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Sementilli v. Astrue

February 8, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.


Plaintiff, Joseph C. Sementilli, (hereinafter "Plaintiff"), commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security denying his claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq, and § 1381 et seq. Plaintiff filed applications for DIB and SSI on December 22, 2004, alleging that he was disabled since August 24, 2004 due to numbness in his legs, feet and hands; depression; anxiety; and failing vision (Administrative Record, hereinafter "AR", 74-77; 103; 363-364). His applications were denied, and he requested a hearing before an administrative law judge ("ALJ") (AR 55-59; 365-370). Following a hearing held September 12, 2007, the ALJ found that the Plaintiff was not entitled to a period of disability or disability insurance, and was not eligible for SSI benefits (AR 16-25; 390-408). Plaintiff's request for review by the Appeals Council was denied (AR 5-8), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons that follow, I will deny both motions and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff was 46 years old on the alleged disability onset date and 49 years old on the date of the ALJ's decision (AR 24). He is a high school graduate with past work experience as a bulk material and labor handler for International Paper from 1980 to 2002, as a laborer for his brother's company for four months in 2005 and as a cart pusher at Wal-Mart for approximately five weeks in 2007 (AR 87; 395).

Plaintiff's medical records reflect that he was hospitalized from August 25, 2004 until September 3, 2004 following isopropyl alcohol intoxication (AR 111-210). A left lung abscess was discovered and treated during the course of his hospitalization (AR 112). He was clinically stable upon discharge and prescribed Flagyl, Rocephin and Ativan (AR 113).

Following his discharge, the Plaintiff followed up with Zengling Peng, M.D. at the McClelland Family Practice on September 14, 2004 (AR 242-245). Plaintiff relayed the circumstances surrounding his hospitalization, noting a long history of alcohol abuse (AR 242). He reported that he was unemployed and unable to find work (AR 242). His physical examination was unremarkable and he was directed to follow up in one month (AR 244).

Plaintiff returned to Dr. Peng on October 4, 2004 and complained of leg pain and depression, reporting that he had "good days and bad days" (AR 240). He stated that he had stopped drinking following 20 years of alcohol abuse and that Ativan kept him "out of the bars" (AR 240). He reported that he was unemployed and unable to pay his bills (AR 240). Dr. Peng found he was oriented in all spheres, his affect and mood were appropriate, his interaction was normal and he maintained good eye contact (AR 240). He also complained of severe leg pain, but his physical examination was again unremarkable (AR 240). Dr. Peng prescribed Lorzepam and Zoloft (AR 240-241).

On October 14, 2004, Plaintiff complained of bilateral numbness on the bottom of his feet, a burning sensation on the top of his feet and left shoulder pain (AR 234-235). On physical examination, Dr. Peng found the Plaintiff's neck was supple and he had a full range of motion in his extremities with no deformities (AR 235). He had normal mobility and a normal gait and his sensation was intact (AR 235). He was assessed with bilateral leg numbness and left neck and shoulder pain (AR 235). Naprosyn was added to his medication regimen for his shoulder pain (AR 235).

Cervical spine x-rays taken November 4, 2004 showed mild to moderate degenerative cervical spondylosis (AR 220). X-rays of the Plaintiff's left shoulder were unremarkable (AR 221). A December 2, 2004, a nerve conduction study showed minor sensorimotor peripheral neuropathy of the Plaintiff's legs (AR 226-227). Jeffrey Esper, D.O., opined that the Plaintiff's history of alcohol abuse and nutritional issues were the most likely causes of his neuropathy (AR 227).

On January 12, 2005, Plaintiff again complained of bilateral numbness in his feet and reported that he was scheduled to see a neurologist (AR 230). Physical examination showed that his deep tendon reflexes were normal, his sensation was intact, his station and gait were normal, and he was psychologically oriented in all spheres (AR 231). He was prescribed Neurontin for his alcoholic neuropathy (AR 231).

Plaintiff was evaluated by Donald L. Rezek, M.D., a neurologist, on January 27, 2005 for his complaints of neuropathy (AR 251-253). He complained of numbness in his feet as well as a burning sensation, but stated that Neurontin had helped significantly with the paresthesias (AR 252). He relayed a "very heavy drinking history" and admitted to drinking up to a six-pack a day at the time of the evaluation (AR 252). He reported that Zoloft helped with his depressed mood (AR 252). On mental status examination, Dr. Rezek noted that his attention span, concentration and judgment were normal and there was no obvious problem with his affect or thought process (AR 253). On physical examination, he exhibited good strength and tone throughout (AR 253). His sensory examination demonstrated decreased sensation upon pinprick to the instep and vibratory sensation was mildly diminished in the Plaintiff's toes (AR 253). Coordination testing demonstrated mild tremor on finger to nose testing (AR 253). He exhibited normal grip and strength in his hands, his gait was intact to heel, toe and tandem walking and there was fair range of motion of his neck (AR 253). Dr. Rezek assessed him with neuropathy most likely alcohol related, related tremor and possible "early DT's" (AR 253). He recommended that the Plaintiff participate in an alcohol rehabilitation program in order to improve his neuropathy (AR 253).

On February 16, 2005, Larry Smith, Ph.D., a state agency reviewing psychologist, completed a Psychiatric Review Technique Form ("PRTF") (AR 254-266). Dr. Smith found that the Plaintiff was only mildly limited in his activities of daily living, in maintaining social functioning and in maintaining concentration, persistence or pace (AR 264). He further found there was insufficient evidence relative to repeated episodes of decompensation of extended duration (AR 264). Dr. Smith found that the Plaintiff's mental impairments were non-severe (AR 266).

On February 18, 2005, Johnston Wayne, a state agency adjudicator, reviewed the medical evidence of record and completed a Physical Residual Functional Capacity Assessment form (AR 267-272). Mr. Wayne opined that the Plaintiff had no limitations physically (AR 267-262).

On April 29, 2005, Dr. Peng declined to complete a form for the Plaintiff's continued disability; he referred him to an occupational physician for a functional capacity evaluation in order to determine his continued disability (AR 292; 294).

Plaintiff returned to Dr. Peng on November 8, 2005 to "discuss disability" (AR 285). He complained of numbness in his hands and feet but admitted that he was still drinking two beers a day (AR 285). He reported suffering from vision problems, stating that his eye doctor told him he was in the beginning stages of glaucoma and had a degenerative cataract (AR 285). He indicated he was depressed from not being able to work, was anxious due to his bills piling up and suffered from sleep difficulties (AR 285). Dr. Peng reported that his neurological examination revealed only slightly diminished sensation and his deep tendon reflexes were normal (AR 287). Dr. Peng completed a form indicating that the Plaintiff was "temporarily disabled" for three months, but indicated that his future forms should be completed by a neurologist (AR 287). When requested by the Plaintiff to complete another form for disability on December 2, 2005, Dr. Peng refused, stating that such form would have to be completed by a neurologist (AR 280).

Plaintiff completed an alcohol withdrawal program at Glenbeigh Hospital from June 7, 2005 through August 4, 2005 (AR 295-297). It was noted that he coped with his peripheral neuropathy without using medication (AR 295). Upon discharge from the program, he displayed no ...

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