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Sullivan v. Astrue

March 2, 2010

DANIEL J. SULLIVAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Plaintiff's Motion for Summary Judgment; Memorandum in Support of Defendant's Motion for Summary Judgment ["Defendant's Motion"]; Plaintiff's Reply), and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded .

On July 14, 2004, plaintiff Daniel Sullivan filed an application for a period of disability or Disability Insurance Benefits, alleging an inability to work since April 27, 2003, due to lower back and right shoulder injuries, left arm pain, left hand numbness, right knee pain, and depression. (Administrative Record ["AR"] 641-43, 672-73). On April 27, 2007, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 27-38).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 16-18), plaintiff filed an action in this Court.

Plaintiff makes three challenges to the ALJ's Decision denying benefits. Plaintiff alleges that the ALJ erred in (1) failing to articulate specific and legitimate reasons for rejecting the opinions of plaintiff's treating physician, Dr. Dennis Ainbinder, and plaintiff's examining physician, Dr. Lawrence Meltzer; (2) discounting plaintiff's testimony; and (3) failing to articulate specific and legitimate reasons for rejecting the opinions of plaintiff's treating psychiatrist, Dr. Noel Lustig.

For the reasons discussed below, the Court finds that plaintiff's first claim of error has merit. Since the matter is remanded based on plaintiff's first claim of error, the Court will not address plaintiff's second and third claims of error.

ISSUE NO. 1

Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinions of Dr. Dennis Ainbinder, plaintiff's treating physician, and Dr. Lawrence Meltzer, plaintiff's examining physician. In response, defendant argues that the ALJ provided specific and legitimate reasons for rejecting the opinion evidence of Drs. Ainbinder and Meltzer.

In a Medical Source Statement dated October 8, 2004, Dr. Dennis Ainbinder (of Ainbinder Orthopedic Medical Group, Inc.), an orthopedic surgeon who apparently began treating plaintiff in October 2002 (see AR 908)*fn1 and who prescribed physical therapy (and later cardio rehabilitation) for a right shoulder sprain) from October 2003 through August 2004 (see AR 787-93, 795, 797; see also AR 851-78), stated that plaintiff could do the following: lift and/or carry less than 10 pounds occasionally and 10 pounds frequently; stand and/or walk at least 2 hours per workday; sit less than 6 hours per workday; balance, handle (gross manipulation), finger (fine manipulation) and feel frequently; and reach occasionally less than 10 pounds. Dr. Ainbinder further stated that plaintiff should never climb, stoop, kneel, crouch or crawl, should not work in unprotected heights and cold temperature extremes, and (with respect to the right shoulder) should not do any heavy lifting, pushing or pulling above the shoulder level. (See AR 906-10).

On January 13, 2005, following an evaluation of plaintiff, Dr. Ainbinder prepared a progress report. Dr. Ainbinder made the following diagnoses: MRI evidence of acromioclavicular arthrosis in the right shoulder; a resolved sprain of the right ankle; a lumbar myofacial sprain with disc protusions; status post arthroscopic surgery of the left knee; a psychiatric diagnoses (per Dr. Lustig); a resolved right knee contusion; and probable hypertension and atypical chest pain (per Dr. Burstein). Dr. Ainbinder recommended arthoscopic surgery of the right shoulder. Dr. Ainbinder reported that plaintiff was temporarily totally disabled. (See AR 959-69).

On March 3, 2005, Dr. Ainbinder prepared another progress report. After noting that the insurance company had denied permission for plaintiff's surgery, Dr. Ainbinder made the same diagnoses as before, with the addition of a hernia. Dr. Ainbinder reported that plaintiff was to be considered permanently partially disabled. (See AR 970-73).

On April 21, 2005, following another evaluation of plaintiff, Dr. Ainbinder prepared another progress report. Dr. Ainbinder reported the same diagnoses as on March 3, 2005. Dr. Ainbinder reported that plaintiff continued to be permanently partially disabled. (See AR 980-84).

On May 26, 2005, following another evaluation of plaintiff, Dr. Ainbinder prepared a progress report. Dr. Ainbinder reported the following diagnoses: acromioclavicular arthrosis of the right shoulder; prior right ankle sprain with a fracture of the talus and posterior tibial tendinosis; a recent right ankle sprain; a lumbar myoficial sprain with disc bulges; a status post anterior cruciate ligament reconstruction of the left knee; a contusion of the right knee; a prior right knee sprain; and a history of a hernia. Dr. Ainbinder reported that plaintiff was temporarily totally disabled. (See AR 1097-1101).

On June 13, 2005, following another evaluation of plaintiff, Dr. Ainbinder prepared a progress report, addressing plaintiff's lumbar spine, right shoulder, right ankle, left knee and right knee. Dr. Ainbinder reported the following diagnoses: acromioclavicular arthritis of the right shoulder; a rink ankle sprain with a fractured talus, and multiple other sprains; a lumbar myofascial sprain with disc bulges; a status post anterior cruciate ligament reconstruction of the left knee; and a torn medial meniscus of the right knee. Dr. Ainbinder ...


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