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Fontanarosa v. Colvin

United States District Court, E.D. New York

August 28, 2014

MICHAEL FONTANAROSA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Michael Fontanarosa filed the above-captioned action seeking review pursuant to 42 U.S.C. ยง 405(g) of a final decision of Defendant Carolyn W. Colvin, acting 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 Patrick Kilgannon ("ALJ") failed to satisfy his duties in several aspects: (1) the ALJ failed to address the evidence of Plaintiff's treating physician; (2) the residual functional capacity determined by the Commissioner is not supported by substantial evidence; and (3) the ALJ did not correctly assess Plaintiff's credibility. For the reasons set forth below, Defendant's motion is denied and Plaintiff's motion for judgment on the pleadings is granted.

I. Background

Plaintiff was born in 1958. (R. at 39.) Plaintiff filed an application for disability insurance benefits on April 27, 2010, because of his depression, dizziness due to transient ischemic attack, [1] torn menisci and cervical and lumbar radiculopathy. ( Id. at 22, 135.) Plaintiff's application for disability benefits was denied. ( Id. at 22.) Thereafter, Plaintiff requested a hearing, which was held on October 11, 2011, before the ALJ. ( Id. ) At the hearing, Plaintiff and a vocational expert testified. ( Id. ) By decision dated October 26, 2011, the ALJ found that Plaintiff was not disabled. ( Id. at 29.) On April 9, 2013, the Appeals Council denied review of the ALJ decision. ( Id. at 1-5.)

a. Plaintiff's testimony

Plaintiff graduated from high school in 1976. ( Id. at 39-40, 136.) He is single, without employment or income, receives food stamps, and lives with his parents in Staten Island, New York. ( Id. at 39, 108)

Plaintiff testified that his left knee and constant dizziness constitute his main medical impairments. ( Id. at 43.) The dizziness results from a "clogged artery in [Plaintiff's] head." ( Id. ) Plaintiff has undergone two surgeries, one for his knee in the 1990s and another for his shoulder in the late 1980s. ( Id. at 43-44.) Plaintiff was being treated by an orthopedist, Dr. Suarez, and a neurologist, Dr. Krishna. ( Id. at 44.) Plaintiff used to attend physical therapy but lost coverage for such treatment. ( Id. ) Plaintiff received no mental health treatment. ( Id. ) Plaintiff, at the time of the hearing, was taking Plavix, Xanax, and Percocet. ( Id. at 48.)

Plaintiff testified that he is "really limited" and "didn't do much" due to his pain and side effects of his pain medication during a typical day. ( Id. at 45-46.) He does not do laundry, gardening or cooking. ( Id. at 45.) Although octogenarians, his parents help him more than he helps them. ( Id. ) With respect to Plaintiff's pain, he cannot stand longer than approximately ten to twelve minutes before feeling "very uncomfortable and hurting" in his knees and lower back. ( Id. at 46-47.) Even sitting longer than twenty minutes results in lower back pain and knee "cramping." ( Id. at 48.)

b. Plaintiff's work history

Plaintiff testified at the ALJ hearing that he worked in flooring as a carpet mechanic for approximately thirty years. ( Id. at 41, 43.) After fifteen years, Plaintiff had a knee operation and could not continue the same work.[2] ( Id. at 43.) Plaintiff later worked, for approximately five or six months, as a security guard. ( Id. at 42, 137.) His security guard job involved a lot of standing and walking, looking for illegally-parked cars. ( Id. at 42) He did not lift or carry anything for this job, instead he "would just walk and stand all day." ( Id. at 145.) For some period of time Plaintiff worked as a sales associate at Home Depot. ( Id. at 40.) Plaintiff took too many days off due to his inability to stand on his legs and frequent dizziness. ( Id. at 41.) He was terminated due to his absences. ( Id. ) Since Plaintiff's alleged disability onset date of December 31, 2006, Plaintiff has only worked as a porter at a supermarket from October 2008 to December 2008. ( Id. at 127.) Plaintiff quit his supermarket job due to his "medical condition." ( Id. )

c. Vocational expert's testimony

Doctor Steven H. Feinstein testified at the hearing as the vocational expert. ( Id. at 49.) Dr. Feinstein described Plaintiff's flooring work as SVP-7 heavy, his security guard job as SVP-3 light, his sales job as SVP-4 light, and his porter job as SVP-2 heavy.[3] ( Id. ) The ALJ then described a hypothetical person to Dr. Feinstein, based on the same age, education and work experience as the Plaintiff. ( Id. at 50.) The hypothetical involved the following description:

Postural limitations. No climbing of ladders, ropes, scaffolds. Occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching and crawling. No manipulative, visual or communicative limitations. In terms of environmental limitations, this individual should avoid concentrated exposure to unprotected heights.

( Id. ) Dr. Feinstein stated that an individual with the above-described limitations could perform Plaintiff's past security guard work. Dr. Feinstein also stated that even if the job were that of a parking lot attendant, SVP-2 light, his answer remained the same. ( Id. at 51.) Dr. Feinstein's answer remained constant even if the job should be "low-stress employment meaning only occasional[] decision making required and only occasional change[] in the work setting." ( Id. at 52.)

d. Medical evidence

i. Doctor P. Kudler[4]

On April 27, 2010, Dr. Kudler gave Plaintiff a primary diagnosis of "affective disorder, " a secondary diagnosis of "muscle, ligament and fascia disorders" and determined that Plaintiff was not disabled. ( Id. at 54.) On July 8, 2010, Dr. Kudler diagnosed Plaintiff with adjustment disorder. ( Id. at 243.) Dr. Kudler determined that Plaintiff could follow and understand simple directions and instructions, perform tasks independently, maintain attention and concentration, and maintain a regular schedule. ( Id. )

ii. Doctor Ranga C. Krishna

Plaintiff first saw Doctor Ranga C. Krishna, of Total Neuro Care P.C., on September 26, 2009. ( Id. at 139.) On September 29, 2009, Dr. Krishna performed an electromyogram test on Plaintiff. ( Id. at 177.) Dr. Krishna found that the test revealed evidence of chronic right C5-C6 cervical and chronic right L5-S1 lumbosacral radiculopathies.[5] ( Id. at 188.) The test also showed evidence of a moderate bilateral sensorimotor median nerve neuropathy at the wrist, consistent with the clinical diagnosis of carpal tunnel syndrome. ( Id. ) Dr. Krishna recommended that Plaintiff restrict his physical activity, meaning no prolonged standing, walking or sitting. ( Id. )

In a letter dated April 13, 2010, Dr. Krishna noted that Plaintiff has difficulty walking and climbing stairs, and that he is "totally disabled and is unable to work in any functional capacity."[6] ( Id. at 290.)

On August 16, 2010, Dr. Krishna completed a functional capacity questionnaire in which he stated that Plaintiff could carry "very little weight, " and could not stand for more than thirty minutes in the course of an eight hour workday.[7] ( Id. at 250.)

On September 17, 2010, Dr. Krishna performed another electromyogram, which revealed evidence of chronic right C5-6 cervical radiculopathy and evidence of chronic right L5-S1 lumbosacral radiculopathy. ( Id. at 295.)

On February 21, 2012, Dr. Krishna performed an electromyogram test which revealed evidence of chronic right C5-C6 cervical and chronic right L5-S1 ...


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