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Intonato v. Colvin

United States District Court, S.D. New York

August 7, 2014



JAMES L. COTT, Magistrate Judge.

Plaintiff John Intonato brings this action seeking judicial review of a final determination by Defendant Carolyn Colvin, Acting Commissioner of Social Security ("Commissioner"), denying Intonato's application for disability insurance benefits ("DIB"). The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Intonato's motion is granted, the Commissioner's cross-motion is denied, and the case is remanded to the Commissioner for further proceedings.


A. Procedural History

Intonato filed an application for DIB on October 12, 2011. Administrative Record ("Rec.") (Dkt. No. 11), at 117-23.[1] Intonato claimed disability beginning on June 14, 2010, id. at 117, due to cervical and lumbar stenosis, cervical cord compression, anxiety, depression, a partial right kidney removal, a right incisional hernia, chronic abdominal pain, and sleep apnea, id. at 148. The Social Security Administration ("SSA") denied his claim on January 20, 2012. Id. at 89-100. On March 2, 2012, Intonato filed a request for a hearing before an Administrative Law Judge ("AU"). Id. at 101-03. Represented by counsel, he appeared and testified at a hearing held before ALJ Michael A. Rodriguez on May 2, 2012. Id. at 33-74. The ALJ found that Intonato was not disabled and denied his claims in a written decision dated July 17, 2012. Id. at 17-32. The SSA Appeals Council received Intonato's request for a review of the ALJ's decision on September 19, 2012. Id. at 13-16. The Council denied review on March 20, 2013, rendering the ALJ's determination the Commissioner's final decision. Id. at 1-7.

Intonato timely commenced the current action on May 21, 2013, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. ยง 405(g). See Complaint ("Comps.") (Dkt. No. 1). On December 28, 2013, the Commissioner filed her Answer. (Dkt. No. 10). Intonato moved for judgment on the pleadings pursuant to Rule 12(c) on March 21, 2014. See Notice of Motion (Dkt. No. 15); Plaintiff's Memorandum of Law ("Pl. Mem.") (Dkt. No. 17). The Commissioner filed a response on May 16, 2014, and cross-moved for judgment on the pleadings, See Notice of Motion (Dkt. No. 22); Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings ("Def. Mem.") (Dkt. No. 23). Intonato did not submit any reply.

B. The Administrative Record

1. Intonato's Background

Born on September 26, 1968, Intonato was 41 years old on the alleged disability onset date and 43 years old at the time of his application for DIB. Rec. at 117, 145, 192. He is not married and has no children, and, as of his administrative hearing, lived in West Nyack, New York with his brother, his brother's wife, and their two children. Id. at 39-41. Intonato has completed some coursework at a community college and also received a medical assistant certification in 1997. Id. at 43, 179. After receiving his medical assistant certificate, Intonato worked consistently as an ophthalmic technician for three different medical groups. Id. at 43-44, 150, 173, 179. In June 2010, he left his most recent position, where he had worked since 2004. Id. at 57-58, 173, 179-80. According to Intonato, he left this position because he was "verbally abused" by his employer for taking time off to care for his mother in the hospital. Id.

At his administrative hearing and in his submissions to the SSA, Intonato described his day-to-day activities. Intonato spends several hours each day watching television. Id. at 61, 163. He makes quick meals for himself, but does not cook anything that requires long periods of standing or clean-up. Id. at 61, 161-62. Intonato explained that he cleans around the house, but requires some assistance to do so. Id. at 162. Sometimes, he watches his nephew at home. Id. at 62. Intonato also testified that he is able to drive and occasionally goes to the library to read a newspaper or use a computer. Id. at 61-62; see also id. at 163. He explained that, while he is able to shop for clothes and food, he does so "very seldom." Id. at 163. At his hearing, he testified that he has no difficulty taking care of his personal needs, including shaving, bathing, or putting on clean clothes every day. Id. at 71; but see id at 160-61. Despite living with his brother, Intonato claimed that he spends much of his time alone and that he does not socialize with family or friends very often. Id. at 164. Once a month, he has dinner with his family, but otherwise, he avoids family functions; Intonato explained that his anxiety and depression have distanced him from his family. Id. Similarly, he said he meets friends about once a week, but his anxiety and discomfort increases around large groups of people. Id. at 72-73, 171. Such events lead to panic attacks, which Intonato claimed occur on a daily basis and consist of fear, rapid heartbeat, sweating, and confusion. Id. at 170.

Regarding his symptoms, Intonato explained that he is unable to sit or stand longer than 15-20 minutes at a time before he becomes uncomfortable and has difficulty concentrating. Id. at 47, 66, 160. Intonato testified that when he stands for 10 to 15 minutes, he experiences pain, numbness, and tingling in his shoulders and arms, particularly on his right side. Id. at 47-49. He also said he has a limited ability to walk because of his pain. Id. at 64, 166. Intonato said that it is painful to bend over while dressing, stand while taking a shower, and sit during meals. Id. at 160-61. For his pain, he wears an abdominal binder and takes Advil or Aleve. Id. at 168-69. Finally, Intonato noted that he has had sleep apnea, which interferes with his ability to breathe while sleeping and makes him tired during the day. Id. at 71-72, 160.

2. Medical Evidence in the Record

a. Medical History

i. Sleep Apnea

Intonato was diagnosed with severe obstruct sleep apnea ("OSA") on November 15, 1999, after undergoing an overnight polysomnography study. Rec. at 261-62. At the request of Dr. Stephen Menitove, [2] Intonato underwent three more such studies in July 2005, id. at 246-51; October 2009, id. at 244-45; and November 2011, id. at 366-69. To treat his OSA, Intonato uses continuous positive airway pressure treatment and, in November 2009, had a tonsillectomy and surgery to remove throat tissue and reduce his tongue base. Id. at 237, 366. However, as of Intonato's November 2011 polysomnography study, his sleep apnea was still described as "severe." Id. at 366-67.

ii. Partial Nephrectomy and Incisional Hernia

While hospitalized for kidney stones in January 2011, Intonato underwent a CT scan which showed a possible cyst on his kidney. Id. at 222, 227-28, 276, 278-80. An MRI performed the following month confirmed the mass, id. at 220, 229, and, in March 2011, Intonato had a partial nephrectomy to remove the mass and his right adrenal gland. Id. at 237, 380, 394. As a result of the surgery, Intonato developed a "large right-sided incisional hernia." Id. at 237, 363, 380.

Accordingly, Dr. Menitove then referred Intonato to Dr. Fleischer, a surgeon. Id. at 400-01. At his May 4, 2011 appointment with Dr. Fleischer, Intonato characterized his pain as mild but aggravated by exertion, and reported that it interfered with his daily activities. Id. at 400. Dr. Fleischer noted that an abdominal CT scan of Intonato on May 1, 2011 showed a "large incisional hernia" Id. Dr. Fleischer also noted that Intonato was severely morbidly obese, and therefore advised him to lose significant weight before surgery because his obesity put him at high risk for a recurrent hernia and pulmonary complications. Id. at 400-01. Nevertheless, Dr. Fleischer scheduled Intonato for surgery on May 19, 2011. Id. at 398. To that end, Intonato went to Dr. Peter Strassberg, who had been treating Intonato since April 2011, Id. at 291-92, for pre-operative testing, id. at 396, 398, 406. Intonato did not have the surgery as scheduled, although it is not entirely clear why. Id. at 393.[3] In a June 6, 2011 note, Dr. Strassberg commented that Intonato would try over-the-counter medication for his hernia pain. Id. at 389.

In July 2011, Intonato again explored the possibility of surgery for his hernia. On July 1, Intonato saw Dr. Menitove for a pre-operative consultation requested by Dr. Eva Fischer, a surgeon. Id. at 237. Dr. Menitove determined that Intonato was "a suitable candidate for operative intervention for repair of an incisional hernia." Id. at 238. On July 21, Intonato visited Dr. Strassberg, who also found that there were no medical contraindications to surgery. Id. at 382-84. As such, in July 2011, Intonato had his incisional hernia surgically repaired. Id. at 422.

The hernia recurred. An abdominal and pelvic CT scan performed on September 11, 2011 showed a "[p]ersistent right flank post operative hernia." Id. at 377-78. When Intonato saw Dr. Strassberg three days later to discuss the results of the CT scan, Dr. Strassberg commented that Intonato was "doing well, " but also noted the hernia. Id. at 376.[4] While not fully supported by the medical evidence in the record, Intonato testified during his administrative hearing that he has developed four new hernias, including a large incisional hernia and an umbilical hernia. Id. at 51-54. On June 22, 2012, Dr. Andrew Moulton, an orthopedic surgeon, noted the presence of a right incisional hernia. Id, at 477, 480.

iii. Cervical and Lumbar Spine

Intonato also suffers from spinal issues. A January 14, 2009 MRI showed that Intonato had "[e]arly disc degeneration, " with a C3-4 "disc herniation, " "[c]anal stenosis at C4-5 through C6-7, " and multi-level spinal cord compression. Id. at 204. On October 26, 2011, Dr. Strassberg noted that Intonato's cervical spine stenosis would require surgery. Id. at 374. While the need for surgery was in the record before the ALJ, Intonato did not mention at his hearing that he had cervical spine surgery scheduled for June 2012. Pl. Mem. at 3. After the hearing, Intonato underwent a second cervical spine MRI on May 30, 2012 which revealed osteophyte complexes at multiple levels, "resultant severe spinal stenosis" and "significant spinal cord compression" at C5-6, and "moderately severe spinal stenosis" with "impingement and flattening and mild compression of the cervical spinal cord" at C6-C7. Rec. at 419. An MRI of his lumbar spine performed the same day revealed "[m]ultilevel degenerative changes, " including the possibility of impingement on the L5 nerve roots. Id. at 452. On June 28, 2012, Dr. Moulton performed a cervical fusion from C2 to T2. Id. at 467-68.

b. Physician Assessments

i. Dr. Peter Strassberg's Assessments

Dr. Strassberg completed two assessment forms in connection with Intonato's DIB application. Id. at 290-304, 371-72. He treated Intonato from April 2011 through at least March 24, 2012, id. at 291, 370, and, in January 2012, the SSA's consultative physician identified Dr. Strassberg as Intonato's primary care physician, id. at 345.

In the first assessment form, dated October 26, 2011, Dr. Strassberg listed the following diagnoses/symptoms: a right abdominal hernia due to a previous surgery, cervical spine "compression/stenosis" with "peripheral neuropathy" in both arms, [5] depression, and anxiety. Id. at 291. Dr. Strassberg characterized Intonato's symptoms as static and lifelong, with no improvements since his first visit in April 2011. Id. at 292, 297. He observed that Intonato had a decreased range of motion in the cervical spine and tingling in "both extremities." Id, at 293-94. However, he noted that Intonato had no significant abnormality in his gait and required no orthotic appliance or assistive device to walk. Id. at 294-96.

Dr. Strassberg found that, while Intonato had no physical or objective signs of chronic fatigue, Intonato experienced fatigue from daily activities as a result of his anxiety and depression. Id. at 293. Dr. Strassberg did not mention Intonato's history of sleep apnea. Id. Anxiety and depression were the only limitations Dr. Strassberg identified regarding Intonato's mental status, which Dr. Strassberg said affected Intonato's mood. Id. at 292, 297. Dr. Strassberg identified Intonato's anxiety, depression, and hernia as presenting difficulties for his functioning in a work setting. Id. at 298.

Based on his medical findings, Dr. Strassberg determined that Intonato could lift and carry ten pounds "occasionally, " that is, up to one-third of the work day. Id. at 299. He further determined that Intonato could stand and/or walk for less than two hours per day and sit less than six hours per day. Id. While Dr. Strassberg indicated in the report that Intonato had no limitation in his ability to push and/or pull, id. at 300, he also wrote that Intonato's hernia limited his ability to push and pull, id. at 301.

On March 22, 2012, Dr. Strassberg filled out a second assessment form. Id. at 371-72. In the form, hernia, cervical spinal cord compression, sleep apnea, anxiety, and depression are listed as Intonato's medical conditions. Id. at 371.[6] On a chart that divided potential functional limitations into "No Evidence of Limitations, " "Moderately Limited, " and "Very Limited, " Dr. Strassberg indicated that Intonato had moderate limitations in his ability to walk; stand; sit; lift and carry; ...

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