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Besignano v. Colvin

United States District Court, E.D. New York

August 14, 2014

CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.


DORA L. IRIZARRY, District Judge.

On March 5, 2009, Plaintiff James Besignano ("Plaintiff") filed an application for Social Security disability insurance benefits ("DIB") under the Social Security Act (the "Act"). ( See Certified Administrative Record ("R."), Dkt. Entry No. 18 at 50-62.) On July 16, 2009, the application was denied and Plaintiff filed a written request for a hearing. (R. 51-62, 283-88.) On April 4, 2011, Plaintiff appeared with counsel and testified at a hearing before Administrative Law Judge Robert C. Dorf (the "ALJ"). (R. 24-49.) By a decision dated April 28, 2011, the ALJ concluded Plaintiff was not disabled within the meaning of the Act. (R. 10-24.) On October 11, 2012, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-6.)

Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. ยง 405(g). ( See Complaint ("Compl."), Dkt. Entry No. 1.) The Commissioner moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking affirmation of the denial of benefits. ( See Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem."), Dkt. Entry No. 14.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. ( See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl. Mem."), Dkt. Entry No. 16.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's motion for judgment on the pleadings is denied. Plaintiff's motion for remand is granted, for the limited purpose of obtaining clarification from the state agency consulting physician regarding Plaintiff's work restrictions and whether that clarification alters the conclusion that Plaintiff is not disabled.


A. Non-Medical and Self-Reported Evidence

Plaintiff was born in 1964 and was 44 years old when he applied for DIB. (R. 50.) Plaintiff has a twelfth-grade education and worked as a firefighter from July 1988 to April 2008 with the New York City Fire Department ("FDNY"). (R. 110-11, 119, 123, 136-37.) Towards the end of his tenure with the FDNY, Plaintiff worked a light duty position, answering telephones and performing clerical tasks. (R. 44-45.) Plaintiff alleges that he is no longer able to perform light duty work because he must lie down "a few hours a day." (R. 45.) In April 2008, Plaintiff received a disability retirement from the FDNY, which noted that Plaintiff was not precluded from engaging "in a suitable occupation." (R. 185.) Plaintiff receives a monthly disability retirement pension of $6, 600. (R. 36.)

Plaintiff filed the instant application in March 2009, alleging that he has been disabled since April 10, 2008 due to a tear in his left shoulder, right shoulder problems, back pain, pain in his left knee, nasal and respiratory problems, and anxiety and depression. (R. 118, 126, 128.) Plaintiff alleged that he could not "lift any weight without having severe pain." (R. 118.) He further alleged that he experienced "shortness of breath when walking or climbing stairs." ( Id. ) His condition required him to "rest throughout the day." ( Id. ) Plaintiff previously filed a claim for DIB in 2008, which was denied and he did not appeal that decision. (R. 35-36.)

Plaintiff lives with his wife and three children. (R. 34-35.) Plaintiff cares for his children when his wife is at work. (R. 40.) Plaintiff is able to handle his own personal needs such as shampooing his hair, shaving, and buttoning clothing. (R. 37-38, 42.) Plaintiff testified that he has difficulty driving because of pain (R. 38), and is forgetful and easily irritated (R. 39-40.) Plaintiff spends his day reading the newspaper and watching television. (R. 41.)

B. Medical Evidence

1. Medical Evidence prior to Alleged Onset Date (April 10, 2008)

Prior to the alleged onset date, Plaintiff treated with physicians for a variety of orthopedic injuries. A MRI of his left shoulder dated March 29, 2006 showed a posterior/superior labral tear, with minimal posterior capsulolabral separation, mild anterior capsular thickening without evidence of Bankart tear, no evidence of rotator cuff tear, lobulated high signal proximal humeral lesion, and acromioclavicular stress reaction. (R. 236-37, 310-11, 322.)

On December 12, 2006, Plaintiff sustained a right shoulder injury. (R. 190, 220.) On May 21, 2007, Plaintiff underwent arthroscopic repair of a labral tear. (R. 196-98, 301-03.) Plaintiff continued to treat with Dr. Mark F. Sherman for right shoulder pain from January 2007 through October 2007. (R. 194-202.) An examination of Plaintiff revealed that his right shoulder had a normal range of motion. Compare Tr. 194 with American Medical Association, Guides to the Evaluation of Permanent Impairment pp. 42-44 (4th ed. 1994) (the "AMA Guides"). However, Dr. Sherman diagnosed Plaintiff with right shoulder pain post-surgery, prescribed over-the-counter pain medication, and concluded that Plaintiff was restricted to light duty work. (R. 194.)

On March 10, 2008, Dr. Basil Dalavagas, an orthopedic consultant, examined Plaintiff at the request of the FDNY. (R. 186-88, 304-06.) He reviewed Plaintiff's medical records and noted that Plaintiff's chief complaint was residual right shoulder pain. (R. 186-87.) On examination, his right shoulder exhibited average ranges of motion for extension, abduction, adduction, and internal and external rotation. Compare R. 187 with AMA Guides at 42-44. Dr. Dalavagas noted some pain and tenderness during the examination. (R. 187.) Dr. Dalavagas concluded that Plaintiff had significant residual pain and decreased range of motion of the right shoulder, with significant functional deficit for a right-handed person. (R. 188.) Dr. Dalavagas opined that Plaintiff was "permanently disabled for the performance of full fire duty." ( Id. )

On March 17, 2008, Plaintiff complained of sinusitis and presented for a Computerized Tomography ("CT") scan of his paranasal sinuses. (R. 234.) The CT scan revealed sinus mucosal disease with sinal septal deviation to the left, and variations in the configuration of the drainage pathways which might predispose Plaintiff to recurrent episodes of inflammatory disease. (R. 234, 307.) On March 31, 2008, Plaintiff had a CT scan of his chest, which revealed nodules. (R. 239.)

On April 3, 2008, the FDNY medical board concluded, based on Dr. Dalavagas's report, that Plaintiff's December 13, 2006 right shoulder injury rendered him permanently disabled from full duty fire service. (R. 185.) The FDNY further noted that Plaintiff's accident disability retirement did not preclude him from engaging "in a suitable occupation." ( Id. )

Around this time, Plaintiff filed his first application for DIB, which was denied. (R. 35-36.) He did not appeal the denial. (R. 36.)

2. Medical Evidence after the Alleged Onset Date (April 10, 2008)

a. Physical Impairments

Plaintiff continued to treat for his conditions after the alleged onset date. From October 2008 through January 2009, Plaintiff treated with Dr. Michael Hearns for bilateral shoulder pain. (R. 226-42.) On January 26, 2009, an MRI of his lumbar spine revealed mild diffuse disc bulge at L3-L4, slightly flattening the anterior thecal sac, mild left neural foraminal narrowing at L3-L4 and L4-L5, and a probable cyst in the right kidney. (R. 232-33, 312-13, 343.)

On June 11, 2009, Plaintiff attended a consultative examination with Dr. Mahendra Misra. (R. 252-59.) Plaintiff's father drove him to the examination. (R. 255.) Plaintiff reported bilateral shoulder pain, back pain, and left knee pain, as well as anxiety and depression. (R. 253-54.) Plaintiff reported that he can handle his personal care needs, but cannot sit or stand continuously for more than a half hour, walk more than four blocks without resting, and lift more than five pounds. (R. 255.) On examination, Plaintiff had 5/5 bilateral grip strength. ( Id. ) He had normal gait and station when walking. (R. 256.) There was no evidence of any neurological motor or sensory deficit. ( Id. ) He exhibited normal range of motion. (R. 252.) The movement of his cervical and thoracolumbar spine was normal; however, his upper limbs had restricted shoulder joint movements. (R. 256.) There was no evidence of muscle atrophy. ( Id. ) He was in no acute distress during the examination. ( Id. )

Dr. Misra diagnosed Plaintiff with: (1) lumbosacral diskogenic disease; (2) right shoulder status post-surgery for labral tear internal derangement; and (3) left shoulder joint labral tear, AC stress reaction, and internal derangement. ( Id. ) Dr. Misra noted that "[i]n his present state he will not be able to do tasks which require prolonged standing, sitting, walking, climbing, lifting, crouching, pulling, or pushing." (R. 256-57.) His prognosis was guarded. (R. 257.)

On February 28, 2011, Dr. Charles DeMarco, an orthopedic surgeon, examined Plaintiff. (R. 320-24.) Plaintiff reported persistent and debilitating bilateral shoulder and lumbar spinal pain. (R. 322.) On examination, Plaintiff exhibited normal ranges of motion for his shoulders (R. 323.) The ranges of motion for his back and knees were less than normal. ( Id. ) Dr. DeMarco diagnosed him with: (1) impingement and instability of both shoulders; (2) medial plica of the left knee; (3) left knee instability; and (4) lumbar derangement with strain/sprain and radiculopathy. ( Id. ) Dr. DeMarco indicated that Plaintiff's only option would be revision surgical intervention of both shoulders, which Plaintiff ...

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