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Arzu v. Colvin

United States District Court, S.D. New York

April 1, 2015

MARLON ARZU, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JAMES C. FRANCIS, IV, Magistrate Judge.

The plaintiff, Marlon Arzu, brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking review of a determination of the Commissioner of Social Security (the "Commissioner") finding that he is not entitled to disability insurance benefits for the period of October 10, 2007, through March 31, 2012. The parties have submitted cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Commissioner's decision is vacated in part and the case is remanded to the Social Security Administration (the "SSA") for further proceedings consistent with this opinion.[1]


A. Personal History

Marlon Arzu was born on November 14, 1972. (R. at 504).[2] He lives at home with his wife and children. Mr. Arzu is fluent in English, but his first language is Spanish. (R. at 506). He has completed at least eleventh grade, and from 1990 to 1993, he worked as a security guard for a stock company. (R. at 114). Mr. Arzu goes to church with his mother nearly every week and he occasionally attends other social functions. (R. at 508). He no longer participates in any sports, but periodically goes to the park with his children. (R. at 508-09, 511).

B. Medical History Prior to 2010

Mr. Arzu was born with congenital scoliosis, and in 1989 he had straightening rods implanted. (R. at 180, 356, 509). On January 11, 2006, the plaintiff underwent surgery to remove some of the hardware at the New York University Hospital for Joint Diseases. (R. at 356). During that procedure, Dr. Jeffrey Spivak performed a decompressive lumbar laminectomy (R. at 356-58). The surgery was required because of lower extremity pain and advanced disk degeneration at L4-5. (R. at 356). The degeneration was "stable, " but surgery was necessary because of "significant stenosis" at L3 and L4-5 and the failure of other treatment to alleviate Mr. Arzu's leg pain. (R. at 357).

The medical records indicate that on January 24, 2006, Mr. Arzu's leg pain had been relieved and he reported no back pain. (R. at 153). On February 21, 2006, he requested a different brace, but still reported no pain. (R. at 152). On April 4, 2006, after beginning physical therapy, Mr. Arzu complained of occasional back spasms, but his back and leg pain had improved. He was prescribed Neurontin and Skelexin. (R. at 150). Mr. Arzu returned to the Hospital for Joint Diseases on July 25, 2006, and reported right thigh and leg pain which was not relieved with Neurontin. (R. at 148). On September 5, 2006, he complained of back pain, and straight leg raising[3] was positive on the right side. (R. at 146). Later, in October 2006, Mr. Arzu reported feeling better after physical therapy and treatment with muscle relaxants. Straight leg raising was negative, he reported pain only when bending, and he was given permission to travel by train. (R. 144-45). On January 23, 2007, Mr. Arzu had a muscle strength rating of 5/5, straight leg raising was negative, and motor strength was intact. Indeed, the plaintiff reported that even though he had a dull ache in his legs in the morning, and a pain level of 4-5 out of 10, his symptoms were improving. (R. at 143.) On August 14, 2007, Mr. Arzu had full motor strength, he had good toe- and heel-walk, sensation was intact, and he displayed no nerve root tension signs. Yet, he had mild tenderness to palpation and his forward lumbar flexion was limited to 1/4 to the floor. (R. at 142).

The plaintiff saw Dr. Jamshid Sheikh on November 14, 2007 for a consultative examination. Dr. Sheikh recorded that Mr. Arzu was 71 inches tall and weighed 176 pounds. His blood pressure was 160/94 and he walked with a normal gait. He could squat fully, used no assistive devices, and his strength was 5/5 in the upper and lower extremities. There was full range of motion of the hips, knees, ankles, shoulders, elbows, forearms, and wrists bilaterally. (R. at 166-67). Dr. Sheikh opined that the plaintiff had "mild limitations with respect lifting, pushing, pulling, and carrying heavy loads, " but no other physical limitations. (R. at 168).

Mr. Arzu returned to work stocking shelves prior to seeing Dr. Philip J. Glassneer on March 4, 2008, at the Hospital for Joint Diseases Clinic. That day he sought treatment for back pain which occasionally radiated to his lower left extremity. The pain worsened with heavy overhead lifting. (R. at 810, 812). Dr. Glassneer noted that there were no "hard findings" explaining the back pain. (R. at 810, 812). He recommended that the plaintiff could return to work but should limit overhead lifting until the pain subsided. (R. at 810, 812).

On February 24, 2009, Mr. Arzu again visited the Hospital for Joint Diseases. On that date, he informed Dr. Scott Robert Hadley that his back pain had been constant for the prior six months. (R. at 808). It worsened while sitting and was relieved with standing. Prior to seeing Dr. Hadley, Mr. Arzu attended "back school"[4] which relieved some of his pain. He had stopped going to "back school" by February 24, however. (R. at 808). Dr. Hadley advised Mr. Arzu that he could return to work, but that he should refrain from any heavy lifting or bending. (R. at 808).

Two months later, on April 21, Mr. Arzu saw Dr. Bryan C. Ding at the Hospital for Joint Diseases complaining of lower back pain. Dr. Ding recommended an epidural steroid injection, prescribed physical therapy, and scheduled an MRI. (R. at 390).

The MRI took place on April 26, 2009, and imaging revealed mild central canal stenosis at L4-5, posterior fusion with instrumentation at L3, and a persistent marked levoconvex lumbar curvature at L2. (R. at 804-05). Additionally, the MRI showed a new mass lesion compressing the descending right L5 nerve root in the L5 lateral recess. This mass lesion was thought to represent a complex synovial cyst or a sequestered disc fragment. (R. at 805).

On June 30, 2009, Mr. Arzu saw Dr. Catherine Noelle Laible at the Hospital for Joint Diseases. Again he reported feeling lower back pain. "Back school" had resolved his pain, but he had not attended since the previous year. She prescribed Celebrex and a thoracic lumbar sacral orthosis back brace. (R. at 801).

On September 22, 2009, Mr. Arzu complained of lower back and left leg pain. Dr. Justin Park noted that the plaintiff had not been to physical therapy for over four years, did not receive his lumbar epidural injection, and had stopped taking Celebrex and wearing his back brace.[5] (R. at 388). The plaintiff claimed that prior lumbar epidural injections did not help and stated that he stopped taking Celebrex because it made him sleepy and stopped wearing the back brace because it was digging into his thighs. (R. at 388). The examination revealed that straight leg raising was negative, and Dr. Park recommended "back school." (R. at 389).

Mr. Arzu again returned to the Hospital for Joint Diseases on November 10, 2009. He sought treatment for his continued low back pain from Dr. Deepan N. Patel. Mr. Arzu reported that the 2006 surgery helped with his pain, but did not resolve it completely. He told Dr. Patel that 90% of his pain was in his back and 10% was in his left leg. The pain worsened at night, but was relieved when he lay supine. (R. at 796). Mr. Arzu rated his pain as an 8 on a scale from 1 to 10, yet when medicated, the pain dropped to a 3. (R. at 797). Dr. Patel advised the plaintiff to avoid strenuous activity and maintain normal activities interspersed with short periods of rest. He also recommended physical therapy and prescribed Naproxen. (R. at 796-98).

C. Medical History From 2010 to April 1, 2012

Dr. T. Stanley is an orthopedic spine specialist, and on January 5, 2010, he completed a medical source statement concerning Mr. Arzu's ability to perform work-related activities. (R. at 395-401). In the report, Dr. Stanley opined that Mr. Arzu could lift and carry up to ten pounds occasionally. (R. at 395). He also concluded that Mr. Arzu could sit for one hour, stand for 30 minutes, and walk for 15 minutes at a time without interruption. In addition, Mr. Arzu could sit for eight hours, stand for one hour, and walk for 20 minutes total in an eight-hour day. He did not require the use of an assistive device to ambulate and he could walk one-half block without an assistive device. (R. at 396). Dr. Stanley opined that the plaintiff could use his hands and feet continuously. (R. at 397). Mr. Arzu could continuously crawl, occasionally balance, kneel, and climb stairs, ramps, ladders, or scaffolds. (R. at 398). Dr. Stanley also opined that Mr. Arzu could only occasionally operate a motor vehicle, and could never work near vibrations or at unprotected heights. (R. at 399). Finally, Dr. Stanley reported that Mr. Arzu could go shopping, travel unaccompanied, use public transportation, feed himself, sort files, and care for his personal hygiene, but he could not walk one block at a reasonable pace on rough or uneven surfaces. (R. at 400).

On April 13, 2010, Mr. Arzu returned to the Hospital for Joint Diseases complaining of low back pain and saw Dr. Randy Cohn. Dr. Cohn noted that Mr. Arzu had been noncompliant with physical therapy for several years, and he had a lengthy discussion about the necessity of the therapy. (R. at 794).

On April 22, 2010, Frederick Daniels, Mr. Arzu's physical therapist, reported to Dr. Cohn that the plaintiff complained of a pain rating of 10 out of 10, and that he was experiencing spasms throughout the spine. (R. at 751).

The Division of Disability Determination referred Mr. Arzu to Dr. Eugene Edynak for an orthopedic examination on May 10, 2010. Dr. Edynak's report indicated that the plaintiff had full range of motion of his hips, knees, and ankles bilaterally. (R. at 754). Both his upper and lower extremities had strength at 5/5 in proximal and distal muscles bilaterally, and there was no muscle atrophy or joint effusion, inflammation, or instability. (R. at 753-754). Hand and finger dexterity was intact and grip strength was 5/5 bilaterally. (R. at 753). Dr. Edynak recorded that Mr. Arzu could walk for one and one-half blocks, his back pain rated at 6 on a scale of 1 to 10, and that his medication lowered the pain to a rating of 4 out of 10. (R. at 752). Mr. Arzu's lateral flexion was 20 degrees to the left, and 20 degrees to the right. And his lateral rotation was 30 degrees to the right and 25 degrees to the left. (R. at 753). During the examination, Mr. Arzu had a normal gait, and he was able to change his clothes and get on and off the examination table without assistance. (R. at 753). Dr. Edynak concluded that Mr. Arzu's prognosis was "fair, " and that he had mild to moderate limitations with sitting, standing, walking, climbing stairs, bending, carrying, and heavy lifting because of his chronic low back pain and prior surgery for scoliosis. (R. at 754).

From May 10, 2010, the date of Dr. Edynak's examination, until April 13, 2011, there are no medical reports or opinions in the record. And, from April 13, 2011, until April 1, 2012, the date an Administrative Law Judge found the plaintiff to be disabled, the only medical evidence in the record comes from Dr. Luciano Tuluca. Dr. Tuluca is a pain ...

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