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Glessing v. Commissioner of Social Security

United States District Court, E.D. New York

April 17, 2014

GARY M. GLESSING, Plaintiff,


BRIAN M. COGAN, District Judge.

Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. ยงยง 405(g) and 1383(c)(3), seeking reversal of the Commissioner's final decision that he was not entitled to Social Security Disability ("SSD") benefits. Alternatively, plaintiff requests remand of this matter for further proceedings. The parties have each filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is denied, plaintiff's motion is granted in part, and the case is remanded for further proceedings.


I. Procedural Background

Plaintiff applied for disability insurance benefits, alleging disability as of June 14, 2006, due to reconstructive surgeries of the anterior cruciate ligament (ACL) in his left knee. The application was denied. Thereafter, plaintiff appeared pro se and testified at a hearing before an Administrative Law Judge ("ALJ"). The ALJ found that plaintiff was not disabled. Plaintiff retained counsel and submitted additional evidence before the Appeals Council. The Appeals Council denied plaintiff's request for review on February 13, 2013. Plaintiff then filed this action, seeking review of the ALJ's decision.

II. Medical Facts

A. Prior to Alleged Onset Date

Plaintiff, a police officer with the New York City Police Department ("NYPD"), was first seen at the emergency room of St. Vincent Medical Center on October 5, 1994, with complaints of left knee pain after chasing a suspect. He returned to St. Vincent on March 6, 1995 with a left knee sprain, after twisting his knee while pursuing a suspect. Plaintiff's knee had full range of motion, and there were no palpable or audible crepitations. The report noted a marked amount of soft tissue puffiness, but there were no specific areas of tenderness. Upon discharge, plaintiff was instructed to use an Ace bandage and cold compress, elevate his leg, and take Motrin.

Plaintiff was seen by Dr. Robert W. Verde, M.D., on March 9, 1995, for evaluation of his knee. Dr. Verde's impression was rule-out a torn medial meniscus of the left knee, and Dr. Verde instructed plaintiff to undergo an MRI. Dr. Verde indicated on a Workers' Compensation Board Report that plaintiff had a total disability. At a March 14 follow up visit with Dr. Verde, plaintiff reported continued discomfort, and Dr. Verde indicated that plaintiff was totally disabled.

An MRI performed on March 15, 1995 indicated some bone abnormalities, a tear in plaintiff's meniscus, and an ACL injury. On March 21, 1995, Dr. Verde spoke with plaintiff about his MRI results and requested authorization for arthroscopy; he diagnosed internal derangement of the left knee and indicated that plaintiff was totally disabled.

Plaintiff was seen by Stuart Springer, M.D., an orthopedic surgeon, on March 27, 1995. Plaintiff complained of increasing pain and swelling in his knee, and examination revealed the knee to be warm and swollen by 1.5 cm. There was 3 cm of quadriceps atrophy, and some tenderness and discomfort on rotation. Dr. Springer's impression was a tear of the medial meniscus of the left knee, and he recommended arthroscopy to delineate the exact pathology and institute appropriate surgical management.

On March 29, 1995, Dr. Goldman, M.D., a consulting orthopedist for the NYPD, noted that plaintiff had knee pain and was to have surgery. Dr. Goldman indicated that plaintiff was to continue on sick report. Dr. Springer performed arthroscopic surgery on plaintiff's left knee on April 18, 1995. Preoperative diagnosis was left medial meniscus tear, and postoperative diagnosis was a bucket handle tear of the medial meniscus, grade II and III chondromalacia, [1] and chronic ACL tear.

Dr. Springer examined plaintiff on May 3, 1995, and found that plaintiff was doing well. Plaintiff only had some discomfort when walking with a cane, and there was no swelling of the knee. Dr. Springer recommended an intensive program of rehabilitation and physical therapy. Plaintiff was seen by Dr. Goldman on May 18, 1995, who also recommended physical therapy and stated that plaintiff could proceed with left knee reconstruction if desired in the future. Dr. Goldman stated that plaintiff's prognosis was good, and he was to be assigned limited capacity work at the NYPD. Plaintiff attended four sessions of physical therapy between June 29 and July 13, 1995.

On August 8, 1995, plaintiff again underwent arthroscopy of the left knee. Preoperative diagnosis was internal derangement of the left knee, and postoperative diagnosis was torn ACL of the left knee. Plaintiff was seen by Dr. Springer for a continuing evaluation on August 23, 1995. Plaintiff's knee was cool with no swelling, his range of motion was 3 to 70 degrees with good stability, and there was no joint line tenderness. Plaintiff was again instructed to undergo an intensive program of rehabilitation and physical therapy three times per week.

Dr. Springer examined plaintiff on September 20, 1995, and found that his left knee had a range of motion of 0 to 130 degrees, with good stability. Dr. Springer recommended that plaintiff continue his physical therapy for another four months in order to return to functional status. Dr. Goldman examined plaintiff on October 2, 1995, also finding good range of motion and also recommending continued physical therapy and a resumption of restricted duty work. At a visit on November 30, 1995, Dr. Springer stated that plaintiff was "coming along" and improving, and again instructed plaintiff to continue his physical therapy program.

Plaintiff continued physical therapy throughout 1996, with occasional visits to Drs. Springer and Goldman. On September 5, 1996, plaintiff was examined by Dr. Goldman, who observed good range of motion, but some atrophy of the quadriceps and calf. Dr. Goldman opined that plaintiff should be able to return to full duty.

On September 11, 1996, Dr. Springer reevaluated plaintiff. Plaintiff stated that he felt that he was unable to return to full duty as a police officer, complaining of significant problems with his left knee, including a "bone on bone" sensation and numbness. Plaintiff stated that he was afraid to put his full weight on his left knee, relying instead upon his right leg. Dr. Springer's physical examination found good range of motion and no swelling. There was some soreness. Dr. Springer recommended continued physical therapy, and wrote that based on plaintiff's complaints and symptomatology, plaintiff might not be able to return to full duties as a police officer.

Plaintiff was seen by Dr. Goldman on October 17, 1996, complaining of new exacerbation of pain along his left lower extremity after standing all day during his duty tour two days earlier. There was medial joint line pain, but good range of motion. Dr. Goldman categorized plaintiff as capable of limited capacity work, and recommended physical therapy over the next three to four weeks.

Plaintiff returned to Dr. Goldman on November 21, 1996 for reevaluation of his complaints of severe knee pain. Dr. Goldman's examination elicited numbness and significant atrophy of the left leg. Plaintiff was unable to perform a full squat, duck walk, or deep knee bend. There was increased crepitus and instability. Dr. Goldman recommended that the NYPD place plaintiff back on restricted duty and noted that plaintiff's prognosis for return to full duty was now only fair. Plaintiff was again placed on restricted duty effective December 3, 1996.

Plaintiff saw Dr. Springer again on January 15, 1997. Plaintiff said he continued to have problems with his left knee, specifically that while walking he felt that his bones were knocking together on the side of the joint. Plaintiff also complained of some continuing numbness on the side of his leg down to the ankle. Plaintiff had 2.5 cm of quadriceps atrophy. There was "decent" stability. Dr. Springer stated that plaintiff should continue physical therapy. Dr. Springer also stated that based on plaintiff's symptoms, plaintiff would not be able to return to full duty as an NYPD officer. Plaintiff continued physical therapy throughout 1997.

Dr. Springer saw plaintiff again on May 1, 1997. Plaintiff continued to complain of pain and his "bones banging into each other" when he walked. Dr. Springer stated this may occur because plaintiff had a bucket handle tear of the medial meniscus and lost most of it during his previous surgery. Dr. Springer stated that despite exercises, plaintiff had not regained full size or strength to his left quadriceps. Dr. Springer recommended further physical therapy and a lateral heel wedge to keep the side of the knee from collapsing. Dr. Springer stated that plaintiff might need a knee brace if his symptoms continued. Plaintiff continued physical therapy.

Plaintiff returned to Dr. Springer on September 25, 1997, complaining that his knee condition continued to worsen. Plaintiff continued to feel a "bone on bone" sensation, had not regained his full strength, and complained of a loss of sensation along the left leg. Dr. Springer's examination found no swelling, a good range of motion, but still 2.5 cm of quadriceps atrophy. Dr. Springer wrote that plaintiff was probably feeling the loss of the medial meniscus, which explained the bone on bone sensation and slight laxity. Dr. Springer opined that plaintiff's condition was permanent, as was his restricted duty status. Also on September 26, 1997, the NYPD District Surgeon, Peter Galvin, noted that plaintiff had been on restricted duty since December 3, 1996, and recommended conducting a survey to ascertain whether he was incapacitated and should be retired.

Upon visiting Dr. Springer again on January 7, 1998, plaintiff reported no improvement. Dr. Springer's examination remained the same, although Dr. Springer noted that plaintiff was quite stable, which indicated the ACL reconstruction had worked well. Dr. Springer opined that that plaintiff had probably reached the maximum benefits from the surgery, although a continued program of physical therapy would be helpful. Dr. Springer's opinion was that plaintiff would not be able to return to full duties and therefore should be considered to have a permanent partial disability. On January 18, 1998, a consulting orthopedist for the NYPD Health Services division, Dr. Axelrod, wrote that instability of the knee persisted. Plaintiff was to remain on restricted duty, and his prognosis for returning to full duty was poor.

On January 27, 1998, plaintiff was examined by three doctors from the Medical Board Police Pension Fund - Russell Miller, M.D., Theodore Cohen, M.D., and Olivera Bedic, M.D. - to determine whether he could return to full police duty. On examination, plaintiff ambulated with a methodic gait and mild limp, favoring his left leg. Plaintiff had satisfactory range of motion in his left knee, and quadriceps atrophy. The Medical Board diagnosed a torn medial meniscus, torn ACL, status-post ACL reconstruction, and grade II chondromalacia of the left kneecap. Based upon a review of the records, history, and clinical findings, the Medical Board believed that there were significant objective findings with evidence of instability of the left knee. The Medical Board recommended that the Board of Trustees of the Police Pension Fund approve plaintiff's application for accident disability retirement.

B. Subsequent to Alleged Onset Date

At the hearing, plaintiff testified that he had received no medical treatment for his knee on or subsequent to the alleged onset date of June 14, 2006.

Mahendra Misra, M.D., conducted a consultative examination on June 9, 2011. Plaintiff stated that he retired from his job as a police officer in May 1998 because of a knee injury and subsequently worked at a desk job from 2001 until 2006. Plaintiff had received two knee surgeries in the past and complained of knee pain and swelling. He stated that he had difficulty walking and his knee had a tendency to give out and buckle, and he believed that his leg was not strong. Plaintiff stated that he could stand ...

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