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Jacobson v. Colvin

United States District Court, Second Circuit

January 2, 2014

GARY A. JACOBSON, Plaintiff,

Philip H. Seelig, Seelig Law Offices, LLC, New York, New York, Counsel for Plaintiff.

Tomasina DiGrigolia, Special Assistant U.S. Attorney, Assistant Regional Counsel, Social Security Administration, New York, New York, Counsel for Defendant.


CATHY SEIBEL, District Judge.

Plaintiff Gary Jacobson brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by Defendant Commissioner of Social Security ("Defendant" or the "Commissioner"), [1] which found that Plaintiff was not entitled to a period of Disability or Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). (Complaint ("Compl."), Doc. 1, at ¶¶ 1-2.) Before the Court are Plaintiff's Motion for Judgment on the Pleadings, (Doc. 11), and Defendant's Cross-Motion for Judgment on the Pleadings, (Doc. 19). For the reasons that follow, the decision of the Administrative Law Judge ("ALJ") is VACATED, and the case is REMANDED to the Commissioner for further consideration in light of this Opinion.

I. Background

A. Procedural History

Plaintiff protectively filed an application for DIB on May 6, 2009, claiming an inability to work as of December 6, 2008, due to a variety of medical conditions, including post-traumatic stress disorder ("PTSD"), major depressive disorder, chronic headaches, myofascial pain, causalgia, back pain and cervical spondylosis, disc bulging and kyphotic deformity, obstructive airway dysfunction, and limited range of motion in right wrist. (Compl. ¶ 6.)

Plaintiff's application was initially denied on November 6, 2009 based on a finding that Plaintiff could perform light exertion work. (R. 81.)[2] On March 17, 2011, a hearing was conducted by video conference with ALJ Dennis G. Katz presiding. ( Id. at 75.) On April 18, 2011, ALJ Katz issued an unfavorable opinion finding that Plaintiff was not disabled within the meaning of the Act. ( Id. at 85.) On September 27, 2012, the Appeals Council concluded that there was no basis under Social Security regulations to grant Plaintiff's request for review, thus rendering the ALJ's decision the final determination of the Commissioner. ( Id. at 1.)

B. Non-Medical Evidence

Plaintiff was born February 22, 1968 and was thirty-nine years old at the time he applied for DIB. (P's Mem. 1.)[3] Plaintiff graduated from high school, (R. 206), and had work experience as a bartender from 1993 to 1997 and as a firefighter for the New York Fire Department (the "Fire Department" or "FDNY") from 1997-2007, ( id. at 220-22). As a firefighter, Plaintiff had to walk and stand for three hours each, climb for one hour, and sit for two hours in a nine-hour workday. ( Id. at 221.) Plaintiff also had to handle, grab and grasp large objects for approximately thirty minutes each day. ( Id. ) Plaintiff frequently lifted twenty-five pounds, and the heaviest weight he lifted was one hundred pounds or more. ( Id. )

On September 30, 2007, Plaintiff was injured at work when he was trapped in a burning building and had to fall out of a three-story window to safety. ( Id. at 540.) After this incident, Plaintiff was placed by the Fire Department on "light duty", ( id. at 82), which consisted of answering the telephone, taking messages and performing other clerical tasks during a seven- to eight-hour shift, ( id. ). While on light duty, Plaintiff took a commuter train from Peekskill, New York into Grand Central Terminal and then took the subway to Brooklyn. ( Id. at 94-95.) On October 17, 2008, the FDNY deemed Plaintiff unfit for work as a firefighter, ( id. at 400), and he was forced to retire on December 6, 2008, ( id. at 82). Plaintiff has not done any other work since December 6, 2008. ( Id. at 77.)

Plaintiff lives in a house with his wife and three children, who were aged seven, five and two at the time of the hearing. ( Id. at 100.) Plaintiff's wife stays home with him and the children, but Plaintiff is able to assist with "light chores" and watching and playing with the children. ( Id. ) Plaintiff also reads and watches television while at home, and he can make simple meals for himself. ( Id. at 99-100) Although Plaintiff can drive, he is only able to drive short distances before he needs to get up and stretch to alleviate his back pain. ( Id. at 96.)

Plaintiff can sit for twenty minutes at a time, and after that he must stand and stretch to avoid pain in his back. ( Id. ) Plaintiff also has difficulty walking for a long period of time and has trouble sleeping. ( Id. ) Plaintiff is prescribed various pain medications for his back pain, which he tries to take no more than four times per week because the medication "affect[s] [his] sleeping" and "make[s] [him] nauseous." ( Id. at 105-06.) Plaintiff underwent physical therapy for his wrist, which was injured in his September 2007 fall, ( id. at 93), and has regained what Plaintiff estimates as fifty percent range of motion, ( id. at 97-98). Finally, Plaintiff has respiratory issues, including sinusitis, and his sinuses are irritated by dust and household cleaners. ( Id. at 105.) Plaintiff takes Nasonex to help with his symptoms and also uses a Neti pot. ( Id. at 107.)

Plaintiff also suffers from PTSD, which he developed after participating in rescue and recovery at the World Trade Center after September 11, 2001, and for which he takes several medications, including Lexapro, Abilify, Hydroxyzine, and Provigil. ( Id. at 103-04.) Plaintiff alleges that his September 2007 fall aggravated his PTSD, and now he suffers from "severe depression, anger, and... hopelessness." ( Id. at 103.)

C. Medical Evidence

1. Dr. Christina Pansarasa

Dr. Pansarasa, a psychologist, met with Plaintiff's family nine times from January to November 2008 for family therapy sessions focused on Plaintiff's eldest son. ( Id. at 476.) She submitted a report, dated June 24, 2009, which summarized her observations of Plaintiff during therapy. ( Id. ) During that time, Plaintiff described the symptoms he had been experiencing, which Dr. Pansarasa noted were consistent with PTSD. ( Id. ) Plaintiff indicated that he had been suffering from these symptoms since his September 2007 injury. ( Id. ) Dr. Pansarasa noted that Plaintiff exhibited persistent irritability, negativity, anger, disengagement from his family, excessive sleeping, difficulty enjoying positive experiences, and excessive focus on the events surrounding his injury. ( Id. )

2. Dr. Sylvio Burcescu

Dr. Burcescu, Plaintiff's treating psychiatrist, ( id. at 103), submitted a report dated February 10, 2011, ( id. at 294).[4] The report contains a check-list, which asks the doctor to rate the patient's ability to make certain occupational adjustments. ( Id. ) Dr. Burcescu found that Plaintiff's ability to use judgment was very good, and that his ability to follow work rules and interact with supervisors was limited. ( Id. ) For the remainder of the occupational adjustments, however - ability to relate to co-workers, deal with the public, deal with work-stresses, function independently and maintain attention and concentration - Dr. Burcescu opined that Plaintiff had "no useful ability to function." ( Id. ) He also noted, among other things, that Plaintiff's lack of energy would limit his ability to adjust to a job, ( id. ), and that Plaintiff would be unable to complete job instructions, ( id. at 295). Dr. Burcescu diagnosed Plaintiff with major depression and PTSD. ( Id. at 294.)

3. Dr. Michael Hearns

Dr. Hearns, a physician, treated Plaintiff from April 1, 2009 until December 1, 2010. ( See id. at 546-49.) Plaintiff was initially treated for right wrist pain and loss of motion and strength, mid-back pain, right shoulder pain, weakness in the right arm and PTSD-like symptoms. ( Id. at 546.) Plaintiff complained that he could only stand and/or walk for less than one hour without needing a fifteen to twenty minute break; could not sit comfortably for more than two hours; had difficulty climbing stairs; could only lift and carry objects weighing up to ten pounds for a period of two and a half hours; and could only carry three-pound objects for any period of time greater than two hours. ( Id. at 546-47.)

In his report, Dr. Hearns summarized Plaintiff's medical history since his September 2007 injury. Immediately after Plaintiff was injured he was given several CT scans and x-rays, all of which were unremarkable except for a CT scan of his chest, which revealed small pneumothorax and multiple rib fractures, and a CT scan of Plaintiff's right wrist, which revealed a comminuted fracture of the distal radius. ( Id. at 547.) Shortly thereafter, Dr. Andrew Weiland performed surgery on Plaintiff's wrist. ( Id. )

In January 2008, Plaintiff had x-rays of his right wrist that revealed his distal radius fracture was unchanged from the initial injury. ( Id. at 548.) The same month, a neurological report indicated that an EMG/NCV study was performed on Plaintiff, revealing neurophysiologic evidence of a median sensory neuropathy on Plaintiff's right side. ( Id. ) The treating physician recommended further physical therapy and occupational therapy to treat Plaintiff's right hand. ( Id. ) Dr. Weiland's June 2008 report indicated that Plaintiff's wrist fracture had healed in ...

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