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Lopez v. Commissioner of Social Security

United States District Court, E.D. New York

September 22, 2014


Plaintiff is represented by Sharmine Persaud, Farmingdale, New York and Sarah H. Bohr, Bohr & Harrington, LLC, Atlantic Beach, FL.

Defendant is represented by Loretta E. Lynch, United States Attorney, Eastern District of New York, by Candace Scott, Central Islip, NY.


JOSEPH F. BIANCO, District Judge.

Plaintiff Rafael Acevedo Lopez ("plaintiff') brings this action pursuant to 42 U.S.C. ยง 405(g) of the Social Security Act ("SSA"), challenging the final decision of the Commissioner of Social Security ("defendant" or "Commissioner") denying plaintiff's application for disability insurance benefits. An Administrative Law Judge ("ALJ") found that plaintiff had the residual functional capacity to perform light work, that plaintiff could perform a significant number of jobs in the national economy, and therefore, that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review.

The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings, alleging that the ALJ erred by failing to accord the proper weight to the opinion of plaintiff's treating physicians.[1]

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's cross-motion for judgment on the pleadings is granted to the extent that it seeks a remand. Remand is warranted because the ALJ failed to explain the weight she assigned to the opinion of plaintiff's treating physician, Dr. Marcus, who had been treating plaintiff for nearly ten years at the time of the ALJ's decision. The ALJ stated that she afforded the opinions of Dr. Marcus and other examining physicians "less than weight" without analyzing the required factors, particularly the frequency of treatment and length of the treatment relationship, and the consistency of Dr. Marcus's opinion with the clinical findings, the opinions of other examining physicians, and the overall record. Although the ALJ cited other medical evidence which supported her position, she did not apply all of the required factors or specifically explain how that other evidence undermined Dr. Marcus's opinion. Accordingly, a remand for reconsideration of Dr. Marcus's opinion is warranted.


The following summary of the relevant facts is based upon the Administrative Record ("AR") developed by the All. A more exhaustive recitation of the facts is contained in the parties' submissions to the Court and is not repeated herein.

A. Factual Background

1. Plaintiff's Work History and Testimony

Plaintiff was born in 1955 (AR at 168), and attended school in Puerto Rico between the ages of nine and eighteen without receiving a high school degree ( id. at 892-93). Plaintiff came to the mainland United States in 1978 ( id. at 781, 888), and held a full-time job as a factory mechanic between April 1981 and December 1999 ( Id. at 188, 200, 783, 894-95). Plaintiff's employment entailed standing or walking for eight hours a day and lifting up to 50 pounds in a vacuum cleaner bag factory. ( Id. at 188, 201). Plaintiff stated that he is not fluent in written or spoken English and has not worked since December 6, 1999. ( Id. at 186, 187.)

On December 6, 1999, plaintiff first sought medical treatment at the emergency department of St. John's Episcopal Hospital for right-sided back pain related to his use of a heavy machine part at work. ( Id. at 223-27.) Plaintiff was diagnosed with acute low back pain. ( Id. )

In September and October 2000, plaintiff stated that he had trouble lifting more than fifteen pounds and had trouble walking and standing because of constant lower back pain and stabbing pain travelling down his legs. ( Id. at 187, 210-11.) Plaintiff took pain medication, but reported that the pain made it difficult to drive a car or perform other household tasks without familial help. ( Id. at 209, 212.)

Subsequently, in February 2001, plaintiff reported that his condition had deteriorated such that he lost the ability to bend or lift more than five pounds. ( Id. at 213, 215.) Plaintiff could still take care of his own grooming, but he needed his mother to live in his home to do his chores. ( Id. at 215, 217.) The interviewer noted that plaintiff's English was sufficient for the interview, but also noted that he was compelled to stand several times while she filled out the report. ( Id. at 217.)

Afterwards, before ALJ Fier, plaintiff testified that he had been taking Tylenol #3, prescribed by Dr. Marcus, for three or four years and had left the continental United States recently to visit family in Puerto Rico. ( Id. at 858-62.) Additionally, plaintiff stated he occasionally drove a car to doctor's appointments. ( Id. ) Plaintiff also received $850 per month from Workers' Compensation and refused Dr. Marcus's recommended back surgery because afterwards "you're not the same." ( Id. )

Before ALJ Hoppenfeld, plaintiff testified that he still drove a car. ( Id. at 888-91.) Plaintiff stated two prior attempts at physical therapy were not effective. ( Id. at 902-03.) Plaintiff stated that he could walk one block without reliance on a cane or back brace; however, he could only stand for ten minutes and sit for less than fifteen. ( Id. at 907-08.) In the most recent supplemental hearing, plaintiff noted that he had only started wearing a back brace in the prior two months. ( Id. at 785.)

2. Plaintiff's Medical History

a. Treating Physician (Dr. Marcus)

On December 7, 1999, plaintiff first saw Dr. Marcus, who found tenderness around the sacroiliac region on the right side with a range of motion severely limited by pain despite plaintiff having the ability to heel and toe walk. ( Id. at 236, repeated at 243, 247, 290.) Dr. Marcus diagnosed sciatic syndrome based on the reported straightening of the lordosis without elimination of disk space, serious joint damage, or other destructive changes. ( Id. at 236.) Dr. Marcus administered steroids and prescribed Tylenol #3 and Norflex. ( Id. )

On December 16, 1999, plaintiff told Dr. Marcus his lower back pain was increasing and radiating into the right leg with marked limitation of motion. ( Id. at 235-36.) While plaintiff's leg was in pain but neurologically intact, however, the diagnosis remained the same, and Lorcet, Norflex, and Lodine were prescribed. ( Id. ) Dr. Marcus stated that plaintiff was unable to work. ( Id. )

On January 6, 2000, Dr. Marcus examined plaintiff again, and the pain in plaintiff's right leg had subsided but the pain in plaintiff's back persisted with minimal sciatic tenderness. ( Id. at 240, repeated at 245, 251, 293.) There was, however, tenderness about the sacroiliac region on the right. ( Id. ) Dr. Marcus could not give plaintiff an MRI because of metal shavings in his eye, but a CT scan revealed a herniation of the L4-L5 disc on the right side. ( Id. ) Dr. Marcus recommended physical therapy, prescribed Vicoprofen, and concluded that plaintiff was still unable to work. ( Id. )

On February 3, 2000 and March 3, 2000, plaintiff told Dr. Marcus that he was again experiencing discomfort in his right leg. ( Id. at 237, repeated at 248, 291.) Dr. Marcus's recommendations and opinion that plaintiff was disabled and could not return to his prior employment remained unchanged on both occasions. ( Id. )

Subsequently, Dr. Marcus referred plaintiff to Dr. Phillip Fyman and/or Dr. Alexander Weingarten at Comprehensive Pain Management Associates between March 22 and May 25, 2000. ( Id. at 452, 515, 529, 532, 534; see also 450-51, 514, 527-28, 531, 533 (Workers' Compensation forms).) These physicians administered three lumbar epidural steroid injections to plaintiff ( Id. at 452, 515, 529, 532, 534; see also 450-51, 514, 527-28, 531, 533 (Workers' Compensation forms).)

On April 17, 2000, Dr. Marcus examined plaintiff after the first two lumbar epidural spinal injections. ( Id. at 238.) Dr. Marcus found stiffness of the lumbar spine and positive straight leg raising, which was then more pronounced on the right side. ( Id. )

Dr. Marcus again examined plaintiff in July 2000 and noted that plaintiff had not responded well to steroids, and also noted that straight leg raising was still markedly positive on the right, and there was marked restricted motion of the lumbar spine. ( Id. at 231, repeated at 234, 288.) Dr. Marcus prescribed Lodine and Lorcet and recommended physical therapy. ( Id. ) Dr. Marcus also opined that plaintiff could not yet work. ( Id. at 231.)

Dr. Marcus, after the x-ray dated September 12, 2000, gave a more complete examination of plaintiff on September 14. ( Id. at 230, repeated at 233, 287.) Further, on September 20, 2000, Dr. Marcus analyzed plaintiff's sensory and motor skills. ( Id. at 229 repeated at 241, 286.) Dr. Marcus concluded that plaintiff was otherwise normal except restricted motion, marked spasm, and positive bilateral straight leg raising. ( Id. at 230, repeated at 233, 287.) Dr. Marcus also noted that plaintiff's pain did not subside while taking painkillers. ( Id. at 229 repeated at 241, 286.) As described below, Dr. Marcus recommended that plaintiff see a neurosurgeon, which plaintiff did. Dr. Peter Hollis concluded in November 2000 that plaintiff had lumbar pain syndrome, secondary to the same L4-L5 disc herniation which Dr. Marcus had diagnosed. ( Id. at 266.)

On March 26, 2001, plaintiff returned to Dr. Marcus, who recommended surgery because plaintiff's condition had not improved. ( Id. at 284.) Dr. Marcus continued to find no change in plaintiff's condition in October of 2001, February of 2002, June of 2002, September of 2002, January of 2003, and April of 2003. ( Id. at 278-83, 464, 472, 554, 581.) On these occasions, Dr. Marcus repeatedly urged surgery, but plaintiff refused based upon his friends' bad experience with back surgery.[2] ( Id. at 279, 466, 583.) Dr. Marcus continued to conclude that plaintiff was totally disabled. ( Id. at 278, 464, 581.) A CT scan in July 2003 showed bulging discs, a large posterior spur, and disc narrowing due to degenerative changes. ( Id. at 301.)

Plaintiff returned to Dr. Marcus again on August 1, 2003, and reported that his back pain had been "very bad, " but he still refused surgery. Dr. Marcus recommended rest as needed and the use of a heating pad. ( Id. at 277, repeated at 296, 579.) Plaintiff continued to refuse surgery and an epidural injection on November 4, 2003, and Dr. Marcus noted that he remained disabled. ( Id. at 276, repeated at 295, 597.)

On January 27, 2004, Dr. Marcus noted that plaintiff's pain had extended into plaintiff's cervical spine, but plaintiff still refused surgery. ( Id. at 275, repeated at 297, 573, 575.) Again, Dr. Marcus found plaintiff to be disabled. ( Id. ) On April 30, 2004, Dr. Marcus completed a questionnaire regarding plaintiff's condition, and opined that plaintiff could lift/carry zero pounds and that he could sit/stand/walk zero hours in an eight-hour workday due to sciatic syndrome. ( Id. at 289-90.)

On July 21, 2004, Dr. Marcus noted that plaintiff's condition had not definitively changed, and that plaintiff was now reporting pain in his left leg. ( Id. at 318, 569.) Examination revealed restricted motion of the lumbar spine. ( Id. ) Dr. Marcus also noted that physical therapy had not been authorized despite numerous requests. ( Id. )

On September 17, 2004 and December 10, 2004, Dr. Marcus noted no change in plaintiff's condition and began prescribing Bextra. ( Id. at 315-16, 567, 603.) Additionally, Dr. Marcus again requested that plaintiff's health ...

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