United States District Court, W.D. New York
the Plaintiff: Mollie A. Dapolito, Esq. Martha Alice Roberts,
the Defendant: Sergei Aden, Esq.
DECISION AND ORDER
CHARLES J. SIRAGUSA United States District Judge
Social Security case is before the Court on cross-motions for
judgment on the pleadings. For the reasons stated below, the
Court grants Plaintiff's motion in part, reverses the
Commissioner's decision, and remands for a new hearing
pursuant to the fourth sentence of 42 U.S.C. § 405(g).
assumed onset date of January 1, 2007, Plaintiff filed an
application for Supplementary Security Income
(“SSI”) Benefits on July 16, 2010. This was
denied on November 4, 2010, and Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) on
January 12, 2011. On July 17, 2012, Plaintiff appeared before
and ALJ who ruled in a decision dated August 23, 2012, that
Plaintiff has not been under a disability since July 16,
2010, the date her application was filed. R. 25-31.
the five-step sequential analysis set out in 20 C.F.R. §
416.920(a), the ALJ determined that Plaintiff was not
engaging in substantial gainful activity and does in fact
have the severe impairments of lumbar disc herniation and
occasional blurred vision. At step three, he determined that
Plaintiffs impairments did not meet or exceed the listings in
Appendix 1, 20 C.F.R Part 404, Subpart P. R. 27. At step
four, the ALJ determined that Plaintiff had the residual
functional capacity (“RFI”) to perform light
work, except that she is only occasionally able to stoop,
crouch, and crawl, must change her positions every forty-five
minutes, and “is limited to performing work that does
not require fine visual acuity.” R. 27. Plaintiff did
not have any past relevant work, thus leading the ALJ to
progress to step five where the burden shifted to the
Commissioner to show that Plaintiff was capable of performing
work that exists in substantial numbers in the national
economy. In that regard, the ALJ heard testimony from a
vocational expert and concluded that Plaintiff could perform
the jobs of café attendant and cleaner/housekeeper,
both of which are unskilled, light exertion jobs with
substantial positions available nationally.
memorandum of law in support of her motion for judgment on
the pleadings, ECF No. 12-1, and her reply, ECF No. 16, to
the Commissioner's memorandum, Plaintiff argues that the
ALJ erred in evaluating Plaintiffs RFC and that his decision
is not supported by substantial evidence.
15, 2009, Plaintiff began a series of seven appointments
under treating physician Eric Ramirez Diaz, M.D. at the
Instituto Fisiátrico del Caribe at Ave. José
Mercado, Puerto Rico. R. 326. Plaintiff was referred by Dr.
Ramirez to Vallejo Ricard, M.D. for an MRI, which was
completed June 23, 2009. R. 380. In that regard, the
radiology report dated June 23, 2009, shows that “[a]t
L5-S1, there is a broad based, somewhat extruded central disk
herniation causing significant compression on the thecal
and mild compression on the neural foramina
bilaterally.” R. 380.
the MRI, Plaintiff participated in six therapy sessions
ending on July 16, 2009. R. 326. The initial treatment
options included physical therapy and anti-inflammatory
medication which proved unsuccessful. R. 369. A tertiary
action of a L45S1 selective nerve root block was administered
in February 2010 “with significant improvement of her
pain.” R. 369. In a final therapy progress note,
Plaintiff's pain was reported as mild and Plaintiff's
transfers and ambulation as independent in a progress note
for physical therapy dated July 16, 2009. R. 335. Plaintiff
continued selective nerve root blocks at the L45S1
paravertebral areas through the Las Americas Pain
Interventional Center (“LAPIC”) in Hato Rey,
Puerto Rico, beginning care on August 8, 2009, under Aurea T.
Negrón Valcárcel, M.D. R. 442. Plaintiff had
four epidural steroid injection procedures: August 26, 2009,
October 10, 2009, November 17, 2009, and February 23, 2010.
R. 308, 310, 312, 314. Per Dr. Valcárcel's notes,
Plaintiff found significant improvement of pain through the
nerve block in February. R. 369.
testified before the ALJ that she came to the continental
United States in 2010 from Puerto Rico seeking different
doctors and the opportunity for a better life. R. 52.
Plaintiff was seen on October 26, 2010, by Suzanne Picinich,
D.O., a consultative doctor, for an internal medicine
examination. Noted as a chief complaint in Dr. Picinich's
report is low back pain beginning in 2006 and a herniated
disc at the L5 level. Plaintiff also complained of more
recent neck pain radiating to her left arm and mid forearm.
In addition, noted in the report is a past diagnosis of
diabetes mellitus type II, hypoglycemia and hypertension. R.
318-22. Dr. Picinich stated in her written report that
mild to moderate limitations for bending, lifting, and
carrying, for standing and sitting for long periods without a
change in position. Mild to moderate limitations for climbing
stairs and inclines, as well for manipulating objects of
anything more than lightweight above the level of her waist.
She also has mild to moderate limitations for kneeling,
squatting, stooping, and pushing, and pulling. She has
moderate limitations for traveling.
December 13, 2010, Plaintiff was seen at The Center for Pain
Management by Dr. Calvin Chiang where Plaintiff rated her
average pain on a scale of one to ten as a ten. R. 374. Dr.
Chiang concluded that Plaintiff “does not have any
frank neurologic symptoms that suggest an emergent evaluation
by a neurosurgeon, ” and he recommended using
transforaminal injections and prescription tramadol and
Flexeril. R. 372. On Feb- ruary 8, 2011, she received
prescriptions for Tramadol and Flexeril, and on May 9, 2011,
received an epidural injection. R. 384, 381.
testified she lost vision after the May injection, and was
referred to Joseph D. Silverberg, M.D., an ophthalmologist.
R. 59. On July 14, 2011, Plaintiff was diagnosed with central
serous retinophy (“CSR”) which was accredited to
the recent steroid injection, according to resident Brook
Miller M.D. R. 399. Transiforaminal injections were
thereafter terminated as a form of treatment. R. 399.
began additional physical therapy on December 21, 2011, under
Farley Wagner, P.T., M.D.T. R. 427. In the initial
evaluation, Plaintiff was described with “clinical
signs and symptoms of lumbar derangement, ” experienced
“pain is never less than 5/10, ” and
“Lumbar range of motion (ROM) is limited into flexion
and extension at 40-50% loss in both directions.” R.
427. Treatment concluded February 7, 2012. R. 441 Plaintiff
was discharged from the program because of poor attendance,
four cancellations and three no shows to appointments. R.
441. The status of the discharge observes that ...