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HODES v. APFEL

September 1, 1999

JEFFREY HODES, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Castillo, District Judge.

    MEMORANDUM OPINION AND ORDER

Jeffrey Hodes appeals the Commissioner of the Social Security Administration's denial of his application for Disability Insurance Benefits under the Social Security Act, 42 U.S.C. § 416 (i), 423 (1999). This Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g) (1999), and after careful review of the administrative record, we vacate the Commissioner's decision.

RELEVANT FACTS

On February 3, 1995, Jeffrey Hodes ("Hodes") was involved in a serious automobile accident. Hodes immediately complained of pain in his head, neck, right shoulder, lower back, right hip/leg, left rib cage, and his left lateral chest wall following the accident. (R. 110-18.) Although Hodes was in so much pain that he "scream[ed] and moan[ed] upon any [musculoskeletal] movement," x-rays and CAT scans revealed no acute injuries. (R. 130, 141-44, 151.) The hospital released Hodes with a prescription for pain medication on February 5, 1995. (R. 161.)

The trauma of this accident affects Hodes mentally and physically still. At his disability hearing, Hodes testified that the accident left him with several physical limitations: he can lift twenty-five to thirty pounds on his left side, but only three or four pounds on his right; sit for only forty to ninety minutes at a given time; stand for forty minutes to an hour if no walking is involved; and walk only about twenty feet without a cane and about a half-mile with a cane. (43-44.) He cannot bend over, stoop, or squat. (R. 44.) Hodes also informed the Bureau of Disability Determination Services ("BDDS") that he has difficulty remembering and concentrating since the accident, (R. 191), and suffers from "constant pain" that gives him "major trouble doing the simplest of things," such as bathing, (R. 90; see also R. 101).

Hodes claims that the long-term effects of the accident render him unable to work and that he is, therefore, entitled to disability insurance benefits under §§ 416(i) and 423 of the Social Security Act. The Social Security Administration ("SSA"), upon review of the evidence, has repeatedly rejected these claims.

I. MEDICAL EVIDENCE

Hodes' persistent medical problems have been analyzed by numerous doctors, several of them at the SSA's request. These doctors' conclusions can be summarized as follows:

Dr. Flanagan

Dr. Flanagan, a specialist in physical medicine and rehabilitation, treated Hodes for pain in his right thigh, left buttock, left flank and chest wall, and right shoulder, and for sleeping problems. (R. 166-67.) Hodes needs a cane to walk, and Dr. Flanagan described his cane-aided gait as "antalgic . . . [and] with a great deal of effort in pain." (R. 169.) After thoroughly examining Hodes, Dr. Flanagan concluded that he suffers from "diffuse soft tissue pain, post-traumatic with strain pattern to the right shoulder, and right and low back, left flank area." (R. 169-70.)

At the request of the BDDS, Dr. Flanagan simultaneously filled out three forms analyzing Hodes' medical condition. On the BDDS' Psychiatric Report, Dr. Flanagan found that Hodes sedentary work, with a restriction on lifting 10-20 pounds. (R. 181.) However, on the Arthritic Report, Dr. Flanagan reported that Hodes lacked the ability to work because of persistent pain, (R. 182-83); and, in response to a question on the Spinal Disorders Report asking whether Hodes had the "ability to do work-related activities such as sitting, standing, moving about, lifting, carrying, handling objects, hearing, speaking, traveling," Dr. Flanagan responded "none," (R. 185).

Dr. Foydel

Hodes also sought treatment from Dr. Foydel, a spine-care specialist. Dr. Foydel's notes indicate that Hodes demonstrated "mild to moderate pain behavior" in the course of his physical examination. (R. 187.) Dr. Foydel concluded that "as the patient has no resources, I am unclear how a chronic pain program would be paid for but he is clearly in need of one." (R. 189.) Having learned that Hodes had stopped seeking psychological help after his last psychologist committed him involuntarily for suicidal tendencies, Dr. Foydel also referred Hodes to Dr. Mershon for continued psychiatric treatment. (R. 189.)

Dr. Mershon

Dr. Mershon treated Hodes for his psychological complaints and symptoms, including nightmares, decreased sleep, chronic pain, depression, and for periods of inability to get out of bed. (R. 206.) Dr. Mershon diagnosed Hodes as having chronic pain syndrome and post-traumatic stress disorder. (R. 208.) On a BDDS Psychiatric Report, Dr. Mershon described Hodes as "unable to work at this time due to pain." (R. 206.) However, when the Report specifically questioned Hodes' ability to work, Dr. Mershon responded that Hodes could understand and remember instructions and respond appropriately to supervisors, although his work pressures would be tempered by his limited physical activity. (R. 208.)

Dr. Epner

At the SSA's request, Dr. Epner examined Hodes and filled out an Internal Medicine Evaluation form. Hodes told Dr. Epner that he walks with a cane at all times and could not walk more than five or ten feet without one, has decreased short-term memory, suffers from nightmares, and has pain in his shoulder, neck, back, and leg. (R. 194-95.) Dr. Epner's physical examination confirmed that Hodes could not walk more than five or ten feet without a cane, had great difficulty getting out of a chair, and had a significant limp. (R. 195.) During Dr. Epner's back exam, Hodes experienced great pain when Dr. Epner palpitated the cervical and lumbar areas, as well as a lumbar paravertebral muscle spasm. (R. 196.) During the musculoskeletal examination, Hodes could abduct his right shoulder to 100 degrees, but had great pain while doing so, and could easily dislocate and relocate his shoulder. (R. 196.) Dr. Epner's neurological exam determined that Hodes could remember the past five presidents and perform serial seven subtraction. (R. 197.) Dr. Epner concluded that "[t]his claimant would find it nearly impossible to bend, lift, carry, or climb stairs. Indeed, walking is extremely difficult." (R. 197.)

Dr. Dang

At the SSA's request, Dr. Dang performed a neurological exam on Hodes. Hodes told Dr. Dang that he could only walk between twenty and thirty feet without a cane. (R. 201.) Dr. Dang concluded that Hodes' "memory was intact for recent and remote events . . . [and][h]is attention span was good." (R. 201.) Hodes denied having any suicidal or homicidal thoughts, hallucinations, or delusions. (R. 201.) According to Dr. Dang, "[Hodes'] thought processes were goal directed," his judgment and insight were intact, and he would be capable of handling his funds. (R. 201-02.) Physically, Dr. Dang found limited range of motion in both the lumbar spine and the right shoulder, with Hodes able to abduct his right shoulder to ninety degrees, move his arm backwards to eighty degrees, and forward to seventy degrees. (R. 201.) The coordination examination elicited pain in the right shoulder and right leg and a sensory examination revealed an abnormality in the anterior lateral aspect of Hodes' right thigh. (R. 202.)

Dr. Bone

As an SSA medical consultant, Dr. Bone did not examine Hodes; instead, Dr. Bone analyzed Hodes' medical records and asked Dr. Dang whether Hodes could walk fifty feet without a cane. Dr. Bone summarized his conversation with Dr. Dang, writing that Hodes "did not bring a cane with him when he came to [Dr. Dang's] office and could walk in 30 foot intervals before having to stop and lean on the wall for support." (R. 204). When Dr. Dang received this summary from Dr. Bone with a request to verify it, Dr. Dang crossed out the word "not" and wrote "error" on the summary before sending it to Dr. Bone with his signature; thus, Dr. Dang's edited version of the summary read that Hodes "did bring a cane with him. . . ." (R. 204.)

Dr. Bone assessed Hodes' Residual Physical Functional Capacity ("RFC"). Dr. Bone diagnosed Hodes with chronic pain syndrome as well as post-traumatic stress syndrome. (R. 58.) Under the heading of Manipulative Limitations, Dr. Bone checked the box "limited" next to the phrase "reaching all directions (including overhead)" and wrote "right" alongside it. (R. 212.) In response to the question asking how the activities checked "limited" are impaired, Dr. Bone wrote that right shoulder abduction was limited to ninety degrees, arm backwards to eighty degrees, and arm forward to seventy degrees. (R. 212.)

Dr. Bone concluded that Hodes did not have a disability, but noted the following exertional limitations: Hodes can occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk for at least two hours in an eighthour workday, sit for about six hours in an eight hour workday, and he had a limited ability to push or pull in his lower extremities because of right leg pain. (R. 58, 210.) Dr. Bone apparently questioned Hodes' credibility — he noted that one doctor found that Hodes could walk twenty to thirty feet, another doctor stated that Hodes could only walk five to ten feet without a cane, but "Dr. Dang stated that applicant stopped every 30 feet to lean on the wall for assistive support but didn't bring a cane with him." (R. 210-11.) Dr. Bone acknowledged that his conclusions differed significantly from the other treating or examining physicians, but explained the difference by stating that the others' assessments occurred prior to Dr. Dang's examination in which Hodes did not bring a cane with him. (R. 215.)

Dr. Tomassetti

The SSA utilized the consultative services of Dr. Tomassetti to evaluate Hodes' mental capabilities. After reviewing Hodes' medical records, Dr. Tomassetti concluded that Hodes did not meet the requirements for a Listing 12.06 anxiety disorder, but did exhibit evidence of an anxiety-related disturbance. (R. 60-68.) Generally, Dr. Tomassetti found that Hodes was not significantly limited in his mental capacity; however, he did find Hodes to be moderately limited in his ability to carry out detailed instructions, maintain attention and concentration for extended periods of time, and to interact appropriately with the general public. (R. 217-18). Overall, Dr. Tomassetti concluded that Hodes had the mental capacity to perform substantial gainful activity. (R. 219.)

Dr. White


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