The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff Carlyle Chase ("plaintiff") brings this action against Michael J. Astrue, Commissioner of the Social Security Administration ("defendant" or "Commissioner"), pursuant to 42 U.S.C. § 405(g), seeking review of defendant's determination that plaintiff is not entitled to disability insurance benefits under Title II of the Social Security Act ("SSA"). Plaintiff and defendant have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Def.'s Mot. J. Pls. (Doc. No. 15); Pl.'s Mot. J. Pls. (Doc. No. 17).) For the reasons set forth below, defendant's motion is DENIED, plaintiff's motion is GRANTED, and the matter is remanded to the Commissioner for further proceedings consistent with this Memorandum and Order. Plaintiff's request for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, is DENIED without prejudice.
I.Plaintiff's Disability Claim
Plaintiff Carlyle Chase was born in Trinidad in 1956. (Administrative Record ("Admin. R.") (Doc. No. 21) at 121,409. He completed the 12th grade and came to the United States in 1992. He is now a naturalized citizen. (Admin. R. at 34, 138, 409.)
Beginning in March 2003, plaintiff was employed as a bus driver by the Metropolitan Transportation Agency ("MTA"). (Id. at 133.) On January 14, 2006, plaintiff was punched in the right side of the face and head while working. (Id. at 132--33.) Plaintiff sought treatment in the emergency room of New York Westchester Square Medical Center in Bronx, New York, on the day of the incident. Records show a discharge diagnosis of "muscle strain." (Id. at 176, 423.) Plaintiff stopped working as a result of the incident, and received workers' compensation until 2009.
Plaintiff returned to work as an MTA bus driver on January 20, 2009 for eight days. (Id. at 428.) His return was cut short after sustaining an injury to his neck and back when his bus hit a dip in the road, causing him to jostle up and down from his seat. (Id.)
On June 30, 2007, plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning January 14, 2006. (Id. at 11.) Plaintiff's application was denied on September 28, 2007, and he filed a request for a hearing on November 8, 2007. (Id.) Plaintiff, represented by legal counsel, testified at a hearing held on March 17, 2009 before Administrative Law Judge Jeffrey M. Jordan ("ALJ Jordan"). (Id.) ALJ Jordan denied plaintiff's claim in a decision dated May 18, 2009. (Id. at 26.) Plaintiff's former counsel filed exceptions to the May 18, 2009 decision on February 11, 2010. (Pl. Br. at 15 (Doc. No. 18); Admin. R. at 163--74.) On November 4, 2010, ALJ Jordan's decision became the final decision of the Commissioner of Social Security, when the Appeals Council denied plaintiff's request for review and upheld ALJ Jordan's decision. (Id. at 1--5.) Plaintiff filed this action on January 3, 2011, alleging that the decision of ALJ Jordan was not supported by substantial evidence and is contrary to the law and provisions of the Social Security Act. (Compl. (Doc. 1).)
From the date of the 2006 incident to the date of the denial of disability benefits, plaintiff was treated or examined by a number of physicians whose records are part of the administrative record. For his spinal and shoulder conditions, plaintiff was treated by Dr. Michael Hearns, followed by Dr. Modesto Fontanez, and then Dr. Matthew Clarke. He was treated by psychologist Dr. Robert Lancer, psychiatrist Dr. Jeffrey Brown and neuropsychologist Dr. Kim Busichio, and neurologist Dr. Aric Hausknecht. He also saw several doctors for one-time assessments. Dr. Jason Brown conducted a neurobehavioral screen. State agency psychiatrist Dr. G. Minola completed a psychiatric review and mental residual functioning capacity assessment. Dr. Kevin Wang performed a single orthopedic examination. The findings and observations of these medical professionals are summarized below.
On January 19, 2006, plaintiff, complaining of pain to his face, neck, jaw, shoulder and ear, saw Dr. Michael Hearns of Central Medical Services of Westrock. (Id. at 221--23, 296, 432-- 34.) Dr. Hearns completed a New York State worker's compensation "Attending Doctor's Report." (Id.) Dr. Hearns' diagnosis was assault, cervical disc displacement, internal derangement of the shoulder, and lumbar disc displacement. (Id.) Planned future treatment included physical therapy, medication, and a referral to psychiatric care. (Id.) In response to the question whether the plaintiff's injury may "result in permanent restriction [or] total or partial loss of function," Dr. Hearns indicated, "Yes." (Id.) In response to the question whether patient is "disabled from regular duties or work," Dr. Hearns indicated, "total." (Id.) In response to the question whether patient can "do any work," Dr. Hearns indicated, "No." (Id.)
Records reflect that plaintiff was treated by Dr. Hearns approximately once per month between the date of the incident to the end of August 2007, with increasing frequency in June and July of 2007. (Id. at 210--32, 285--95, 297--99, 305, 311, 367--87, 399, 403--07, 415, 430, 435.) In addition to his progress notes, Dr. Hearns completed additional workers compensation reports on approximately a dozen occasions wherein he repeatedly ordered MRIs and other diagnostic testing, and indicated that plaintiff should continue with therapy and continue with psychological treatment. (Id. at 210, 212--13, 226, 232, 252, 283--84, 367, 369, 371, 373, 375, 380, 382, 385, 387, 400, 404, 406, 431, 436.) In those reports, he consistently indicated that plaintiff was unable to perform regular duties or work, that his impairment was "total," and that he could not do any type of work. (Id.)
Over the course of plaintiff's treatment, Dr. Hearns ordered several diagnostic tests. A March 16, 2006, cervical spine MRI revealed slight anterior osteophyte formation at C4-5 and C5-6. (Id. at 193, 208, 365.) Further impressions included degenerative changes and narrowing of both neural foramina bilaterally at C4-5 and C5-6. (Id.) Diagnostic tests performed on April 20, 2006-including Sensory and Motor NCS, F Wave, and Needle Electromyography ("EMG")-produced findings "consistent with right C5 Radiculopathy." (Id. at 195--200, 355-- 59.) An April 4, 2007 MRI of the lumbar spine showed bulging discs at L1-2, L2-3, L3-4, L4-5, and L5-S1, and slight spinal stenosis. (Id.at 194, 209, 366.) Additional diagnostic tests performed on April 5, 2007 produced results consistent with right S1 radiculopathy and suggested bilateral medial plantar sensory neuropathy as well as potential proximal neuropathic pathology. (Id. at 201--04, 300--03, 361--64.)
Plaintiff continued to complain of neck and back pain throughout 2006 and 2007. (Id. at 210, 213--20, 224, 228--31, 265--71, 297, 304--09.)
Rob Lancer, Psy.D., a psychologist in behavioral medicine, treated plaintiff weekly beginning on January 19, 2006. (Id. at 242.) On August 10, 2007, he completed a New York State Office of Temporary and Disability Assistance Division of Disability Determinations questionnaire, wherein he described his treatment history with plaintiff. (Id. at 242--48.) Dr. Lancer's "treating diagnosis" of plaintiff was adjustment disorder with anxiety and depressed mood as well as a pain disorder associated with general medical condition. (Id.) Dr. Lancer reported plaintiff's mood and affect to be poor; his attitude, appearance, behavior, speech, thought, perception, insight, judgment, and memory were fair. (Id. at 245.) He noted that plaintiff had fatigue, memory loss, depression, and back pain which impinged upon his daily functioning. (Id. at 246.) Plaintiff was noted to have difficulty focusing on one task and was limited socially due to depression and a fear of crowds. (Id. at 247.) The doctor indicated that plaintiff's ability to do work-related mental activities was limited in every enumerated area. (Id.) However, he indicated he could not provide a medical opinion regarding the plaintiff's ability to do other work-related activities. (Id. at 248.)
Jeffrey A. Brown, M.D., a psychiatrist, completed a similar questionnaire on July 31, 2007. (Id. at 235--41.) Dr. Jeffrey Brown wrote that he had been treating plaintiff weekly since June 10, 2006, for PTSD, cognitive disorder, and major depressive disorder with psychotic features, among other diagnoses. (Id. at 235.) Symptoms included depression, poor short-term memory and decreased concentration, nightmares, flashbacks, paranoia, and severe lower back and neck pain. (Id.) For the most recent mental status examination, plaintiff was fully oriented, and had fair insight and judgment. (Id. at 238) The doctor found plaintiff's ability to perform calculations was poor. (Id.) Although plaintiff's prescribed medication blunted his impulsivity, the doctor's records indicated ongoing problems with memory and concentration. (Id. at 239.) With respect to plaintiff's ability to function in a work setting, Dr. Jeffrey Brown opined that plaintiff was very paranoid, could not relate to others, and was limited in taking public transportation or driving due to fear symptoms resulting from his assault. (Id. at 240.) The doctor indicated that plaintiff's ability to do work-related mental activities was limited in every enumerated area. (Id.)
d.Drs. Jason Brown and Kim Busichio
Psychiatrist Jason Brown, M.D. and neuropsychologist Kim Busichio, Ph.D., conducted a "Neurobehavioral Screen" on April 9 and 10, 2007. (Id. at 408--12.) Plaintiff was referred to Dr. Brown "for a neuropsychological evaluation due to problems with attention and memory." (Id. at 408.) Plaintiff reported back and wrist pain, headaches, dizziness, vision problems, sleep disturbance, in addition to symptoms of depression and post traumatic stress disorder." (Id.) Plaintiff was alert and oriented during examination. (Id. at 409.) Testing revealed all of plaintiff's cognitive functioning to be in the borderline to low average range except for "information processing speed," which was in the impaired range. (Id. at 411.) The diagnostic impression included: post-concussion syndrome; neuropsychological impairment secondary to cerebral dysfunction, which was consistent with the reported head injury; post-traumatic stress disorder ("PTSD") and major depressive disorder. (Id. at 410.)
Dr. Aric Hausknecht performed his first neurological assessment of plaintiff on May 7, 2007, the results of which were memorialized in a memorandum to Dr. Brown dated May 10, 2007. (Id. at 189--92, 416--19.) Dr. Hausknecht reported that plaintiff was experiencing daily headaches, feeling dizzy, having trouble concentrating, feeling depressed, having trouble sleeping, recurrent thoughts, neck and back pain, as well as pain and numbness radiating to his right leg and hand. Plaintiff reported problems with daily living, sitting, bending, lifting, and driving. A neurological examination found plaintiff's mood to be anxious, with immediate recall and long-term memory intact, but short-term memory impaired. (Id. at 190, 417.) Dr. Hausknecht also found cervical and lumbosacral paravertebral tenderness and associated muscle spasm. His records reflect his "impression" to be: "Closed head trauma with post concussion syndrome and traumatic brain injury. Cervical and lumbosacral derangement." (Id. at 191, 418.) The doctor advised plaintiff to continue with physical and psychotherapy and to take his medications as directed. (Id. at 192, 419.) Further, Dr. Hausknecht opined that plaintiff was totally disabled, and he advised plaintiff to restrict his activities. (Id.) Dr. Hausknecht ordered diagnostic testing performed on May 7, 2007 to assess vestibular and auditory signs and symptoms, which resulted in normal findings. (Id. at 205 (Brainstem Auditory Evoked Potential Report).)
Notes from office visits on June 5, 2007 and July 23, 2007 reflect that plaintiff's mood continued to be anxious, memory continued to be impaired, and his cervical pain and spasm continued, among other things. (Id. at 187--88.) Dr. Hausknecht also referenced results from a March 16, 2006 MRI showing narrowing in some locations and bulging and herniation in others. As of July 23, 2007, prognosis was "poor", and disability was indicated to be "total." (Id. at 187.)
In a report dated June 12, 2007, Dr. John Shimkus related that plaintiff's diagnoses were posttraumatic stress, internal derangement, herniation, nucleus pulposus neck and herniation, nucleus pulposus back. He indicated that plaintiff had temporary total disability and was unable to perform regular work. (Id. at 253.)
Medical consultant and state agency psychiatrist G. Minola, M.D., completed a psychiatric review technique form and mental residual functioning capacity assessment of plaintiff on September 13, 2007. (Id. at 317--33.) Dr. Minola indicated that plaintiff suffered from "adjust disorder." (Id. at 320.) Dr. Minola found that plaintiff's affective disorder did not satisfy Section 12.04 of the Listing of Impairments. (Id. at 320.) Dr. Minola did not address any other possible listed impairment. (Id. at 317--30.) The doctor indicated that plaintiff suffered from moderately limited abilities in understanding and memory, as well as sustained concentration and persistence. In the concluding remarks section, Dr. Minola opined that the review
[D]oes not indicate significant psychopathology adls [sic] and social activity are adequate. [Plaintiff] appears to be able to understand[,] remember[,] & carry out simple tasks in a low stress environment & to relate to peers & supervisors in a work setting cl. Make exaggerated statements about adls [sic] since he continues to drive a car and claims that he cannpoyt [sic] ...