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Dillard v. Colvin

United States District Court, S.D. New York

January 13, 2015

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

For Thomas Dillard, Plaintiff: Joseph Albert Romano, Joseph A. Romano, Esq., Yonkers, NY.

For Carolyn Colvin, Acting Commissioner of Social Security, Defendant: Susan D. Baird, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (St Andw's), New York, NY; Tomasina Digrigoli, LEAD ATTORNEY, Soc. Sec. Admin., Office of The Gen. Counsel, New York, NY.


HENRY PITMAN, United States Magistrate Judge.

TO THE HONORABLE LAURA T. SWAIN, United States District Judge.

I. Introduction

Plaintiff, Thomas Dillard, brings this action pursuant to Section 205(g) of the Social Security Act (the " Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (" Commissioner") denying his application for disability insurance benefits (" DIB"). Plaintiff has moved for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure (Notice of Motion, dated March 17, 2014 (Docket Item 12)). The Commissioner has filed a cross-motion seeking judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Notice of Motion, dated August 14, 2014 (Docket Item 20)).

For the reasons set forth below, I respectfully recommend that plaintiff's motion for summary judgment be denied and that the Commissioner's motion for judgment on the pleadings be granted.

II. Facts

A. Procedural Background

Plaintiff filed an application for DIB on September 3, 2010, alleging that he had been disabled since April 30, 2009 (Tr.[1] 133-34). The Social Security Administration (" SSA") denied plaintiff's application, finding that he was not disabled (see Tr. 92). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge (" ALJ") (see Tr. 29). ALJ Robert Gonzalez conducted a hearing on December 1, 2011 (Tr. 29-70). In a decision dated April 12, 2012, ALJ Gonzalez determined that plaintiff was not disabled within the meaning of the Act (Tr. 14-24). The ALJ's decision became the final decision of the Commissioner on July 3, 2013, when the Appeals Council denied plaintiff's request for review (Tr. 1-5).

Plaintiff commenced this action for review of the Commissioner's decision on September 6, 2013 (Complaint (Docket Item 1)). On March 17, 2014, plaintiff moved for summary judgment (Docket Item 12), and on August 14, 2014 the Commissioner cross-moved for judgment on the pleadings (Docket Item 20).

B. Plaintiff's Social Background

Plaintiff was born August 13, 1966 and was 42 years old on the date of the onset of his alleged disability (Tr. 133). Plaintiff has a high school diploma and speaks English (see Tr. 33). He is married, and he and his wife, a New York City Police-woman, have three children who were one, three and four years old at the time of plaintiff's hearing (Tr. 35). Plaintiff and his family reside in Warwick, New York (Tr. 36). Plaintiff was employed as a bus driver for the Metropolitan Transit Authority (" MTA") for approximately ten years (Tr. 144). On April 30, 2009 he was assaulted by a passenger, sustaining stab wounds to his shoulder, forearm and back, and has not worked since that time (Tr. 160, 190). In December 2010, the MTA put plaintiff on " accidental disability retirement" (Tr. 34).

C. Plaintiff's Medical Background[2]

Between the date of his assault and the date of the disability hearing, plaintiff saw more than thirteen different physicians. As described in more detail below, only four of those physicians were treating sources who saw plaintiff regularly. Plaintiff consulted with most of the physicians identified below for disability evaluation purposes.

1. Treating Physicians

a. Dr. Xiao

Dr. Jean Xiao treated plaintiff for his physical injuries from August 2009 through April 2011. On August 10, 2009, about three months after the assault, plaintiff visited Dr. Xiao and reported pain in his back, neck, right shoulder and right forearm (Tr. 268). Dr. Xiao ordered an MRI of plaintiff's cervical spine, and on August 19, 2009, Dr. Tuan Ha, a consulting radiologist, wrote that plaintiff's MRI revealed that he had

[d]iffuse disc osteophyte[3] complexes from C3-C4 to C7-T1, with bilateral uncovertebral hypertrophy.[4] These findings are most severe at C5-6 and C6-7, where there is mild central stenosis[5] with minimal cord compression. Multilevel neural foraminal[6] narrowing, including moderate to severe neural foraminal narrowing at C5-6 and C6-7[, ] . . . [and] [n]onspecific straightening, with no fracture or spondylolisthesis[7]

(Tr. 195). Dr. Xiao also ordered an MRI of plaintiff's lumbosacral spine, and on September 9, 2009, Dr. Daniel Resnick, a consulting radiologist, wrote that plaintiff's MRI showed that he had " [b]road based disc herniation with bilateral lateral recess and neural foraminal stenosis at L1-2, L4-5, and L5-S1[, ] [a]nnular bulging with bilateral lateral recess and neural foraminal stenosis at L2-3 and L3-4[, and m]ild levoscoliosis[8]" (Tr. 196-97).

On September 9, 2009, Dr. Xiao wrote that plaintiff had an internal derangement in his right shoulder, an internal derangement in his " arm/elbow, " a " sprain/strain" of his neck and back and a sprain of an unspecified site of his shoulder or upper arm (Tr. 266). Dr. Xiao indicated that she believed plaintiff to be " temporar[il]y total[ly] disab[led]" (Tr. 266). Dr. Xiao's notes from October 26, 2009 state that plaintiff was prescribed Percocet, Flexeril and physical therapy (Tr. 294-95), and in December 2009 Dr. Xiao's notes indicate plaintiff had radiculpathy[9] (Tr. 286-87).

From January 2010 through July 2010, Dr. Xiao wrote that plaintiff continued to take Percocet, was waiting to see a pain specialist and was undergoing physical therapy (Tr. 280-81 (January 2010), 278-79 (March 2010), 272-73 (April 2010), 292-93 (May 2010), 282-83 (June 2010), 276-77 (July 2010)). Treatment notes show that Dr. Xiao evaluated plaintiff's physical ability on August 11, 2010, writing that plaintiff could not lift, push, pull or carry more than ten pounds and could not climb, bend, kneel, reach, " handle, " engage in repetitive motions, work near heights or operate machinery or vehicles (Tr. 284-85). She also wrote that plaintiff should not sit, stand or walk for prolonged periods of time (Tr. 285). Dr. Xiao noted that she found plaintiff to be " total[ly] disab[led]" at that time (Tr. 285). Dr. Xiao's notes indicate no new complaints from plaintiff in October and December 2010 (Tr. 274-75 (October 2010), 378-79 (December 2010)).

On January 24, 2011, Dr. Xiao found plaintiff to be only partially disabled (Tr. 380-81). Treatment notes show that on March 7, 2011, Dr. Xiao recommended that plaintiff see a chiropractor and start an exercise program, and she raised the limit on plaintiff's weight lifting from ten to fifteen pounds (Tr. 382-83). Dr. Xiao's last notes, dated April 4, 2011, do not reflect anything further (Tr. 384-85).

In an opinion dated March 28, 2011, Dr. Xiao wrote that plaintiff could only stand or walk in fifteen-minute increments for a total of thirty minutes during an eight-hour day, and could only sit in twenty-minute increments for a maximum of one hour per day (Tr. 368-69).[10]

b. Dr. Acuri

In August 2011, Dr. Zewditu Bekele Acuri ordered an MRI of plaintiff's back to determine if plaintiff suffered from lumbar disc disease (Tr. 419). Dr. Acuri wrote that plaintiff had low back pain but the results of his examination were otherwise normal (Tr. 419). On September 23, 2011, Dr. Acuri reviewed an MRI that indicated plaintiff had multilevel degenerative disc disease (see Tr. 426-27). Dr. Acuri wrote that plaintiff's exam results were normal, plaintiff had no pain at that time, and he recommended that plaintiff not lift heavy items, maintain good posture and avoid sitting for long periods of time (Tr. 423).

c. Dr. Rombom

Plaintiff saw Dr. Howard Rombom for a little more than a year, starting in August 2009. Plaintiff's symptoms included depression, nightmares, flashbacks of the assault, difficulty sleeping and concentrating, loss of appetite, irritability, anger, hypervigilence and " anxiety in vehicle" (Tr. 202-04 (August 2009), 404-05 (October 2009), 402-03 (November 2009), 401 (January 2010), 400 (March 2010), 399 (June 2010), 398 (July 2010), 397 (August 2010), 396 (September 2010), 395 (October 2010)). Dr. Rombom wrote that plaintiff had the signs and symptoms of post-traumatic stress disorder (" PTSD") and a Global Assessment of Functioning (" GAF")[11] of 45, [12] but he found plaintiff had no evidence of any thought disorder (Tr. 202-04 (August 2009)). During their treatment relationship, Dr. Rombom rated plaintiff's disability from a six to an eight on a scale of one to ten (Tr. 202-04, 400-05). In January 2010, Dr. Rombom's notes indicate that plaintiff had started seeing a psychiatrist, Dr. Vilor Shpitalnik, [13] who prescribed Lexapro for plaintiff (Tr. 400). In August 2010, Dr. Rombom wrote that " patient has been managing symptoms relative[ly] well, with the assistance of med[ication]s" (Tr. 397).

d. Dr. Haberman

Plaintiff saw Dr. Maurice Haberman for two years for psychiatric treatment, beginning in June 2010 (Tr. 437). The first treatment notes indicate that plaintiff was diagnosed with PTSD (Tr. 437). From August 2010 through December 2010, Dr. Haberman's treatment notes indicate that plaintiff's symptoms had diminished (Tr. 438 (August, September and October 2010), 439 (December 2010)). In March 2011, Dr. Haberman's treatment notes report that plaintiff had returned from a three-month break in treatment and that while he had been stable on medication for that three-month period, he ran out of medication and started having trouble sleeping, and increased agitation, anger and irritability (Tr. 439). In June 2011 and September 2011, Dr. Haberman reported that plaintiff was " overall euthymic[, ] calm and stable on med[ication]s" (Tr. 439). In November 2011, he reported that plaintiff had residual PTSD symptoms, but was sleeping twelve hours per night (Tr. 439). On December 7, 2011, therapist Kiran Miner performed an intake exam for Dr. Haberman, and found that plaintiff's memory and concentration were intact but that he had a GAF of 60, [14] was depressed and had trust issues as a result of his assault (Tr. 407, 409). In March 2012, Dr. Haberman reported that plaintiff had returned from another three-month break in treatment (Tr. 439). In May 2012, he reported that plaintiff was still residually depressed (Tr. 439), but in June 2012 plaintiff's depression had decreased (Tr. 440).

On November 30, 2011, Dr. Haberman completed a work abilities worksheet (Tr. 387-88). He opined that plaintiff had " poor or [no]" ability to relate to co-workers, deal with the public, follow work rules, maintain concentration, deal with work stress, behave in an emotionally stable manner and relate predictably in social situations (Tr. 387-88); plaintiff had a " fair" ability to use judgment, interact with supervisors, understand, carry out, remember and complete detailed but non-complex job instructions, maintain personal appearance and demonstrate reliability; plaintiff had a " good" ability to function independently and understand, remember and carry out simple instructions (Tr. 387-88). On December 6, 2011, Dr. Haberman wrote that plaintiff continued to have difficulty with the public (Tr. 407). On December 8, 2011, Dr. Haberman wrote that plaintiff was less depressed, irritable and edgy and was sleeping better; however, he also wrote that plaintiff continued to be guarded and unable to concentrate and opined that plaintiff could no longer perform his work as a bus driver (Tr. 407).

2. Consulting Physicians

a. Physical Exams

Dr. Joseph Lopez completed a medical exam on May 22, 2009 (Tr. 261-63). He examined plaintiff but did not review his medical record. At that time Dr. Lopez noted that plaintiff had had knee surgery a few days prior and was using a cane to walk (Tr. 261-62). Dr. Lopez found that plaintiff had decreased flexibility in his right shoulder and cervical spine (Tr. 262), and his impression was that plaintiff had a cervical strain, thoracic strain, a right shoulder strain and a left knee internal derangement (Tr. 263). He opined that plaintiff could work, but could not perform twisting or climbing activities, could not lift, pull or push weight greater than ten pounds, and could not perform work involving heights or operating vehicles or mechanical equipment (Tr. 263).

Dr. Herbert Bessen examined plaintiff three times at the end of 2009. On October 1, 2009, his description of plaintiff's work abilities was identical to that of Dr. Lopez (see Tr. 259, 263). On November 5, 2009, Dr. Bessen noted that plaintiff reported that he was no longer taking medication for his arm or shoulder, but continued to take pain medication for his lower back (Tr. 254). Dr. Bessen also increased the weight that he believed plaintiff could lift, pull or push to twenty pounds (Tr. 255). On December 3, 2009, Dr. Bessen reported that plaintiff had regained full motion of his neck and had only a mild restriction of internal and external range of motion of his right shoulder (Tr. 247). Dr. Bessen increased the weight that plaintiff could lift, pull or push to thirty pounds (Tr. 247).

Dr. Carl Wilson examined plaintiff on July 26, 2010 (221-24). Dr. Wilson noted that plaintiff reported pain in his neck, back and right shoulder (Tr. 222). Plaintiff told Dr. Wilson that his daily activities were physical therapy, psychotherapy, taking medications and relaxing and that he needed help cleaning, cooking, shopping and driving (Tr. 223). Dr. Wilson diagnosed plaintiff's injuries from the assault as resolved, but noted that plaintiff continued to have lumbosacral back pain from a prior injury (Tr. 223). He wrote that plaintiff had excellent muscle mass and only mild stiffness in his shoulder (Tr. 223-24). Dr. Wilson opined that plaintiff would have no work restrictions except those resulting from the medication he was taking for back pain (Tr. 223-24).

Dr. Suraj Malhotra examined plaintiff on December 14, 2010 and reported that plaintiff's daily activities consisted of watching television, and that although plaintiff needed help dressing, he was able to shower on his own (Tr. 331). Plaintiff reported that he helped his wife cook, clean, shop and do laundry, and that his wife and parents cared for his children (Tr. 331). Dr. Malhotra found that plaintiff had no instability, intact sensation, and 5/5 strength in his right shoulder (Tr. 331-32). Dr. Malhotra diagnosed plaintiff with remote right shoulder neuralgia, [15] and he diagnosed plaintiff, " by history, " with herniation of an invertebral disc in the lumbosacral spine region (Tr. 332). Dr. Malhotra opined that plaintiff had mild limitations in his ability to turn his neck, moderate limitations in his ability to raise his right arm above shoulder level, and moderate limitations in bending (Tr. 332).

Dr. Michael Hearns completed a form on August 15, 2011 in which he opined that plaintiff had back pain and cervicalgia[16] and was 80% temporarily disabled (Tr. 370-71). Dr. Hearns appears to have examined plaintiff in June 2011 (Tr. 372-73). His notes from that exam are largely illegible, but the only restrictions he indicated were on plaintiff's ability to lift, pull and push, although he also indicated that plaintiff had a " marked" disability (Tr. 373). Notes from May 2011 ...

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