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Proper v. Commissioner of Social Security

United States District Court, W.D. New York

December 18, 2014

JEREMY E. PROPER, Plaintiff,


MICHAEL A. TELESCA, District Judge.

I. Introduction

Jeremy E. Proper ("Plaintiff"), represented by counsel, commenced the instant action challenging the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).

II. Procedural History

On January 13, 2009, Plaintiff applied for DIB, claiming disability since January 17, 2008, based on, inter alia, multiple herniated discs and bulges in the thoracic and lumbar spine, hypertension, insomnia, Raynaud's phenomenon, supraspinatus tendinopathy, anxiety, and depression. T.250-52;[1] see also T.75, 86. After the application was denied, T.106-13, Plaintiff requested an administrative hearing. On April 26, 2011, Plaintiff, along with his non-attorney representative, appeared at a hearing before administrative law judge David S. Pang ("ALJ Pang" or "the ALJ"). T.28-74. An impartial vocational expert testified at the hearing as well. On July 22, 2011, the ALJ issued a decision finding that Plaintiff was not disabled. T.83-96. Plaintiff sought review of the ALJ's decision before the Appeals Council, which denied review on December 9, 2011, making the ALJ's decision the final decision of the Commissioner. T.18-23. Plaintiff then filed his Complaint in this Court.

On May 2, 2012, the Court (Arcara, D.J.) referred the case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). Defendant answered the Complaint on April 30, 2012, and, on July 31, 2012, filed a Motion for Judgment on the Pleadings (Dkt #10). On September 17, 2012, Plaintiff filed a Motion for Judgment on the Pleadings (Dkt #13). No further action occurred in the case until July 25, 2013, when Plaintiff filed a Motion to Remand to the Social Security Administration Pursuant To Sentence 6 of 42 U.S.C. § 405(g) (Dkt #18).

On April 16, 2014, Plaintiff filed a Motion for Writ of Mandamus and Interim Benefits (Dkt #23), which subsequently was stricken from the docket at Plaintiff's request (Dkt #24). On September 11, 2014, Plaintiff filed a Second Motion for Writ of Mandamus (Dkt #26), which the Commissioner opposed (Dkt #30). Plaintiff filed a reply on October 10, 2014 (Dkt #31) along with additional exhibits (Dkt #32). However, on November 5, 2014, Plaintiff filed a Motion to Withdraw the Second Motion for Writ of Mandamus (Dkt #33). Plaintiff stated that he was withdrawing his motion for prompt decision and interim benefits filed on August 29, 2014" "because on or about October 10, 2014 he began receiving interim benefits" and "by notice dated October 29, 2014 Plaintiff's current claim was remanded to an Administrative Law Judge for further proceedings." Dkt #33, p. 1. Therefore, Plaintiff stated, he "has received substantially all of the relief he was seeking in this motion." Id.

On November 6, 2014, the Court (Arcara, D.J.) issued a text order (Dkt #34) granting Plaintiff's Motion To Withdraw the Second Motion for Writ of Mandamus and stated that "[i]n light of Plaintiff's statement that the claim was remanded to an Administrative Law Judge for further proceeding, Plaintiff is instructed to advise this Court as to what issues or motions, if any, remain pending...." See Dkt #34. In response to Judge Arcara's text order, Plaintiff filed a Notice of Issues and Motions That Remain Pending (Dkt #35), stating that the cross-motions for judgment on the pleadings, and the motion for a sentence six remand remain pending.

The case was transferred to the undersigned on December 2, 2014 (Dk #36). After reviewing the record and the docket, the Court has determined that the remand proceeding referenced by Plaintiff does not cover the DIB claim at issue in the instant Complaint. Rather, it covers the period commencing the day after ALJ Pang's adverse decision (July 23, 2011) through the present. According to the documents submitted by Plaintiff as attachments to his motions for writs of mandamus, Plaintiff had a hearing before a new ALJ, Stanley Moskal, Jr. ("ALJ Moskal"), who found that he had numerous severe impairments as of the alleged onset date of July 23, 2011 (a mild disc bulge at L4-5 with subtle foraminal encroachment, and a mild disc bulge without stenosis at L5-Sl; small disc herniations at T4-5 and T6-7 effacing the thecal sac but without stenosis or cord compression, mild bulges without stenosis at T7-8, T8-9 and T9-10; right supraspinatus tendinopathy and torn antelior glenoid labrum; a flap tear of the posterior horn of the left lateral meniscus, and a partial tear of the left cruciate ligament; bilateral carpal tunnel syndrome; and asthma). After reviewing the claim de novo, ALJ Moskal concluded that Plaintiff was not disabled prior to October 23, 2012, but that he became disabled on that date and has continued to be disabled through the date of his decision. The Commissioner sought review of ALJ Moskal's opinion by the Appeals Council, which found that substantial evidence did not support the disability finding. The Appeals Council accordingly remanded the matter for further administrative proceedings. Plaintiff has been receiving interim benefits for the time-period covered by ALJ Moskal's disability finding. In sum, it appears that Plaintiff's second DIB claim is still being litigated at the administrative level.

For the reasons discussed below, the Court finds that ALJ Pang's decision, regarding Plaintiff's first DIB claim, contains multiple errors of law that warrant remand for further administrative proceedings.

III. Summary of the Administrative Transcript

A. Relevant Medical Evidence

Plaintiff presented to Dr. Alfredo Rodes at Southgate Medical Group on January 21, 2008, for his initial examination following a work-related injury on January 17, 2008. Plaintiff had picked up an approximately 80-pound garbage can with his right arm. This resulted in injuries to his back and right shoulder, as well as his left knee. T.545-46, T.628-29, T.503. On examination, straight leg raise testing resulted in low back pain complaints bilaterally, and left-sided leg and thigh pain. T.545. The right shoulder showed limited abduction and discomfort on extension. The left knee showed discomfort on full flexion and extension. Anterior and posterior drawer tests were negative in the left knee. Diagnoses were Neuritis or Radiculitis Thoracic or Lumbosacral Unspecified (724.4), with preexisting lumbar radiculopathy; Injury Shoulder & Upper Arm Other Unspecified (959.2); and Sprains & Strains/Knee & Leg Unspecified (844.9). T.629. Plaintiff was given a letter excusing him from work from January 18, 2008, to February 1, 2008. T.630.

Plaintiff was examined by Timothy V. McGrath, M.D., at the Hand and Shoulder Center of WNY on February 9, 2008, for complaints of bilateral hand numbness and tingling. T.575-76; 626-27. Dr. McGrath diagnosed probable bilateral carpal tunnel syndrome, tenosynovitis of the flexor tendons at the wrist and hand, and mild medial and lateral epicondylitis. Dr. McGrath recommended nerve conduction studies to the bilateral extremities, including the median and ulnar nerves, to assess for peripheral compression disease. T.627.

On February 26, 2008, Plaintiff was examined by orthopedic specialist Dr. Deborah Bergfeld of the Buffalo Spine and Sports Institute. See T.503-05. Plaintiff presented with complaints of low back and left leg pain, as well as left knee pain and right shoulder/upper extremity pain. Plaintiff informed Dr. Bergfeld that he had experienced pain in all of these areas prior to the workplace injury, but that after January 17, 2008, the symptoms had become "100 percent worse." Upon physical examination, Plaintiff's gait was mildly antalgic on the left and his lumbar range of motion was limited in all planes by 50 percent. Plaintiff's cervical range of motion was unlimited in flexion but was limited in extension by 25 percent. Left shoulder range of motion was normal. He had decreased full abduction and forward flexion of the right shoulder, positive impingement signs in the right upper extremity, and AC horizontal compression testing. FABER testing and neural tension testing were positive in the left lower extremity, as well as slump-sit and straight leg raise. Spring testing was abnormal in the lumbar spine. Dr. Bergfeld diagnosed lumbar dysfunction with lumbar facet degenerative changes at L4-5 and L5-S1 (based on an August 5, 2006 MRI), possible lumbar discogenic pain, left lower extremity radiculitis versus pseudo radiculitis, right shoulder impingement syndrome, right shoulder rotator cuff tendinopathy, and left knee pain with possible meniscal tear. T.504. She recommended continuing on Lortab, as needed, and doing a trial of diclofenac as an anti-inflammatory. Dr. Bergfeld also recommended obtaining further imaging studies and having Plaintiff commence physical therapy.

Dr. John H. Ring, Jr., an orthopedic surgeon, examined Plaintiff on April 15, 2008, for Worker's Compensation purposes. Dr. Ring noted that Plaintiff had a long history of difficulty with his low back since 1992 when he was working at Bell's Supermarkets and injured his low back. He recovered, but he had a recurrence at Sonwill Warehouse while he was unloading a truck, and was out of work for 1 month. Plaintiff had another recurrence in 2005 at Steuben Foods when he slipped while getting off a forklift, and was out for 5½ months. Most recently, he had the back re-injury on January 17, 2008. T.596-97. Straight leg raising was positive at 50 degrees on the right and at 30 degrees on the left, with pain in the low back. He had hypethesia to pinprick and light touch in the left foot. Dr. Ring's diagnosis was acute low back strain causally related to the January 17th injury and superimposed on a long history of recurrent episodes of back difficulty. T.597. According to Dr. Ring, Plaintiff's prognosis was "guarded" due to "many episodes of back pain over the years." Id . Dr. Ring opined that Plaintiff could not return to his past job, but could return to what he characterized as "a sedentary job", provided that his lifting was restricted to less than 10 pounds and he was not required to do repetitive lifting. T.598.

Plaintiff's primary care physician, Dr. Rodes, saw Plaintiff on July 23, 2008. T.547-48. Plaintiff reported aching, sharp pain and stiffness in his lower back which radiated to his left thigh and leg, with associated numbness and tingling. Straight leg raising was positive bilaterally. The diagnosis was Neuritis or Radiculitis Thoracic or Lumbosacral Unspecified, chronic and stable. Plaintiff was to ice the affected area every evening, perform lumbar exercises as directed, and continue medications (Lortab, Soma, and Baclofen). Dr. Rodes assessed Plaintiff's disability status as "temporary mild to moderate partial disability." T.548.

On August 9, 2008, an MRI of the lumbar spine revealed no evidence of disc abnormality, no significant stenosis, and no central or neural foraminal stenosis. T.507. A right shoulder MRI done the same day revealed mild to moderate hypertrophic degenerative change at the acromioclavicular joint with mild to moderate imaging evidence of impingement; no evidence of rotator cuff tear; no evidence of Hill-Sachs abnormality or bony Bankart lesion; and no definite labral tear, although there might be some irregularity of the superior labrum. T.508.

Plaintiff was examined by orthopedic surgeon Dr. Cameron Huckell at Pinnacle Orthopedic & Spine Specialists on September 10, 2008, for Worker's Compensation purposes. T.614-17. Plaintiff complained of low lumbar pain which he rated as 5 out of 10 in intensity on average, and 8 out of 10 at its worst. The pain originated at the upper lumbar spine and radiated to the left hip and back of left thigh, across to the front of the knee. Plaintiff had numbness intermittently in the left foot with prolonged sitting. His left leg sometimes would give out, causing him to fall. Straight leg raising was positive in the supine position at 45 degrees. Plaintiff walked with a normal gait, without a cane, but was unable to stand on heels and toes. Paravertebral muscle spasm was noted. Functional range of motion was present in the shoulders, elbows, wrists, hips, knees, and ankles. Plaintiff had full muscle strength in the lower extremities. Plaintiff's mood and affect were normal. Dr. Huckell recommended a thoracic spine MRI to identify the potential source of Plaintiff's upper lumbar pain. He opined that Plaintiff was temporarily totally disabled. T.617.

An October 17, 2008, MRI of Plaintiff's lumbar spine showed a mild bulge with subtle foraminal encroachment without stenosis at the L4-5 level and another mild disc bulge without stenosis at the L5-S1 level. T.510. A thoracic spine MRI showed two small herniations of the nucleus pulposus without stenosis at the T4-T5 and T6-T7 levels and mild bulges without stenosis at the T7-T8, T8-T9, and T9-T10 levels. T.512-13.

On October 24, 2008, Plaintiff saw Dr. Rodes, reporting worsening pain that was uncontrolled with medication T.549-50, 612-13. The pain was aching and sharp with associated stiffness. Plaintiff walked with an antalgic gait but had full lower extremity strength. Straight leg raising was positive bilaterally.

An EMG/nerve conduction ("NCV") study dated November 7, 2008, showed no electrodiagnostic evidence of lumbar radiculopathy, peripheral nerve entrapment or neuropathy. T.609-11. On reviewing the report of the EMG/NCV study and the MRIs on November 14, 2008, Dr. Huckell noted that there was "no significant pathology to explain [his] current symptoms", although the possibility of occult annular tears was not excluded. T.607. Dr. Huckell stated that Plaintiff "should be worked up for a possible left sided piriformis syndrome", a "neuromuscular disorder that occurs when the sciatic nerve is compressed or otherwise irritated by the piriformis muscle." T.607-08.

On December 9, 2008, orthopedic surgeon Walter D. Hoffman, M.D., examined Plaintiff and reviewed his diagnostic records for Worker's Compensation purposes. T.551-55; 564-68. Plaintiff complained of back and left leg pain. Dr. Hoffman noted that Plaintiff was "very incapacitated by this pain" and was unable to any lifting, pushing, or pulling. Plaintiff claimed he was unable to stand or sit for any length of time and had to change positions frequently or lie down often to rest his back. On examination, Plaintiff full range of motion in his neck with no muscle spasm, and tenderness in his mid-dorsal and lumbar spine. Lumbar spine range of motion was 50% of normal. The EMG and nerve conduction studies were normal. Dr. Hoffman concluded that Plaintiff was "temporarily totally disabled and unfit to work even in a restricted capacity." T.553.

Also on December 9, 2008, Dr. Hoffman completed a Physical Capabilities Evaluation form on Plaintiff's behalf. T.556; 569. Dr. Hoffman indicated that Plaintiff was able to work zero hours per day; could never lift any weight; could never push or pull; and could never climb, balance, bend, stoop, kneel, crouch, ...

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