United States District Court, S.D. New York
EDWARD A. PATERSON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT & RECOMMENDATION
JAMES L. COTT, Magistrate Judge.
To The Honorable Laura Taylor Swain, United States District Judge:
Plaintiff Edward Allan Paterson seeks judicial review of a final determination by the Commissioner of Social Security ("Commissioner"), denying his 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, I recommend that Paterson's motion be granted to the extent that the case be remanded to the Commissioner for further proceedings and the Commissioner's cross-motion be denied.
A. Procedural History
Paterson filed an application for DIB on May 12, 2009. Administrative Record ("R.") (Dkt. No. 8, 14), at 123-26. He seeks DIB for a closed period from March 25, 2008 to April 5, 2009 because of a tom left rotator cuff. Id. at 123, 139, 172-74, 296. The Social Security Administration ("SSA") denied his claim at the first level of review. Id. 54-58. Paterson requested a hearing before an Administrative Law Judge ("ALJ") on August 7, 2009. Id. 65-66. On September 24, 2010, Paterson, represented by counsel, appeared and testified before ALJ Roberto Lebron. Id. at 22-52. The ALJ found Paterson not disabled for the period under review, and denied his claims in a written decision dated November 29, 2010. Id. at 9-21. Paterson sought review of the ALJ's decision by the Appeals Council, which request was denied on March 20, 2012, id. at 1-6, making the ALJ's decision the final decision of the Commissioner.
Paterson timely commenced this action on April 17, 2012, seeking judicial review of the Commissioner's decision under 42 U.S.C. § 405(g). See Complaint (Dkt. No. 1). However, by stipulation of the parties "because a complete copy of the [administrative] hearing transcript [could] not be produced, " the case was remanded to the SSA on July 27, 2012, pursuant to sentence six of 42 U.S.C. § 405(g). (Dkt. No. 6); see also R. at 308-13. On remand, ALJ Lebron held a hearing on May 17, 2013 at which he took no testimony. R. at 294-307. In an opinion dated July 10, 2013, the ALJ again determined that Paterson was not disabled for the designated period. Id. 282-93. The Appeals Council declined jurisdiction on November 19, 2013, and the ALJ's July 2013 decision thus became the Commissioner's final decision. Id. at 277-79.
On January 27, 2014, Paterson filed a letter motion to reopen this case. (Dkt. No. 9). The Commissioner filed her Answer on February 14, 2014. (Dkt. No. 13). Paterson moved for judgment on the pleadings pursuant to Rule 12(c) on February 28, 2014. See Notice of Motion (Dkt. No. 15); Memorandum of Law ("Pl. Mem.") (Dkt. No. 16); Statement of Facts (Dkt. No. 17). The Commissioner filed a response on June 4, 2014, and cross-moved for judgment on the pleadings. See Notice of Motion (Dkt. No. 23); Statement of Facts (Dkt. No. 24); Memorandum of Law ("Def. Mem.") (Dkt. No. 25). Paterson filed his reply on June 9, 2014. See Supplemental Memorandum of Law ("Pl. Reply") (Dkt. No. 26).
B. The Administrative Record
1. Paterson's Background
Paterson was born on May 31, 1957, and was 50 years old on the alleged disability onset date. Id. at 24. He received his high school diploma and is certified as a waste water treatment plant operator. Id. at 26-27. He and his wife own a private residence in Pearl River, New York where they live with their two adult children. Id. at 25-26.
Paterson has worked as a waste water treatment plant operator for the Orangetown, New York Sewer Department since September 1984. Id. at 27-28, 140. According to Paterson, he "operate[d] the waste water treatment plant, " which consisted of taking samples, checking pump stations, filling out log books, and generally monitoring the sewer department. Id. at 28. Paterson estimated that, during the course of an eight-hour workday, he walked for four hours, stood for two hours, and sat for two hours. Id. at 140. His job required him to frequently lift 50-pound objects, which were also the heaviest objects he had to lift. Id.
On December 5, 2007, Paterson injured his shoulder in a workplace fall. Id. at 139, 251. He explained that he tried to "work through the pain, " but ultimately stopped working on March 28, 2008. Id. at 139. He had a successful surgery on April 7, 2008, which he said immobilized him for a period of six weeks. Id. at 29-30, 263-64. He also went to physical therapy. Id. at 30, 179-86. Paterson's doctor prescribed him Celebrex and Hydrocodone-Acetaminophen, id. at 143-44, 237-38, which Paterson said provided effective pain relief, id. at 29.
Paterson returned to work on April 6, 2009, id. at 28, 139, where he was placed on "light duty, " because he was unable to perform his previous tasks, including reaching overhead, crawling through the sewer, and "swing[ing] sledgehammers, " id. at 34-35. It appears from the record that, during this time, someone accompanied Paterson to complete the tasks that he could not. Id. at 35.
At the time of the first administrative hearing, Paterson reported pain in his left shoulder that woke him up at night, and discomfort and numbness down his left arm through his fingers. Id. 30-31. However, the injury did not impair Paterson's ability to walk, stand, sit, bend, stoop, or squat. Id. at 32. He was able to "use [his hands], no problem." Id. In the two or three months before the first hearing, Paterson was able to lift a 25-pound container at work. Id. at 33.
2. Medical Evidence in the Record
a. Dr. Mark Medici's Records
Paterson first saw Dr. Mark Medici, an orthopedic surgeon, on December 19, 2007. Id. at 251. Dr. Medici treated Paterson throughout the closed period of his disability, seeing him at least monthly. See id. at 191-254. At the first visit, Paterson described his pain as moderate to severe, and Dr. Medici diagnosed Paterson with left "Rotator Cuff Syndrome." Id. at 251, 253. He recommended that Paterson start exercising at home and begin a physical therapy regimen, for which he provided a prescription. Id. at 253.
An MRI of Paterson's left shoulder was performed on February 19, 2008 at Dr. Medici's request. Id. at 176. At a follow-up visit on February 27, Dr. Medici concluded that Paterson had a left rotator cuff tear. Id. at 243. He advised Paterson to continue his home exercises, but discontinue the physical therapy. Id.
On April 7, 2008, Dr. Medici performed a left shoulder arthroscopy to complete a subacromial decompression and repaired the rotator cuff tear in an open procedure. Id. at 263. Dr. Medici reported that Paterson "tolerated the procedure well. There were no complications and he was transferred to the recovery room... in stable condition." Id. at 264.
Dr. Medici did not evaluate Paterson's shoulder pain and weakness during the first few post-operative visits because it was "too early to assess the results" of surgery. Id. at 227, 230, 233. At a June 17, 2008 visit, Dr. Medici described Paterson's shoulder pain and weakness as "improved" and noted that his response to the physical therapy was "good." Id. at 224. He further noted that Paterson had only trace joint tenderness and mild pain when moving his left arm. Id. at 225. According to Dr. Medici's notes from the following month, Paterson's shoulder continued to show signs of improvement. Id. at 221. From June through September, Dr. Medici described Paterson's pain using the same phrase (trace joint tenderness and mild pain with movement), but observed that his range of motion had increased. Id. at 213, 216, 219, 222, 225.
On July 17, 2008, Dr. Medici requested a second MRI of Paterson's left shoulder, id. at 222, which was performed on August 5, 2008, id. at 177. Dr. Medici then made a request to workers' compensation for a "manipulation of the left shoulder under anesthesia to achieve a greater [range of motion], " id. at 216, a request he repeated on September 24, id. at 213. While there are no records reflecting that Dr. Medici performed this procedure, at Paterson's next visit, on October 22, Dr. Medici noted that Paterson's range of motion had improved and described Paterson as having no tenderness and only trace pain with movement. Id. at 210. He said that Paterson should focus on "strengthening and conditioning" to "regain form and function." Id.
At Paterson's November 21, 2008 visit, Dr. Medici noted that Paterson showed further improvement in his range of motion; however, he described Paterson's range of motion as mild to moderately limited. Id. at 207-08. On December 22, Dr. Medici said that Paterson planned to return to work in approximately one month. Id. at 205. Dr. Medici's notes from December 22, 2008 to April 2, 2009 reflect no changes in Paterson's pain, range of motion, or arm and shoulder strength. Id. at 192, 195, 198, 201, 204. However, during this same time period, Dr. Medici regularly characterized Paterson's pain and weakness as "improved" or "somewhat less severe." Id. at 191, 194, 197, 200, 203. Also during this time frame, Dr. Medici went from describing Paterson's work status as "unable to work. TEMP TOTALLY DISABLED, " id. at 205 (December),  to unable to work for one month, id. at 198 (February), to noting that Paterson planned to return to work on April 6, id. at 195 (March). On April 2, Dr. Medici noted that, when Paterson returned to work on April 6, it would be on "modified duty." Id. at 192.
b. Records from Physical Therapy
In accordance with Dr. Medici's recommendation, Paterson started physical therapy at Clarkstown Physical Therapy. See id. at 179-86. While Clarkstown's records appear to indicate that Paterson received physical therapy from December 1, 2007 to May 1, 2009, id. at 179, the progress notes span June 17, 2008 to January 21, 2009, id. at 180-86. The first note reflects that Paterson rated his pain a six out often, and that his range of motion was "improving slowly." Id. at 180. The following month, Paterson's therapist noted that his left arm fatigued easily and he had difficulty lifting a gallon of milk. Id. at 181. Paterson graded his pain as seven or eight out often upon waking up in the morning, but said that his range of motion improved during the day. Id. In September, Paterson's therapist reported that his pain was decreasing and his range of motion improving. Id. at 182. In an October 21 note, the physical therapist wrote that Paterson's range of motion continued to improve; however, the therapist also commented that Paterson had "difficulty reaching [and] lifting something off a shelf at shoulder level or higher." Id. at 183. By December 18, Paterson rated his pain a four out often, ...