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Rosario v. Colvin

United States District Court, W.D. New York

February 17, 2017

JOMARY GOMEZ ROSARIO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          For the Plaintiff: Mollie A. Dapolito, Esq. Martha Alice Roberts, Esq.

          For the Defendant: Sergei Aden, Esq.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA United States District Judge

         INTRODUCTION

         This 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).

         BACKGROUND

         With an 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.

         Following 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.

         In her 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.

         Medical Evidence

         On June 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 sac[1] and mild compression on the neural foramina[2] bilaterally.” R. 380.

         Following 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.

         Plaintiff 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[3] 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 Plaintiff has

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.

R. 322.

         On 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[4] 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.

         Plaintiff 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.

         Plaintiff 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 ...


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