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Paolella v. Colvin

United States District Court, E.D. New York

December 1, 2014

JOHN PAOLELLA, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant

For Plaintiff: Ronald L. Epstein, Esq., Grey & Grey L.L.P., Farmingdale, NY.

For Defendant: Arthur Swerdloff, Esq., United States Attorney's Office, Brooklyn, NY.

MEMORANDUM & ORDER

Joanna Seybert, United States District Judge.

Plaintiff John Paolella (" Plaintiff") commenced this action pursuant to the Social Security Act, as amended, 42 U.S.C. § 405(g), challenging defendant Commissioner of Social Security's (the " Commissioner" or " Defendant") denial of his application for Social Security Disability Benefits. Currently pending before the Court are the Commissioner's motion for judgment on the pleading and Plaintiff's cross-motion for the same. For the following reasons, the Commissioner's motion is GRANTED and Plaintiff's motion is DENIED.

BACKGROUND

On June 27, 2011, Plaintiff applied for disability insurance benefits asserting that he was disabled and unable to work as of October 27, 2010, due to a bilateral shoulder sprain, right knee sprain, and neuropathy. (R. 134-35, 191.)[2] His application was denied on August 19, 2011. (R. 78-89.) Plaintiff then requested a hearing and, on May 10, 2012, appeared with counsel and testified before Administrative Law Judge (" ALJ") Bruce MacDougall. (R. 37-59, 90-91, 98.) By decision dated June 18, 2012, ALJ MacDougall found that Plaintiff was not disabled. (R. 22-34.)

Plaintiff sought an appeal before the Appeals Council and submitted additional evidence in support of his request. (R. 6, 18-19.) On September 24, 2013, the Appeals Council denied Plaintiff's request for review, and consequently, the ALJ's decision became the final decision of the Commissioner. (R. 1-4.)

The Court's review of the administrative record will proceed as follows: first, the Court will summarize the relevant evidence that was before 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 in 1973, and completed two years of college and the fire academy. (R. 134, 191-92.) From October 1997 through August 2007, Plaintiff worked as a firefighter for the Fire Department of New York. (R. 152, 192.) As a firefighter, he extinguished fires, worked on an Engine Company and Ladder Company, did medical runs, climbed flights of stairs, and carried and operated equipment. (R. 41, 159.) In 2004, Plaintiff injured his right knee stepping off of a fire truck. (R. 217.) He was diagnosed with an anterior cruciate ligament (" ACL") tear and underwent reconstructive surgery. (R. 42, 217.) Plaintiff recovered and went back to full duty six months post-operation. (R. 218-223.) Plaintiff reinjured this knee in July 2010, but his symptoms were acceptable for daily living. (R. 238, 240.)

In 2007, Plaintiff was promoted to fire marshal and remained as such until October 27, 2010, his alleged onset date of disability. (R. 41, 60, 152, 191-92.) Plaintiff's duties as a fire marshal required him to investigate fires by examining debris, collecting evidence, rearranging furniture to recreate conditions, arresting suspects, and writing reports. (R. 41, 159.) During one of his investigations in 2009, he was moving a china cabinet that crumbled and fell on him, causing injury to his left shoulder. (R. 224.) Three months after this incident, Plaintiff underwent surgery. (R. 227-29.)

Plaintiff received a medical assessment for Social Security on May 20, 2011. (R. 299.)

1. Function Report of July 5, 2011

Plaintiff resides in a house with his family. (R. 50.) He has no problems with personal care. (R. 181.) His daily activities include eating, showering, dressing, and watching television. (R. 181.) Plaintiff does not prepare his own meals because his wife does it. (R. 182.) There has been no change in his ability to handle his money. (R. 184.) He takes care of his children by feeding them and driving them to practice or wherever necessary. (R. 181.) He goes out a few times a day, is able to go alone and drive a car, and he attends his children's sports events once or twice a week. (R. 183, 185.) He has no problems paying attention and following written and spoken instructions. (R. 187.)

Plaintiff does not do house or yard work due to his shoulder and knee pain. (R. 183.) He also has no hobbies or interests because of his injuries, but he does go out to dinner and watch sports approximately once a month. (R. 184-85.) He does his shopping online. (R. 184.)

2. Plaintiff's Testimony to the ALJ

At the hearing on May 10, 2012, Plaintiff testified that he has a prescribed knee brace, but does not wear it as his doctor told him that it is no longer necessary. (R. 43-44.) Plaintiff also stated he does not take his prescribed Flexeril and Mobic because they make him drowsy, and instead constantly takes Aleve and Motrin. (R. 44.) Plaintiff explained that he has lost strength in his left shoulder and feels pain if he lifts more than ten pounds or carries something too heavy. (R. 45-46, 54.)

Plaintiff further testified that he has extreme numbness in his hands and feet when he uses them. (R. 49.) His hands go numb when he drives, talks on the phone, and uses a screwdriver, and Plaintiff believes that they would go numb if he was to use a computer. (R. 49-50.) He does not do much around the house because he hires people and he has his wife and son to help. (R. 51.) He does not think he could keep a job because he would have to take too many days off and breaks. (R. 51.)

According to Plaintiff, his swelling in the knee causes constant pain and he can sit for ten minutes before having to elevate his leg. (R. 52-53.) If he stands longer than five minutes, his knee will start to hurt. (R. 53.) Plaintiff spends most of his time during the day on a recliner with his legs elevated. (R. 54.) On a scale from one to ten, Plaintiff rated his knee pain a five or six in intensity. (R. 56.)

B. Medical Evidence

1. Dr. Anne M. Kelly, MD (Prior to Alleged Onset Date)

On June 18, 2004, Dr. Kelly had an initial orthopedic consultation with Plaintiff after Plaintiff complained of right knee pain and swelling from a misstep off a fire truck. (R. 217.) Dr. Kelly diagnosed Plaintiff with an ACL tear and medial meniscus, and discussed ACL reconstruction. (R. 217.) On June 30, 2004, Plaintiff underwent ACL reconstruction surgery. (R. 244-46.) Dr. Kelly saw Plaintiff for several post-operative and follow-up visits, and with each visit Dr. Kelly noted improvement. (R. 218-23.) In fact, eight months post-operation, Dr. Kelly noted that Plaintiff was doing very well and had been on full duty for two months. (R. 223.)

On April 27, 2009, Dr. Kelly saw Plaintiff for a new problem--a left shoulder injury, including pain and numbness down his arm. (R. 224.) Plaintiff had no pain at ninety degrees of abduction and no posterior pain with the O'Brien maneuver, but had tenderness at the AC joint that increased with adduction and pain up top consistent with AC separation. (R. 224.) The magnetic resonance imaging (" MRI") that Dr. Kelly examined showed some anterior labral detachment inferiorly, though the doctor concluded that there was no labral tearing. (R. 224.) As a result of this consultation, Dr. Kelly advised decreased activity for another three weeks, discontinuance of physical therapy because it was not helping, aggressive icing, and continued use of Naprosyn. (R. 224.)

Plaintiff returned for a follow up visit on May 18, 2009, and reported pain with activity and intermittent hand numbness. (R. 225.) Dr. Kelly saw Plaintiff for several more follow-up visits to determine the success of the non-operative treatment. (R. 225-27.) An injection of Lidocaine, Marcaine, and Depo into the AC joint caused discomfort; pain remained at the top, and with movement and exercise; and there was no decrease in tenderness. (R. 225-27.) Accordingly, Dr. Kelly recommended and scheduled Plaintiff for left shoulder surgery.[3] (R. 227.)

The operation proceeded on August 5, 2009. (R. 241.) The postoperative diagnosis was impingement, acromioclavicular arthrosis, and glenoid chondral defect. (R. 241.)

Plaintiff's first post-operation visit for his left shoulder took place on August 14, 2009. (R. 229.) Plaintiff had almost 120 degrees of forward flexion before feeling discomfort. (R. 229.) At Plaintiff's second visit, he still had " pretty good" motion and no pain until 120 degrees of forward elevation and no pain with external rotation at the side. (R. 230.) He did have pain, however, with abduction at seventy degrees and cross-chest adduction at neutral. (R. 230.) Dr. Kelly directed Plaintiff to use ice, and continue with Mobic and therapy. (R. 230.) Dr. Kelly's directives continued through two other follow-up visits. (R. 231-32.)

Five months after his surgery, Plaintiff was doing " fairly well." (R. 233.) He had good motion but some lingering deep pain. (R. 233.) He felt discomfort at about 110 degrees of forward flexion and could passively obtain full forward flexion and abduction. (R. ...


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