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Clemons v. Astrue

United States District Court, Second Circuit

August 7, 2013

MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.


HUGH B. SCOTT, Magistrate Judge.


Plaintiff, Darcel Lakay Clemons ("Clemons"), brought this action pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security denying disability insurance benefits ("SSD") and/or Supplemental Security Income benefits ("SSI") to Clemons. (Dkt. No. 1.) Clemons was awarded benefits on a second application for SSD effective February 26, 2011 and beyond. She is now requesting that this Court review her first application determination relating to the time period January 1, 2007 through February 25, 2011, specifically with admittance of new and material evidence. (Id. at 13.)

Clemons argues that she has new and material evidence warranting a remand, that the Commissioner relied on vocational expert testimony that was inconsistent with the Dictionary of Occupational Titles ("DOT"), and that the Commissioner erred in failing to properly weigh the opinions of her treating physicians. (Id.) The Commissioner counters that the proposed new evidence is not material because it relates to a time period after Administrative Law Judge ("ALJ") David S. Pang's determination on the first application, that ALJ Pang found no inconsistencies between the vocational expert's testimony and the DOT, and that ALJ Pang used the treating physician's statements in determining Clemons's residual functional capacity ("RFC"). (Id. at 11.)

Presently, the respective parties are moving for judgment on the pleadings (Dkt. Nos. 10 &12) and filed motions on December 18, 2012. The Court has deemed this case submitted on papers under FRCP 78(b). For the reasons below, the Court recommends denying the Commissioner's motion for judgment on the pleadings and granting Clemons's motion in part by vacating the judgment and remanding the matter for further administrative proceedings.


Clemons filed an application for disability insurance benefits on August 7, 2009. The application was denied initially and on reconsideration. Clemons appeared before ALJ Pang on February 17, 2011, who considered the case de novo and concluded, in a written decision dated February 25, 2011, that Clemons was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on March 12, 2012, when the Appeals Council denied Clemons's request for review.

Clemons filed a second application for disability insurance benefits on March 29, 2012, and commenced this action on April 3, 2012. (Dkt. No. 1.) Clemons's second application was initially denied and a hearing was held before ALJ Timothy J. Trost on October 23, 2012 at Clemons's request. (Dkt. No. 13, Pl. Mem. at 2.) On November 7, 2012, ALJ Trost found Clemons disabled, awarding SSD and SSI benefits as of February 26, 2011. (Id. at 2-3.)


Clemons's claim stems from an alleged onset of disability following an automobile accident in Florida on March 3, 2004. (R. 239.) Clemons was born on January 18, 1959 and was 47 years old at the alleged onset and 53 years old when ALJ Pang's decision became final. (Id. at 34.) Clemons obtained her GED in 2007 (Dkt. No. 1, Pl. Mem. at 3; R. 18) and worked various jobs in the healthcare industry (Dkt. No. 1, ¶ 7; Dkt. No. 13, Pl. Mem. at 10; R. 14-16). After the accident, she began reporting severe neck pain. (Dkt. No. 13, Pl. Mem. at 3.) Surgery was performed on April 10, 2006, but Clemons continued to allege severe disabling pain and had to stop working on January 1, 2007 as a result. (Dkt. No. 13, Pl. Mem. at 3.) Clemons was last working in 2009 as a Rehab Aide (R. 13-14), and prior to her surgery in 2006, she was working at a personal care home facility (id. at 14-15).

At the hearing on the initial application, ALJ Pang found Clemons suffered from degenerative disc disease of the cervical spine, depression, anxiety, and obesity. ALJ Pang could not assess her claims of gout and degenerative joint disease in both knees because Clemons did not submit medical evidence in support of the alleged conditions. (Dkt. No. 13, Pl. Mem. at 6-7; R. 47-49; Dkt. No. 11, Def. Mem. at 15.) Following denial by ALJ Pang, Clemons filed a second application for SSD benefits additionally submitting proposed new evidence of her disability. The proposed new evidence consisted of MRI reports of the left and right knee. (Dkt. No. 13, Pl. App. at 9-12.) The MRI reports diagnosed Clemons's right knee with somewhat more advanced than typically expected arthritis with regard to the medial joint compartment. (Id. at 19.) The report also diagnosed a grade 3 inferior articular margin extension tear through the posterior horn of the medial meniscus. (Id.) The MRI report of the left knee diagnosed Clemons with mild to moderate osteoarthritis folding the medial joint compartment, but no evidence of an articular margin tear. (Id. at 21.) Clemons submitted this evidence in the second application claiming that it confirmed existence of degenerative joint disease (osteoarthritis), a progressive condition that dates as far back as 2007. (Dkt. No. 13, Pl. Mem. at 13.) ALJ Trost found that Clemons was disabled, suffering from obesity, arthritis in the neck, back, right arm, and bilateral knees, and that she was disabled as of February 26, 2011. (Dkt. No. 13, Pl. App. at 7, 11.) Clemons was awarded disability benefits on the second application. (Id. at 1.)[1]

Having succeeded on the second application based on new evidence, Clemons now seeks to apply that same evidence to this case. Clemons is requesting that her initial application, covering January 1, 2007 through February 25, 2011, be reversed or remanded based on new and material evidence (Dkt. No. 13, Pl. Mem. at 8), inconsistencies between vocational expert's testimony and the DOT (id. at 14), and error by the Commissioner in failing to give proper weight to the treating physician's opinions (id. at 16). Clemons proposes 13 different pieces of new evidence, among them a fully favorable decision by ALJ Trost on the second claim, two MRI reports, arthroscopic surgery performed after the ALJ's decision, and a medical source statement from Clemons's treating physician. (Id. at 10.) The Commissioner challenges the assertion that there is new evidence because it is dated after ALJ Pang's decision. Additionally, in support of the Commissioner's argument, there is substantial evidence to support ALJ Pang's decision. (Dkt. No. 14, Def. Reply at 1, 4.)


As noted above, Clemons originally injured her cervical spine in a car accident on March 3, 2004. (Dkt. No, 13, Pl. Mem. at 3; R. 239.) Clemons was diagnosed by Dr. Young J. Yu with (1) cervical disc herniation at C5-6 and C6-7 with right side radiculopathy and intractable pain; (2) cervical spondylosis with osteophytic spurs; (3) morbid obesity; and (4) essential hypertension. (Dkt. No. 13, Pl. Mem. at 3; R. 234.) Dr. Yu performed surgery on April 10, 2006 including interior cervical discectomy and interbody fusion at C5-6. (Id.; R. 234-36.) Clemons's pain persisted after surgery; as a result she stopped working January 1, 2007. (Id.; R. 171.)

Clemons sought additional treatment options from Dr. Lee Guterman, who performed an MRI on October 2, 2009. The MRI showed (1) some spurring centrally at C2-3; (2) bulging of the annulus, indentation of the thecal sac, and some spurring that also abuts the cord at C3-4; (3) a central spurring and slight bulging of the annulus that indents the interior cord at C4-5; and (4) some spurring indenting the anterior cord and evidence of the operative fusion at C5-6. (Dkt. No. 13, Pl. Mem. at 4; R. 250.) Dr. Guterman recommended surgery at two levels with the insertion of an artificial disc above and below the previous fusion (R. 278), but Clemons was not ready to undergo surgery at that time (id. at 280).

On October 29, 2009, Clemons underwent an Internal Medicine Examination by Dr. Nikita Dave at the request of the Social Security Administration. (Id. at 254-57.) Dr. Dave diagnosed her with (1) status post cervical spine surgery; (2) low back pain; (3) hypertension; and (4) tobacco use. (Id. at 257.) Following this evaluation, Clemons began treating with psychiatrist Dr. Kalaiselvi Rajendran from January 27, 2010 ...

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