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Hall v. Colvin

United States District Court, W.D. New York

August 11, 2014

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

Page 615

For Aaron Charles Hall, Plaintiff: Howard D. Olinsky, LEAD ATTORNEY, Olinsky Law Group, Syracuse, NY.

For Carolyn W. Colvin, Defendant: David L. Brown, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, New York, NY; Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Aaron Hall (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" the Commissioner" ) denying Plaintiff's application for disability insurance benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) Gerardo R. Pico was not supported by substantial evidence in the record and was based on erroneous legal standards.

Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 7, 10). For the reasons set forth below, the Commissioner's motion is denied, Plaintiff's motion is granted in part, and this matter is remanded for further administrative proceedings.


A. Overview

On April 6, 2011, Plaintiff protectively filed an application for disability insurance benefits. (Tr. 59, 220). Plaintiff alleged a disability onset date of January 1, 2011, due to lower spine nerve damage.[1] (Tr.

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220). Plaintiff's application was initially denied on June 23, 2011. (Tr. 59). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (" ALJ" ) on July 1, 2011. (Tr. 80). On June 19, 2012, Plaintiff, represented by counsel, testified at a hearing before ALJ Gerardo R. Pico. (Tr. 26-58). An Impartial Medical Expert (" ME" ), Dr German E. Maralet, and a Vocational Expert (" VE" ) Carmen Valladares de Miranda, also appeared and testified. (Tr. 16).

On July 13, 2012, ALJ Pico issued a decision finding Plaintiff not disabled. (Tr. 13-25). On April 5, 2013, the Appeals Council denied review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-4). Plaintiff commenced this civil action appealing the final decision of the Commissioner on June 3, 2013. (Dkt. 1).

B. The Non-Medical Evidence

At the time of the alleged onset of disability, Plaintiff was 46 years old. (Tr. 21). Plaintiff has a high school education. (Tr. 220). Plaintiff's past work includes blender and laborer. (Tr. 220-21).

1. Plaintiff's Testimony

Plaintiff testified that he injured his back at work in June 2010, while picking up a 55 gallon drum of salted vodka that had fallen off of a pallet. (Tr. 31). He stated that he received multiple hydrocortisone shots, attended physical therapy, and engaged in stretching exercises at home, and that the best relief came from the shots, but that the relief only lasted for a few days. (Tr. 32-33).

Plaintiff indicated that he used a TENS unit every day when he got up in the morning and before bed. (Tr. 47). Plaintiff testified that he did not take narcotic pain medication because it made him sick and angry and it caused problems in his household. (Tr. 48).

Plaintiff testified that the temperature would impact his back pain " dramatically." (Tr. 47). For example, a damp or humid day would cause his leg to hurt " all day long." ( Id.).

Plaintiff stated that sitting for longer than 45 minutes to one hour was " unbearable." (Tr. 48). The most comfortable position was to lay flat on his back on the floor and raise his knees up with his feet on the back of a foot stool. (Tr. 50). Plaintiff testified that he only got two to three hours of sleep in a night, and that he had difficulty concentrating due to the lack of sleep and back pain. ( Id.).

According to Plaintiff, he could not work for more than four hours in an eight hour workday, and he would have to get up to walk around frequently. (Tr. 49).

2. The Vocational Expert's Testimony

At the hearing, the ALJ presented the VE with a hypothetical question. (Tr. 42-43). The VE was asked to consider someone of Plaintiff's age, education, and experience who was limited as follows:

limited to lift and carry 20 pounds occasionally, 10 pounds frequently. No limitations in sitting. Standing and walking limited to four hours. Be able to change positions frequently. Occasional bending, stooping, crawling, crouching. No exposure to high ladders, scaffolds, unprotected heights.

(Tr. 42). The VE testified that a hypothetical individual with these abilities and restrictions would be able to perform occupations that existed in significant numbers in the national economy, including the representative occupations of inspector/examiner, ticket marker/ticketer, final assembler,

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electronic worker, and cuff folder. (Tr. 46).

Plaintiff's attorney asked the VE to consider the additional limitations of being off task 10 percent of the day, or missing two or more days of work per month of unscheduled absences. (Tr. 54). The VE stated that such an individual would not be able to work. (Tr. 55).

3. Plaintiff's Self-Reported Functional Capacity Assessment

In a June 25, 2011 function report, Plaintiff Stated that, on a typical day, he would get up to stretch, have a coffee, take his medicine, go for a half mile walk, use the TENS unit, and continue to use the TENS unit every two hours until bed. (Tr. 229). Plaintiff indicated that he would fix himself a sandwich or soup for lunch, but that his wife would prepare any major meals. (Tr. 230). He stated; that he carved wood or antlers and watched TV on a daily basis, and that he could go out of the house for a little shopping or to go to the library. (Tr. 232-33). Plaintiff noted that his back pain prevented him from lifting, bending, mowing the lawn, or hunting. (Tr. 238).

4. Workers' Compensation Order

On December 2, 2010, Workers' Compensation ALJ Steve Molik determined that Plaintiff had a temporary total disability for eight weeks from June 18, 2010, through August 13, 2010. (Tr. 322). ALJ Molik found that Plaintiff had no compensable lost time between August 23, 2010, and October 20, 2010, but was under temporary partial disability for 5.8 weeks from October 20, 2010 to November 30, 2010. ( Id.).

C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On June 21, 2010, Plaintiff was examinied by Dr. Joseph W. Hinterberger. (Tr. 340). Dr. Hinterberger reported his findings in a workers' compensation board form dated June 22, 2010. (Tr. 272-75). At the examination, Plaintiff indicated that he injured himself while lifting a 55 gallon drum of vodka at work. (Tr. 340). Plaintiff claimed that his pain increased throughout the day, causing him to leave work early. ( Id.). Plaintiff reported that when he returned to work, he experienced a " numb tingling sensation radiating down his left leg all the way to his toes." ( Id.). Dr. Hinterberger observed that Plaintiff was favoring his left side, and that he used the " arms of the chair to get up and all weight off of the left foot." ( Id.). Upon examination, the doctor noted " palpable spasm and tenderness at the left paralumbar region," and " definite left sciatic notch tenderness." ( Id.). Dr. Hinterberger recommended that Plaintiff stay out of work for one week, treat with alternate warm and cool packs, stretch, take 800 mg of ibuprofen three times per day and Tylenol every four to six hours as needed. ( Id.).

Plaintiff returned to Dr. Hinterberger on June 28, 2010 for reevaluation. (Tr. 339). Plaintiff complained of increased pain and symptoms in both the left and right sides. ( Id.). Plaintiff stated that " sitting for periods of time reproduce[d] his symptoms." ( Id.). The doctor again observed that Plaintiff used the arms of the chair to stand and favored his left leg when standing. ( Id.). Dr. Hinterberger noted " exquisite bilateral SIJ tenderness, left more than right, exquisite left sciatic notch tenderness." ( Id.). Further, " [f]exion, extension, and lateral bends are minimal secondary to significant discomfort." ( Id.). Dr. Hinterberger prescribed Lortab for Plaintiff's discomfort, discontinued the Tylenol, and recommended continued

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use of ibuprofen 800mg. ( Id.). The doctor decided to keep Plaintiff out of work and schedule physical therapy. ( Id.).

On July 1, 2010, Plaintiff had an MRI of the lumbosacral spine that showed " mild degenerative disc disease extending from T12 to L4, which is greatest at L3-L4." (Tr. 346).

Plaintiff began physical therapy at Schuyler Hospital Rehabilitation Services on July 8, 2010. (Tr. 364-65). Plaintiff reported pain at a level of 9.5 out of 10, and claimed that his pain was aggravated by sitting longer than 45 minutes, standing for more than 15 minutes, and lying on his left side. (Tr. 364). Plaintiff underwent physical therapy from July 8 to December 15, 2010. (Tr. 349-82). On December 1, the physical therapist noted that Plaintiff did not appear for his visits between November 17 and December 1. (Tr. 359-60, 382). Plaintiff had attained 5 out of 6 goals, but he still complained of pain after standing for more than four hours. (Tr. 382). As Plaintiff progressed through physical ...

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