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Genovese v. Colvin

United States District Court, E.D. New York

May 15, 2014

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

CHRISTOPHER BOWES, ESQ., Shoreham, NY, for the Plaintiff.

LORETTA E. LYNCH, ESQ., United States Attorney, JAMES R. CHO, ESQ., Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, for the Defendant.


FREDERIC BLOCK, Senior District Judge.

Plaintiff Dominick Genovese ("Genovese") seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits under the Social Security Act (the "Act"). Both parties move for judgment on the pleadings. After reviewing the parties' submissions and hearing oral argument, the Court grants Genovese's motion and remands for further proceedings. The Commissioner's motion is denied.


In August 2010, Genovese injured his back while bending over a sink to wash his hands. At the time, he was employed as an immigration investigator for the Department of Homeland Security. He experienced severe pain in his back and neck, as well as his left side elbow, leg, arm and hand. Because of his pain, Genovese quit working on August 30, 2010, and on January 26, 2011, he filed an application for Disability Benefits Insurance ("DBI"). The Social Security Administration ("SSA") denied his claim. An Administrative Law Judge ("ALJ") conducted a hearing and also denied his claim. The Appeals Council denied his request for review, rendering final the Commissioner's decision to deny benefits. Genovese timely sought judicial review.

In applying the familiar five-step process, [1] the ALJ found as to the first four steps that Genovese: (1) had not engaged in substantial gainful activity since August 30, 2010, the alleged onset date; (2) had multiple severe impairments; (3) did not suffer from an impairment meeting the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) was able to perform his past relevant work as an investigative immigration officer. AR 41-42.[2] As part of step four, the ALJ determined that Genovese had the residual functional capacity ("RFC") to perform work at a sedentary level, with occasional bending, squatting, or kneeling. AR 37. After determining that Genovese could do his past work, the ALJ denied his application because she did not need to proceed to step five. AR at 41; see also 20 C.F.R. 404.1565.

Geneovese argues that the ALJ erred because in reaching her determination, she considered, but did not give controlling weight to the opinion of four treating physicians-Drs. Wilen, Maloney, Naik, and Parnes-all of whom opined on the nature and severity of Genovese's impairments. Instead, the ALJ gave controlling weight only to Dr. Tranese, a consulting examiner.

1. Treating Physicians

Dr. Wilen, who examined Genovese on November 11, 2010, diagnosed Genovese with multiple disc herniations in the thoracic spine, significant bulging and arthritis throughout the cervical and lumbar spine, and cervical and lumbar radiculopathy. He opined that Genovese was "totally disabled." Id. at 243. Dr. Wilen completed a Functional Assessment and stated that Genovese could stand and/or walk for less than two hours in an eight-hour work day, sit for less than four hours in an eight-hour work day, and regularly lift more than five but less than ten pounds. Dr. Wilen also reported that Genovese would require frequent breaks during the day, would require medications that interfered with his ability to function in the work setting, would have difficulty concentrating on his work, and would average two or more sick days per month. See AR at 330.

Dr. Maloney, who saw Genovese on November 16, 2010, also found degenerative changes, especially at T11-12, and an MRI conducted on November 30, 2010, revealed mild multilevel discogenic degenerative disease. Dr. Maloney also completed a Functional Assessment and found the same limitations as Dr. Wilen. He opined that Genovese was "disabled from all work." AR at 376.

Treating physicians Dr. Naik and Dr. Parnes examined Genovese and they, too, found degenerative changes. Additional objective evidence was reviewed: a lumbar spine MRI revealed multilevel spondylosis and annular fissures at L3/L4, L4/L5, and L5/S; and a separate MRI performed on January 4, 2011, revealed mild to moderate discogenic degenerative changes superimposed on an element of congenital narrowing of the spinal canal. Dr. Parnes opined that Genovese "cannot climb, push, pull, crouch, balance, crawl, bend, reach or lift." AR at 344. He also concluded that Genovese "can only sit for less than 2-4 hours in an 8-hour day and he can only stand for less than 1-2 hours in an 8-hour day, as well as walk for less than 1-2 hours in an 8-hour day and requires frequent period of rest where he must lie down." AR at 344-45. He concluded that Genovese was "totally disabled" AR at 342.

2. Dr. Tranese - Consultative Examiner

On March 1, 2011, Dr. Tranese conducted a consultative orthopedic examination at the request of the Commissioner. Genovese told Dr. Tranese "that he is able to perform cooking chores once per week, " and that he independently showers, bathes, dresses, and grooms himself. AR at 278. Dr. Tranese ...

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