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Vered v. Colvin

United States District Court, E.D. New York

February 16, 2017

DAVID VERED, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE

         Pursuant to 42 U.S.C. § 405(g), plaintiff David Vered (“plaintiff”) appeals the final decision of defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (“defendant”), who denied plaintiff's application for Social Security Disability Insurance (“SSDI”) under Title II of the Social Security Act (“the Act”). Plaintiff brings this action seeking judicial review of the Social Security Administration (“SSA”) decision that he was not disabled because he did not have medically determinable severe medical impairment(s) that lasted or could have lasted for a continuous period of at least twelve months from January 1, 2002, the alleged onset date, through December 31, 2005, the date last insured. For the reasons stated herein, defendant's motion for judgment on the pleadings is GRANTED, plaintiff's cross-motion for judgment on the pleadings is DENIED, and the decision of the Commissioner is AFFIRMED.

         BACKGROUND

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSDI benefits on February 22, 2011, alleging that he had been disabled since January 1, 2002 due to a back disorder, herniated disc, arthritis, vision problems, leg problems, and memory problems. (Tr. 260.)[1] On March 24, 2011, the SSA denied plaintiff's application finding he was not disabled. (Tr. 144.)

         On July 22, 2011, plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 150-51.) The request was granted and the hearing (“Initial Hearing”) was held on June 27, 2012, before ALJ Jay Cohen. (Tr. 77-103.) After the Initial Hearing, the ALJ sent interrogatories to medical expert Karl Manders, M.D., which Dr. Manders completed. (Tr. 627.) The ALJ served the completed interrogatories on plaintiff and indicated that the completed interrogatories would be added to the record. (Tr. 282-83.) On September 11, 2012, plaintiff requested a supplemental hearing to cross-examine the medical expert, testify and to submit additional evidence. (Tr. 42-44.) The supplemental hearing was held on November 28, 2012 (“Supplemental Hearing”), where both plaintiff and the medical expert testified. (Tr. 104-42.)

         In a decision issued on January 14, 2013, the ALJ found that plaintiff was not disabled, as defined by the Act, from January 1, 2002, the alleged onset date, through December 31, 2005, the date last insured (hereinafter “the date last insured”).[2] (Tr. 35.) The ALJ applied the five-step evaluation process for determining whether an individual is disabled, but ended the analysis at Step Two after finding that plaintiff's impairments were not severe. (Tr. 35); see also 20 C.F.R. § 404.1520(a).

         Plaintiff appealed the ALJ's decision to the Appeals Council on March 14, 2013. (Tr. 7-23.) On June 6, 2014, the Appeals Council denied plaintiff's request for review and the ALJ's decision became the Commissioner's final determination. (Tr. 1-6.) This appeal followed.

         On July 31, 2014, plaintiff filed the Complaint in this action. (See ECF No. 1.) On October 29, 2014, defendant filed its Answer. (See ECF No. 9.) On March 19, 2015, the parties filed their motion and cross-motion for judgment on the pleadings. (See ECF Nos. 12-21.)

         II. NON-MEDICAL FACTS

         Plaintiff was born on March 19, 1953 and he resides in Queens, New York. (Tr. 256, 259.) He was 48 years old as of the alleged onset date of his disability, January 1, 2002. (Tr. 256.) Plaintiff can speak, and generally understands English, but cannot read or write English. (Tr. 79, 83, 259.) At the Initial Hearing, plaintiff was assisted by a Hebrew interpreter and stated that he had lived in the United States for the past thirty-three years and owned a locksmith business. (Tr. 81, 83.) At the Supplemental Hearing, plaintiff testified that he passed the United States citizenship test, which was administered in English. (Tr. 108-09.) During plaintiff's visit to the New York Ear and Eye Infirmary on March 4, 2011, plaintiff mentioned that he did not need a medical interpreter. (Tr. 332.)

         Plaintiff reported in his disability application that he completed twelfth grade in 1970. (Tr. 261.) But, at the Initial Hearing, plaintiff testified that the last grade he completed was the sixth grade; he also testified that he completed a three month welding course, shortly before immigrating to the United States, approximately thirty-three years earlier. (Tr. 81-82, 94.)

         Plaintiff worked as a locksmith from 1989 to 2000. (Tr. 82-83, 260-61.) During the last four or five years that he worked, plaintiff managed a locksmith business where he supervised one employee. (Tr. 83-84, 108-09.) While managing the business, plaintiff's responsibilities included ordering supplies, communicating in English with customers, and advertising for the business. (Tr. 83-84.) Plaintiff closed the business in 2000. (Tr. 83-84.) In the fifteen years prior to claiming disability, plaintiff only worked as a locksmith. (Tr. 261.)

         After plaintiff began feeling pain but prior to December 31, 2005, the date last insured, plaintiff testified that he would spend all day at home; he watched television and read while lying down. (Tr. 90.) He further testified that he did not cook, or clean his apartment, or do any shopping. (Id.) Plaintiff stated he could drive a car, but not every day, and that he did not use public transportation and his wife took him to all his doctors' appointments. (Tr. 90-91.) Plaintiff testified that he did not do anything for recreation, but his brother sometimes would take him to visit friends or family. (Id.)

         Plaintiff's earnings record shows that he acquired sufficient quarters of disability coverage to remain insured through December 31, 2005. (Tr. 27, 247-253.) Plaintiff did not seek treatment or engage in physical therapy while he traveled abroad for six months during 2006. (Tr. 525.)

         III. MEDICAL FACTS[3]

         i. Plaintiff's Testimony Regarding His Symptoms

         At the Initial Hearing, plaintiff testified that he could not work starting January 1, 2002, because he had fallen on the sidewalk “at that time” and injured his “entire back, ” and was unable to work thereafter. (Tr. 85.) Plaintiff testified that prior to December 31, 2005, he had surgery on his knee and on a cataract. (Tr. 88-89.) Plaintiff stated that he started seeing Dr. Richard A. Gasalberti, M.D. in 2005 for neck and back pain, and was administered “numbing injections” as well as a pain treatment that “burned” his veins. (Tr. 87-88.) Plaintiff also stated that, on or before December 31, 2005, his “spinal cord” injury caused him pain which traveled down his legs, and that he felt persistent pain in his back at all times. (Tr. 85, 87.) He testified that, prior to December 31, 2005, he could walk and stand for fifteen minutes, sit for twenty minutes, and that he could lift a maximum of ten to fifteen pounds. (Tr. 86-87.)

         Plaintiff initially testified that he did not have any problems with carpal tunnel syndrome prior to December 31, 2005.

         (Tr. 88-89.) But, upon questions from his attorney, plaintiff testified that he started seeing Marc Silverman, M.D., in 2004, not only for pain in his back and neck, but also because he had pain in his hands that prevented him from holding a cup of coffee.[4](Tr. 92-93.) Plaintiff also stated that in 2004, he was unable to pick up a gallon of milk due to “really bad pain” in his hands and legs. (Tr. 94.)

         Plaintiff testified that he had no mental health problems prior to December 31, 2005, but was prescribed Valium by a family doctor for stress. (Tr. 89.) He also reported that he “always received pain medication” and that the pain medication made him drowsy and caused him to fall asleep; this sleep, however, was not restful. (Tr. 96.) Plaintiff further stated that, on and before December 2005, he could not sleep through the night because of the pain despite taking pain medications. (Tr. 96-97.)

         ii. Medical Evidence

         i. Treating Relationship with Marc Silverman, M.D.

         On March 5, 2004, plaintiff first visited orthopedic surgeon Marc Silverman, M.D., with complaints of lower back pain and pain running down his left leg for the past seven or eight months. (Tr. 326-27.) Plaintiff indicated no history of injury or trauma. (Tr. 318.) Dr. Silverman's physical examination indicated that plaintiff had pain on lumbar flexion and that plaintiff could toe and heel walk.[5] (Tr. 327.) Dr. Silverman diagnosed “L4-L5” degenerative disc disease with recommended physical therapy and ice. (Tr. 318.) Dr. Silverman also recommended an electromyography (“EMG”) study. (Tr. 327.) The EMG, taken on March 9, 2004, was compatible with mild right median sensory and mild bilateral tibial motor nerve compromise. (Tr. 318, 320-25.) The x-rays of plaintiff's cervical spine, taken on March 29, 2004, were within normal limits. (Tr. 328.)

         On March 29, 2004, plaintiff returned to Dr. Silverman, reporting that he had undergone physical therapy, but still had pain in his neck. (Tr. 318-19.) Examination of his neck showed more “pain on flexion” than on extension, and Dr. Silverman noted that plaintiff's reflexes appeared to be intact. (Tr. 319.) Dr. Silverman recommended continued physical therapy for plaintiff's neck and back, but added physical therapy for plaintiff's cervical spine, a visit to a neurologist, a right wrist splint, and a change of medication to Relafen tablets. (Id.) Dr. Silverman also noted that if there was no improvement in plaintiff's right wrist, a right carpal tunnel release would be considered, and if plaintiff saw no improvement in his back or neck, a referral to a spine surgeon would also be considered. (Id.)

         On September 13, 2004, five months later, plaintiff returned to Dr. Silverman and reported “a lot of pain in [plaintiff's] neck and his back.” (Tr. 329.) Dr. Silverman noted that “[plaintiff] has not yet worn the wrist cock-up splint” as previously recommended. (Id.) Dr. Silverman again recommended the use of a wrist cock-up splint and recommended that plaintiff visit a spine surgeon. (Id.) In a letter dated July 19, 2011, Dr. Silverman stated that plaintiff had been under his care from March 5, 2004 through September 13, 2004 and that plaintiff was “totally disabled from work during this period due to his injuries.” (Tr. 340.)

         ii. Treating Relationship Richard Gasalberti, M.D.

         On October 31, 2005, more than a year after plaintiff's last visit to Dr. Silverman, plaintiff went to sports medicine and rehabilitation specialist, Dr. Richard A. Gasalberti, M.D. for an initial consult. (Tr. 559-63.) Plaintiff reported that, two or three weeks earlier, he bent down to pick something up and developed pain in his lower back with radicular symptoms to both feet. (Tr. 559.) He reported that the pain was worse with activity and relieved with rest but medication did not alleviate his pain. (Id.) Plaintiff also complained of neck pain for the past two weeks, with radicular symptoms to both upper arms and nocturnal symptoms. (Id.) Plaintiff denied prior significant medical problems or history of injury to the neck or back. (Id.)

         Dr. Gasalberti found that plaintiff was alert and fully oriented with normal memory. (Tr. 561.) Plaintiff's cervical ranges of motion were restricted.[6] Plaintiff had functional ranges of motion in the upper extremities, hips, knees, and ankles. (Tr. 561.) Sensation was intact in plaintiff's upper extremities. Plaintiff had full strength (5/5) in his upper and lower extremities, and plaintiff's deep tendon reflexes of the triceps, biceps and brachioradialis were symmetrical. (Id.) From these findings, Dr. Gasalberti diagnosed plaintiff with a history of chronic low back pain, re-exacerbation, and lumbar myofascial pain syndrome; he noted that bilateral lumbar radiculopathy and cervical radiculopathy needed to be ruled out. (Tr. 562.) Dr. Gasalberti recommended Magnetic Resonance Imaging (“MRI”) of plaintiff's cervical and lumbar spines, and an EMG study of plaintiff's upper and lower extremities. (Id.) Dr. Gasalberti prescribed: Naprosyn, Vicodin, Lidoderm, a lumbosacral corset for support, moist heat, Ben Gay, wrist splints, and physical therapy. (Id.)

         On November 3, 2005, on recommendation by Dr. Gasalberti, Jeffrey Chess, M.D., performed MRIs on plaintiff's lumbar and cervical spines. (Tr. 555-58.) From the MRI of the lumbar spine, Dr. Chess gave the following impression: “There [was] anterior and posterior bulge of the L3/4 intervertebral disc effacing the thecal sac. There [was] left posterior herniation of the L4/5 intervertebral disc impinging upon the left lateral recess.” (Tr. 556.) From the MRI of the cervical spine, Dr. Chess gave the following impression: “There [was] anterior and posterior bulge of the C4/5 intervertebral disc impinging upon thecal sac with a superimposed right posterolateral herniation impinging upon the right lateral recess.” (Tr. 558.) There was anterior and posterior bulge of the C5/6 intervertebral disc impinging upon thecal sac. There was mild stenosis of the spinal canal at levels C4/5 and C5/6. (Id.) Dr. Chess also determined that there was straightening of the cervical lordosis, which may have been secondary to the presence of pain and/or muscle spasm; he recommended a clinical correlation for this impression. (Id.)

         Dr. Gasalberti also conducted Duplex Doppler tests on plaintiff's lower extremity arteries, abdominal aorta and inferior vena cava, and lower extremity veins on November 3, 2005. (Tr. 554.) Dr. Gasalberti concluded that all three tests showed “normal” function. (Id.)

         On November 5, 2005, Dr. Gasalberti administered an EMG nerve conduction study (“EMG/NCS”). (Tr. 551-553.) The nerve conduction study on plaintiff's peripheral neuromuscular system showed “normal electrodiagnostic examination of the upper extremities without evidence of cervical radiculopathy, myopathy, peripheral polyneuropathy or carpal tunnel syndrome.” (Tr. 552.)

         On November 10, 2005, Dr. Gasalberti reviewed the EMG/NCS, and the MRIs of the cervical spine and lumbosacral spine, and diagnosed: “History of chronic low back pain, bulging disc, L3-4 disc herniation, L4-5, with L4-5 and L5-S1 radiculopathy. Neck pain, disc bulging C4-5, C5-6, clinical cervical radiculopathy.” (Tr. 550.) Dr. Gasalberti noted that the “[l]ong-term goals include increased range of motion, decreased pain and muscle spasm, increased strength.” (Id.) Dr. Gasalberti recommended continued use of Naprosyn, Lidoderm, Vicodin, a lumbosacral corset and cock-up splints for support, and physical therapy. (Id.) He also sought authorization for three epidural steroid injections to the lumbar spine. (Id.)

         Beginning on December 2, 2005, Dr. Gasalberti administered lumbar epidural steroid injections on plaintiff. (Tr. 547-48.) After the injections, Dr. Gasalberti examined plaintiff and found that there was no alteration of plaintiff's motor and sensory function, and plaintiff was neurologically intact. (Tr. 548.) On December 6, 2005, plaintiff returned to Dr. Gasalberti and reported that the pain was reduced to five out of ten. (Tr. 549.) Manual muscle testing of the lower extremities showed full strength. (Id.) Dr. Gasalberti's impressions on December 6, 2005 were that plaintiff had a history of chronic low back pain, bulging disc, L3-4, disc herniation, L4-5, with L4-5 and L5-S1 radiculopathy. Neck pain, disc bulging C4-5, C5-6, clinical cervical radiculopathy and that plaintiff showed “mild-to-moderate overall improvement” after receiving the first series of epidural injections. (Id.) Dr. Gasalberti treatment recommendations were the same as his recommendations on November 10, 2005, except Dr. Gasalberti also recommended that plaintiff receive a second series of transforaminal epidural steroid injections. (Id.)

         On December 9, 2005, plaintiff received a second series of lumbar epidural injections and the examination showed that plaintiff did not experience any “alteration of motor and sensory function.” (Tr. 545-46.) On December 10, 2005, plaintiff returned to Dr. Gasalberti and reported that there was “residual mild discomfort at the injection site, ” but experienced mild to moderate improvement of radicular symptoms. (Tr. 544.) Dr. Gasalberti's impressions and recommendations after the December 10, 2005 examination were largely the same as his November 10, 2005 and December 6, 2005 impressions and recommendations. (Id.)

         On December 16, 2005, Dr. Gasalberti administered a third set of lumbar epidural injections and again found that there was no alteration of plaintiff's motor and sensory function and that plaintiff remained neurologically intact. (Tr. 542-43.) On December 19, 2005, plaintiff returned to Dr. Gasalberti and reported that “[o]n a pain scale of 1-10, 10 being the worst, [plaintiff felt] about an 8.” (Tr. 540.) Examination showed tenderness of the proximal coccyx and sacroiliac joints. (Id.) Dr. Gasalberti's impression was the same as November 10, 2005, and December 10, 2005, but for the sacroilitis diagnosis. (Id.) Dr. Gasalberti recommendations were also the same as November 10, 2005 and December 10, 2005, except that he also requested authorization for SI joint injections. (Id.)

         On January 6, 2006, Dr. Gasalberti administered bilateral SI joint steroid injections. (Tr. 537-38.) At the January 9, 2006 re-evaluation, plaintiff reported that his pain was about 6 or 7 out of 10. (Tr. 539.) Dr. Gasalberti's impression was the same as his impression on December 19, 2005, except that plaintiff showed mild overall improvement in his sacroilitis symptoms after his first SI join injection. (Id.)

         On January 13 and January 20, 2006, Dr. Gasalberti administered a second and a third series of bilateral SI joint steroid injections on plaintiff. (Tr. 535-36.) Plaintiff tolerated the procedures well. (Id.) On February 4, 2006, Dr. Gasalberti examined plaintiff and noted that plaintiff had received some relief after his third series of SI injections. (Tr.

         533-34.) Dr. Gasalberti's impressions of plaintiff on February 4, 2006, were that plaintiff had a history of chronic low back pain, bulging disc, L3-4, disc herniation, L4-5, with L4-5 and L5-S1 radiculopathy; neck pain, disc bulging C4-5, C5-6, clinical cervical radiculopathy. (Tr. 533.) Dr. Gasalberti also noted that there may be re-exacerbation of disc herniation but found that plaintiff's sacroilitis and SI joint pain were resolved after plaintiff received the three series of SI joint injections. (Id.) Dr. Gasalberti also noted that plaintiff had tendinitis of the left fifth finger and possibly ganglion of the flexor tendon. (Id.) Dr. Gasalberti recommendations on February 4, 2006 were: a MRI of the lumbosacral spine to rule out herniated nucleus pulposus, he referred plaintiff to a neurosurgeon for a ...


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