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Layton v. Astrue

February 8, 2010

RICHARD W. LAYTON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, Richard W. Layton (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 February 14, 2007, alleging that he was disabled since January 30, 2007, due to neck problems and addiction to medication (Administrative Record, hereinafter "AR", 80-82; 85-87; 99). His applications were denied and he requested a hearing before an administrative law judge ("ALJ") (AR 62-71). Following a hearing held August 25, 2008, 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 17-24; 37-58). Plaintiff's request for review by the Appeals Council was denied (AR 1-5), 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 set forth below, I will deny both motions and the matter will be remanded to the Commissioner for further proceedings.

I. BACKGROUND

Plaintiff was 45 years old on the alleged disability onset date and 47 years old on the date of the ALJ's decision (AR 23). He is a high school graduate with vocational training in building maintenance (AR 104). His past work experience was as a maintenance repairman at a school for approximately 19 years (AR 100).

Historically, Plaintiff has been treated by William Getson, M.D., since May 8, 2002 (AR 243). Plaintiff fell at work on March 5, 2002 and again in July 2002, and subsequently had surgery on March 11, 2003 for a ruptured cervical disk (AR 140). An EMG conducted after surgery was normal and did not show the radiculopathy that had been present on a previous EMG (AR 186). An MRI and an x-ray taken in July 2004 showed post-surgical changes in the cervical spine (AR 186). On August 9, 2004, the Plaintiff complained that his pain medication (Duragesic patches) were making him sick, and also complained of fatigue and dizziness (AR 155). He was assessed with cervical disc disease and was prescribed methadone for his pain (AR 155). On December 10, 2004, Plaintiff reported numbness, weakness, dizziness, depression and anxiety (AR 153). Dr. Getson assessed him with cervical neck pain, discontinued his Duragesic patch and restarted him on Suboxone (AR 154).

On October 6, 2005, Dr. Getson reported that the Plaintiff's neck had minimal tenderness on palpation and a good range of motion, but he was slightly limited to right rotation and on flexion and extension (AR 152). He was assessed with cervical disk disease and his Suboxone dosage amount was decreased (AR 152).

Throughout 2006, Plaintiff continued treating with Dr. Getson. In January 2006, Dr. Getson reported that his range of motion was limited in all directions, and the Plaintiff stated that he was attempting to "wean" off his medications but was unable to do so secondary to pain (AR 151). Dr. Getson found "no drug seeking habits" but recommended that he consider decreasing his pain medication within the next month (AR 151). In February 2006, Plaintiff complained of neck and shoulder pain, but he was no longer nauseated after decreasing his pain medication (AR 148). In May 2006, Plaintiff claimed that he "[hurt] all over", especially in his neck and hands, and was taking more than the prescribed dosage of his pain medication (AR 147). He reported that he had quit his part-time job, but still worked full-time and engaged in yard work (AR 147). He was diagnosed with cervical disc disease and Dr. Getson increased his Suboxone dosage, with instructions to take smaller doses during the day and higher doses in the evening (AR 147). In August 2006, Plaintiff continued to complain of neck pain radiating down his right arm, with occasional numbness and dizziness at times (AR 144). He reported that he was "missing too much work" (AR 144). He was prescribed Suboxone and Skelaxin (AR 144).

In September 2006, Plaintiff reported increased pain while performing the requirements of his job, including lifting, crawling and repetitive arm motions (AR 140). On physical examination, Dr. Getson found he had decreased range of motion, especially towards right rotation (AR 140). Muscle strength testing of the shoulder and upper extremities was 5, including impingement tests, sensation and circulation were intact, grip strength was 5 and deep tendon reflexes were equal at 2 in the bicep tendons (AR 140). He was diagnosed with chronic cervical disc disease and was continued on Suboxone (AR 140). He was referred to physical therapy for evaluation and possible traction, and Dr. Getson completed his FMLA and disability forms (AR 140).

In October 2006, Plaintiff presented with forms for disability stating that he was unable to perform his job due to pain in his neck and right shoulder (AR 140). He also reported occasional numbness in his right hand (AR 140). On physical examination, Dr. Getson reported a decreased range of motion of his neck, especially on right rotation and extension (AR 140). There were no palpable points of tenderness or masses, but he had some mild tenderness over the lower cervical spine (AR 140). Plaintiff exhibited good range of motion of his right shoulder without pinpoint tenderness, distal sensation and circulation of the right arm was within normal limits and grip strength in his right hand was slightly less than the grip in his left hand (AR 140). Dr. Getson continued him on the Suboxone (AR 140).

On October 30, 2006, Dr. Getson completed a Medical Report form for the State Employees' Retirement System (AR 183-184). He reported that the Plaintiff continued to complain of severe neck and right arm pain stemming from a fall at work in 2002, for which he had surgery in 2003 for a ruptured cervical disc (AR 183). Dr. Getson stated that he saw the Plaintiff on a monthly to bi-monthly basis, and that he exhibited a decreased range of motion of his neck, as well as tenderness, on May 8, 2002, November 2004, August 2006 and on October 30, 2006 (AR 183). An EMG study dated June 26, 2002 revealed findings consistent with right C6 radiculopathy and an MRI showed findings consistent with a herinated disc (AR 183). A cervical spine x-ray on July 11, 2004 showed post surgical changes (AR 183). Dr. Getson listed his diagnosis as cervical disc disease and radicular right shoulder/arm pain (AR 184). He indicated that surgery had helped for a short period of time and that his pain medication (Suboxone) helped "take [the] edge off" his pain (AR 184). He concluded that the Plaintiff was no longer able to perform the duties of his job, which required lifting and repetitive use of his arms and shoulders (AR 184).

Plaintiff returned to Dr. Getson on January 15, 2007 and complained of neck pain and insomnia (AR 201). Physical examination revealed tenderness of the posterior neck at C5-6, stiffness with dorsiflexion, limited range of motion towards the left and pain was elicited on motion (AR 202). On the treatment note form, Dr. Getson opined that, in his opinion, the Plaintiff's pain was "due to increased scar tissue and failed neck surgery" (AR 203).

Plaintiff reported on March 12, 2007 that he lived with his wife, walked his dogs, performed yard work, took out the trash, shopped for necessities and was able to handle his finances (AR 106-109). He also reported that he attended family gatherings and picnics, could drive, clean, wash dishes, prepare simple meals and care for his personal needs (AR 107-110). Engaging in postural activities was "very painful", but he had no problem completing tasks, following instructions, or getting along with authority figures (AR 111-112).

On April 2, 2007, a state agency adjudicator reviewed the medical evidence of record, as well as the Plaintiff's reported daily activities, and concluded that the Plaintiff could perform light work (AR 161-166). On April 16, 2007, Arlene Rattan, Ph.D., a state agency reviewing psychologist, completed a Psychiatric Review Technique Form ("PRTF"), and concluded that the Plaintiff had no medically determinable mental impairment (AR 167-169).

Plaintiff returned to Dr. Getson on May 11, 2007 for complaints of acute abdominal pain (AR 198-200). Physical examination of his cervical spine elicited pain on rotation and at extreme limits on the range of motion (AR 199). No tenderness was noted on palpation and there was no instability or weakness found (AR 199). No psychological symptoms were found (AR 199). He was assessed with abdominal pain, cervical disc degeneration and nicotine dependence (AR 200).

On May 15, 2007, Dr. Getson completed a second State Employees' Retirement System Medical Report form (AR ...


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