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Leonard v. Colvin

United States District Court, E.D. New York

February 6, 2017

GERARD LEONARD, Petitioner,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.

          OPINION & ORDER

          NINA GERSHON United States District Judge

         Plaintiff Gerard Leonard brings this action seeking reversal of the decision of Carolyn Colvin, the Acting Commissioner of Social Security (the "Commissioner"), denying plaintiffs claim for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"). 42 U.S.C. §§ 401 et seq. After a hearing on August 14, 2014, at which plaintiff appeared with his attorney, Administrative Law Judge Bruce MacDougall (the "ALJ") concluded that Leonard was not disabled because, though unable to perform past relevant work, he had the residual functional capacity ("RFC") to perform light work. That decision became final on August 10, 2015 when the Appeals Council denied plaintiffs request for review. Plaintiff then timely commenced this action on October 5, 2015, and both parties moved 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 motion is denied and plaintiffs motion is granted insofar as he seeks remand for further administrative proceedings.

         I. Background

         A. Factual and Medical Evidence Before the ALJ

         Plaintiff was born on September 16, 1967 and was forty years old at the alleged onset date of his disability-November 30, 2007. Administrative Record ("AR.") at 103. Prior to that, plaintiff had worked as a police officer from 1993 to 2007, and as an aide for the Development Disabilities Institute from 1986 to 1993. For the final 18 months of his time as a police officer, plaintiff was assigned to desk work as a result of his physical condition. In 2007, he retired on disability from the police force. AR. at 47-48, 119.

         Plaintiff applied for DIB based on orthopedic injuries, including injuries to his knees and spine. Plaintiff describes his back as always aching and, at times, with a shooting, stabbing pain. AR. at 132. Plaintiffs last insured date was December 31, 2013.

         In a function report that plaintiff completed on May 6, 2013, he indicated that his daily activities include: reading the paper, walking the dog, going to the health club to stretch, riding a bike (at the gym), doing limited chores, and watching television. AR. at 125. This report also indicates that he is no longer able to do some basic household chores, such as mowing the lawn, carrying heavy packages, vacuuming, and doing repairs around the house. Id. Though he can prepare simple meals on a daily basis, standing for too long while doing so is painful and his wife often does the cooking. Id. at 126-27. As to traveling, plaintiff is able to walk, drive a car, and use public transportation, all of which he can do independently. Plaintiff is also capable of shopping for food, clothing, and home supplies, which he does for a few hours biweekly. Plaintiffs alleged disability has not affected his ability to socialize, which he does on a daily basis, such as by going to church, the bookstore, or out with friends. AR. at 129. As to physical limitations, plaintiff states that he is very restricted in his ability to lift, cannot stand for extended periods of time, cannot walk for long periods without taking a break, can only sit for short periods, can climb stairs (but must do so slowly), and has difficulty kneeling, squatting, and reaching. AR. at 129-30. As discussed below, these observations are largely consistent with plaintiffs testimony at the ALJ hearing-that his back pain is not so debilitating he is unable to do anything, but rather that the pain imposes significant limitations on his ability to function.

         Plaintiffs treatment for back pain began in 2008 when he sought medical care from Dr. Marc Yland-an anesthesiologist and pain management specialist. At that time, plaintiff stated that he had low back pain radiating to his left leg, and that a knee injury he had three years prior was now resulting in an aching/stabbing pain in his knee. An MRI taken on April 23, 2008 revealed desiccation to one disc in his back and a disc herniation. Dr. Yland diagnosed intervertebral disc disorder, neuropathic pain, and radiculitis. AR. at 176. During this period, plaintiff attended physical therapy, and Dr. Yland administered epidural steroid injections in May and June of 2008, which alleviated plaintiffs pain. AR. at 177-82. On July 13, 2010, Leonard sought another injection from Dr. Yland, which he administered, but it did not alleviate the pain. AR. at 186-88. Dr. Yland provided another injection on August 3, 2010, which led to some reduction in pain. AR. at 190-92.

         On March 21, 2013 (shortly before filing for disability), plaintiff sought treatment with Dr. Sebastian Lattuga, a board certified orthopedic surgeon, for back pain and left leg pain. AR. at 163. He rated his back pain as a nine on a scale from one to ten. When evaluating the 2008 MRI discussed above, Dr. Lattuga noted an extruded disc and a disc bulge. In his report, he noted plaintiff had spasms and restricted flexion, extension, and left and right turning. He also documented that the motor exam was not within normal limits, as plaintiffs sensation was "altered." AR. at 163. Dr. Lattuga diagnosed a lumbar disc herniation with radiculopathy. AR. at 164. As treatment, Dr. Lattuga discussed both surgical and non-surgical options, such as chiropractic care, physical therapy, steroid injections, and medication. Id. Plaintiff chose the nonsurgical route and proceeded with chiropractic care, physical therapy, and lumbar spine injections.[1]

Another MRI was conducted on October 12, 2013 and submitted to Dr. Lattuga; it revealed a near complete resolution of the disc herniation previously seen at ¶ 5-S1. However, a disc bulge remained at ¶ 4-5 with mild stenosis and retrolisthesis. AR. at 194.

         On December 4, 2013, plaintiff returned to Dr. Lattuga's office because of back pain and left leg pain. On this occasion, he was seen by Dr. Lattuga's associate, Dr. Demetrios Mikelis. Dr. Mikelis diagnosed lumbar disc herniation with radiculopathy and discussed the same treatment options that Dr. Lattuga previously offered. Again, plaintiff opted for the non-surgical interventions. AR. at 173-74.

         Dr. Lattuga completed two medical reports-one on March 22, 2013 and another on August 12, 2014. In his 2013 report, Dr. Lattuga concluded that plaintiff could stand/walk for two hours per day and could sit for two hours per day. AR. at 166. The 2014 report was largely consistent with the 2013 report. In the 2014 report, Dr. Lattuga concluded that plaintiff was limited to occasionally lifting ten pounds, could only stand/walk for less than two hours per day, could sit for less than four hours per day, and could push/pull no more than ten pounds. AR. at 199.

         On May 14, 2013, at the behest of the Social Security Administration, plaintiff was examined by consultative examiner Dr. Dutta, who is a general surgeon and not an orthopedic specialist.[2] He diagnosed left shoulder pain, disc desiccation and retrolisthesis of L5-S1 with history of spinal canal stenosis, and post arthroscopic repair of meniscus and shaving of the patella in the right knee. AR. at 170. He concluded that plaintiff had "mild limitation for sitting and standing" and a "moderate limitation for walking, bending frequently, and lifting heavy weight on a continued basis." AR. at 171.

         B. Hearing Before the ALJ

         ALJ MacDougall held a hearing on August 14, 2014, at which only the plaintiff testified. AR. at 43-62. Plaintiff testified that he had had surgery in 1995 on his knee and again in 2005, and a shoulder surgery in 1997. AR. at 49, 55. As reported in his initial application for benefits, plaintiff stated that his knee pain significantly limits his ability to walk and sit. AR. at 52-53. Plaintiff further testified that he no longer does maintenance work around the house (e.g. caring for the lawn), but is able to do some things to maintain a household, such as dusting or going shopping. When the hearing turned to plaintiffs back, plaintiff stated that it hurts a lot, but the ALJ stated, "You know, I saw an MRI. It looked like actually your back has kind of gotten better." AR. at 56. In response, plaintiff said, "It doesn't feel it." Id. When asked about how his back affects him, plaintiff said that it causes extreme pain, and that, as he was sitting at the hearing testifying, it was causing his shins to have pins and needles. AR. at 57. As to how his back limits his daily activities, plaintiff stated that it interferes with his ability to climb stairs, walk, and sit. AR. at 58. The ALJ also asked plaintiff about Dr. Lattuga's report, which concluded that he could lift only ten pounds occasionally. Specifically, the ALJ asked whether plaintiff could indeed only lift ten pounds. In response, plaintiff said that he could pick up more than ten pounds, but that Dr. Lattuga wanted him to limit such activities. AR. at 59.

         After the ALJ's examination, plaintiffs attorney asked him a few questions, which elicited the fact that plaintiff can sit for only ten to fifteen minutes before feeling the need to stand up, and that he can only stand in one position for five minutes. AR. at 60-62.

         C. ...


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