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Carlsen v. Colvin

United States District Court, E.D. New York

September 11, 2014

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

Charles E. Binder, Esq., Law Offices of Harry J. Binder, and Charles E. Binder, P.C., New York, NY, for Plaintiff.

Loretta E. Lynch, Esq., United States Attorney's Office, Eastern District of New York, Brooklyn, NY, Defendant.


JOANNA SEYBERT, District Judge.

Plaintiff Charles Carlsen ("Plaintiff") commenced this action pursuant to Section 205(g) of the Social Securities Act, as amended, 42 U.S.C. ยง 405(g), challenging defendant the Commissioner of Social Security's (the "Commissioner") denial of his application for disability insurance benefits. Presently before the Court are Plaintiff's and the Commissioner's cross-motions for judgment on the pleadings. For the following reasons, the Commissioner's motion is DENIED, Plaintiff's motion is GRANTED, and this matter is REMANDED to the Commissioner for further consideration in accordance with this Memorandum and Order.


Plaintiff filed for Social Security Disability benefits in April 2010, alleging disability since April 1, 2008. (R. 142-43.) Plaintiff attributed his disability to injuries to his ankle and leg, as well as knee impairment, hypertensive cardiovascular disease, hypertension, other neurological disorders, and shortterm memory problems. (R. 153.) After his application was denied on June 23, 2010 (R. 83-86), Plaintiff requested a hearing before an administrative law judge ("ALJ") (R. 45-46). The hearing took place on April 28, 2011 before ALJ Seymour Rayner. (R. 47-78.) Plaintiff was represented by counsel at the hearing and was the only witness to testify. (R. 49.)

The ALJ issued his decision on July 15, 2011, finding that Plaintiff is not disabled. (R. 22-30.) Plaintiff sought review of the ALJ's decision by the Appeals Council, (R. 177-80), and submitted additional evidence in support of his request (R. 285-95). On October 25, 2012, the Appeals Council denied Plaintiff's request for review. (R. 6-10.)

The Court's review of the administrative record will proceed as follows: First, the Court will summarize the relevant evidence that was presented to the ALJ; second, the Court will review the ALJ's findings and conclusions; third, the Court will summarize the additional evidence submitted to the Appeals Council; and finally, the Court will review the Appeals Council's decision.

I. Evidence Presented to the ALJ

A. Non-Medical Evidence

Plaintiff was born on June 3, 1958 (R. 142) and obtained his GED in 1978. (R. 154.) Plaintiff is divorced with one child. (R. 66.) He currently resides with his ex-wife's mother and father and his twenty-year old daughter. (R. 66-67.)

From 1981 to April 20, 2008, Plaintiff worked as a tractor-trailer driver. (R. 155.) His responsibilities included hooking up the trailer, driving it to a stop, releasing the trailer, and driving to an empty trailer to hook it up to the truck. (R. 155.) He typically traveled from Long Island, New York to Connecticut or Staten Island, New York. (R. 155.) Plaintiff's job required him to walk for approximately one hour, stand for one hour, sit for eight hours, and climb and reach for one hour. (R. 156.)

Plaintiff testified that he worked as a truck driver for Waldbaum's until they closed their warehouse and laid off all of their employees in 2008. (R. 51.) Plaintiff further testified that he tried to get another job but potential employers would not hire him due to his injured left leg. (R. 51.) Plaintiff worked for another company in 2009, but he claims that he was fired because he could not physically handle the job. (R. 53.)

Plaintiff testified that he experiences constant pain in his left ankle and that the pain increases with bad weather. (R. 56.) He stated that he cannot stand upright for any length of time and that he has to sit down after a short time because of the pain in his ankle. (R. 54.) He also stated that, on a "good day, " he can walk for forty minutes without stopping and that he uses a cane all of the time. (R. 54-55.) Additionally, he stated that he cannot sit for long periods of time because he has blood in his spinal fluid. (R. 64.)

Plaintiff shops for food, goes to the barber, does some laundry, goes to the store, goes to a friend's house, and goes to the bank. (R. 67-72.) He combs his hair, shaves, and dresses himself. (R. 68.) He stated that he sometimes has problems with buttons and with holding things for any length of time due to the arthritis in his hands. (R. 61.) He stated that he is able to carry things that are thirty pounds or less but only ten pounds or less when his arthritis is active. (R. 62-63.) He also stated that he wears a complete leg brace from the ankle to the knee. (R. 65.) He takes Vicodin four times a day. (R. 65.)

B. Medical Evidence

On July 7, 2008, Plaintiff visited Michael J. Fracchia, M.D. and Michael J. Suzzi Valli, RPA-C[1] of Long Island Bone & Joint, L.L.P. for an evaluation of his left ankle pain. (R. 184-85.) Plaintiff presented at five-feet, eight-inches tall and 280 pounds. (R. 184.) He stated that he has had ankle pain since he twisted his ankle getting out of his truck on June 24, 2008. (R. 184.) The treatment notes describe Plaintiff's history of a left ankle fracture in 1984 following a motorcycle accident. (R. 184.) The notes reference Plaintiff's three ankle surgeries, the last of which resulted in a fusion of the ankle in 1991. (R. 184.) An examination of the left ankle revealed diffuse swelling and scars. (R. 184.) Plaintiff could not evert or invert his ankle. (R. 184.) He dorsiflexed about five degrees below neutral and plantar flexed about fifteen degrees. (R. 184.) There was tenderness to palpation, distal fibula laterally but no tenderness at the medial aspect of the ankle. (R. 185.) Decreased sensation was noted, which Plaintiff stated was unchanged compared to years ago. (R. 185.) Left ankle x-rays showed four screws intact, a fused ankle joint, an old non-union oblique fracture of the distal fibula shaft, and an old metatarsal shaft fracture. (R. 185.) No acute fractures or dislocations were noted. (R. 185.) The diagnosis was left ankle osteoarthritis and status post fusion. (R. 185.) Plaintiff's treatment plan was conservative, consisting of ice, elevation, and anti-inflammatories. (R. 185.)

Plaintiff returned to Dr. Fracchia and RPA Valli for a follow-up appointment on August 14, 2008. (R. 183.) He reported that he had been given a prescription for a rocker bottom shoe, but never purchased one. (R. 183.) Plaintiff had taken Naproxen for about one week. (R. 183.) He stated that his pain had improved overall but he was still experiencing some pain in the left ankle. (R. 183.) The diagnosis was left ankle osteoarthritis and status post fusion and the treatment plan was to return as needed. (R. 183.)

On June 2, 2009, Plaintiff visited Natalya Laskina, RPAC for a commercial driver fitness determination. (R. 200-03.) Plaintiff was five-feet, eight-inches tall and weighed 257 pounds. (R. 191.) RPA Laskina noted that Plaintiff had a history of left ankle reconstruction in 1984. (R. 191.) In the Medical Examination Report for Commercial Driver Fitness, RPA Laskina checked boxes indicating that Plaintiff did not have any missing or impaired leg or foot (R. 200), and that he did not have any limp, deformities, atrophy, or weakness in his lower ...

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