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Ross v. Commissioner of Social Security

February 25, 2009

RE: ROSS
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: William J. Martini Judge

LETTER OPINION

Dear Counsel:

Plaintiff Calvin Ross brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking a review of a final determination by the Commissioner of Social Security denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court did not hold oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, the Court REMANDS the present matter, specifically with respect to step five of the sequential analysis of disability determination.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff applied for SSI and DIB on August 14, 2004 and August 18, 2004 respectively, alleging disability due to chronic pain syndrome, chest pain, arthritis, reduced range of motion in the left arm, and depression. (R. 243-46, 556-59.) Plaintiff alleges that his disability began on July 23, 1999, after he tripped over a bicycle severely injuring his elbow. (R. 580.) These claims were denied initially on January 11, 2005, and upon reconsideration on April 28, 2005. (R. 205-08, 560-65.) Following a hearing on January 4, 2007, Administrative Law Judge ("ALJ") Joel H. Friedman issued a decision finding Plaintiff not disabled. (R. 12-25, 578-618.) The Appeals Council affirmed this decision on September 13, 2007. (R. 8-10.)

Plaintiff was born on August 31, 1957. He received his GED and attended Hudson Valley Community College. Plaintiff served in the army between 1980 and 1989, receiving an honorable discharge. (R. 386, 583, 597.) His past has been dotted with several unskilled jobs. He last worked as a nursing home dietary porter for six years, where he delivered food trays to residents from a cart, washed dishes, lifted and carried boxes of food to the kitchen, removed trash and garbage, and mopped the floors. (R. 74, 153, 261-62, 386, 612.)

After fracturing his left elbow during a bicycle incident on July 23, 1999, Plaintiff stopped working. (R. 592.) The incident resulted in a steady flow of doctors' visits. Following the incident, Plaintiff received treatment at the Greenville Hospital Emergency room in Jersey City. (R 120-21.) Dr. Mitchell Steinway diagnosed Plaintiff with a severe fracture dislocation of the elbow. Doctors operated on Plaintiff, placing hardware in his arm to stabilize his injury. (Id.) Dr. Steinway opined that Plaintiff's orthopedic disability directly resulted from the fall. (Id.)

In addition to elbow problems, Plaintiff began experiencing heart issues in late 2001. Plaintiff received treatment from Greenville Hospital, after complaints of dizziness, lightheadedness, and unsteady gait. (R. 129.) Examination revealed that Plaintiff suffered from underlying coronary artery disease, as exhibited by an abnormal electrocardiogram and segmental wall motion abnormalities. (R. 130-56.) On December 17, 2001, Plaintiff underwent left heart catheterization at Christ Hospital in Jersey City. (R. 142.) Doctors diagnosed Plaintiff with "insignificant coronary artery disease, i.e., 50% stenosis of the ostium of the first diagonal branch, mild to moderate diffuse left hypokinesis." (R. 143, 180.) After this procedure, Plaintiff began Thiamine therapy due to his past history of drug abuse. (R. 143.)

Plaintiff returned to Christ Hospital on April 16, 2002 after continuing complaints of chest pain and tightness. At the time of admittance, he was already being treated with Coumadin and Nitro-Dur. (R. 158.) Doctors diagnosed Plaintiff with unstable agina. (R. 157.)

On October 9, 2002, Plaintiff underwent an examination by Dr. Alan Friedman. Dr. Friedman determined that Plaintiff's gait was heel to toe without deviation despite knee stiffness. (R. 182.) While Plaintiff exhibited normal reflexes in the upper and lower extremities, Plaintiff had no reflex in his left elbow, which had practically fused. (Id.) Plaintiff possessed a full range of motion in his right upper extremity and both sides of his lower extremities. (Id.) Dr. Friedman's examination found patellular tenderness, but no signs of crepitus in either knee. (Id.) Plaintiff's joints showed no effusion, erythema, or warmth. (Id.) Based on the examination, Dr. Friedman believed that Plaintiff could walk at a reasonable pace without a hand-held assistance device. (R. 185.)

Dr. Oleg Frank performed a consultive examination on December 6, 2002. (R. 187-93.) Dr. Frank reported that Plaintiff appeared alert, conscious, oriented, and casually dressed. (R. 188.) The examination revealed that Plaintiff had clear lungs and no signs of edema, clubbing, cyanosis, or joint effusion in his extremities. (Id.) While Plaintiff's left elbow had no range of motion, Dr. Frank noticed crepitation of both knees and evidence of left ventricular hypertrophy. (R. 187-88.) An electrocardiogram showed sinus rhythm of 99 with frequent premature ventricular contractions noted. (R. 189.) Although Plaintiff had the ability able to sit, stand, and possibly lift objects with his right extremities, he remained unable to care for himself. (R. 189.) Dr. Frank concluded that Plaintiff may need an imaging study, physical therapy, and adequate pain management. (Id.)

Beyond physical impairments, Plaintiff began experiencing psychological problems in 2004. On March 10, 2004, Dr. Medhat El-Amir diagnosed Plaintiff with bipolar disorder and chronic pain syndrome of the left elbow. (R. 441-63.) Several months later, Plaintiff started to receive therapy and psychiatric treatment with psychiatrist Dr. Victor Hernandez at the Jersey City Medica Center. (R. 361-79.) In a comprehensive psychiatric examination, dated June 24, 2004, Dr. Hernandez found Plaintiff's thought processes to be relevant, coherent, and goal-oriented. (R. 365-66.) Plaintiff exhibited a Global Assessment of Functioning ("GAF") of 40-45 on a scale of 100, meaning Plaintiff had a depressive disorder that needed treatment. (Id.) Dr. Hernandez prescribed Wellbutrin XL 150 ml OD, with Trazadone 50 for Plaintiff's insomnia. (R. 365.)

Dr. Friedman performed an additional orthopedic examination on November 19, 2004. (R. 381.) Despite knee stiffness, Plaintiff possessed the ability to ascend and descend the examination table independently. (Id.) His gait was heel to toe without deviation. (Id.) Plaintiff retained a full range of motion in his upper and lower extremities, but exhibited no reflex abilities in his left elbow. (Id.) As a result of being fused, Plaintiff's left elbow only had 15 degrees of extension and could only flex about 30 degrees with supination and pronation. (Id.) Dr. Friedman found no ligament instability and diagnosed Plaintiff with crepitus on both knees with possible osteoarthritis. (R. 381.)

Plaintiff also had a consultive psychological examination by Dr. Anthony Candela on December 8, 2004. (R. 385.) Plaintiff denied any auditory or visual hallucinations and did not exhibit any panic disorder, anxiety, phobic reactions, obsessive compulsive behavior, or paranoid thinking. (R. 386-87.) Dr. Candela concluded that claimant suffered from mild to ...


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