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Palmisano v. Commissioner of Social Security

September 23, 2010

THERESA A. PALMISANO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Susan D. Wigenton, U.S.D.J

OPINION

Before the Court is Plaintiff Theresa A. Palmisano's ("Palmisano") appeal of the Commissioner of Social Security's ("Commissioner") final decision that Plaintiff is not disabled and therefore not eligible for disability insurance benefits under Title II, 42 U.S.C. § 421 et. seq., or Title XVI, 42 U.S.C. §§ 1381-83, of the Social Security Act ("Act"). The central issues are whether Administrative Law Judge Donna A. Krappa ("ALJ") erred in determining (1) that Palmisano did not suffer from a listed impairment, and (2) whether Palmisano had the residual functional capacity to perform her past relevant work. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Venue is proper in this District under 28 U.S.C. § 1391(b). This appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b). For the reasons discussed below, the Court VACATES and REMANDS the Commissioner's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Palmisano applied for disability benefits on September 14, 2004. Her application was denied initially then denied again on reconsideration. On September 26, 2007, the Administrative Law Judge ("ALJ") issued an unfavorable decision and the Appeals Council denied Plaintiff's request for review. Thus, Palmisano commenced the present action seeking a disability finding or a remand of his claims to the Commissioner for reconsideration in light of the alleged deficiencies in denying Plaintiff's disabled status.

A. Medical Evidence

Palmisano was born on August 12, 1967 and is currently 43 years old. (Tr. 287.) She has a high school education. (Id.) She last worked in 2003 as a part-time telemarketer 10 hours per week. The job lasted less than a year before Palmisano was laid off because she could not work full-time. (Id.) Over the past 15 years the majority of the jobs she held have been part-time and consisted of either telemarketing, clerical or cashier work that involved sitting without any significant lifting or carrying, aside from a brief stint in catering. (Id. 287, 64-75.) Although Palmisano held full-time jobs in the past, after she had children it was her practice to work only part-time jobs. (Id. 289.)

Between October 15, 2000 and March 10, 2005, Dr. Thomas R. Nucatola diagnosed and treated Palmisano for arthralgia with underlying multiple sclerosis. During this time she complained of tenderness in her left arm and lower back, and was also fairly stiff with mild weakness and some dysesthesias. There was weakness in her left side with some visual impairment related to her multiple sclerosis. (Tr. 207-27.)

Dr. J. Paolino, a Division of Disability Services physician ("DSS physician"), conducted a physical residual functional capacity assessment form ("RFC form") on March 3, 2004. Dr. Paolino diagnosed Palmisano with multiple sclerosis consistent with her symptoms of fatigue, headache and blurred vision. Furthermore, he reported that the severity of the symptoms is proportionate to that expected on the basis of the diagnosis and the severity of the symptoms and the alleged effect on function was consistent with the total medical and non-medical evidence. Dr. Paolino also found that Palmisano had limitations in handling, fingering, and feeling due to tightness and stiffness of the hands. (Tr. 159-66.) On March 17, 2004 Dr. Schanzer ordered an MRI of the brain to be performed, and the test revealed foci or white matter signal abnormality in a distribution that is consistent with a demyelinating syndrome. Also, there was a marginally edematous appearing left optic nerve consistent with a history of optic neuritis. (Tr. 141-58.)

On April 2, 2004 Dr. Merkin diagnosed Palmisano with optic neuritis with loss of vision in her left eye. Her symptoms were facial numbness, body aches and daily headaches. An MRI of the cervical spine revealed a small C2 plaque. Palmisano also complained of exhaustion, facial pain, left arm pain, and numbness in the right hand. The medications she was taking at the time included Provigil, Pamelor, Mobic, Symmeterel, Solumedrol, Celebrex, Prednisone, Zanaflex and Rebif. (Tr. 228-39, 240-41.) A March 17, 2005 MRI ordered by Dr. Merkin showed white matter legions most consistent with demyelinating disease, a small legion of the posterior cervical spinal cord at C2, and bulges in two discs. (Tr. 240-46.)

Subsequent to the physical RFC assessment, Palmisano was admitted to JFK medical center on April 9, 2004 to April 10, 2004 for optic neuritis. She reported experiencing multiple bouts of visual disturbances and a sudden inability to see with her left eye. (Tr. 176-69.) A lumbar puncture was performed and she was diagnosed with acute optic neuritis and a demyelinating disorder with multiple sclerosis. An MRI of the orbits confirmed the diagnosis of optic neuritis and revealed a history of cerebrovascular accident and demyelination syndrome. (Tr. 172-202.)

Palmisano was also treated for arthralgia and multiple sclerosis between May 26, 2005 to August 14, 2006 at the Arthritis, Allergy and Immunology Center. Her symptoms were weak and tender hands, mild spasms and tenderness in the thoracic paraspinals, fatigue with headaches and hand spasms. A May 26, 2005 MRI showed increased weakness in the left hand and a new legion on the cervical cord. (Tr. 247-51.) On August 17, 2006 Dr. Benjamin Ford reported that Palmisano had complaints with urinary urgency. She was scheduled to undergo renal ultrasound and urodynamics evaluation of her urinary tract anatomy and function. (Tr. 252-58.) On August 21, 2006 Dr. Michael Merkin completed a multiple sclerosis residual functional capacity questionnaire which states that Palmisano was diagnosed with multiple sclerosis through physical examination, MRI testing and abnormal spinal fluid. She complained of fatigue, depression and numbness, among other things that were consistent with the disease. (Tr. 259-72.) On May 11, 2007 Dr. Merkin stated in a letter that Palmisano had remitting-relapsing multiple sclerosis. The diagnosis involved persistent and unpredictable symptoms that can interfere with the activities of daily life and work. (Tr. 273.)

B. Testimonial Evidence

In connection with her disability claim, Palmisano testified at the October 23, 2006 hearing before the ALJ as to the symptoms and pain resulting from her multiple sclerosis. Dr. Martina Fecher testified as a medical expert on behalf of the government that based on her review of the medical evidence Palmisano did not meet a listed impairment and was capable of performing a full range of sedentary work. (Tr. 281-317.) Palmisano testified again at a supplemental hearing on July 10, 2007 regarding her frequent urination and other medical problems including daily fatigue and difficulty in functioning. Mr. Rocco Meola testified on behalf of the government as a vocational expert that ...


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