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Yu v. Astrue

United States District Court, E.D. New York

August 8, 2013

BERNICE YU, Plaintiff,

Page 202

For Bernice Yu, Plaintiff: Charles E. Binder, LEAD ATTORNEY, Law Offices of Harry J. Binder and Charles E. Binder, P.C., New York, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: SOCIAL SECURITY ADMINISTRATION - GENERIC, LEAD ATTORNEY, Social Security Administration; Scott R. Landau, LEAD ATTORNEY, United States Attorneys Office, Brooklyn, NY.


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PAMELA K. CHEN, United States District Judge.

Plaintiff Bernice Yu (" Yu" ) commences this action under 42 U.S.C. § 405(g)[1] challenging the decision of Defendant Commissioner of Social Security (the " Commissioner" ), denying Yu's application for Social Security disability insurance benefits.[2] (Dkt. No. 1 (" Compl." ).) Yu moves for judgment on the pleadings, reversing the Commissioner's decision and remanding for a new hearing and decision; the Commissioner cross-moves for judgment on the pleadings, affirming his decision. Fed.R.Civ.P. 12(c); (Dkt. Nos. 10-14). For the reasons set forth below, this Court GRANTS Yu's motion and DENIES the Commissioner's cross-motion.

I. Background

Yu was an attorney with 17 years of experience and a law degree from Fordham. (R. 43, 424.) A series of events--a back injury in February 2004, reinjury to her back in early 2005, and subsequent

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health issues--triggered and sustained Yu's disability, which kept her out of work. (Compl. ¶ 4; R. 33, 38, 208.)

Before Yu became disabled, she earned a six-figure salary working in-house at an international conglomerate of advertising and marketing agencies, including McCann Erickson. (R. 32, 135.) In this position, Yu advised clients, drafted contracts, conducted negotiations, supervised lawsuits and government investigations, and dealt with outside law firms. (R. 136.) This position required Yu to stand for approximately six hours and sit for approximately six hours each day and to frequently lift or carry files weighing ten pounds or more. ( Id .) Yu held this position until February 2002, when she was terminated. (R. 32-33.) After her termination, in around 2003, Yu tried but failed to find other positions as an in-house attorney.[3] (R. 45.)

Yu was 45 years old in February 2004, when her disability started. (R. 119, 131.) Yu continued to satisfy the Social Security Act's insured status requirement until December 2008, when she was 50 years old.[4] (R. 126, 131.)

A. Administrative Record

1. Medical Evidence

i. Visual Impairments

On October 21, 2004, as requested by Yu's primary physician, Dr. Diana Santini (R. 223, 335), Dr. Leila Rafla-Demetrious saw Yu for an ophthalmology consultation, because Yu complained about " floaters" in her eyes. (R. 224, 238.) At this consultation, Dr. Rafla-Demetrious recited Yu's history of type II diabetes, hepatitis B, hypertension, and a cataract in the left eye,[5] and diagnosed Yu with hypertensive retinopathy[6] and potential glaucoma.[7] (R. 238-39.) Yu's vision was 20/60 in the right eye and 20/50 in the left eye. ( Id .)

On January 4, 2005, Dr. Rafla-Demetrious prescribed Xalatan to treat Yu's potential glaucoma. (R. 235.) Three weeks later, Dr. Rafla-Demetrious found that Yu had exhibited a " good response" to Xalatan, but additionally diagnosed Yu with a cataract in the right eye. (R. 231.)

On March 22, 2005, Dr. Rafla-Demetrious newly diagnosed Yu with an after-cataract[8] in the left eye and open-angle

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glaucoma.[9] (R. 241-42.) Yu's vision was worse in both eyes (20/70). (R. 241.) On April 7, 2005, Dr. Rafla-Demetrious performed YAG laser capsulotomy to correct Yu's after-cataract in the left eye. (R. 244-45.) Approximately two months after the YAG laser capsulotomy, Yu's vision improved in the left eye (20/40), but deteriorated in the right eye (20/80). (R. 246.) Yu was also diagnosed with a " senile," or age-related, cataract in the right eye.[10] (R. 247.)

On October 17, 2006, Dr. Rafla-Demetrious also prescribed Lumigan to treat Yu's open-angle glaucoma, because the amount of pressure in her eyes was " poor." (R. 252.) One month later, Dr. Rafla-Demetrious found that Yu's eye pressure was " better . . . on Lumigan, though still a bit higher than optimal." (R. 256.)

On January 23, 2007, Dr. Rafla-Demetrious found that Yu's eye pressure was " poor . . . on Lumigan" and " higher than optimal," so prescribed Istalol instead. (R. 258.) Yu also complained about blurriness, and indeed her vision had deteriorated to 20/100 in the right eye and 20/80 in the left eye. (R. 257.) Two months after that, Dr. Rafla-Demetrious found that Yu's eye pressure was " still higher than optimal" on Istalol. (R. 261.) Yu's vision, however, had improved in both eyes: 20/50 in the right eye and 20/40 in the left eye. (R. 260.)

On June 5, 2007, Dr. Rafla-Demetrious also prescribed Azopt, in addition to the Istalol that Yu was already prescribed, as Yu's eye pressure was still too high. (R. 263.) A month later, Dr. Rafla-Demetrious took Yu off Azopt and prescribed Travatan Z as an alternative, because the combination of Azopt and Istalol had not lowered Yu's eye pressure. (R. 266.)

On December 13, 2007, Dr. Rafla-Demetrious suddenly discovered that Yu had a " good" amount of eye pressure. (R. 277.) Yu's vision was nearly the same: 20/60 in the right eye and 20/40 in the left eye. (R. 276.) Two months later, Dr. Rafla-Demetrious again found that Yu had a " fair/good" amount of eye pressure. (R. 285.) Yu's vision had improved slightly to 20/40 in the right eye and 20/25 in the left eye. (R. 284.) Further follow-ups led to similar findings. ( See R. 287 (May 29, 2008), 290 & 292 (Aug. 26, 2008), 295-96 (Dec. 22, 2008), 301-302 (Feb. 3, 2009).)

On February 3, 2009, Yu discussed with Dr. Rafla-Demetrious and agreed to proceed with surgery for the cataract in Yu's right eye. (R. 300, 302.)

On February 23, 2009, during a pre-operative examination requested by Dr. Rafla-Demetrious, Dr. Santini noted that Yu was unable to read with the right eye which was blurry, but otherwise had no pain in that eye. (R. 380.)

On March 2, 2009, Dr. Rafla-Demetrious performed the surgery, which involved cataract extraction and lens implantation in the right eye. (R. 311.) Yu went home the same day as the surgery. ( Id .) After the surgery, Dr. Rafla-Demetrious described Yu as either " doing well" or " doing great." (R. 323 (Mar. 3, 2009), 318 (Mar. 10, 2009), 326 (Apr. 7, 2009), 329 (May 19, 2009).) Her vision, a month after the surgery,

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was 20/20 in the right eye and 20/20 in the left eye. (R. 325.)

On May 19, 2009, Dr. Rafla-Demetrious's impression was that, with respect to Yu's open-angle glaucoma, the amount of pressure was " ok" in the right eye, but " borderline" in the left eye. (R. 329.)

ii. Spinal Impairments

After Yu started feeling pain precipitated by the injury and reinjury to her back in 2004 and 2005, Dr. Santini referred Yu to an unnamed orthopedist. (R. 158.) This orthopedist ordered an MRI, which revealed a herniated disc in Yu's lumbar (lower back) spine[11] that was placing pressure on a nearby nerve. ( Id .)

On June 14, 2005, pain management specialist, Dr. Joel Kreitzer, began seeing Yu. ( Id .) Dr. Kreitzer noted at this time that, due to the herniated disc, Yu felt pain in her left buttock down to her ankle and cramping in her legs.[12] ( Id .) Dr. Kreitzer found that Yu was unable to stand or sit for long periods of time without " considerable discomfort." ( Id .) To treat Yu's pain, Dr. Kreitzer subsequently prescribed physical therapy and different drugs (Diclofenac, Quinine, Neurontin, and Tramadol) and administered epidural steroid injections.[13] ( Id .) These treatments, however, were insufficient. ( Id .)

Thus, on April 21, 2006,[14] even though Dr. Kreitzer continued to treat Yu through June 26, 2006 ( id .), another orthopedist, Dr. Andrew Casden, saw Yu for a consultation upon referral by Dr. Santini.[15] (R. 190.) Dr. Casden noted pain in Yu's left buttock and her leg down to her ankle. ( Id .) Dr. Casden also noted that Yu's pain started at least a year ago and, although this pain once registered as a ten on a ten-point scale, it was now an eight. ( Id .) Dr. Casden reviewed an MRI that Yu brought to this consultation--the one that the unnamed orthopedist previously ordered--and found that this MRI revealed a herniated disc and cyst in Yu's lumbar spine, which were causing her pain. ( Id .) Noting that prior " conservative" treatments, including physical therapy, drugs, and epidural steroid injections, proved inadequate, Dr. Casden concluded that, " at this point after a year[,] it is reasonable to do surgery for [the herniated disc and cyst]," and ordered a new MRI before the surgery.[16] (R. 190-91.)

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On May 5, 2006, as ordered by Dr. Casden, an MRI of Yu's lumbar spine showed herniation, in that a disc was protruding and placing " moderate" pressure on a nearby nerve and the thecal sac.[17] (R. 197-98.) This MRI also showed mild bulging of two other discs in the lumbar spine. ( Id .) Finally, this MRI showed straightening of the natural curve in the lumbar spine, which suggested that Yu was having spasms. (R. 197.)

On May 11, 2006, Yu underwent surgery on her lumbar spine, performed by Dr. Casden: laminotomy[18] for the herniated disc and removal of the cyst. (R. 202.) Progress notes after the surgery indicated that Yu was " doing well," showed " functional mobility," and had some soreness in her back as expected, but no pain in her leg. (R. 203.) Yu was ready to return home on the same day. ( Id .)

On May 22, 2006, during Yu's first post-operative follow-up, Dr. Casden's nurse practitioner noted that " [t]he pain [Yu] had before surgery is mostly resolved, although she does get occasional cramping." (R. 189.) At another follow-up a week after, Dr. Casden summarily stated that Yu " has had a nice result from surgery," and was " doing well and looks good." (R. 188.) At a July 11, 2006 follow-up, Dr. Casden briefly noted that Yu was " doing ...

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