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Murphy v. Commissioner of Social Security

March 11, 2010


The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.


This matter comes before the Court pursuant to section 405(g) of the Social Security Act as amended, 42 U.S.C. 405(g) ("Act"). Plaintiff Michael Murphy ("Plaintiff" or "Murphy") seeks a review of the final decision of the Commissioner of Social Security Administration denying his claim for disability insurance benefits. The Court has jurisdiction to review this matter under Section 405(g) of the Act and decides the matter without oral argument.

Plaintiff filed an application for disability insurance benefits on May 25, 2005 alleging disability beginning March 31, 1996*fn1 due to back and hip pain and bipolar disorder. (R. 57, 58). Plaintiff's application was denied on August 16, 2006. Thereafter, Plaintiff requested and was granted a hearing on June 5, 2008 before Administrative Law Judge Richard L. DeSteno (ALJ). The ALJ denied Plaintiff's request for disability insurance benefits in his opinion dated June 26, 2008.


Plaintiff is a 51 year old man born on January 15, 1959 in London, England. Presently, he lives in Bayonne, New Jersey with his ex-wife. He is 5'11" and weights approximately 211 pounds.*fn2 He grew up in Ireland before immigrating to the United States in 1980. He attended school in Ireland until he was 13 years old, but has no other formal education or vocational training. (R. 64). Most of his past work experience is as a plasterer in the construction field from 1988 to the date of his alleged disability. (R. 58). Plaintiff's employment as a plasterer required the use of machines, tools and equipment, and required some level of skill. His job required him to stand and walk for eight hours; and to climb, stoop, kneel, crawl, reach, and manipulate large and small objects during the day. Additionally, Murphy lifted heavy items such as bags of cement, ladders and tools, the heaviest of which was about 80 pounds. (R. 59). His most recent employment was from August, 2004 to January, 2005 for AC Plastering Corp.

In addition to his plastering, Plaintiff purchased and ran a pizza and pasta restaurant in Phoenix, Arizona from May 1999 through August 1999. (R. 409). Murphy testified that he acquired the pizza business subsequent to major lumbar spine surgery as a way to help his condition and health so that he wouldn't have to plaster again. Unfortunately, the pizza business was unsuccessful.*fn3 Plaintiff has suffered from back pain since approximately 1993. Plaintiff has pain all day in his lower back (lumbar spine) which he described as aching, burning, cramping, stabbing stinging and throbbing. (R. 78). Simple things like walking, sleeping in any position, standing, lifting, kneeling, sitting, squatting and reaching are all painful. The pain is exacerbated by walking up stairs, bending or lying on a soft bed. (R. 78). Plaintiff takes prescription pain relievers for his pain, sometimes up to four times a day (every six hours) depending on the level of pain at the time. These pain relievers include Hydrocodone, Vicaden and Percocet as well as Ambien to address sleeplessness. Plaintiff indicates that his medications cause irritability, moodiness, depression and tiredness. (R. 80, 419).

Beginning in approximately 2000, Plaintiff began having hip pain that radiates down into his legs and increases when walking. The pain is continuous, and lasts the whole day. (R. 81). Lastly, Plaintiff suffers from bipolar disorder for which he seeks psychiatric treatment and takes daily medication.*fn4

At the hearing, Plaintiff testified that he wakes in the morning, takes his medications and walks a few blocks. He watches television most of the day. (R. 90, 420). He lacks stamina to do any other activities. According to Plaintiff, he previously socialized and enjoyed life, but no longer does so due to the pain. (R. 115). He has difficulty sleeping, and takes Ambien, a sleeping pill. (R. 91, 422). Plaintiff has pain when bending over to dress and bathe. He does not do any household chores, and needs constant reminders to take care of personal obligations due to forgetfulness. (R. 92). He shops with his ex-wife once a week and travels to Alcoholics Anonymous meetings three times a week. (R. 94). Despite his pain, he traveled abroad on two occasions (Phillipines and Ireland) since 1999. He has anger issues which often upset relationships with family and friends.

Plaintiff's ex-wife, Remedios Murphy, testified at the hearing on behalf of Plaintiff. Ms. Murphy allows Plaintiff to stay at her house, feeds him and helps him with his laundry. She testified that he is constantly complaining about his back; is unable to traverse the stairs without stopping; and sometimes lies on the floor to ease his back pain. With regard to his psychiatric condition, Ms. Murphy avoids communicating with Plaintiff because of his temperament. His mood is "hot and cold" and he "blows up out of nowhere." (R. 430). She testified that Plaintiff prefers to stay alone and he doesn't talk much. (R. 431).

Treating Neurosurgeon and Physician Records with Regard to Back Injury

In 1995, Plaintiff began treating for back pain with George V. DiGiacinto, M.D., Director of the Department of Neurosurgery at St. Luke's-Roosevelt Hospital Center. Dr. DiGiacinto performed back surgery on Plaintiff and has prescribed medications for Plaintiff's back pain since that time. More specifically, on July 16, 1996, Dr. DiGiacinto performed a right L4-L5 and L5-S1 interlaminar laminotomy, foraminotomy and excision of a herniated disc, plus left L4-L5 foraminotomy and nerve root decompression.*fn5 The diagnosis was degenerating nuclear pulposus at L5-S1 and L4-5 intervertebra discs. (R. 142, 209). On February 24, 1997, a follow-up MRI found post surgical changes at L4-5 and L5-S1, scar tissue; and broadly bulging annulus at L4-5 with no focal herniation.

After the surgery, Plaintiff continued to treat with Dr. DiGiacinto. In 1998, Plaintiff had persistent pain in his back which was "clearly exacerbated by physical activity at work." (R. 354). In 2001, Dr. DiGiacinto noted that Plaintiff was taking Vicodin three to four times a day for pain. He had gained 70 pounds which contributed to the pain. Dr. DiGiacinto was "very concerned about lumbar instability." (R. 360). In 2002, Dr. DiGiacinto noted that Plaintiff continued to do heavy lifting in his construction job, and was tolerating the pain as long as he continued with Vicodin four times a day. On February 2, 2005, Plaintiff was seen for acute pain in both legs. He had a limited range of motion and paraspinous muscle spasm. Dr. DiGiacinto opined that Plaintiff was disabled secondary to pain in his lumbar spine. (R. 369)*fn6 . On July 12, 2005, Dr. DiGiacinto found Plaintiff could only lift a maximum of five pounds; standing or walking was limited to less than two hours per day; and sitting was limited to less than six hours a day. Dr. DiGiacinto opined that Plaintiff suffered from lumbar instability at L4-L5. On October 10, 2007, Plaintiff again treated with Dr. DiGiacinto for worsening back pain and lumbar instability. At that time the doctor indicated that Plaintiff would undergo lumbar fusion at L4-L5 and L5-S1 with pedicle rod and screw fixation.*fn7 He opined that Plaintiff was disabled for well over a year and that his disability would be permanent. Plaintiff continued to use Vicodin on a regular basis. (R. 359, 367, 372, 375, 376).

On January 10, 1999, a lumbar spine MRI showed mild degenerative disc disease at L3-L4 through L5-S1 with evidence of the prior discectomy at L4-L5 and scar at that level. There was mild L4-L5 disc bulge and no significant spinal stenosis. (R. 140-142, 200). All of the post surgery MRIs had similar impressions. For example, a September 12, 2001 MRI of the lumbar spine found degenerated L3-L4, L4-L5, and L5-S1 discs, peri-thecal scar, and narrowing of foramen bilateral at L3-L4, L4-L5 and L5-S1 levels. (R. 221). An August 9, 2005 MRI of the lumbar spine similarly concluded postoperative changes with scar formation; no recurrent disc herniation; and that L3-L4, L4-L5 and L5-S1 discs were degenerated and demonstrated posterolateral bulging with narrowing of the corresponding formamina. (R. 290).

Plaintiff was examined by Christine J. Quinto, MD, a neurologist of Hudson Neurosciences, to evaluate his reoccurring back pain. During an October 2, 2001 examination, Plaintiff's strength was a 5/5 and his gait was normal. His sensory examination revealed diminished vibration in his distal lower extremities, and a mild lumbar paraspinal spasm. Dr. Quinto's diagnosis was chronic low back syndrome with possible peripheral neuropathy. (R. 251).

On July 16, 2005, Plaintiff was examined by John Joseph Smith, M.D., an internal medicine specialist, for an evaluation requested by the Division of Disability. (R. 285-288). Plaintiff treated with Dr. Smith on numerous occasions as his treating physician from 2002 through 2006.*fn8 In his March 12, 2006 report, Dr. Smith believed that Plaintiff could benefit somewhat from physical therapy, but did "not believe he can return to work in his previously assigned work field doing brick and tile work." There was recognition of Murphy's bipolar disorder. He stated:

I think also that unfortunately because of his psychiatric make up his urgency and pressured speech and his basic inability to focus on issues and probably lack of trainability at this point and this time will also make reasonably unlikely that he can return to any type of productive work anytime in the near future." (R. 288).

On January 3, 2005 Plaintiff presented at Therapro, LLC to determine if physical therapy would help in his recovery. As part of that evaluation, Larisa Tsaur, MD, performed a EMG/NCV study on Plaintiff. The result revealed evidence of acute L5-S1 radiculpathy on the left and neuropraxic S1 radiculpathy on the right.

In addition to back injuries, Plaintiff suffered with hip pain. In December, 2004, he was examined by Jeffrey F. Augustin, M.D. Dr. Augustin diagnosed degenerative joint disease of the hips. Plaintiff was treated with antiinflammatory medications, and counseled against hip replacement due to his young and age and occupation as a laborer. (R. 283-85).

Treating Psychiatrist Notes with regard to Bipolar Disorder

In addition to his back and hip pain, Plaintiff alleges he suffers from bipolar disorder. A review of the record shows that Plaintiff began treating for a psychiatric condition in 1999 and taking psychiatric prescription medications sometime in 1999 or 2000. Plaintiffs medications include Alprazolam, also known as Xanax (for anxiety and panic attacks), Carbamazepine (an anticonvulsant and mood stabilizing drug used primarily in the treatment of epilepsy and bipolar disorder), Prozac (to treat major depressive disorder and anxiety), and Trazondone or Lexapro (an antidepressant to treat depression and anxiety disorders). According to Plaintiff, these medications make him irritable, moody, depressed and tired. (R. 83).

Plaintiff treated with Jacob Jacoby, M.D. for a psychiatric condition between 1999 and 2004. (R. 238-247). Dr. Jacoby's notes in December 1999 indicate that Plaintiff was treating his anger problems with Prozac. On June 22, 2000, Plaintiff experienced angry outbursts which may have arisen from the death of his mother two weeks before, and the failure of his business which resulted in a financial loss. (R. 239). Plaintiff was also concerned about the probability of another back surgery. He was maintained on Prozac 40 mg. On March 18, 2002, Dr. Jacoby's notes indicated that Plaintiff had been living in Manhattan and had been treating with a Dr. Perez who treated Plaintiff with Depakote. During that period, Plaintiff had gained 50 pounds on Depakote. Dr. Jacoby changed his medication to Topamax.

From November 6, 2003 through October 1, 2007, Plaintiff treated with Scott Aftel, M.D. for bipolar disorder. (R. 350-370). Dr. Aftel recorded that Plaintiff has been taking prescription medications for bipolar disorder from earlier in 2003. On October 31, 2005, Dr. Aftel opined that Plaintiff's understanding and memory were limited, he had poor concentration, was limited in his ability to interact with the public, and to accept supervisory instructions or interconnect with co-workers due to his irritability and a bad temper. Although there were long gaps between treatment, at the end, Dr. Aftel diagnosed Plaintiff with a poor prognosis and that Plaintiff was unable to function. (R. 393). In the years 2006, 2007, and 2008 Dr. Aftel treated Plaintiff for bipolar disorder, mixed type, which in Dr. Aftel's opinion rendered him disabled. His medications were Lexapro and Xanax four times a day with Trazodone at bedtime to treat the disorder. (R. 393-396, 399).

Lastly, Plaintiff also suffers from relatively minor gastrointestinal symptoms. In July, 1999, Dr. Prakash diagnosed Plaintiff with grade 1 esophagitis, hypertrophic gastritis and duodenitis. In May, 2001, Plaintiff was admitted to Bayonne Hospital with chest pain, difficulty breathing, and gastrointestinal symptoms. He was ...

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