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Marmer v. Colvin

United States District Court, E.D. New York

April 7, 2014

EVAN MARMER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

HAROLD SKOVRONSKY, ESQ., Brooklyn, NY For the Plaintiff

LORETTA E. LYNCH, ESQ., United States Attorney, Eastern District of New York, Brooklyn, NY, For the Defendant.

MEMORANDUM AND ORDER

FREDERIC BLOCK, Senior District Judge.

Evan Marmer ("Marmer") seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Both parties move for judgment on the pleadings. For the reasons stated below, the Commissioner's motion is denied, Marmer's motion is granted, and the matter is remanded for calculation and payment of benefits.

I

On June 24, 2010, Marmer applied for DIB, alleging disability since January 1, 2001 due to back pain, spondylolisthesis, [1] and borderline intellectual functioning. The Social Security Administration denied his claim. Upon Marmer's request, an Administrative Law Judge ("ALJ") conducted a hearing and also denied his claim. Following an appeal of the ALJ's determination, the Appeals Council denied his request for review, rendering final the Commissioner's decision to deny benefits. Marmer timely sought judicial review.

The relevant evidence proffered at the hearing before the ALJ is summarized below.

A. Medical Evidence

1. Treating Physician Dr. Ilya Bilik

Dr. Ilya Bilik has treated Marmer for his general medical care since 1994. He referred Marmer for an MRI which revealed posterior disc bulges impinging on the anterior spinal canal at L3-4 and L4-5 as well as spondylosis, disc herniation and facet joint hypertrophy at L5-S1. Dr. Bilik completed a Medical Source Statement dated March 21, 2011. He opined that Marmer could occasionally lift less than ten pounds, stand and/or walk less than two hours per day, and sit for less than six hours per day. He noted that Marmer had limitations in pushing and pulling with the lower extremities; that he could "never climb, balance, kneel, crouch, crawl, or stoop, " AR at 220; and that he had environmental limitations with respect to "temperature extremes, noise, dust, vibrations, humidity/wetness, hazards, and fumes, odors, and gasses." AR at 222.

2. Consultative Examiner Dr. Robert Dickerson

At the request of the Commissioner, Dr. Robert Dickerson examined Marmer on August 19, 2010. Marmer's musculoskeletal examination revealed normal ranges of motion of the cervical and lumbar spines as well as the extremities. Dr. Dickerson diagnosed low back pain with spondylolisthesis, bronchitis, and hypertension. He opined that Marmer was "unrestricted for any physical activity." AR at 199.

3. Consultative Examiner Dr. Jerome Caiati

Dr. Jerome Caiati examined Marmer on May 9, 2011, at the request of the Commissioner. Dr. Caiati diagnosed him with obesity, hypertension, history of bronchitis, history of lumbosacral spondylosis, herniated discs and degenerated discs. Dr. Caiati also completed a Medical Source Statement based on his finding. On this form, Dr. Caiati checked boxes indicating that Marmer could perform the following activities: shopping, preparing a simple meal, taking public transportation, sorting and handling files, walking a block at a reasonable pace on rough or uneven surfaces, and climbing steps at a reasonable pace. See AR at 232. He noted that Marmer could sit, stand, and walk for a total of six hours each during an eight-hour workday. He found that Marmer could lift and carry up to fifty pounds occasionally and twenty pounds frequently. He ...


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