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Pelt v. Colvin

United States District Court, E.D. New York

February 21, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          SULLIVAN & KEHOE, LLP Attorneys for Plaintiff




         Plaintiff William Van Pelt ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied his claim for disability insurance benefits. Presently before the Court are Defendant's motion and Plaintiff's cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons discussed below, Defendant's motion is granted and Plaintiff's cross-motion is denied.


         I. Procedural Background

         Plaintiff applied for disability insurance benefits (DIB) on January 15, 2012, alleging disability as of January 11, 2012, due to a right knee meniscus tear, degenerative joint disease, depression, and obesity. (Transcript ("Tr.") 60-62.) Plaintiff's DIB claim was denied on March 20, 2012. (Tr. 60.) Subsequently, Plaintiff filed a request for a hearing, which hearing was held on June 27, 2013, before administrative law judge ("ALJ") Hilton R. Miller. (Tr. 60.) By Notice of Decision - Unfavorable, dated July 26, 2013, the ALJ denied Plaintiff's application for DIB, finding he was not disabled from January 11, 2012 through the date of decision. (Tr. 60-70.) Review by the Appeals Council was requested and on December 9, 2014, the Appeals Council denied the request. (TR 1-4.) This action followed.

         II. Factual Background

         A. Non-Medical Evidence

         1. Plaintiff's Testimony and Function Report Plaintiff was born in 1966. (Tr. 78, 166.) He is a high school graduate. (Id. 80, but see 190 (stating he completed four or more years of college).) He worked as a police office and then a detective for the New York City Police Department from July 1988 through January 11, 2012. (Id. 80, 191.) He stopped working in early 2012, having been assigned to desk duty during the prior year. Because he needed to “stretch out' his leg a lot and walk around, it was “tough to sit, ” as was required for desk work. Additionally, he had difficulty climbing the stairs to his second floor desk. (Tr. 80-81.)

         Plaintiff lives with his wife in a two story home; his bedroom is currently on the first floor. (Tr. 78-79.) His wife does all the laundry and cooking although Plaintiff sometimes helps with the dishes by loading the dishwasher. He goes shopping with his wife, using a cart, but he is unable to last the whole trip and has to find a place to sit. His sleep is disrupted by the “constant toss[ing] and turn[ing] to find a comfortable position.” He used to drive but stopped a month or two before the hearing when he started taking Opana; he takes the bus but has to sit “with a seat going out.” He isolates and does not see family and friends. (Id. at 83, 85, 87-89.)

         At the time of his hearing before the ALJ, Plaintiff had been receiving treatment for depression for four months and taking Wellbutrin for three month. (Tr. 79.) He initially injured his knee in the line of duty. During the course of a day he will elevate his leg - “[n]ot every day but probably at least four or five times a day” and keep it elevated from “15 to 20" minutes. He uses both hot and cold compresses. The weather will cause his leg to swell. He walks with a limp and if he goes “a good distance” his back and knee will start to hurt; he can walk five blocks without taking a break. Sometimes his knee locks and buckles. His hip has been bothering him for about a year; it causes a burning sensation when he sits but does not affect his walking. (Id. 84-89.)

         Plaintiff completed a function report dated May 10, 2012, in which he represented the following information. He does “nothing” from the time he wakes up until he goes to bed; he usually just lies around and watching television is his only interest. He does not take care of anyone else or have any pets. He tosses and turn in pain all night. He is independent in personal care, except his wife helps him put on socks and pants, and he needs no special help to take care of his personal needs, grooming, or taking his medicine. He does not do any house or yard work; his wife prepares his meals. He goes outside three to four times per week and drives for short periods of time. He has no friends and stays to himself. He can stand and sit but not “for long” and described no difficulty with lifting. He walks with a limp and “it hurts a lot;” he uses a cane for “long distances” and can walk ten to twenty minutes before having to rest for one minute. He cannot kneel or squat but can climb stairs “one at a time” and has no difficulty reaching, using his hands, seeing, hearing, and speaking. (Tr. 197-205.) Although he cannot finish what he started due to frustration, Plaintiff stated he does not have trouble remembering things, can follow oral and written instructions, and has no trouble getting along with authority figures. (Tr.197-205.)

         2. Testimony of Vocational Expert

         Gerald D. Belchick, a vocational expert called by the ALJ, testified that Plaintiff's past work as a detective was classified as light in exertion and skilled with an SVP of seven in the Dictionary of Occupational titles (DOT).

         The ALJ posed the following hypothetical to Mr. Belchick: a claimant of Plaintiff's age, education, and work experience, with a residual functional capacity (RFC) to lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; stand and/or walk with normal breaks for a total of about two hours in an eight hour workday; could not operate foot controls or a foot pedal using the lower extremities; had a sit/stand option with the ability to stand up every 20 minutes for approximately two minutes; occasionally climb ramps and stairs but never ladders, ropes or scaffolds; occasionally balance, stoop and kneel but not crawl or crouch; cannot operate a motor vehicle; had the ability to perform simple, routine, and repetitive tasks to moderately complex tasks that could be explained - specifically occupations with a SVP of one, two or three and which involve simple decisions and occasional changes in routine.

         Belchick replied that there is only a small group of jobs with a sit/stand option that allows the employee to make changes between sitting and standing without interfering with the flow of work, which jobs come under the general heading of Cashier II, DOT code 211.462-010, and have a SVP of 2, i.e., a single-item cashier such as self-service gas station cashier, toll collector or ticket seller in a movie house. According to Belchick, there are about 11, 000 Cashier II jobs in the greater New York area and over 980, 000 nationally; a job such as surveillance systems monitor would not fit the hypothetical because that position does not allow for a sit and stand at will without interrupting the flow of work. (Tr. 92-95.)

         A second hypothetical was posed by the ALJ to the vocational expert, which hypothetical was identical to the first except the requirement for a sit/stand option was deleted. Belchick testified that in such a case the following positions were available: unarmed security guard, DOT number 372.667-020, with 1, 100 jobs locally and 80, 000 jobs nationally; assembler of factory work, DOT 706.684-022, with 2, 200 jobs locally and 360, 000 jobs nationally; and information clerk, DOT 237.367-018, with 1, 100 jobs locally and 72, 000 jobs nationally. (Tr. 95-97.)

         A third hypothetical was posed by plaintiff to the vocational expert. This third hypothetical was identical to the second except that the hypothetical claimant would have to take breaks where he elevates his leg four times in an eight-hour work day for 15 to 20 minutes at a time. According to Belchick such a condition would interrupt the work flow and therefore the jobs he described for hypothetical number two would not be available. (Tr. 97-98.)

         B. Medical Evidence - Treating Sources

         1. Riley Williams, MD

         On January 1, 2011 Plaintiff saw Dr. Riley Williams, an orthopedic surgeon at the Hospital for Special Surgery. (Tr. 252.) He complained of catching and locking in his right knee as well as swelling and stiffness and pain while climbing stairs. (Id.) According to Dr. Williams' notes, Plaintiff recounted a history of knee pain, which began in 2005 when he felt his knee pop while chasing a suspect and was followed by surgery on the meniscus in his right knee in 2005 and then again in 2006. (Id.) Since that time Plaintiff has experienced a persistent decrease in the function of his right knee. (Id.) Plaintiff re-injured his knee on December 23, 2010 while again chasing a suspect. (Id.)

         Upon physical examination Plaintiff's range of motion was from negative 15 degrees to 100 degrees. Dr. Williams observed that Plaintiff stood at neutral alignment and had a "1 effusion." Hyperflexion pain was positive as was his squat test. Plaintiff's patella was centered, and there was grind and crepitus but apprehension was negative. His facets and his medial and lateral joint lines were tender. Plaintiff had a "1A Lachman, " no pivotal shift and no varus to valgus instability. His posterior drawer was negative; he did not have rotary instability. He had atrophy in his quadriceps, but had an otherwise normal sensory motor exam. X-rays of Plaintiff's right knee showed mildly narrow joint spaces. Dr. Williams diagnosed Plaintiff with possible early osteoarthritis, post meniscectomy. Dr. Williams thought that some loose body or another gross abnormality had become dislodged. (Tr. 252-53.)

         An MRI of the right knee was taken on February 3, 2011 and revealed the effects of the prior lateral meniscectomy with focal deficiency at the junction of the posterior horn, and a body segment suggestive of a radial split. There was severe lateral femorotibial compartment arthrosis, and to a lesser degree patellofemoral arthrosis. There was a “reactive usual” with a thickened medial parapatellar and suprapatellar plica, without an over synovitis. Dr. Williams discussed the results of the MRI with Plaintiff on February 15, 2011. Plaintiff had lateral joint line pain, pain with hyperflexion maneuvers, and his range of motion was from 0 to 125 degrees. The tests showed "basically right knee osteoarthritis, primarily affecting the lateral femoral condyle." (Tr 248-51.)

         2. Dennis F. Fabian, D.O.

         Plaintiff first saw Dr. Dennis Fabian on May 11, 2011, seeking treatment for his right knee. He reported he was five weeks post Supartz injections but did not have any improvement in his symptomatology. Plaintiff had no instability symptoms but continued to have pain over the lateral compartment of his right knee as well as in the patellofemoral joint; he told Dr. Fabian that he occasionally experiences episodes of his knee buckling and giving way. On examination, Plaintiff's right knee showed a lack of 7 degrees to full extension as compared to his left knee. He had valgus deformity of about 7 to 10 degrees, but no medial or lateral instability, and no peripheral edema. Plaintiff had slight swelling of the soft tissues around the knee, and a minimal right knee effusion. He could flex his right knee to about 115 degrees, and had the ability to fully extend his left knee. Plaintiff had some right Achilles tenderness, which the doctor suspected was a secondary result of Plaintiff's abnormal gait on his right side. X-Rays of Plaintiff's knees showed end-stage degenerative arthritis of the right knee with valgus deformity. Dr. Fabian recommended a total knee replacement arthroplasty due to the extent of Plaintiff's disease. Dr. Fabian stated that if the procedure was completed Plaintiff would probably not be able to return to police work. Dr. Fabian diagnosed Plaintiff with severe osteoarthritis of the right knee with flexion and valgus deformity. (Tr. 227-28.)

         In a letter to the NYPD Medical Division dated May 11, 2011, Dr. Fabian requested authorization for Plaintiff's knee replacement surgery and summarized Plaintiff's treatment history. He stated that the x-rays of Plaintiff's knee taken on 05/11/11 demonstrated increasing degenerative arthritis with a flexion and a valgus deformity in Plaintiff's right knee and the only alternative was knee replacement surgery; however, if Plaintiff were to undergo the knee replacement procedure he would probably not be able to return to police work. Dr. Fabian also recommended that Plaintiff maintain an exercise program until a decision had been made regarding the procedure. He described Plaintiff as having a “complete disability of the right knee based on his weakness and deformity at [that] time.” (Tr. 228-29.)

         Plaintiff followed up with Dr. Fabian on September 28, 2011. Dr. Fabian noted that Plaintiff had been placed on disability at the NYPD, and that his condition had not improved "dramatically" since his last appointment. On physical examination, he noted that Plaintiff's right knee had an "obvious" valgus position as compared to the left knee, with about 7 to 10 degrees of valgus. Plaintiff complained of pain over the lateral compartment of the right knee and he had a flexion deformity of about 5 degrees. There was weakness in his quadriceps and vastus medialis oblique area and tenderness over the lateral joint line and under both patellar facets. Plaintiff walked with a moderate limp on the right side. X-rays of Plaintiff's right knee showed significant degenerative arthritis of the lateral compartment of his right knee. Dr. Fabian noted that previous x-rays of Plaintiff's knee showed patellofemoral disease. Again, Dr. Fabian recommended knee replacement arthroplasty. (Tr. 226.)

         3. Dr. William Howe

         On April 23, 2012, Plaintiff saw Dr. William Howe, an internist, complaining of worsening right knee pain on the right lateral aspect. Dr. Howe diagnosed degenerative arthritis, and tendinitis of the lateral aspect. He prescribed Mobic, ibuprofen, and a course of physical therapy. X-rays of Plaintiff's right knee taken on April 24, 2012 revealed spiking of the tibial spines, moderate degenerative changes in the medial and lateral compartment, minimally decreased joint space in the medial and lateral compartment, and moderately severe degenerative changes of the patellofemoral joint. There was no effusion. (Tr. 260, 269.)

         At a visit on November 26, 2012, Dr. Howe noted that Plaintiff reported needing stronger medication, as non-steroidal anti-inflammatory drugs (NSAID) were not effective. He prescribed Plaintiff Tramadol. (Tr. 261.)

         In a medical assessment form completed by Dr. William Howe on June 13, 2013, he opined that the plaintiff could lift and/or carry 5 pounds “maximum occasionally” for 30 minutes and “maximum frequently” for 1/3 of the day; stand and/or walk for a “total” of ½ hour in an 8 hour workday and “without interruption” for ½ hour; sit for a “total” of ½ hour in an 8 hour workday and “without interruption” for only ½ hour; and his reaching and pushing/pulling were affected by his impairment. Finally, he indicated that Plaintiff has the following environmental restrictions: heights, moving machinery, temperature extremes, humidity, and vibration. (Tr. 345-47.)

         4. Chen-Un Kang, MD

         Plaintiff saw Dr. Cheng-An Kang on April 30, 2012 complaining of pain in his right hip and right knee. He stated that walking and standing made his pain worse, and resting and medication made his pain better; his pain, which had worsened over time, was 7/10 at best, and 10/10 at its worst. Plaintiff's right knee range of motion was limited, from negative 15 degrees to 75 degrees. Muscle ...

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