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Gross v. Astrue

United States District Court, W.D. New York

May 7, 2014

GARY LEE GROSS, Plaintiff,


MARIAN W. PAYSON, Magistrate Judge.


Plaintiff Gary Lee Gross ("Gross") brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income ("SSI"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 15).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 12). For the reasons set forth below, this Court finds that the decision of the Commissioner is not supported by substantial evidence in the record. Accordingly, the Commissioner's decision is vacated, and this claim is remanded for further administrative proceedings consistent with this decision.


I. Procedural Background

Gross applied for benefits on March 13, 2009, alleging he had been disabled since March 8, 2009 due to degenerative disc disease, back injury and depression. (Tr. 176-82, 211).[2] On August 18, 2009, the Social Security Administration denied Gross's claim for disability benefits, finding that he was not disabled. (Tr. 71). Gross requested and was granted a hearing before Administrative Law Judge Susan Wakshul (the "ALJ"). (Tr. 79, 93, 111-15). The ALJ conducted a video conference hearing on August 30, 2010. (Tr. 27, 29). Gross was represented at the hearing by his attorney, Kelly Laga, Esq. (Tr. 29, 92). In a decision dated September 23, 2010, the ALJ found that Gross was not disabled and thus was not entitled to benefits. (Tr. 14-22). On February 23, 2012, the Appeals Council denied Gross's request for review of the ALJ's decision. (Tr. 1-4). Gross commenced this action on April 18, 2012 seeking review of the Commissioner's decision. (Docket # 1).

II. Non-Medical Evidence

A. Gross's Application for Benefits

Gross was born on March 17, 1962 and is now 52 years old. (Tr. 471). Gross attended high school in a regular class setting through the tenth grade, when he dropped out. ( Id. ). Gross served in the Navy from 1979 through 1980 and was honorably discharged. (Tr. 473). Gross subsequently obtained his GED in 1982. (Tr. 471).

Gross's previous work history includes employment as a telemarketer, food service employee, delivery truck driver, taxi driver, dispatcher and officer manager. (Tr. 35-38). From approximately 1995 through 2000, Gross worked in the food service industry, first as a cook, then as a kitchen manager and finally as an assistant manager. (Tr. 35-38, 197, 282). Gross was also employed as a telemarketer for approximately six months. ( Id. ). From approximately May 2000 through July 2001, Gross was employed as a delivery truck driver refilling vending machines. (Tr. 282). During the period July 2001 to March 2008, Gross was employed in the taxicab industry. ( Id. ). Initially, Gross drove the cabs. Gross later worked as a dispatcher and then as an office manager. (Tr. 197). As an office manager, Gross's responsibilities included dispatching taxicabs, coordinating pickup and drop off times, billing, and handling customer and client calls. (Tr. 226). According to Gross, his duties required him to stand approximately half an hour per day and to sit approximately seven and a half hours per day. (Tr. 227). The job required very limited climbing, stooping, kneeling, crouching, or crawling. ( Id. ). During a typical workday, Gross was required occasionally to lift fifty pounds and frequently to lift ten pounds. ( Id. ). According to Gross, he stopped working in 2008 because his frequent absences were interfering with his job responsibilities. (Tr. 35). He has not worked since March 2008. (Tr. 35, 171).

When Gross applied for disability benefits, he lived with his wife and two children. (Tr. 186). Gross reported that his daily activities included eating breakfast, attending appointments with his doctors and physical therapist, watching television and using the computer. (Tr. 187). According to Gross, he feeds the family pets with assistance from his wife and children and can perform light household cleaning. (Tr. 187, 189). Gross's wife does the majority of the shopping and cooking, although Gross is able to make simple meals for lunch. (Tr. 188, 190). Gross leaves the house primarily to attend medical appointments or physical therapy. (Tr. 189).

According to Gross, prior to the onset of his reported disabilities, he was able to perform household tasks like cleaning and cooking, but is unable to do so now due to his inability to sit or stand for extended periods. (Tr. 187). In addition, Gross reports that he can no longer ride a bicycle, play sports, lift heavy objects or go bowling - limitations that have caused him to lose friends. (Tr. 187, 191). Gross's impairments also interrupt his sleep, and he currently sleeps for approximately two to three hours at a time. (Tr. 187).

Gross reports that he needs reminders to take his medications, but is able to pay bills, handle a savings account and use a checkbook. (Tr. 188, 190). According to Gross, he reads, watches television and uses the computer daily, but easily loses interest. ( Id. ). Since the onset of his impairments, he has experienced increased irritability, is argumentative and has difficulty remaining focused. (Tr. 192). Gross reports that his impairments have resulted in depression and he worries that they are adversely affecting his relationship with his family. (Tr. 193).

Gross's impairments have limited his ability to walk, and he uses a cane for assistance. (Tr. 192). According to Gross, he experiences a constant ache in his right hip, both knees, both ankles and his lower back. (Tr. 194). Gross reports that sitting, walking, lying down and bending exacerbate his pain. (Tr. 195). At the time he filed for disability, Gross was not taking medication to manage the pain because his prescription had run out. ( Id. ).

After the initial denial of benefits, Gross supplemented his disability application on August 26, 2009. (Tr. 242-51). According to that application, he experienced deepening depression, which caused his physician to modify his medication. (Tr. 243). In addition, Gross began attending Alcoholics Anonymous due to his worsening depression. ( Id. ). Gross reported that he was undergoing testing for lupus, a possible heart condition and joint disease. ( Id. ). Gross's physical limitations have become more severe and he now requires a shower chair and a quad cane. ( Id. ). According to Gross, he needs assistance when taking a shower and dressing. (Tr. 250). Further, Gross no longer assists with any household chores, nor drives because he experiences dizzy spells and blurred vision. ( Id. ).

B. The Disability Analyst's RFC Assessment

On July 29, 2009, disability analyst E. Sousa ("Sousa") completed a physical residual functional capacity ("RFC") assessment. (Tr. 477-82). Sousa opined that Gross could occasionally lift twenty pounds and frequently lift ten pounds. According to Sousa, Gross could stand or sit for six hours during an eight-hour workday and had no limitations in his ability to push or pull. (Tr. 478). In addition, Sousa opined that Gross could occasionally climb ladders, ropes or scaffolds and could occasionally balance, stoop, kneel, crouch and crawl. Finally, Sousa noted that Gross had no manipulative, visual, environmental or communicative limitations. (Tr. 480). Based upon this assessment of Gross's limitations, Sousa opined that Gross retained the ability to perform light work. (Tr. 479).

III. Medical Evidence

Gross was in a motor vehicle accident in 1991 and has experienced degenerative disc or joint disease since that event. (Tr. 518). Between 1992 and the latter part of 2006, Gross's medical records primarily reflect emergency room visits relating to back and hip problems. (Tr. 330-62). In August 1991, Gross visited the Mercy Medical Center complaining of pain in his right hip. (Tr. 358, 360). Gross reported an inability to put pressure upon his right hip and difficulty walking. (Tr. 358). An examination and x-ray of the hip were negative for fractures or calcium build-up. (Tr. 358, 360).

In September 1998, Gross visited the emergency department at the Genesee Hospital complaining of lower back pain and muscle spasms. (Tr. 331). Gross was prescribed ibuprofen and valium and was given a note to excuse him from work for one week. (Tr. 331-32). On July 4, 2000, Gross visited the Bristol Regional Medical Center ("Bristol") complaining of a pulled back muscle. (Tr. 352). According to Gross, he had injured his back while attempting to move a refrigerator. ( Id. ). Gross reported pain in his back and his right hip, along with pain and numbness in his legs. ( Id. ). Gross was prescribed medication and instructed to follow-up with his personal physician if the symptoms did not resolve. ( Id. ).

Approximately one and one-half months later, Gross returned to Bristol complaining of a right ankle injury. (Tr. 351). Gross reported that he had injured his ankle while playing basketball. ( Id. ). Gross was prescribed motrin and was instructed to use crutches and ice and to follow-up with his primary physician if the symptoms persisted. ( Id. ). The following morning, Gross returned to have his ankle re-checked and for x-rays. (Tr. 349). The x-rays were negative for fractures. (Tr. 350). Approximately four months later, on December 18, 2009, Gross reportedly re-injured his ankle when he slipped on ice. (Tr. 347). Again, x-rays were negative for a fracture, and Gross was prescribed ibuprofen and instructed to rest, ice and elevate his ankle. ( Id. ).

In January 2001, Gross returned to Bristol reporting of chest pain. (Tr. 339). After a series of tests, including blood work and chest x-rays, Gross was instructed to take Mylanta and Zantac and to follow-up with his primary care physician. (Tr. 341-45). Finally, on July 3, 2001, Gross returned to Bristol with complaints of pain in his back and right leg.[3] (Tr. 337).

On November 15, 2006, Gross began treatment at Highland Family Medicine.[4] (Tr. 321). During that visit, Gross reported that he had not received medical care for the past seven years because he did not have medical insurance. ( Id. ). Gross reported that he had suffered back pain for many years. ( Id. ). Gross also expressed concern regarding his cholesterol, blood pressure and his weight. ( Id. ). The treatment plan addressed hypertension, hyperlipidemia, morbid obesity and dietary education. ( Id. ). With respect to Gross's history of back pain, his previous treatment records were requested and he was instructed to follow-up with his primary care physician, Dr. Lois Vantol ("Vantol"). (Tr. 316, 322). Gross returned for two appointments in November 2006 in order to follow-up on his lab results. (Tr. 318-320). During his visit on November 29, 2006, Gross reported that his back had "slipped out" over the weekend, which caused him to miss a day of work. (Tr. 318). Gross was instructed to continue with his hypertension medication and dietary modifications. ( Id. ). In addition, smoking cessation was discussed. ( Id. ).

During his next appointment on December 20, 2006, Gross reported that he was going to physical therapy for his back pain. (Tr. 317). According to Gross, he believed that he had overworked himself during his physical therapy session, resulting in pain radiating to his hip and leg. ( Id. ). Gross's hypertension appeared to be controlled by medication, and he was instructed to continue his weight loss and smoking cessation attempts. ( Id. ).

Gross's next appointment with Vantol was on March 9, 2007. (Tr. 316). The purpose of the visit was to refill his prescriptions and to follow-up on his back pain. ( Id. ). Gross reported that he had been performing physical therapy exercises at home and had not experienced any significant back pain since his last appointment. ( Id. ). Gross continued to lose weight and was instructed to try Nicoderm patches and Buproprion to assist him with his efforts to stop smoking. ( Id. ).

During a July 27, 2007 appointment, Gross reported ongoing chest pain, left arm numbness, a facial droop and garbled speech. (Tr. 314-15). Based upon these symptoms, Gross was transported to the Highland Hospital Emergency Department for blood work, monitoring and potential head imaging. ( Id. ). He had a follow-up visit at Highland Family Medicine on August 4, 2007. (Tr. 413-14). The treatment notes indicate that Gross was diagnosed with Bell's palsy, was placed on steroids, which improved the facial droop symptoms, and did not require any further treatment. ( Id. ). Gross's thyroid levels were low and required further testing. ( Id. ). Gross reported little success in his efforts to quit smoking. ( Id. ).

Gross's next appointment was on December 3, 2007. At that time, Gross reported acute back pain. (Tr. 408-09). According to Gross, his back pain had worsened over the past three months and had radiated to his left hip. ( Id. ). Gross reported that he had recently been laid off from work, which was causing stress and increased tobacco use. ( Id. ). In addition, Gross no longer had any insurance coverage. ( Id. ). Gross requested a new prescription for his hypertension medication. ( Id. ). Gross was instructed to apply heat to his back and to resume his physical therapy stretches to alleviate his back pain. ( Id. ).

Gross apparently did not receive any treatment for the next seven months. (Tr. 406-07). Gross's next appointment was on July 3, 2008, during which he complained to Vantol about back pain that he had been experiencing for the last three months. ( Id. ). Gross reported experiencing muscle spasms in his lower back and tingling in his legs if he remained seated for extended periods. ( Id. ). Gross reported that an MRI conducted fifteen years earlier revealed degenerative joint disease. ( Id. ). According to Gross, in the past his back symptoms had been alleviated with physical therapy. ( Id. ). According to Gross, he lost his job because his employer needed someone who could perform physical labor. ( Id. ). Gross also reported difficulty sleeping and increased irritability. ( Id. ). Vantol prescribed medication for the back pain and ordered x-rays. ( Id. ). In addition, Vantol discussed treatment options for Gross's reported depression, but Gross declined treatment. ( Id. ). Vantol also ordered a lipid profile to monitor Gross's hyperlipidemia. ( Id. ).

Gross had a follow-up appointment with Vantol on July 17, 2008. (Tr. 401-02). During that appointment, Vantol discussed the results of the back x-rays taken on July 9, 2008. (Tr. 325-26, 401). According to the radiology reports, those x-rays revealed mild degenerative changes in multiple areas of the thoracic spine and moderate degenerative changes at L5-S1. (Tr. 325-26). Gross reported that the medications were not relieving his back pain and that he had applied for disability. (Tr. 401). Gross indicated that he continued to experience pain in his back and that it radiated to his right leg with occasional numbness or tingling in the entire leg. ( Id. ). Vantol ordered an MRI of Gross's back, and opined that Gross needed temporary disability, but was not likely permanently disabled. (Tr. 402). Vantol also prescribed Lipitor for hyperlipidemia and recommended that Gross quit smoking. ( Id. ). Vantol prescribed Zoloft for his depression. ( Id. ).

On July 23, 2008, Gross underwent an MRI of his lumbar spine. (Tr. 399-400). The MRI revealed posterior central disc herniation at L3-L4 and L4-L5 and mild narrowing of the proximal neural foramina bilaterally at L5-S1 with no significant spinal stenosis. (Tr. 400). In addition, there were endplate degenerative changes throughout the lumbar spine. ( Id. ). The impression was mild degenerative changes throughout the spine, most prominent from L3-L4 though L5-S1. ( Id. ). In addition, the MRI revealed a potential renal cyst. ( Id. ).

On August 12, 2008, Gross returned to Highland Family Medicine for a follow-up appointment with Vantol. (Tr. 397-98). During the visit, Gross told Vantol that he had previously attempted physical therapy for his back pain, but had discontinued after approximately six weeks because it caused increased pain. ( Id. ). In addition, Gross reported that he was discouraged about his unemployment. ( Id. ). Vantol reviewed the MRI results and referred Gross to physical therapy and VESID for job retraining. (Tr. 398). In addition, Vantol referred Gross to behavioral health services ("BHS") for his depression. ( Id. ).

Gross's next appointment was on August 27, 2008. (Tr. 395-96). During that appointment, Gross reported continued back pain that required him to change positions frequently. According to Gross, his depression was not responding to medication. ( Id. ). Vantol prescribed Flexeril for Gross's back and encouraged him to go to physical therapy. Vantol instructed Gross to continue his medications to treat his depression and Vantol contacted BHS to instruct them to contact Gross. ( Id. ).

Approximately seven months later, on March 12, 2009, Gross returned to Vantol complaining of low back and hip pain. (Tr. 393-94). Gross reported that he did not go to physical therapy or to VESID, expressing his belief that he should be on disability. ( Id. ). Gross reported that he was able to perform housework. ( Id. ). Gross's hypertension appeared controlled, he continued to take medication and denied any chest pains or shortness of breath. ( Id. ). Gross reported drinking approximately four to six beers every night. ( Id. ). Vantol noted that Gross had missed his follow-up appointments with her, as well as with BHS and a physical therapist. ( Id. ). Gross explained that his mother had been in a nursing home over the previous eight months and had recently passed away. ( Id. ). According to Gross, these developments made it difficult for him to manage his appointments. ( Id. ). Vantol noted that Gross had gained twenty-one pounds and that he was not interested in quitting smoking. ( Id. ). Vantol referred Gross to physical therapy to address his ongoing back pain and to BHS to address his depression. ( Id. ). In addition, Vantol referred Gross to Strong Recovery to address his alcohol abuse. ( Id. ).

On March 31, 2009, Gross had a physical therapy appointment at Strong Health. (Tr. 369). During that intake appointment, Gross reported that he had chronic low back pain stemming from a motor vehicle accident several years earlier. (Tr. 372). Gross described the pain as a constant sharp, shooting pain that worsened when sitting, standing or lying. ( Id. ). Gross used a cane to ambulate and reported some relief with heat and massage. ( Id. ). Gross attended two additional physical therapy appointments on April 6 and 9, 2009. (Tr. 370).

On April 21, 2009, Gross had another appointment with Vantol. (Tr. 388-89). Gross reported that he continued to have back and hip pain and was experiencing pain in his left knee. (Tr. 388). Gross missed his previous two physical therapy appointments, but intended to return for additional therapy. ( Id. ). Gross requested narcotic medication to manage his pain. ( Id. ). According to Gross, he did not contact Strong Recovery, but reported that he had decreased his alcohol consumption to approximately one beer every other day. ( Id. ). Gross indicated that he still was very depressed. ( Id. ). According to Vantol, Gross had not followed-up on the referral to BHS. ( Id. ). Vantol noted that Gross's hypertension was not controlled and thus increased his dosage of Lisinopril. (Tr. 389). Vantol ordered x-rays of Gross's hips and knees, but did not consider Gross a good candidate for narcotic medication and ...

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