at 372-73.)

         On November 1, 2013, Dr. Rafiy[6]examined plaintiff and found mid-thoracic tenderness, pain with forward flexion and lateral bending, increased kyphosis, full L1-S1 motor strength, no problems with heel and toe walk, cervical tenderness, positive cervical compression test, severe upper trapezii muscle spasms, right shoulder tenderness, positive impingement, positive apprehension, and difficulties placing his right hand behind his head and back. (Id. at 521-22.) Plaintiff reported that significant pain continued, that he had trouble placing his right hand behind his head and back, and that he had trouble sleeping. (Id. at 521.) Dr. Rafiy found that plaintiff had right shoulder derangement and thoracic discogenic pain and cervical discogenic pain, and noted that he ruled out rotator cuff tear. (Id. at 521.) Dr. Rafiy prescribed plaintiff Duexis and Vicodin, and recommended an MRI of the right shoulder. (Id. at 521-22.)

         Plaintiff had an MRI taken on November 7, 2013, which showed that he had subacrimonial bursal effusion, acromioclavicular thickening with arthrosis resulting in abutment of the supraspinatus muscle and tendon, increased signal of the supraspinatus tendon consistent with partial undersurface rotator cuff tendon tear, and moderate biceps tenosynovial effusion. (Id. at 546.)

         On November 13, 2013, Dr. Rafiy recorded that plaintiff had right shoulder tenderness, positive impingement, positive apprehension, and 0-100 degrees of flexion. (Id. at 525.) On November 18, 2013, Dr. Rafiy performed another examination and made a similar assessment, noting right shoulder derangement, tenosynovitis, partial tendon tear, cervical discogenic pain with radiculopathy, and thoracic discogenic pain.[7](Id. at 523-24.) Dr. Rafiy recommended injections if pain worsened. (Id. at 524.)

         Plaintiff continued seeing Dr. Pastuch throughout November and December 2013. Dr. Pastuch noted continued thoracic and cervical pain (id. at 375-79), and decreased range of motion and positive orthopedic testing (id. at 376).

         On January 28, 2014, Dr. Rafiy examined plaintiff and noted that plaintiff had a “work-related accident.” (Id. at 526.) He explained further that:

The patient was a roofer for many years and the constant repetitive motion and lifting with his upper extremities cause[d] severe chronic right shoulder pain. He continues to have severe pain. The patient was diagnosed with a right shoulder rotator cuff tear and is considering a surgical procedure due to severe pain despite a long course of conservative management. [Plaintiff] has not been able to work for up to one year or more due to the severity of the pain. He continues to have difficulties using the right upper extremity.

(Id.) In addition to the right shoulder rotator cuff tear, Dr. Rafiy again noted that plaintiff's MRI revealed subacrimonial bursal effusion. (Id.) Plaintiff reported having to take anti-inflammatories and Vicodin to relieve the pain. (Id.) He noted pain with lifting even light objects ranging from five to ten pounds. (Id.) Dr. Rafiy wrote as his “plan” that plaintiff was “a candidate for right shoulder arthroscopic surgery due to ongoing pain despite a long course of conservative management.” (Id. at 527.) Additionally, Dr. Rafiy wrote that “patient has a moderate partial orthopedic disability and is unable to work at this time.” (Id.)

         Dr. Rafiy examined plaintiff on February 24, 2014, and noted that plaintiff had ongoing pain, numbness, and tingling in both hands. (Id. at 528.) Dr. Rafiy also noted bilateral positive Tinel's sign, positive Phalen's testing, slight decreased sensation in the fingertips of both hands, and reduced bilateral handgrip. (Id.) He determined that plaintiff had possible carpal tunnel syndrome and recommended upper extremity electromyography and nerve conduction velocity (“EMG/NCV”) studies. (Id.)

         Dr. Rafiy examined plaintiff again on February 26, 2014, and noted again plaintiff's right shoulder rotator cuff tear and impingement. (Id. at 529.) Plaintiff had continued weakness and numbness in his hands, cervical tenderness, positive cervical compression testing, decreased bilateral handgrip, and decreased sensation in the first, second, and third digits. (Id. at 530.) At this visit, under “plan, ” Dr. Rafiy wrote: “I request authorization for right shoulder arthroscopic surgery with acromioplasty and rotator cuff tendon repair. The patient has a marked, partial orthopedic disability and is unable to return to work.” (Id. at 529.) Dr. Rafiy also conducted an upper electrodiagnostic study and noted that the results were normal, and that there was no evidence of carpal tunnel syndrome or cubital tunnel syndrome. (Id. at 530.) Dr. Rafiy diagnosed plaintiff with cervical discogenic pain and bilateral wrist contusions, and prescribed wrist splints. (Id.)

         Plaintiff visited Dr. Rafiy on March 24, 2014, and reported that he was experiencing neck and left shoulder pain. (Id. at 531.) Dr. Rafiy ordered an MRI of the left shoulder to “rule out rotator cuff tear.” (Id.) The MRI was taken that day and showed acromioclavicular arthropathy with thickening, type 2 acromion resulting in impingement of the supraspinatus tendon, and biceps tenosynovitis with irregular superior labrum. (Id. at 545.) Dr. Rafiy also examined plaintiff's right shoulder again and noted similar findings as at past visits. (Id. at 532.)

         Plaintiff visited Dr. Pastuch monthly from March through May 2014, continuing to complain of cervical and thoracic spine pain. (Id. at 512-13.) Spinal subluxation continued at the C5, C6, T1, T2, T3, T4, and T7 levels. (Id.)

         On May 29, 2014, plaintiff visited Dr. Rafiy and reported severe lower back pain and right shoulder pain. (Id. at 533.) Dr. Rafiy found decreased range of motion of the right shoulder, positive apprehension, positive Hawkins test, motor strength of the right arm of 4/5, lumbar tenderness, and positive straight leg raise at 90 degrees. (Id.) Dr. Rafiy wrote that plaintiff had lumbar discogenic pain, as well as right shoulder rotator cuff tear, and that plaintiff should “[c]onsider right shoulder surgery due to worsening symptoms.” (Id.)

         Plaintiff expressed the same complaints at a visit with Dr. Rafiy on June 10, 2014. (Id. at 534.) Dr. Rafiy's physical examination findings included thoracic tenderness with spasms and lateral bending to only 40 degrees bilaterally. (Id.) Dr. Rafiy noted thoracic disc herniation, lumbar discogenic pain, and right shoulder rotator cuff tear, and that plaintiff would be scheduling his right shoulder surgery “when he has time.” (Id.)

         Plaintiff raised the same right shoulder problems at appointments with Dr. Rafiy on July 3, 2014 and July 30, 2014. (Id. at 535, 537.) On July 3, 2014, Dr. Rafiy noted that plaintiff had a “marked, partial orthopedic disability.” (Id. at 535.) On July 30, 2014, Dr. Rafiy wrote that, in addition to the right shoulder tear, plaintiff had cervical radiculopathy. (Id. at 537.) Dr. Rafiy further noted that plaintiff was considering right shoulder surgery and “waiting to receive authorization.” (Id.) He did not note any thoracic or lumbar spine issues at either of these appointments. (See Id. at 536-37.)

         Plaintiff had a right shoulder MRI taken on September 8, 2014. (Id. at 547.) Dr. Rafiy wrote that this MRI showed subacromial bursal effusion, acromioclavicular joint hypertrophy, acromial impingement on the supraspinatus tendon, increased signal supraspinatus tendon consistent with supraspinatus tendinitis versus partial undersurface supraspinatus tendon tear, and large biceps tendon tenosynovial effusion. (Id. at 538, 547.) Dr. Rafiy wrote that plaintiff was still waiting for authorization for his surgery. (Id.) He also noted that plaintiff was seeing an endocrinologist to lower his hemoglobin level to get preoperative clearance for the surgery. (Id.)

         On November 18, 2014, plaintiff saw orthopedic surgeon Jeffrey M. Meyer, M.D. (“Dr. Meyer”), for treatment for his right shoulder pain. (Id. at 550.) Dr. Meyer performed a physical examination and found that plaintiff had an active range of motion, forward elevation to 140 degrees bilaterally, abduction to 150 degrees bilaterally, 70 degrees symmetrical external rotation, internal rotation six inches below the scapular tip, passive right shoulder abduction to 170 degrees, passive forward elevation to 180 degrees, and thumb down abduction showing minimal discomfort and no gross weakness. (Id. at 551.) Dr. Meyer found from a neurological examination that plaintiff had a mild right thenar atrophy compared to left, that there was a 5/5 opposition and key pinch bilaterally, and tip dysesthesia ulnar innervated digits bilaterally only. (Id.) Dr. Meyer noted that his impression was that the MRI showing suprasinatus tendinosis was “probabl[y] a poor study. Disc to be reviewed with radiologist.” (Id.) He also noted that plaintiff's physical examination showed improved thumb down abduction strength, and that X-rays were positive for large subacromial spur leading to anterior impingement. (Id.)

         On December 16, 2014, Dr. Meyer recorded that plaintiff had chronic right shoulder rotator cuff symptomology, including the inability to actively elevate overhead, range of motion limited to 90 degrees of forward elevation of the right shoulder, 100 degrees of abduction, 45 degrees of external rotation, and internal rotation nine inches below tip of scapular, passive right shoulder abduction to 160 degrees, thumbs down test positive for pain and weakness, moderate pain with Hawkins test at 80 degrees, and decreased sensation at the C8 dermatome and ulnar nerve distribution bilaterally. (Id. at 552-53.) Dr. Meyer wrote that plaintiff was to be scheduled for right shoulder arthroscopy with acromioplasty and opus rotator cuff repair “at his earliest election. . . . [a]uthorization requested for formal operative rotator cuff repair.” (Id. at 553.) Based on this visit, on December 20, 2014, Dr. Meyer noted in a Workers' Compensation Board progress report that plaintiff had 100 percent temporary impairment and could not return to work because he was “unable to do job/requires surgery.” (Id. at 588.)

         During the course of his visits with Drs. Rafiy and Meyer, plaintiff visited chiropractor Dr. Pastuch monthly from January 10, 2014 through September 5, 2014. (Id. at 511-15.) Dr. Pastuch's notes include that plaintiff was “[h]urt at work as roof[er] lifting on 11/1/11.” (Id. at 511.) Each of Dr. Pastuch's notes from this period indicate that plaintiff sought treatment to “relieve pain, decrease inflammation, decrease muscle spasms, improve ADL, [8] improve function.” (Id. at 511-15.)

         On March 4, 2015, Dr. Meyer performed plaintiff's arthroscopic right shoulder surgery.[9] (Id. at 548.) Plaintiff saw Dr. Meyer for a post-operative examination on March 10, 2015. (Id. at 556.) Dr. Meyer recorded in his progress note from this visit that he found an unexpected high grade tearing of the biceps stump that necessitated biceps tenotomy. (Id.) He also included that distal migration of the biceps was noted clinically, and that passive right shoulder elevation and abduction were limited to 90 degrees. (Id. at 557.) ...


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