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Re: Thomas J. Cardinuto v. Commissioner of Social Security

January 25, 2011

RE: THOMAS J. CARDINUTO
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: Jose L. Linares, United States District Judge

NOT FOR PUBLICATION

LETTER OPINION

Dear Counsel:

Presently before the Court is an appeal filed by Thomas Cardinuto (hereinafter "Claimant") seeking review of the Administrative Law Judge's ("ALJ") decision denying his claim for Disability Insurance Benefits ("DIB"). No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. Plaintiff claims that the ALJ's decision was not supported by substantial evidence and therefore requires reversal, or alternatively, remand to the Commissioner for further proceedings. In opposition, Defendant argues that the ALJ's findings are supported by substantial evidence and should be upheld. The Court, having considered the parties' submissions, and for the reasons set forth below, affirms the decision of the Commissioner of Social Security.

PROCEDURAL HISTORY

On October 12, 2001, Claimant applied for DIB. The application was denied initially and again upon Reconsideration. Hearings were held before ALJ Christopher P. Lee on October 8 and December 9, 2003. ALJ Lee denied Claimant's application on March 30, 2004 and the Appeals Council further denied Claimant's request for review. Claimant then filed a civil action in this Court before the Honorable Judge Hayden, who on October 25, 2005 approved a stipulation and ordered a remand for further administrative hearings. On April 12, 2006, the Appeals Council issued an order remanding ALJ Lee's 2004 decision. A third hearing was held before ALJ Katherine Edgell on December 6, 2006. ALJ Edgell found that Claimant was not disabled and denied Claimant's application for DIB. On February 17, 2010, the Appeals Council denied Claimant's request for review. Claimant now appeals ALJ Edgell's ruling pursuant to 42 U.S.C. § 405(g).

FACTUAL BACKGROUND

Claimant, Thomas Cardinuto, was born on April 23, 1953 (R. 108). He has a high school education, is fluent in English, and worked as a data entry clerk for the Associated Press from 1969 until his alleged onset date of May 13, 1994. (R. 26-27). As a data entry clerk, Claimant was required to type on a computer keyboard during the full workday. (R. 364-67). Claimant carried DIB from his alleged onset date through December 31, 1999, the Date Last Insured ("DLI"). (R. 35).

Claimant's symptoms began the morning of May 12, 1994, when he allegedly woke up with pain in both arms that had appeared overnight. (R. 28). At the time, Claimant had a twelve year history of pain and numbness in both wrists and hands. (R. 258). Claimant went to see Dr. Feuer, M.D., the following day, who performed an EMG/Nerve Conduction Velocity Test, which revealed moderate to severe carpal tunnel syndrome. (R. 28, 251). He was treated with bilateral wrist splints, as well as Naprosyn, without relief. (R. 259). Claimant has not worked since May 13, 1994, the date of his first doctor's visit regarding these symptoms. (R. 199).

Claimant next went to see Dr. Zaretsky, M.D., on July 11, 1994 where he underwent an orthopedic evaluation. (R. 259). Dr. Zaretsky reported muscle strength of both upper extremities at a full 5/5 with intact reflexes. Id. Hand strength was also full at 5/5 in all planes. Id. There was positive Phalen and Tinel testing*fn1 , consistent with bilateral carpal tunnel syndrome. Id. Dr. Zaretsky saw Claimant again on October 24, 1995, finding that motion of the digits in both wrists was satisfactory and that Claimant was partially disabled. (R. 200).

Claimant received physical therapy at the Kessler Institute from March 7 through May 17, 1995. (R. 205-210). April 12 progress notes indicated that Claimant's goal was to avoid surgery and that Claimant stated "[I] have to go back to work." (R. 208). On his May 17 discharge, Claimant continued to show no functional deficits, a normal range of motion, and his two-point discrimination was within normal limits. (R. 205). Claimant indicated that he would be taking a trip down to South Carolina.*fn2 Id.

Claimant came under the care of his current treating physician, Dr. Nainzadeh, M.D., on February 22, 1995. During the first visit, Dr. Nainzadeh had the impression of bilateral carpal tunnel syndrome and left lateral epicondylitis. (R. 256) Regarding Claimant's physical ability as of the first visit, Dr. Nainzadeh stated that "at the present time he is not able to use the computer keyboard." (R. 257). Over the next five years, Claimant saw Dr. Nainzadeh on a regular basis. Dr. Nainzadeh continually reported bilateral and positive Tinel for median nerve at the wrist and for ulnar at the elbow. (R. 223-50). After Claimant's September 26, 1995 visit, Dr. Nainzadeh concluded "patient is not able to work or do anything for a long period of time." (R. 242). On his February 21, 1996 visit to Dr. Nainzadeh, Claimant stated that "he is working on his car and tries to be active as much as he can. However, the pain does not allow him." (R. 241). After Claimant's April 3, 1997 visit, Dr. Nainzadeh stated, "[p]atient's condition is progressively getting worse . . . Further delay in authorization [of surgery] may result in permanent nerve damage." (R. 238). In his July 22, 1998 evaluation, Dr. Nainzadeh recorded Claimant had motor power of 5/5 proximally and stated "[p]inch has always been good and is still good, it is around 28-30 lbs bilaterally. Grip is around 80-100 lbs."

(R. 235). He further recorded that Claimant said he gets tingling, numbness and pain as soon as he starts doing minor work and driving. Id. After an August 17, 1999 visit, Dr. Nainzadeh recorded Claimant had increasing pain and numbness with even minimal activities; even use of the phone gave him increasing pain. (R. 233). Finally, on December 28, 1999 Dr. Nainzadeh reported "[a]t this present time he is totally disabled in performing his regular duties of his job due to pain and nerve injuries in both upper extremities and tendinitis. Therefore, he should be considered totally disabled at this time." (R. 232)*fn3 (emphasis added).

Dr. Nainzadeh continued to treat Claimant after the expiration of his DLI. In three Workers Compensation Board billing forms filled out by Dr. Nainzadeh in 2004, 2005 and 2006, the doctor repeatedly stated on line 5 that Claimant had a partial permanent disability of upper extremities, but then indicated on line 6 that Claimant was totally disabled from regular duties or work. (R. 288, 290, 424). In a Bilateral Manual Dexterity Impairment Questionnaire on November 15, 2006, Dr. Nainzadeh opined that Claimant had significant limitations doing repetitive reaching, handling, fingering or lifting and that "patient is unable to do any work." (R. 444). However, later in the same report, Dr. Nainzadeh solely checked off "no pushing" "no pulling" "no kneeling" and "no stooping" as limitations affecting Claimant's ability to work a regular job and further wrote "[p]atient is unable to use the computer keyboard." (R. 444-45). In response to the question "[i]n your best medical opinion, what is the earliest date that the description of symptoms and limitations in this questionnaire applies," Dr. Nainzadeh responded "early 1995." (R. 445). In a letter written the same day, Dr. Nainzadeh stated, "Mr. Cardinuto is unable to return to his previous profession and use the computer keyboard anymore . . . His condition is more than 11 years old and has become chronic." (R. 439).

Regarding Claimant's level of activity, in an October 23, 2001 Social Security Administration Pain Report Claimant filled out, in response to the question "what causes pain or makes it worse," Claimant answered, "different things as talking on the telephone, writing, driving for to [sic] long, basically anything where my arms and hands are needed for any period of time." (R. 146). He further stated that he spends a typical day reading books, magazines, newspapers and watching television, he rarely performs light household chores, and he drives "but not for prolonged periods without discomfort and pain in writs and numbness in fingers." (R. 149).

During the October 8, 2003 hearing in front of ALJ Christopher Lee, when asked "[i]f someone asked you to be a security guard sitting behind a desk and looking at a monitor and check people in every so often, would you be able to do that," Claimant answered, "I would think ...


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