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Torre v. Colvin

United States District Court, S.D. New York

January 26, 2015

ELISA LA TORRE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


ANDREW J. PECK, Magistrate Judge.

Plaintiff Elisa La Torre, represented by counsel (Binder & Binder), brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her Supplemental Security Income and Disability Insurance Benefits. (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 12: La Torre Notice of Motion; Dkt. No. 14: Comm'r Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 7.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is DENIED, and La Torre's motion for judgment on the pleadings is GRANTED to the extent of remanding the case to the Commissioner for further proceedings consistent with this Opinion.


Procedural Background

On April 6, 2011, La Torre filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") alleging that she was disabled since February 1, 2011. (Dkt. No. 11: Admin. Record filed by the Comm'r ("R.") 170-86.) On June 27, 2011, the Social Security Administration found La Torre not disabled. (R. 100-07.) On August 2, 2011, La Torre requested an administrative hearing. (R. 108-11.)

Administrative Law Judge ("ALJ") Jack Russak conducted a hearing on June 26, 2012. (R. 75-96.) La Torre appeared without counsel. (R. 75, 77.) On August 4, 2012 ALJ Russak issued a written decision finding that La Torre was not disabled. (R. 54-67.) ALJ Russak's decision became the Commissioner's final decision when the Appeals Council denied La Torre's counseled request for review on February 28, 2014. (R. 7-10.)

Non-Medical Evidence

La Torre was born on August 5, 1960, and was fifty years old at the date of the alleged onset of her disability. (R. 170, 175.) La Torre completed two years of college in Puerto Rico in 1982. (R. 87, 203.) From September 1994 to October 2000, La Torre worked as a mail sorter and machine operator. (R. 225, 248.) The job required her to frequently lift mail boxes and bags weighing up to fifty pounds. (R. 229.) From January to April 2001 and January to April 2002, La Torre worked as a tax preparer. (R. 203, 248.) From April 2003 to July 2003, La Torre worked as a machine operator at a factory. (R. 225, 248.) The job required her to frequently lift and carry boxes and bags weighing up to 50 pounds. (R. 228.) La Torre cared for the elderly at a nursing home for an unspecified time frame in 2003. (R. 225.) The job required her to walk and stand for seven hours each day, and frequently lift objects and food trays weighing up to fifty pounds. (R. 227.) From September 2003 to September 2010, La Torre performed data entry for the Girl Scout Council of N.Y. (R. 225, 248.) The job required her to sit for six hours each day, walk and stand for an hour each day, and frequently lift objects weighing less than ten pounds. (R. 226.) La Torre testified that when the Girl Scout Council reduced their personnel in September 2010, they "took advantage" of the time she missed for appointments and fired her. (R. 78.) La Torre also testified that she was laid off because of a reduction in work. (R. 81.) La Torre stated that she "make[s] an effort" to find new employment, but because she has "so many [medical] appointments, " no one will hire her. (R. 82.)

La Torre lives with her husband in a first floor apartment in the Bronx. (R. 77, 83.) She has lived there for eighteen years. (R. 83.) When La Torre takes her medication, she is confined to her home. (R. 214.) If she has an appointment outside the home she limits her medication because taking it makes her dizzy. (R. 214.) She requires notes to remind her of daily tasks and which medications to take at what times. (R. 215.) La Torre "sleep[s] all day with the medication." (R. 92.) Every morning after taking her medicine she rests "for a little while" because the medication makes her drowsy and because of her depression. (R. 93.) Following that, she tries to walk for about half an hour. (R. 93.) La Torre is able to walk up to two blocks if she walks slowly. (R. 91, 220.) Every seven to ten minutes she has to stop to rest for ten to fifteen minutes before she is able to continue walking. (R. 91, 220.)

After she walks, La Torre returns home and "do[es] what [she] can." (R. 93.) She picks her granddaughter up from school across the street. (R. 93-94.) La Torre is able to sit and stand for ten or fifteen minutes at a time. (R. 91.) La Torre sews and reads for entertainment, but does not do either activity often because she "never finish[es]." (R. 217.) La Torre is able to leave the house alone to shop for food if the store is across the street, but if she ventures farther her husband or one of her daughters accompanies her. (R. 92.) La Torre prepares food "daily, every two days, " unless she forgets. (R. 92, 215.) La Torre irons and does light cleaning, but her husband mops, cleans the bathroom and does laundry because the detergent fumes bother her. (R. 92.) La Torre told ALJ Russak that she does not go to church (R. 86), but in her application for benefits she listed church and the hospital as places she goes every week (R. 218). Once a month, La Torre's husband drives her to visit her daughter in Queens. (R. 86.)

In a disability report completed by A. Perreaux at the disability field office pursuant to an in-person interview (R. 197-200), Perreaux noted that La Torre had difficulty sitting and standing (R. 199). Perreaux specifically reported: La Torre "had trouble sitting. She was s[h]ifting in her seat due to pain. She walked slow from reception area to interview area." (R. 199.)

Medical Evidence

Consultative Examinations

La Torre had two consultative examinations on May 19, 2011: Dr. William Lathan and Dr. Arlene Broska conducted internal medicine and psychiatric evaluations respectively. (R. 299-302, 303-06.)

Dr. Lathan reported that La Torre appeared "to be in no acute distress, " but had a limp favoring the right side, and was unable to walk on heels and toes. (R. 304.) La Torre needed no help changing or getting on and off the exam table. (R. 304.) Her squat was fifty percent, but she was "[a]ble to rise from chair without difficulty." (R. 304.) Dr. Lathan reported that La Torre's joints were stable and nontender, with "[n]o trigger points evident, " and no "redness, heat, swelling or effusion." (R. 305.) Dr. Lathan diagnosed a history of fibromyalgia, asthma and depression. (R. 305.) Dr. Lathan concluded that La Torre had "a moderate restriction for stooping, squatting and strenuous exertion, " and "should avoid smoke, dust and noxious fumes." (R. 305.) Dr. Lathan recommended a psychiatric consultation for La Torre. (R. 305.)

At the consultative psychiatric examination, La Torre reported that she "cleans twice a week, does laundry once a week, shops two to three times a week, manages her own money, and takes public transportation independently." (R. 300.) Dr. Broska described La Torre as "cooperative, " with "adequate" overall presentation, social skills and manner of relating. (R. 301.) Dr. Broska reported that La Torre's memory was within normal limits, and she "could recall three of three objects immediately and after five minutes." (R. 300, 301.) La Torre's attention and concentration was "intact, " and she was able to "maintain attention and concentration throughout the interview." (R. 301.) Dr. Broska further noted that La Torre's intellectual functioning is "in the average range, " with a general fund of information appropriate to her experience. (R. 300.) Dr. Broska found that La Torre could "perform simple tasks independently, " and "make appropriate decisions and relate adequately with others, " although she "may not always appropriately deal with stress." (R. 300.) Dr. Broska diagnosed La Torre with adjustment disorder with mixed anxiety and depressed mood. (R. 300.) Dr. Broska concluded that "[t]he results of the examination appear to be consistent with psychiatric problems, but in itself, this does not appear to be significant enough to interfere with [La Torre's] ability to function on a daily basis." (R. 300.) Dr. Broska recommended that La Torre continue with mental health treatment. (R. 302.)

Medical History Evaluations by D. Zanni and Psychologist T. Harding

On May 31, 2011, disability analyst D. Zanni completed a physical residual functional capacity assessment of La Torre. (R. 307-12.) After reviewing La Torre's medical records, Zanni found that La Torre could sit for about six hours and stand for at least two hours in an eight hour work day. (R. 308.) Zanni indicated that La Torre could occasionally and frequently lift or carry up to ten pounds. (R. 308.) Zanni noted that La Torre had a limp and used a cane for support balance. (R. 308.) Due to La Torre's asthma, Zanni indicated that La Torre should avoid concentrated exposure to humidity, fumes, odors, gases and poor ventilation. (R. 310.) Zanni concluded that La Torre had moderate restrictions for strenuous activity, and suggested sedentary residual functional capacity with a restriction from environmental irritants. (R. 310.)

On June 24, 2011, psychologist T. Harding performed a psychiatric review of La Torre's medical records. (R. 313-26.) Dr. Harding indicated that La Torre's impairment was not severe under section 12.04, "affective disorders." (R. 313.) Dr. Harding found that La Torre had a mild restriction in activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence or pace, but no episodes of deterioration. (R. 323.) Dr. Harding found the evidence did not support the presence of section 12.04(C) criteria. (R. 324.)

Treating Physicians at Lincoln Medical and Mental Health Center

On January 21, 2011, La Torre was seen by Dr. Efthimiou at the rheumatology clinic of Lincoln Medical and Mental Health Center. (R. 267-70.) La Torre complained of "electric/shock" pain and neck stiffness with a "pulling burning sensation." (R. 268.) Dr. Efthimiou noted tenderness over the bilateral deltoid, worse on the right side, lumbar muscle tenderness, and six trigger points. (R. 269.) Dr. Efthimiou diagnosed myalgia and myositis, [1] prescribed Sevella and referred La Torre for physical therapy. (R. 269.)

On March 16, 2011, La Torre saw Dr. Peter Kaganowicz. (R. 356-58.) La Torre had been referred from rheumatology for fibromyalgia. (R. 357.) La Torre reported suffering from generalized body pain for two years, with occasional bilateral hand tingling, in addition to depression. (R. 357.) Dr. Kaganowicz noted that La Torre "became teary eyed when speaking about the difficulties of losing her job." (R. 357.) Dr. Kaganowicz diagnosed La Torre with myalgia and myositis. (R. 357.) He found generalized tenderness of her bilateral trapezii, bilateral upper extremities, low back, bilateral knees and hips. (R. 357.) He noted that she could walk on her heels and toes, and the range of motion in her cervical and lower spine was within normal limits. (R. 357.) Dr. Kaganowicz referred La Torre to physical therapy and psychiatry, and instructed her to continue taking Tramadol. (R. 357-58.)

On April 7, 2011, La Torre saw physical therapist Pradeep Bansal for an evaluation. (R. 360-63.) La Torre reported that her pain was getting worse with time and was usually worse in the mornings, limiting her daily activities. (R. 360, 361.) Bansal noted tenderness in her low back and ankles, her rotation and side flexion were limited by twenty-five percent due to pain, and her gait was antalgic on her right lower extremities. (R. 360.) Bansal provided La Torre with a cane, gave her therapeutic exercises to improve strength and flexibility, and instructed her to continue physical therapy. (R. 361-62.)

On April 22, 2011, La Torre was referred to social worker Leora Botnick because she was worried about having her first colonoscopy. (R. 370-73.) Botnick noted that La Torre had "several medical problems including fibromyalgia" and was frustrated by the number of pills she had to take. (R. 371, 372.) La Torre told Botnick that although she had been referred to an outside clinic for psychotherapy, she declined because she did not want to see a different person each time she went. (R. 372.) Botnick explained that La Torre would have a provider at the clinic, but La Torre still refused. (R. 372.) Botnick encouraged La Torre "to seek mental health care or attend a support group" for people with medical problems, but La Torre again declined. (R. 372.)

On May 10, 2011, La Torre had a telephone triage consultation with Nurse Hernandez. (R. 349-51.) La Torre complained of joint pain that had not improved after she took her pain medication. (R. 350.) Nurse Hernandez advised her to go to the emergency room if her pain got worse. (R. 350-51.)

On March 15, 2012, La Torre saw Dr. Takeshige, who ordered bilateral knee and thoracic spine views. (R. 383, 385-86.) The bilateral knee and thoracic spine views, taken on March 19, 2012, were "unremarkable." (R. 385-86.)

On April 10, 2012, La Torre saw Dr. Hanan for joint pain. (R. 338-40.) Dr. Hanan noted that La Torre had an antalgic gait favoring the right lower extremities, generalized tenderness of the bilateral trapezii, bilateral upper extremities, low back, bilateral knees and hips. (R. 339.) Dr. Hanan found her range of motion to be "functional, " and she was able to walk on her heels and toes. (R. 339.) Dr. Hanan noted that La Torre used a cane for ambulation. (R. 339.) Dr. Hanan recommended physical therapy, continued cane use and follow up with her primary care physician. (R. 339.)

On June 12, 2012, La Torre again saw Dr. Hanan for joint pain. (R. 335-37.) He observed the same symptoms as on April 10, 2012. (R. 336.) Dr. Hanan recommended physical therapy and ...

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