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Fallon v. Colvin

United States District Court, Second Circuit

January 8, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


LAWRENCE E. KAHN, District Judge.


This case has proceeded in accordance with General Order 18 of the United States District Court for the Northern District of New York, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 14 ("Plaintiff's Brief"); 17 ("Defendant's Brief"). For the reasons discussed below, the case is remanded for reconsideration of Plaintiff Denise Fallon's ("Plaintiff") Residual Functional Capacity ("RFC"), Plaintiff's credibility, and Plaintiff's treating physicians' opinions.


A. Plaintiff's Ankle Treatment

Plaintiff was first seen for her ankle injury by her primary physician, Dr. Maklad, on January 23, 2009. Tr. at 277. Dr. Maklad referred Plaintiff to a doctor of osteopathic medicine, Dr. Blonski, whom Plaintiff saw on March 2, 2009. Id. at 278, 471. Dr. Blonski, believing that an MRI would not be required unless the symptoms of swelling, tenderness, and pain while walking persisted, recommended conservative treatment including physical therapy and Tylenol for pain. Id. at 471-72. On April 13, 2009, Dr. Blonski prescribed a CAM walker boot-style brace for ankle instability and pain. Id. at 470. After seeing Plaintiff once in May and once in June, Dr. Blonski referred Plaintiff to a podiatry specialist when an MRI showed a torn peroneal brevis tendon in her ankle. Id. at 468-69, 473. Dr. Blonski indicated that Plaintiff should consider surgery if other solutions were not available. Id. at 468.

Plaintiff saw Dr. Naoulo, a podiatrist, on two occasions in July and August of 2009. Tr. at 401-02, 404-05. Plaintiff's right ankle was x-rayed, and Dr. Naoulo determined that Plaintiff should be put on non-weight-bearing status for the right foot due to a fracture and the aforementioned torn tendon. Id. at 402. Plaintiff saw podiatrist Dr. Sweet on August 31, 2009, and received an injection of Kenalog for ankle pain. Id. at 399. On September 14, 2009, Plaintiff saw Dr. Naoulo, who reported that the injection did not relieve Plaintiff's ankle pain. Id. at 395. Dr. Peterson, DPM, noted that a medical equipment facility had fitted Plaintiff for a Richie brace by the time of her visit on November 2, 2009. Id. at 392. But by Plaintiff's February 1, 2010, follow-up appointment to determine the effectiveness of the Richie brace, Plaintiff's ankle had not recovered stability and she discussed surgery with the podiatrist on duty that day, Dr. McNerney. Id. at 391.

Plaintiff saw Dr. Sweet again on May 19, 2010. Tr. at 467. Dr. Sweet noted that Plaintiff seemed to have exhausted available conservative treatments and was interested in surgery, but Dr. Sweet needed Plaintiff's medical records before proceeding further. Id . Plaintiff last saw Dr. Sweet on January 24, 2011, when Dr. Sweet noted that Plaintiff had missed several appointments but was still experiencing a great deal of ankle pain, and that Plaintiff had tried physical therapy and continued to wear the Richie brace. Id. at 466. Dr. Sweet further noted that Plaintiff could have arthroscopic surgery on her right ankle but might need more extensive surgery to repair the tendon and ligament tears described in the MRI report. Id . Dr. Sweet submitted a Medical Questionnaire dated February 8, 2011, stating that Plaintiff's condition impacted standing and walking, and that Plaintiff could not stand for two hours during an eight-hour workday or lift more than five pounds at all. Id. at 482-84. These recommendations were based on Plaintiff's chronic ankle pain and tendon and ligament tears in Plaintiff's right ankle. Id.

B. Plaintiff's Treatment for Heart and Back Conditions

Cardiologist Dr. Contini has treated Plaintiff for heart palpitations since September 11, 2008, when a Holter Monitor Report performed during an emergency room visit showed that Plaintiff's heart exhibited physiologic sinus tachycardia. Id. at 434. Plaintiff saw Dr. Kashou on October 23, 2008, for recurrent palpitations and shortness of breath. Id. at 426. Plaintiff received treatment at the emergency room on November 4, 2008, where an echocardiogram showed mild abnormalities. Id. at 432-33. Thereafter Plaintiff saw Dr. Contini for heart palpitations on November 25, 2008; January 8, 2009; July 31, 2009; January 22, 2010; March 18, 2010; July 12, 2010; and November 16, 2010. Id. at 421-24, 475-77. Dr. Contini submitted a Medical Questionnaire with regard to Plaintiff's heart condition on February 1, 2011, stating that Plaintiff's condition impacted standing and walking, that Plaintiff could stand for at least two hours out of an eight-hour workday, and that Plaintiff could safely lift five to ten pounds for three to eight hours per day, but could not safely lift over ten pounds for more than three hours during an eight-hour workday. Id. at 480. Additionally, Dr. Contini noted that Plaintiff would need significant unrestricted periods of rest if she were to return to repetitive work activity. Id. at 479.

Plaintiff received treatment for lower-back pain in October 2006 and June 2007, and began treatment with Dr. Kaczynski on August 27, 2009. Tr. at 270. During that visit, Plaintiff was diagnosed with a lumbar disc disorder. Id. at 271. Dr. Kaczynski prescribed Tramadol and Soma for Plaintiff's back pain, and also directed Plaintiff to avoid excessive lifting, standing, and walking. Id. at 271. Plaintiff saw Dr. Kaczynski on September 15, 2009; September 24, 2009; and January 13, 2010, during which time Plaintiff's pain level remained constant, and Dr. Kaczynski discussed with Plaintiff the possibility of osteopathic manipulative treatment. Id. at 256, 264, 267-68. On September 22, 2009, an MRI of Plaintiff's lumbar spine revealed a broad-based diffuse disc bulge and mild canal stenosis. Id. at 246-47.

C. Medical Consultants

Dr. Soden-Serjanej, a medical consultant working for the Social Security Administration ("SSA"), examined Plaintiff on March 10, 2010. Tr. at 414. Dr. Soden-Serjanej noted that Plaintiff was wearing an ankle brace, an air splint, and support hose. Id . Dr. Soden-Serjanej described Plaintiff as having a normal gait and station, but noted that Plaintiff was unable to do any dorsal or plantar flexion with her right ankle. Id. at 417. Dr. Soden-Serjanej did not manipulate Plaintiff's ankle to test those movements due to the possibility of a fracture. Id.

With regard to Plaintiff's back, Dr. Soden-Serjanej noted that, upon testing Plaintiff's lumbar spine, Plaintiff was only able to flex ten degrees and was unable to rotate laterally in either direction. Tr. at 417. Plaintiff showed full flexion in the extension, lateral flexion, and full rotary movement of her cervical spine region, and similarly demonstrated no abnormality in the thoracic region of the spine. Id.

Dr. Soden-Serjanej described Plaintiff's daily activities essentially as set out by Plaintiff in her disability report on January 27, 2010. See Tr. at 177-84, 415. Plaintiff cares for herself and for her children, prepares food, and has some hobbies, including reading. Id. at 177-78, 415. Dr. Soden-Serjanej noted that Plaintiff receives assistance with doing laundry, cleaning, and shopping. Id. at 178-81, 415. Ultimately, Dr. Soden-Serjanej opined that Plaintiff "has mild limitations of her right ankle at this time to perform activities such as standing, walking, and ability to carry heavy objects, " but "no difficulty with handling objects, hearing, speaking, or traveling." Id. at 418.

Dr. Gauthier, a non-examining consultive cardiologist, analyzed Plaintiff's heart condition based on her medical records upon request for advice by J. Shelp, an analyst for the SSA. Tr. at 436. Dr. Gauthier concluded that Plaintiff did not suffer from severe cardiac impairment, and determined that Plaintiff was "unlikely to tolerate carrying 50 lb 1/3 of a day due to cardiac disease." Id.

D. Procedural History

Plaintiff alleges disability due to a broken ankle, a heart problem, and a back problem. Tr. at 168. Plaintiff protectively filed for disability insurance benefits and Supplemental Security Income ("SSI") on October 23, 2009. Id. at 163. The SSA denied the application on March 31, 2010. Id. at 70. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 90. The hearing occurred on February 3, 2011. Id. at 14. On May 19, 2011, the ALJ issued a decision finding that Plaintiff was not disabled. Id . On May 31, 2011, Plaintiff filed a request for review with the Appeals Council. Id. at 8. The Appeals Council denied the request for review and the ALJ's decision ...

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