Karle v. Astrue

• Decision Date: 17 May 2013
• Docket Number: 12 Civ. 3933 (JGK) (AJP)
• Parties: ERIC J. KARLE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

ERIC J. KARLE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

12 Civ. 3933 (JGK) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 17, 2013

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable John G. Koeltl, United States District Judge:

Plaintiff Eric J. Karle, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Disability Insurance Benefits ("DIB"). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. Nos. 7 & 14: Notices of Motion.)

For the reasons set forth below, the Commissioner's cross motion for judgment on the pleadings should be DENIED and Karle's motion for judgment on the pleadings should be GRANTED to the extent of remanding the case to the Commissioner for further proceedings.

FACTS

Procedural Background

On December 9, 2007, Karle filed for DIB, alleging that he was disabled since February 3, 2006. (Dkt. No. 5: Administrative Record filed by the Commissioner ("R.") 63-66, 141.) Karle claimed to suffer from thoracic radiculopathy. (R. 141.) Karle's application was initially denied on April 25, 2008. (R. 68-71.)

At Karle's request, Administrative Law Judge ("ALJ") Michael A. Rodriguez conducted a hearing on January 6, 2010, at which Karle appeared with counsel. (R. 29-62.) On March 24, 2010, ALJ Rodriguez issued a written decision finding Karle not disabled (R. 14-25), which became the Commissioner's final decision when the Appeals Council denied Karle's request for review on March 22, 2012 (R. 1-3).

The issue before the Court is whether the Commissioner's decision that Karle was not disabled between February 3, 2006 and March 24, 2010 is supported by substantial evidence.

Non-Medical Evidence

Karle was born on July 6, 1958, and was fifty-one years old at the time of the hearing before ALJ Rodriguez. (Dkt. No. 5: R. 36-37, 126.) Karle has a doctorate degree and worked as a chiropractor from 1983 until February 3, 2006. (R. 37, 39, 142.) As a chiropractor, Karle had to walk, stand and stoop for two hours each, and sit for one hour in a seven-hour workday. (R. 142.) Karle also had to handle, grab, and grasp big objects, as well as reach for six hours. (R. 142.) Karle frequently lifted ten pounds, and the heaviest weight he lifted was one hundred pounds or more. (R. 142. )

Karle has not done any other work since February 3, 2006. (R. 38-40.) Karle alleges that he was disabled since February 3, 2006 due to thoracic radiculopathy, which caused him to feel "electrical shocks in [his] left arm/side" causing "extreme nerve pain." (R. 141.) Karle is right handed. (R. 37.)

Karle lives in a house with his wife and four children, one of whom is in college. (R. 36, 47, 147.) Karle takes care of his children's daily routines, including making and cleaning up breakfast, sending them to school, picking them up from the bus, making them snacks, and taking them to swimming classes. (R. 47-48, 148.) While the children are at school, Karle exercises and rests. (R. 148.) Karle shops for, prepares and cleans up dinner. (R. 148-49.) Karle does the laundry, cooking and cleaning. (R. 48, 150.) Karle needs help to move heavy objects and hired someone to mow the lawn. (R. 150.) Albeit at a slower pace, Karle takes care of his own personal needs and travels alone by walking or driving a car. (R. 148-50.) A few times each week, Karle shops for groceries and other necessities. (R. 151.) Karle's hobbies include reading, watching movies, and keeping in shape cardiovascularly. (R. 151.) On a daily basis, Karle communicates with others by telephone and email. (R. 152.) On a weekly basis, Karle attends church and school activities. (R. 152.) Karle continues his responsibilities on the local school board, but sometimes he has to get up during meetings when he has been sitting for long. (R. 38-40.)

Karle can sit for up to two hours, and after that he must change positions to avoid pain similar to electrical shocks in his side and the fifth finger on his left hand. (R. 40-41, 48, 155-56.) Karle experiences pain when twisting and turning, more than from heavy lifting. (R. 52, 157.) The electrical shocks take his breath away, but then quickly "dissipate[]." (R. 50-51.) Karle experiences these shocks each day, as many as twenty times. (R. 41, 51.) Karle sometimes experiences this pain when turning over in bed. (R. 44, 46.) Physical therapy and exercise did not ease Karle's pain. (R. 44-45.) Various medications made Karle feel "dopey," so he does not take them. (R. 45.) Nuerontin's and Cymbalta's side effects were too disruptive (R. 58, 156); Topomax made Karle feel groggy (R. 55-57). Karle agreed that "functionally in between this pain [Karle] may not be what [he] use[d] to be but [he] can do a lot of things. But then this pain kicks in and it makes and it virtually impossible to do a function over an extended period of time." (R. 48.) Karle added that it is "a nebulous T1/C8 radiculopathy but there's no motor component to it so it's all a dy[se]sthesic pain, which makes you feel, you know, as electricity." (R. 43-44.) Karle does not want to undergo epidural shots or x-rays. (R. 49-50.)

Medical Evidence

Medical Evidence Prior To The February 3, 2006 Onset Date

On September 12, 2003, Karle underwent a MRI of his thoracic and cervical spine. (Dkt. No. 5: R. 199, 201.) The thoracic spine impression revealed "multilevel disc degeneration with disc bulging. Small focal left disc herniation at T5-T6. Other disc bulges are asymmetric, left larger than right." (R. 199.)¹ There was no "spinal cord compression," "spinal cord lesion" or "abnormal enhancement of cord or meninges." (R. 199.) The cervical spine impression showed a "[m]ild increase in size of small left foraminal focal disc herniation at C6-C7 since the previous study on September 2000," no "significant change in disc bulging with osteophyte formation at C5-C6," and small "new left paravertebral joint osteophyte at C4-C5 with mild foraminal narrowing." (R. 201.)²

On October 13, 2005, Karle saw Dr. Albert Szabo of the Mount Kisco Medical Group for a follow-up appointment regarding his peripheral neuropathy. (R. 182.) Karle reported no change in his symptoms and stated that he was phasing out of his chiropractic practice and doing some Wall Street work. (R. 182.) Dr. Szabo's impression was "[l]eft-sided thoracic and arm dysesthesias possibly related to the thoracic disk, although no actual radicular symptoms." (R. 182.) Dr. Szabo again discussed treatment alternatives with Karle, including surgical reevaluation and medication treatment. (R. 182.) Dr. Szabo recommended "Lyrica 50 mg 1 tab po qd, increasing up to 2 tabs tid (300 mg a day)." (R. 182.) Karle stated that he likely would not take the medication as he was concerned about habituation. (R. 182.)

On January 12, 2006, Karle again saw Dr. Szabo and complained of parethesias radiating down into his left arm. (R. 181.) Dr. Szabo noted that Karle did "not want to take any medications." (R. 181.) Except "[l]eft lateral flexion of [Karle's] neck elicits some significant pain," Karle's examination was normal. (R. 181.) Dr. Szabo had reviewed Karle's MRI studies and noted "[n]eurologic compression, left-sided," and "[a]rm and thoracic dysesthesias possibly related to a thoracic disk herniation." (R. 181.) Dr. Szabo had no treatment plan because Karle did not want to attempt surgery or take any medication. (R. 181.)

Medical Evidence After The February 3, 2006 Onset Date

Treating Physician Dr. Mark W. Green

On February 3, 2006, Karle saw neurologist Dr. Mark W. Green and complained of electrical-type pain on his left side, axilla and radiating to C7. (Dkt. No. 5: R. 179.) Dr. Green reported normal results on Karle's general and mental status examination: "alert, fully ambulatory and oriented in all spheres," "[o]riented to person, place, and date," "no evidence of sleepiness," and "[m]emory is grossly intact." (R. 179.) There were no abnormal findings in Karle's cardiovascular, cranial nerve, cerebellar, musculoskeletal, neuromuscular and sensory examinations. (R. 179.) Assessing "brachial plexitis on the left side," Dr. Green noted that it "has been protracted and appears to be a permanent disability." (R. 179-80.) Dr. Green opined that Karle "cannot function in his work as a chiropractor which increases his pain and may even enhance the deficit." (R. 180.) Dr. Green "strongly advised [Karle] to apply to permanent total disability, even though he has worked relentlessly for years with this pain." (R. 180.) Dr. Green would consider prescribing "Zonegran, which might [offer] some pain relief but would influence [his] recommendation of going on permanent disability," and noted that "all of these medications used for neuropathic pain have cognitive side effects and might impair [Karle's] professional judgments." (R. 180.)

On June 30, 2006, Karle saw Dr. Green and reported "nothing significantly new," that he had "stopped working as the physical work worsened his brachial plexitis," that he was on no medication, "[s]ymptoms worse with change of position," and "[d]ysesthetic pain left C7-T1." (R. 211.) Dr. Green reported normal results on Karle's general and mental status examination. (R. 211.) There were no abnormal findings in Karle's cardiovascular, cranial nerves, cerebellar, musculoskeletal, sensory and neuromuscular examinations. (R. 211.) Dr. Green noted normal posture, "[g]ood range of motion of the neck without tenderness," "[t]rapezii are normal," "[n]ormal gait, station and arm swing," and normal tone, power and reflexes. (R. 211.) Dr. Green assessed "brachial plexitis, stretch injury" and did not prescribe any medications or testing. (R. 211-12.)

On December 18, 2006, Karle saw Dr. Green and...