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April 29, 2003


The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge


Before the Court is Plaintiffs Motion for Summary Judgment in the cause and Defendant's brief in opposition.


Plaintiff Michael F. Gehrls (hereinafter "Plaintiff") was born on November 21, 1954 and was forty-four years on his date of onset, December 24, 1998. He filed an initial application for disability (i.e., disability insurance benefits and social security income) on February 25, 1999 (R. 91-93) alleging a broken neck arising out of an automobile accident which occurred on the onset date. (R. 105.) Plaintiffs application was initially denied on July 27, 1999 (R. 65-68) and, again, on reconsideration on February 29, 2000. (R. 71-73.) Plaintiff then filed a timely request for an administrative hearing. (R. 78.) The hearing was held before an Administrative Law Judge (hereinafter `ALJ') on August 4, 2000. (R. 25.) The ALJ issued an unfavorable decision on November 24, 2000 and pursuant to Plaintiff request for review, the Appeals Council affirmed the ALJ's decision on July 10, 2002. (R. 6-8.) Accordingly, the ALJ's decision became the final decision of the Commissioner.


Plaintiff was injured in a automobile accident on December 24, 1998. (R. 146.) Two days later when Plaintiff experienced neck pain he went to the emergency room at Condell Medical Center. An X-ray evaluation was performed which confirmed a fracture of the cervical spine (R. 155) and extensive degenerative changes of the lumbosacral (i.e. lumbar) spine.*fn1 (R. 154.) An MRI of Plaintiffs cervical spine also showed a herniated disk as C5-C6 and facet disruption at C4-05. (R. 160.) A CT scan of Plaintiffs cervical spine indicated bilateral laminar fractures at C4 with possible dislocation and Clay-Shoveler's fractures. (R. 156.)

On December 30, 1998, Plaintiff underwent a posterior cervical C4-C5 fusion (by Dr. Dennis Maiman — neurosurgeon) to address the fracture at that location. (R. 164-65.) Because Plaintiff was asymptomatic with respect to the herniated disk at C5-C6, he did not undergo surgery to remove the disk. (R. 160.) Plaintiff tolerated his surgical procedure well and had a benign postoperative course. (R. 160.) After his hospitalization, he was followed up at a trauma center and received an extensive course of physical therapy. (R. 17, 199.) He was discharged from the trauma center because he had almost complete healing of his neck problems. (R 17, 199.) A follow-up X-ray evaluation of Plaintiff's cervical spine indicated a stable C4-C5 posterior fusion. (R. 215.)

After his surgery, Plaintiff reported that he developed severe headaches and was dependent on taking pain medications. (R. 199.) In addition, approximately five to six months after the accident, Plaintiff reported that he developed pain in both shoulders and his lower back, which radiated to his left leg, and numbness and tingling in his shoulders/arms. (R. 199.) Plaintiffs cervical back pain was further exacerbated when lifting or using his arms. (R. 38, 105, 122, 130, 190, 199 and 263).

Additional Medical Evidence

In March of 1999, Plaintiff saw Dr. Maiman. (YR. 34.) An X-ray evaluation of Plaintiff's cervical spine showed a stable C4-C5 posterior fusion. (R. 215.) Plaintiff testified that, at this appointment, Dr. Maiman told him to see another doctor for nerve damage. (R. 34.)

On June 11, 1999, Dr. Maiman prepared a fracture report indicating that Plaintiff had a reduced range of motion and arm pain. (YR. 190.)

On July 15, 1999, Dr. Stanley Burns, M.D., a non-examining state agency physician reviewed Plaintiff's medical record/evidence and determined that he retained the residual functional capacity ("RFC") to perform medium work. (R. 191-98).

On September 13, 1999, Plaintiff's EMG and nerve conduction study produced an abnormal electrophysiological study due to the presence of: mild chronic neuropathic changes noted in the distribution of C5-C6 integrated muscles consistent with chronic cervical radiculopathy at this level. (R. 212.) There was no evidence of acute denervation found and mild right carpal tunnel syndrome was noted. (YR. 212.)

In October of 1999, an X-ray evaluation of Plaintiff's cervical spine showed no significant change in the posterolateral bilateral cervical fusion at C4-C5. (YR. 214.)

On January 27, 2000, Dr. Sunant Suvanich, a state agency physician, examined Plaintiff. (YR. 199-204.) Upon examination, Plaintiff demonstrated limited range of motion in his shoulder joints on flexion from 0 to 90 degrees on the right compared to the left with 0 to 180 degrees. (R. 201.) Plaintiff also had difficulty with abduction. (R. 201.) He was able to raise the right shoulder up to about 90 degrees compared to 180 degrees on his left. (R. 201.) Plaintiffs upper strength was fair at about 3 out of 5. (R. 201.) His straight leg raising test was positive on the left from 0 to 60 degrees. (R. 201.) Plaintiff was also limited, but to a lesser degree, in his range of motion with respect to his cervical and lumbar spines. (R. 204.)

Despite these stated range of motion limitations, the ALJ's opinion primarily indicates that most of Dr. Suvanich's medical findings indicate that Plaintiff has no limitations. (R. 19.) For example, the ALJ states that Dr. Suvanich found that Plaintiff has no definite muscle weaknesses of the lower extremities, minimal range of motion limitations, and no neurological impairments (e.g., there was no evidence of any peripheral neuropathy of the upper or lower ...

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