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Colegrove v. Colvin

United States District Court, W.D. New York

February 13, 2015

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

For Scott Wilbur Colegrove, Plaintiff: Howard D. Olinsky, LEAD ATTORNEY, Olinsky Law Group, Syracuse, NY.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Joanne Jackson, Peter William Jewett, LEAD ATTORNEYS, Social Security Administration, Office of General Counsel, New York, NY; Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Scott Wilbur Colegrove (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § § 405(g) and 1383(c)(3) seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" the Commissioner" ), denying Plaintiff's application for disability insurance benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) John P. Costello was not supported by substantial evidence in the record and was based on erroneous legal standards.

Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 7, 10). For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. 10) is denied, Plaintiff's motion (Dkt. 7) is granted in part, and this matter is remanded for further administrative proceedings.

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A. Overview

On January 19, 2011, Plaintiff protectively filed an application for disability insurance benefits. (Administrative Transcript (hereinafter " Tr." ) 126). In his application, Plaintiff alleged a disability onset date of March 1, 2006. ( Id.). Plaintiff alleged the following disabilities: epilepsy, a back condition, and depression. (Tr. 146). On April 28, 2011, the Commissioner denied Plaintiffs application. (Tr. 77).

On March 20, 2012, Plaintiff, represented by counsel, testified at a hearing before ALJ Costello. (Tr. 24-50). Vocational Expert (" VE" ) Peter Manzi also appeared and testified. (Tr. 52-58). On April 24, 2012, the ALJ issued a finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 10-18).

On October 24, 2013, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-4). On December 20, 2013, Plaintiff filed this civil action appealing the final decision of the Commissioner. (Dkt. 1).

B. The Non-Medical Evidence

Plaintiff was 39 years old on the date of his application. (Tr. 12, 126). Plaintiff has a twelfth grade education and vocational training in heavy equipment operation. (Tr. 147). Plaintiff had previous work experience as a contracted laborer. ( Id.).

1. Plaintiff's Testimony

Plaintiff testified that he could not remember much of his past work. (Tr. 31-32). Plaintiff last worked part-time as a firefighter in Georgia. (Tr. 29-30). Plaintiff reported that his epilepsy was his most serious condition. (Tr. 36). He had a seizure in March of 2006 that placed him in the hospital in a medically-induced coma. (Tr. 33). He experienced memory loss as a result of his epilepsy. (Tr. 37). Plaintiff indicated that he had difficulty remembering instructions. ( Id.). Plaintiff testified that he also had difficulty with reading comprehension. (Tr. 38). Plaintiff enjoyed hunting and fishing. (Tr. 43).

Plaintiff testified that he had knee pain, and that walking and sitting hurt his knees. (Tr. 39-40). He also had back pain. (Tr. 40). Plaintiff stated that he could sit for approximately one-half hour at a time because of this pain. ( Id.). Plaintiff had trouble sleeping and was awake for most of the night. (Tr. 41). He got up to put his daughter on the bus and would sleep until the early afternoon when his daughter got off the bus. ( Id.). He indicated that his pain medications helped, but did not completely alleviate his pain. ( Id.).

2. Vocational Expert's Testimony

At the hearing, the ALJ presented the VE with a series of hypothetical questions. (Tr. 46-49). First, the VE was asked to consider someone of Plaintiff's age, education, and work experience who could perform work at a medium exertional level who was limited by needing to avoid heights, heavy machinery, and driving, and was limited to simple tasks. (Tr. 47). The VE opined that such a person could not perform Plaintiff's past relevant work, but could perform the job of a cafeteria attendant, which was light in exertion and unskilled. (Tr. 48).

The ALJ then presented a second hypothetical question that limited the hypothetical individual to light work with the same additional restrictions. ( Id.). The VE stated that such an individual could perform the work of a cafeteria attendant or

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collator operator, both light and unskilled positions. ( Id.).

In a third hypothetical, the ALJ imposed an additional restriction of a need for a supervisor to remind the individual of tasks once per hour. ( Id.). The VE opined that such an individual could not maintain employment. ( Id.).

The ALJ then asked if the individual from the first hypothetical could maintain gainful employment if he was off task approximately 20% of the time. ( Id.). The VE stated that such an individual could not maintain gainful employment. ( Id.).

C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On June 20, 2005, Plaintiff was admitted to the Baroness Erlanger Emergency Department following a motor vehicle collision. (Tr. 233). Plaintiff's vehicle had struck a telephone pole, and bystanders reported finding Plaintiff " having a seizure." ( Id.). The EMS reported that Plaintiff was " post-ictal at scene." ( Id.). Plaintiff had a seizure despite taking Depakote. ( Id.).

On March 20, 2006, David C. Bosshardt, M.D., from Ehitcheson Emergency Department in Oglethorp, Georgia, noted that on March 3, 2006, Plaintiff was brought into the department unconscious after being found slumped over the front seat of a fire truck. (Tr. 240). Plaintiff was a firefighter and was about to respond to a fire call when he was found in the vehicle by another firefighter. (Tr. 277). Plaintiff was treated in the intensive care unit for " intense treatment of seizures." (Tr. 240). Plaintiff was discharged on March 20, 2006, with restrictions that he not drive for one year and that he would need assistance with transfers and ambulation. (Tr. 241).

On December 15, 2006, Plaintiff treated with Thomas Walters, M.D., at Tri-County Family Medicine, reporting palpitations, depression, and a seizure disorder. (Tr. 400).

On January 8, 2007, Dr. Walters noted that x-rays of Plaintiff's spine revealed a slight, approximately 15% compression of a mid-thoracic vertebral body. (Tr. 399).

On January 22, 2007, Plaintiff reported increased back pain. (Tr. 398).

On January 30, 2007, Dr. Walters assessed Plaintiff with sleep apnea. (Tr. 397).

Following a DEXA scan of Plaintiff's back, Dr. Walters noted on February 19, 2007, that Plaintiff had osteopenia. (Tr. 333, 396).

Plaintiff treated with Dr. Walters on April 24, 2007, complaining of worsening back pain. (Tr. 394). Dr. Walters noted that an MRI showed bulging discs in Plaintiff's lumbosacral spine, but no nerve compression. ( Id.). Dr. Walters diagnosed Plaintiff with " myofascial pain with the parapspinous muscles of the low back. Mild-to-moderate contribution from degenerative disc disease." ( Id.). Plaintiff was prescribed Vicodin and physical therapy. ( Id.).

On April 26, 2007, Joseph Mann, M.D., noted that Plaintiff had not had a seizure in approximately one year. (Tr. 461). Plaintiffs neurological exam was normal, and Dr. Mann recommended that Plaintiff see VESID for vocational training. ( Id.).

On June 21, 2007, Dr. Walters wrote Plaintiff a prescription for physical therapy and noted that Plaintiff was recently discharged from his physical therapist due to noncompliance. (Tr. 392).

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Dr. Walters examined Plaintiff on July 17, 2007, and noted that Plaintiff had intermittent back pain and numbness but had normal strength in his lower extremities. ( Id.). Dr. Walters indicated that Plaintiff had been unsuccessful in his attempts to get disability benefits, and " released him to return to work without restrictions." ( Id.).

On September 14, 2007, Dr. Azzam Alkudari treated Plaintiff for chronic low back pain. (Tr. 466). Dr. Alkudari examined Plaintiff and noted a decreased range of motion in his lumbar spine, although Plaintiff's gait was normal and his muscle strength was full in the lower extremities. (Tr. 467).

Dr. Alkhudari performed right lumbar facet joint steroidal injections at L2, L3, L4, and L5 on October 11, 2007. (Tr. 465). Dr. Alkhudari administered additional injections on December 7, 2007. (Tr. 457). On January 28, 2008, Dr. Alkhudari performed branch blocks on L3, L4, and L5. (Tr. 455).

On January 29, 2008, Plaintiff again treated with Dr. Walters for back pain, seizures, and depression. (Tr. 385). Plaintiff reported worsening depression and that he was not allowed to work as a volunteer firefighter in Livingston County due to interactions with the county coordinator. ( Id.). Plaintiff stated that he wished he had passed away after his " myocardial infarction in Georgia." ( Id.). Dr. Walters found that Plaintiff presented with a flattened affect. ( Id.).

On February 15, 2008, Plaintiff was treated by Dr. Alkhudari. (Tr. 454). Plaintiff had a normal gait and could flex his lumbar spine to 90 degrees and extend to 20 degrees. ( Id.). An MRI showed no significant findings, although Plaintiff reported no lasting pain relief with the injections. ( Id.).

On February 26, 2008, Plaintiff visited Dr. Walters complaining of back pain and depression. (Tr. 383). Plaintiff also reported bilateral knee pain. ( Id.). Dr. Walters told Plaintiff to continue taking Kadian for his back pain and Vicodin for breakthrough pain. ( Id.). Dr. Walters ...

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