United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Plaintiff Zoilo David Rodriguez Sanchez commenced the above-captioned action seeking review pursuant to 42 U.S.C. 405(g) of a final decision by the Commissioner of Social Security denying his application for disability insurance benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that the Commissioner's decision is supported by substantial evidence and should be affirmed. Plaintiff cross-moves for judgment on the pleadings, arguing that Administrative Law Judge Hilton R. Miller (the "ALJ") failed to satisfy his duties in several aspects: (1) the ALJ did not correctly weigh the opinions of Plaintiff's treating source; (2) the ALJ did not correctly account for Plaintiff's complaints about pain in making a credibility determination; and (3) the ALJ improperly considered the vocational expert's testimony. The Court heard oral argument on July 29, 2014. For the reasons set forth below, Defendant's motion for judgment on the pleadings is denied. Plaintiff's cross motion for judgment on the pleadings is granted. The Commissioner's decision is reversed and remanded for further proceedings.
Plaintiff is a 57-year old man who completed ninth grade. (R. at 91, 303.) Plaintiff has four children and lives with Yolanda Naravaez, and has no income. (R. at 302.) Plaintiff filed for disability benefits on July 28, 2010, claiming that he became eligible on July 10, 2010 due to broken ribs and a broken collarbone stemming from a recent motorcycle accident, as well as depression, asthma, high blood pressure and foot and knee problems. (R. at 9, 112, 304.) Plaintiff's application was denied on January 13, 2011, and he timely requested a hearing before an ALJ. (R. at 31-37.) A hearing was held before the ALJ on April 26, 2012, and Plaintiff, his friend Yolanda Naravaez, and Melissa J. Fass-Karlin, a vocational expert, testified. (R. at 298.) The ALJ issued a decision on May 9, 2012, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 297, 3-17.) Plaintiff sought review of the ALJ's decision by the Appeals Council. (R. at 18-19.) The Appeals Council denied Plaintiff's request for review, making the ALJ decision the final decision of the Commissioner. (R. at 22-24.)
a. Plaintiff's testimony
Plaintiff testified that he had broken his clavicle and six ribs in a motorcycle accident in July 2010, and that since the accident he has constant pain in his back and in his legs. (R. at 305-06, 312.) Plaintiff tires very easily, and has difficulty both sitting and standing, so he lays down frequently. (R. at 306.) Plaintiff can walk comfortably for about one block, but then has to rest. (R. at 311.) Plaintiff walks with a cane, which he claims was prescribed to him by a treating physician from the emergency room where he went on July 17, 2010, a few days after his motorcycle accident. (R. at 311-12.) Plaintiff can lift about five pounds comfortably, and his clavicle is "still broken, " and has not mended. ( Id. ) Plaintiff is under the care of Dr. Taylor, who he has been seeing for "a long time." (R. at 312.) Plaintiff takes numerous medications for the pain, including Dilaudid and propranolol, several medications for his asthma including an Albuterol inhaler, and medications for depression and anxiety including Zinecard and Valium. (R. at 308-09.) Plaintiff does not do any laundry, cooking, or cleaning. (R. at 319.) His typical day is comprised of lying down all day in the bed, he feels depressed and does not feel like doing anything, and he has no friends. (R. at 318-19.) Plaintiff has difficulty concentrating and often drops things and forgets things. (R. at 319.)
b. Plaintiff's work history
Plaintiff worked at a gas station attendant in 1995. (R. at 113.) Plaintiff worked as an operating engineer for a construction company from 1999 to 2003, operating cranes and earthmoving machinery. (R. at 120, 303-04.) Plaintiff did not have to do any heavy lifting. (R. at 121.) Plaintiff stopped working in 2003 or 2004 because he had chronic and severe asthma. (R. at 304.) Plaintiff thereafter worked several odd jobs, including two six-month periods working in his brother's bodega, where he worked "off the books." (R. at 304-05.)
c. Vocational expert's testimony
Melissa Fass-Karlin, a vocational expert, described Plaintiff's job as a gas station attendant as a medium and semi-skilled occupation with a specific vocational preparation ("SVP") of 3. (R. at 314.) She described Plaintiff's job as a construction worker as classified as heavy and semi-skilled work with an SVP of 4. (R. at 315.) According to Fass-Karlin, if Plaintiff had the residual functional capacity to perform the functional range of medium work and had to avoid concentrated exposure to respiratory irritants, jobs that involved foot controls or pedals, and had to work in simple, repetitive and routine work in a low-stress environment, then he would be able to work as a hand packager or a meat clerk. ( Id. ) The ALJ also asked Fass-Karlin about work at the light exertional level, and Fass-Karlin identified two jobs: assembler of small products, and mail clerk, both with an SVP of 2. (R. at 316-17.) She also testified that if Plaintiff's restrictions included being "off task" for 20% of the time, then there would be no occupational titles suitable for Plaintiff. (R. at 317.)
d. Medical evidence
i. Staten Island University Hospital reports
Plaintiff visited the emergency department of Staten Island University Hospital on July 18, 2010, to be treated for injuries sustained in a motorcycle accident in the Dominican Republic on July 10, 2010. (R. at 152, 156.) Plaintiff reported that he was struck by a motorcycle and fell on his left side without losing consciousness. (R. at 161.) Plaintiff was admitted to the hospital the following day, on July 19, 2010, with an admitting diagnosis of "multiple rib [fractures]" and "clavicle [fracture]." (R. at 159.) An examining physician's report indicated that Plaintiff had left clavicular fracture and multiple rib fractures, asthma that was stable, hypertension that was not well controlled, gastroesophageal reflux ("GERD") and mild anemia. (R. at 166.) The physician ordered X-rays, a cardiothoracic ("CT") scan to rule out pulmonary contusions, and prescribed a sling for the left clavicular fracture. ( Id. ) A radiology report confirmed that Plaintiff had a mid-clavicle fracture with "displacement of the distal fragment, " multiple left rib fractures and mild pleural effusion on the left side. (R. at 172.) The CT scan noted a "lucent lesion" in the "right femoral neck with central calcification, " and no acute intra-abdominal traumatic injury. (R. at 174, 176.)
The following day, July 20, 2010, Plaintiff was examined by a cardiothoracic surgery specialist, who noted that Plaintiff had a bruise on the back of his left leg along his knee, bruising on his left foot around the heel, and bruising along the sternal area and upper left chest. (R. at 170-71.) The specialist recommended pain control and "aggressive incentive spirometry." (R. at 171.)
ii. Dr. David Taylor
Based on the medical reports included in the record, between May 10, 2001 and November 2009, Plaintiff regularly visited physicians, including his treating physician, Dr. David Taylor, for treatment of asthma, depression, hypertension and insomnia. (R. at 192-206.) Plaintiff was treated for asthma beginning with his May 2001 visit to an unspecified doctor at the same practice as Dr. Taylor, and first reported his depression on May 1, 2005, for which he was prescribed Lexapro. (R. at 192, 203.) Plaintiff visited Dr. Taylor's practice approximately 33 times between his first visit in May 2001 and July 2010. (R. at 192-206.)
On July 26, 2010, and on August 9, 2010, Plaintiff visited Dr. Taylor, who prescribed Percocet for pain. (R. at 206-07.) On August 25, 2010, Plaintiff again met with Dr. Taylor and complained of pain in his clavicle and ribs. (R. at 208.) Dr. Taylor prescribed continued Percocet and added Lisinopril (for high blood pressure). ( Id. ) On September 23, 2010, Dr. Taylor noted that Plaintiff's arm was still in a sling and that he was walking with a cane. ( Id. ) Dr. Taylor continued Plaintiff's previously prescribed medications and also prescribed Lexapro, an antidepressant and anti-anxiety medication. ( Id. ) In October 2010, Plaintiff told Dr. Taylor that his pain was well controlled although his shoulder was still in a sling. (R. at 288.) On December 2, 2010, Plaintiff told Dr. Taylor that the pain was well controlled, and Dr. Taylor noted that Plaintiff had improved shoulder abduction. ( Id. ) On January 13, 2011, Dr. Taylor noted that Plaintiff walked with a disturbed gait and had a limp, and diagnosed "derangement" of the left knee. (R. at 287.) On March 30, 2011, Plaintiff complained of pain and informed Dr. Taylor that the Percocet was no longer effective. (R. at 286.) Dr. Taylor noted that Plaintiff was uncomfortable and still had the "non union clavicle fracture" and "probable lumbar disc D2, " and prescribed Norco. ( Id. ) On April 13, 2011, Plaintiff complained to Dr. Taylor that Norco was not effective, that he was depressed and had limited range of motion. ( Id. )
Dr. Taylor and other physicians at Staten Island Physician Practice ordered diagnostic tests beginning in April 2011. An X-ray ordered by Dr. Taylor and taken on April 21, 2011, revealed "mild degenerative changes of the lumbar spine." (R. at 273.) An MRI ordered by Dr. Ida Althshuler and taken on May 10, 2011, indicated "mild focal spondylosis at C5-6, " and "calcification at the atlantoaxial joint which may reflect CPPD [calcium pyrophosphate deposition]." (R. at 274.) On May 12, 2011, Dr. Taylor diagnosed Plaintiff as having lumbar disc disease and nonunion clavicle fracture, and he continued Plaintiff's medications. (R. at 285.) Between June 16 and October 16, 2011, Plaintiff visited Dr. Taylor five times, complaining on three of these occasions that the pain was "not well controlled." (R. at 283-85.) On June 16, 2011, Dr. Taylor changed Plaintiff's painkiller prescription to Roxicodone, and on July 14, 2011, increased the dosage. (R. at 284-85.) Dr. Taylor noted that Plaintiff walked with a cane, and diagnosed cervical disc D2, clavicle fracture and left cervical ligament tear. (R. at 284.) On November 4, November 30 and December 8, 2011, Plaintiff reported that his pain was under control during his visits to Dr. Taylor. (R. at 282.) On January 8, 2012, Plaintiff complained to Dr. Taylor that he was very anxious and having difficulty sleeping and urinating, and Dr. Taylor prescribed Valium. (R. at 280.) On January 18, 2012, Dr. Taylor noted that Plaintiff was weaned off Roxicodone after complaining of "altered MS, " and started on Dilaudid. (R. at 279.) On January 25, 2012, Plaintiff reported that his pain was controlled, and was started on Opana. ( Id. )
On February 3, 2012, Ms. Naravaez took Plaintiff to the emergency room of Staten Island University Hospital reporting that she could not wake him up and that he had taken more than the usual dosage of his pain medication. (R. at 281.) Dr. Taylor was the attending physician in the emergency room and diagnosed Plaintiff with accidental overdose of opioid analgesics. ( Id. ) In a follow-up visit with Dr. Taylor on February 9, 2012, Plaintiff reported that his pain was reasonably controlled, and Dr. Taylor prescribed Contin and Cymbalta. (R. at 279.) On March 4, 2012, Dr. Taylor prescribed Opana and Dilaudid, and on April 4, 2012, after Plaintiff complained that his pain was not well controlled, Dr. Taylor increased the Dilaudid dosage. (R. at 278.)
On April 12, 2012, Dr. Taylor completed a Physical Residual Functional Capacity Questionnaire. (R. at 293-95.) Dr. Taylor noted that Plaintiff had been his patient since 2001 and that he had seen Plaintiff monthly since then. (R. at 293.) Dr. Taylor diagnosed Plaintiff with non-union clavicle and lumbar disc disease, noted that the impairments lasted or could be expected to last at least twelve months, and that Plaintiff was not a malingerer. ( Id. ) He noted that Plaintiff "often" experienced pain or other symptoms severe enough to interfere with attention and concentration and that he had moderate limitations in the ability to deal with work stress. ( Id. ) Plaintiff could walk for one city block without rest, could sit continuously for 15 minutes and stand continuously for 20 minutes, and could stand or walk for less than two hours in an 8 hour workday, and sit for less than 2 hours in an 8 hour workday. (R. at 293-94.) Dr. Taylor noted that Plaintiff needed to walk for 5 minutes every 15 minutes during an 8-hour working day, and that he needed a job that permitted shifting positions between sitting, standing and walking. (R. at 294.) He noted that Plaintiff sometimes would need to take unscheduled breaks approximately every 30 minutes, for 10 minutes. ( Id. ) Plaintiff could lift less than 10 pounds occasionally, had significant limitations in doing repetitive reaching, handling or fingering, and could bend and twist at the waist for approximately 10% of an 8-hour working day. (R. at 295.) Dr. Taylor answered "yes" to the question of whether Plaintiff's impairments were likely to produce "good days" and "bad days, " and checked the box indicating that, on average, they would cause Plaintiff to be absent from work three times per month. ( Id. ) Dr. Taylor left blank the question: "Please describe any other limitations (such as psychological limitations... need to avoid... dust, fumes, gases or hazards, etc.) that would affect your patient's ability to work at a regular job on a sustained basis." ( Id. ) The earliest date the limitations described in the questionnaire applied was August 2010. ( Id. )
iii. Dr. Mark Brandon
On August 13, 2010, Plaintiff visited Dr. Mark Brandon of Staten Island Physician Practice, who noted a "mid-clavicle bump" and "no crepitus" along the left shoulder. Dr. Brandon prescribed pain management, gentle stretching exercises, and isometric exercise. (R. at 259-60.) An X-ray conducted on August 13, 2010, indicated a "comminuted,  displaced fracture through the mid aspect of the left clavicle, " with "fracture fragments [that] may be overriding by approximately 2.5 cm, " and "[o]verlying swelling within the soft tissues." (R. at 261.) On September 17, 2010, Plaintiff told Dr. Brandon that he was also having pain in his left knee. (R. at 262.) Plaintiff had forgotten the sling for his left arm at home that day. ( Id. ) Dr. Brandon noted a palpable callus at mid-clavicle along the left shoulder and that both shoulders had nearly an equal range of motion. (R. at 263.) Dr. Brandon noted "mild" crepitation in Patient's left knee, and that both legs had normal strength and equal range of motion. ( Id. ) Dr. Brandon prescribed continued gentle stretching and strengthening exercises for ...