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Puente v. Astrue

July 15, 2009

NOE PUENTE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") provided legally sufficient reasons for rejecting the opinion of Drs. Nagelberg and Berman;

2. Whether the ALJ provided legally sufficient reasons for rejecting the opinion of Dr. Silver; and

3. Whether the ALJ properly evaluated Plaintiff's testimony.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.

I. THE OPINIONS OF TREATING PHYSICIANS DRS. NAGELBERG AND BERMAN WERE NOT PROPERLY EVALUATED

A. Medical Evidence

Plaintiff's first issue is that the ALJ provided legally insufficient reasons to reject the opinions of Drs. Nagelberg and Berman. Dr. Nagelberg is a Diplomate of the American Board of Orthopedic Surgery and a Fellow of the American Academy of Orthopaedic Surgeons. (See AR at 292.) Dr. Nagelberg was Plaintiff's primary treating physician in 2003 and 2004, primarily as a result of an industrial injury which Plaintiff suffered in February 2002. (See AR at 316.) Dr. Berman, also a Diplomate of the American Board of Orthopedic Surgery, and a Fellow of the American Academy of Orthopaedic Surgeons, was the Agreed Medical Examiner ("AME") concerning Plaintiff's workers' compensation matter. (See AR at 312.)

Following an examination of Plaintiff on January 22, 2004, and a subsequent review of extensive medical records, Dr. Berman wrote a report on April 12, 2004. (AR 312-324.) Dr. Berman initially evaluated Plaintiff in October 2002. As Plaintiff reported to Dr. Berman, he suffered trauma with injury on the job, and thereafter treated with Dr. Nagelberg. He underwent surgery on his right shoulder on June 16, 2003, followed by physical therapy until November 2003. He has had medications and injections, and acupuncture. Plaintiff reported that there was no benefit from the surgical treatment. (AR 313.) Even after the surgery, Plaintiff continued to complain of right shoulder pain, with limited mobility and a cramping pain along with a feeling of weakness. (Id.) Dr. Berman's examination revealed fifty percent of normal mobility in forward flexion, hyperextension, and right and left lateral deviation, with lower back pain. Dr. Berman found decreased range of motion ("ROM") on the right shoulder. (AR 314.) Impingement testing elicited right shoulder pain. (Id.) Dr. Berman's review of Dr. Nagelberg's notes (see, infra) revealed that Plaintiff continued to complain of pain in his right shoulder area, neck and back, for a significant time after the surgery. (AR 315.) Dr. Berman also noted continuous pain and discomfort in Plaintiff's shoulder area. Plaintiff experienced increased pain upon lifting and carrying, and the pain was also aggravated by reaching, moving the arm backwards, or lifting the upper extremity above the shoulder level. (AR 318.)

Dr. Berman concluded that Plaintiff's lumbar spine condition remained unchanged, and was not permanent and stationary with preclusions from heavy lifting and repetitive bending and stooping, as well as prolonged sitting, and prolonged ambulation. With regard to the right shoulder area, Dr. Berman noted that Plaintiff has had post-operative care and other treatment, including injections, but, "unfortunately, his condition has not changed much despite surgery. He continues to have mobility loss similar to that noted at the time of the initial evaluation." (AR at 321.)

Dr. Berman noted limited mobility and pain with mobility, with some residual weakness in the right shoulder and positive impingement testing. There is some grip strength loss on the right. On this basis, Dr. Berman recommended that Plaintiff avoid heavy work activities as well as activities at and above shoulder level. (AR 322.)

Dr. Nagelberg examined Plaintiff on April 3, 2004. At that time, Dr. Nagelberg concluded that Plaintiff had reached permanent and stationary status, and issued a report dated April 6, 2004, and a supplemental report on April 29, 2004. In that latter report (AR 291), Dr. Nagelberg concluded that Plaintiff has suffered permanent disability. In an August 25, 2004 report (AR 286-287), Dr. Nagelberg reviewed Dr. Berman's report following Dr. Berman's examination of Plaintiff on January 22, 2004 and indicated his agreement with Dr. Berman's ...


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