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Nixon v. Astrue

July 3, 2008


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Plaintiff Diane L. Nixon alleges that she became disabled as of February 25, 2005 due to musculoskeletal impairments. (Tr.67) Plaintiff's application for Disability Insurance Benefits under the Social Security Act ("Act") was denied initially and on reconsideration. (Tr. 20-30) Plaintiff filed a request for hearing and testified at the hearing on March 9, 2006. (Tr. 31-34; 324-333) The Administrative Law Judge ("ALJ") denied benefits in a decision dated November 22, 2006, concluding that Plaintiff was not disabled within the meaning of the Act. (Tr. 17) The decision of the Social Security Administration became final when the Appeals Council denied Plaintiff's request for review. (Tr. 4-6) Plaintiff then commenced this action, seeking judicial review under 42 U.S.C. § 405(g).

Plaintiff has filed a motion for summary judgment and Defendant has filed a cross-motion for summary judgment. For the reasons discussed below, Plaintiff's motion for summary judgment is GRANTED, Defendant's cross-motion is DENIED, and the case is remanded to the ALJ for a determination of the disability onset date and a calculation of benefits.


Plaintiff was born on August 23, 1949 (Tr. 76) and has a high school education. (Tr. 88) Plaintiff previously performed work as an administrative assistant and manager for a food broker (Tr. 68) Plaintiff last worked on February 25, 2005. (Tr. 68)

Plaintiff has a long history of musculoskeletal impairments. In 1996, Plaintiff had neck fusion surgery. (Tr. 325) Since October 22, 1998, she has been a patient of Dr. Tasto, an orthopedist, for continuing musculoskeletal problems causing pain in her right shoulder. (Tr. 324-325) In 2001, Plaintiff underwent surgery to relieve her right shoulder pain caused by a large calcific tendinitis. (Tr. 250-253) Plaintiff's surgery was successful and for a few years she was able to return to most of her normal activities. (Tr. 156-57) In September 2004, however, she again sought treatment from Dr. Tasto for increasing right shoulder pain. (Tr. 143)

A CT scan taken on December 8, 2004 revealed an anomalous bony growth protruding from Plaintiff's scapula. (Tr. 131) On December 13, 2004, Dr. Tasto, in concurrence with the radiologist, opined that this may be the cause of Plaintiff's pain but noted that surgery would be a significant procedure. (Tr. 130,131) He, therefore, recommended that surgery should only be undertaken if there are no other alternatives and Plaintiff finds the pain unacceptable. (Id.) Instead, Dr. Tasto recommended treatment through a TENS unit and physical therapy. (Tr. 130) On January 24, 2005, Plaintiff noted during a visit with Dr. Tasto that her pain was significantly decreased with the use of the TENS unit. (Tr. 278) Dr. Tasto prescribed further therapy for continued use of the TENS unit and advised purchasing the TENS unit for chronic use. (Tr. 278) It appears from the record that Plaintiff purchased the TENS unit (Tr. 207) but it is unclear whether the unit continued to be effective.

Plaintiff ceased working on February 25, 2005 alleging that she could no longer sit at her computer and perform her required duties due to her level of pain. (Tr. 67-68) On June 2, 2005, Plaintiff again visited Dr. Tasto for the increased right shoulder pain which had caused her to stop working. (Tr. 275-76) She informed Dr. Tasto during this visit that she no longer could afford insurance. (Id.) Dr. Tasto again evaluated Plaintiff and noted that she continues to have crepitus in the shoulder although her range of motion is normal. (Tr. 275) Dr. Tasto also noted that Plaintiff is symptomatic but not enough to recommend surgery "as there is no guarantee that this would alleviate her symptoms." (Tr. 275) He further noted that Plaintiff "has chosen to live with the crepitus and the discomfort unless it gets to the point where she cannot function with it." (Id.)

On March 1, 2006, Dr. Tasto again treated Plaintiff for continuing shoulder pain and prescribed a Lidoderm patch for pain relief. (Tr. 273) It appears that Plaintiff complained of low back pain when sitting during this visit but Dr. Tasto did not treat her or make any findings regarding these symptoms . (Tr. 273, 280) Dr. Tasto treated Plaintiff again on April 5, 2006. (Tr. 271) He noted that Plaintiff had significant crepitus in the right shoulder, full range of motion of the shoulder and no pain at rest. (Id.) Dr. Tasto noted that the Lidoderm patches have not helped and therefore prescribed Darvocet for Plaintiff. He also discussed acupuncture options with her. (Id.)

On October 19, 2006, Dr. Tasto performed a complete physical capacities evaluation on Plaintiff indicating the following. Plaintiff was capable of (1) sitting one hour at a time; (2) standing or walking two hours at a time; (3) sitting, standing, and walking two hours each in an eight hour work day. (Tr. 316-317) He found Plaintiff capable of using her right upper extremity for fine manipulative activities on a frequent basis, and her left upper extremity on a constant basis. (Tr. 317) He found Plaintiff capable of using her right upper extremity on an occasional basis for gross manipulative activity. (Id.) He found Plaintiff incapable of any repetitive pushing and pulling with the right upper extremity. (Tr. 316-17) On the first page of the evaluation, Dr. Tasto indicated that plaintiff could lift up to ten pounds occasionally. When asked to specify the weight that Plaintiff could lift per arm, he specified that Plaintiff could lift up to ten pounds with her right arm and forty pounds with her left arm. (Id.) At this time, Dr. Tasto indicated that her diagnosis was chronic impingement syndrome of the right shoulder and chronic low back pain with scoliosis. (Tr. 317)

Plaintiff testified at the ALJ hearing that she has constant pain in her right shoulder radiating down to her elbow which increases with activity. (Tr. 325, 327) She testified she takes Darvocet and uses Lidocaine patches for the pain. (Tr. 326) Plaintiff also testified that she has low back pain due to scoliosis. (Tr. 327) Plaintiff, who is right-handed, also testified that she has difficulty using her right hand. (Tr. 329). She cannot repetitively lift items or do any amount of typing. (Tr. 329). As to her daily activities, Plaintiff testified she can take care of her own hygiene and prepare her own meals. She said she can do dishes and laundry if she carries items of clothing separately. (Tr. 331) She cannot vacuum, mop, dust, or scrub and only drives approximately every ten days to go to the bank or grocery store. (Id.) For social activities, Plaintiff testified that she goes to the VFW hall with her husband to drink and socialize. (Tr. 332)

Allan Cummings, the vocational expert, testified that a person capable of light work, precluded from work involving ropes, ladders, or scaffolds, and incapable of overhead work with the right upper extremity could perform Plaintiff's past work. (Tr. 333) Dr. Cummings was then asked to consider the limitations found in the assessment of Dr. Tasto, Plaintiff's treating physician. Dr. Cummings testified an individual with the limitations specified by Dr. Tasto cannot engage in full time work and cannot perform Plaintiff's past work. (Tr. 335).

The ALJ decided that Plaintiff has severe impairments of chronic impingement syndrome in the right shoulder and chronic low back pain with scoliosis but that Plaintiff's impairments do not meet or equal a listing. The ALJ rejected the opinion of Dr. Tasto, Plaintiff's treating physician, and found that Plaintiff has the residual functional capacity to do light work with no overhead work with upper ...

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