United States District Court, E.D. New York
Plaintiff is represented by Christopher J. Bowes, 54
Cobblestone Drive, Shoreham, New York 11786. The Commissioner
is represented by Candace S. Appleton, Assistant U.S.
Attorney, on behalf of Robert L. Capers, United States
Attorney, Eastern District of New York.
MEMORANDUM AND ORDER
F. BIANCO United States District Judge
Richard Savage (“plaintiff”), commenced this
action pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (“SSA”), challenging the final
decision of the Commissioner of Social Security
(“Commissioner”) denying plaintiff's
application for disability insurance benefits. An
Administrative Law Judge (“ALJ”) found that
plaintiff had the residual functional capacity to perform
some light work, specifically work as a limousine driver,
hotel desk clerk, hand packer, or ticket taker. Therefore,
the ALJ concluded that plaintiff was not disabled. The
Appeals Council denied plaintiff's request for review.
now moves for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). The Commissioner opposes
plaintiff's motion and cross-moves for judgment on the
pleadings. For the reasons set forth below, the Court denies
the Commis- sioner's motion for judgment on the
pleadings, denies plaintiff's motion for judgment on the
pleadings, and remands the case for further proceedings
consistent with this opinion.
following summary of the relevant facts is based on the
Administrative Record (“AR”) developed by the
ALJ. (ECF No. 9.)
Personal and Work History Born in 1966, plaintiff completed
college in 1990 and began work as a police officer shortly
thereafter, serving in that position until 2010. (AR at 191,
207.) Plaintiff injured his left shoulder in 1999.
(Id. at 284.) In May 2008, he reinjured that
shoulder, as well as his right shoulder, while apprehending a
suspect. (Id. at 71, 284.) He underwent
reconstructive surgery on his right shoulder in May 2009 and
returned to work on restricted duty, which plaintiff
characterized as a “desk job” that required him
to perform paperwork, use a computer, and answer a telephone.
(Id. at 72.) He retired on October 31, 2010.
(Id.) Afterwards, he applied for and received a
disability pension. (Id. at 73.) He declined a
security job at Macy's and did not actively seek work
following his retirement, citing pain in his back rather than
pain in his shoulder. (Id. at 79-81, 93.)
sought Social Security Disability benefits on June 26, 2012,
complaining of shoulder pain beginning in 2008 and lower back
pain beginning in 2005. (Id. at 191.) He initially
alleged an onset date of October 31, 2010, the day he
retired, but later revised the onset date to February 27,
2012 to correspond with the onset of his lower back pain.
(Id. at 106-08, 206.) He described the pain overall
as an ache in both shoulders, a stabbing and aching pain in
his lower back, and occasional spurts of pain shooting down
his legs from his back. (Id. at 82, 220-21.)
Plaintiff indicated that he experienced this pain every day
and that prolonged sitting or standing would trigger his back
pain. (Id. at 83, 221-22.) About once a week, he
would sporadically experience back pain so severe he could
not leave his bed except to use the restroom. (Id.
at 84- 85.) He also stated that his right arm had lost
mobility, and he could not raise it above eye level.
(Id. at 89.) His right shoulder would not cause him
pain while at rest, but he indicated that “any type of
motion, ” such as walking, would trigger at least
“a little bit of shoulder pain.” (Id. at
reported that he could stand for up to ten minutes before
needing to change positions, could not walk without
interruption, and could sit for ten to fifteen minutes before
feeling pain that required him to get up and stretch.
(Id. at 94, 217-18.) Reaching caused “sharp
pain.” (Id. at 218.) He also indicated that he
was “very cautious about lifting anything” and
would “not attempt to lift anything heavier than 10
lbs.” (Id. at 217.) He could climb stairs when
necessary, occasionally kneel, and occasionally squat.
(Id. at 218.) Plaintiff could follow spoken and
written instructions, and he had no problem with stress,
paying attention, or remembering things. (Id. at
of his back pain, plaintiff would constantly need to change
positions at night and thus had trouble sleeping.
(Id. at 108, 213.) During a typical day, he reported
that he would read, watch television, and drive his kids to
different locations. (Id. at 104-05, 213.) Plaintiff
initially indicated that he could “do basic chores such
as ironing [and] mowing [the] lawn” but avoided yard
work. (Id. at 101, 215.) Later, he stated that he
avoids household chores and his wife vacuumed, did the
laundry, mowed the lawn, and used the snow blower.
(Id. at 101-02, 109.) He also initially indicated he
would attend his kids' sports games “most of the
time” (id. at 217), at one point riding as a
passenger in a car for three hours to his son's lacrosse
tournament (id. at 97). He also drove himself to the
hearing before the ALJ, a 50-minute drive each way.
(Id. at 96-97.) Later, he stated he would only
attend local sporting events “once in a while, ”
maybe five games a year or 20% of the time. (Id. at
99-100.) He also said that he struggles to sit through movies
at the movie theatre and does not go out with his wife very
often. (Id. at 100-01.) With his right arm,
plaintiff could shave, brush his teeth, open a door with a
key, put on a seat-belt, write, pick up change, push a
grocery cart, and lift up to ten pounds. (Id. at
92-93.) When his back pain was not too severe, he could dress
himself, cook, barbeque, and drive a car. (Id. at
2, 2008, following his encounter with the suspect where he
injured his shoulders, plaintiff saw Dr. Salvatore J. Corso
(“Dr. Corso” or the “treating
physician”), an orthopedic surgeon. (Id. at
284-86.) Examination of the right shoulder revealed forward
elevation to 165 degrees and abduction to 150 degrees.
(Id. at 285.) External rotation was performed to 65
degrees and internal rotation to T8. (Id.) Rotator
cuff strength was mildly decreased. (Id.) There was
no sign of instability on stress testing. (Id.) The
apprehension, Neer, Hawkins, and cross-body abduction tests
were positive. (Id.) Examination of the left
shoulder revealed forward elevation to 160 degrees and
abduction to 150 degrees. (Id.) External rotation
was performed to 60 degrees and internal rotation to T7.
(Id.) Rotator cuff strength was normal.
(Id.) There was anterior instability of the shoulder
joint. (Id.) The Speed's test, Yergason's
test, and O'Brien's test were positive.
(Id.) Neurological testing revealed normal sensation
and motor strength findings. (Id.)
Corso made the following diagnoses in the right shoulder:
bicipital tendonitis, subacromial impingement syndrome, and
ruled out rotator cuff tear. (Id.) In the left
shoulder, he diagnosed a possible labral tear with recurrent
anterior and glumohumeral instability. (Id. at 286.)
He recommended rest, icing the joints, elevating the injured
extremity, and physical therapy. (Id.) Dr. Corso
also ordered an MRI and recommended non-steroidal,
anti-inflammatory medications for pain. (Id.)
report of an MRI Dated: May 15, 2008 showed no evidence of a
rotator cuff tear, but there were findings of mild
osteoar-thritis of the AC joints with no impingement and an
irregularity of the anterior superior glenoid labrum
suggesting the possibility of a tear. (Id. at 282.)
Because there was no joint effusion, it was “difficult
to confirm this tear.” (Id.) A report of an
MRI signed on May 19, 2008 revealed moderate
acromiocla-vicular degenerative arthropathy and heterogeneous
tendons in the rotator cuff suggesting calcific tendonitis.
(Id. at 283.)
returned to Dr. Corso on May 30, 2008, and examination
produced results similar to the May 2 examination.
(Id. at 280.) Dr. Corso also reviewed the MRI
results and diagnosed an anterior labral tear in the right
shoulder and calcific tendonitis in the left. (Id.
at 280, 281.) He prescribed physical therapy and sought
authorization to perform arthroscopic shoulder repair with
two opus anchors. (Id. at 281.)
March 11, 2009, plaintiff had a follow-up visit with Dr.
Corso. (Id. at 278.) Examination results were
consistent with past results, and an anterior labral tear was
diagnosed in the right shoulder with MRI evidence.
(Id. at 278-79.) Dr. Corso discussed treatment
options with plaintiff and noted that plaintiff, having
failed a lengthy trial of non-operative treatments, wished to
proceed with surgery. (Id. at 279.) Dr. Corso
performed arthroscopic reconstructive surgery on
plaintiff's right shoulder on May 22, 2009. (Id.
returned to Dr. Corso on June 3, 2009, complaining of right
shoulder pain. (Id. at 271.) Examination showed no
gross signs of neurovascular defecits and no muscle atrophy
or asymmetry. (Id.) Plaintiff's surgery scars
had healed, and Dr. Corso removed the sutures. (Id.)
He instructed plaintiff to rest his shoulder, discussed the
entire range of possible treatments, and recommended
medication and a physical therapy evaluation. (Id.)
follow-up visits occurred on July 31, 2009, January 6, 2010,
and March 31, 2010 where Dr. Corso made findings and
recommended treatment consistent with earlier visits.
(Id. at 263-70.) On July 31, 2009, he advised
plaintiff to rest his right arm, avoid activity that
aggravated his pain, take medication, and undergo physical
and occupational therapy. (Id. at 269.) He also
prescribed Oxycodone. (Id.) On January 6, 2010,
examination revealed no muscle atrophy or asymmetry, forward
elevation limited to 145 degrees and abduction limited to 120
degrees, and mildly decreased rotator cuff strength.
(Id. at 267.) Dr. Corso recommended icing or heating
the shoulder joint, advised plaintiff to avoid athletic
activities, and prescribed Percocet. (Id.) On March
31, 2010, Dr. Corso noted tenderness over the A-C joint and
proximal humerus, pain with resisted shoulder motion, no
instability on stress testing, and positive apprehension,
Neer, and Hawkins tests. (Id. at 265.) Dr. Corso
made the same recommendations as he did on January 6, 2010.
(Id. at 266.) He also noted that plaintiff was
“disabled from ability to do the duties of a police
April 28, 2010, Dr. Corso wrote a letter recounting
plaintiff's medical history and treatment up to that
point and indicating that plaintiff had “not made
significant progress over the last two to three months”
and also had “a significant disability especially in
his line of work.” (Id. at 264.) Plaintiff
“would be at increased risk using a firearm with the
right shoulder, ” Dr. Corso continued, “since his
range of motion is limited and his pain persists.”
(Id.) Dr. Corso concluded that plaintiff was
“disabled from his line of work and [could] only do
restrictive duty.” (Id.) Finally, “his
prognosis for full duty return as a police officer [was]
17, 2011, plaintiff visited Dr. Corso for the final time
before his onset date in February 2012. (Id. at
260-62.) Plaintiff reported discomfort in his right shoulder
that swimming seemed to alleviate. (Id. at 261.)
Examination again revealed tenderness over the right A-C
joint and proximal humerus, pain with resisted shoulder
motion, no instability, muscle atrophy, or tenderness, and
positive apprehension, Neer, and Hawkins tests.
(Id.) Dr. Corso performed a subacro-mial
corticosteroid injection into the right shoulder.
(Id. at 262.)
February 29, 2012, plaintiff visited Dr. Corso for the first
time after his onset date, complaining of back pain.
(Id. at 257- 59.) Examination of the shoulders
revealed results consistent with past examinations.
(Id. at 258.) Examination of the lumbar spine showed
normal alignment, decreased range of motion through the
lumbar spine due to pain and stiffness, forward flexion to 60
degrees, extension to 10 degrees, and rotation to 20 degrees
bilaterally. (Id.) Dr. Corso found no gross
neurologic impairment or lateraliz-ing signs. (Id.)
There was lumbar tenderness present diffusely at the left
gluteal region and muscle spasms in the left lumbar muscles,
but no swelling. (Id.) FABRE test was positive in
the left lumbar region. (Id.) Straight leg raise
testing was positive on the left side, but under
“neurological examination, ” Dr. Corso indicated
that “straight leg test is negative.”
(Id.) His diagnostic impression for the lumbar spine
was lumbosacral radiculitis, and he ordered an MRI.
(Id. at 259.)
of the lumbar spine performed on March 3, 2012 revealed
diffuse degenerative disc disease with multilevel bulging and
facet arthropathy and central herniation L4-L5, with no
significant mass effect on the the-cal sac. (Id. at
met with Dr. Corso again on March 7 and May 10, 2012.
(Id. at 249, 252.) At the March visit, plaintiff
reported problems sitting and standing for extended periods
and radiation of pain from his back into his legs.
(Id. at 252.) In May, he also reported persistent
lower back pain and numb- ness in his left foot.
(Id. at 249.) Examination results for the shoulders
and back during both visits were consistent with the February
29 results. (Id. at 250, 253.) Dr. Corso's May
diagnostic impression of the lumbar spine was lumbosacral
spondylosis without mye-lopathy, and he recommended
medication, periodic rest, icing, and elevation.
(Id. at 250.) He also stated that plaintiff was
unable to work and prescribed physical therapy two to three
times per week over four weeks. (Id.) On June 6,
2012, Dr. Corso completed a medical assessment of ability to
do work-related activities, discussed in detail below.
(Id. at 309-11.)
filing an application for Social Security Disability benefits
in June 2012, plaintiff visited Dr. Andrea Pollack for a
consultative examination on October 22, 2012. (Id.
at 287.) Plaintiff reported lower back pain since 2005,
describing it as constant, radiating into his legs, and
greater on the right side. (Id.) Dr. Pollack noted
his diagnosis of bulging discs and herniated discs, and
treatment of physical therapy, but no injections or surgery.
(Id.) Plaintiff also reported right shoulder pain
since May 2008 due to a work-related injury that “comes
and goes” but was made “worse with movement such
as reaching.” (Id.) Dr. Pollack noted his
surgery, physical therapy, and injections resulting from a
labral tear. (Id.) She also noted that he cooked
twice a week, shopped once a week, provided childcare twice a
week, showered and dressed himself independently, watched
television, listened to the radio, and read. (Id.)
examination, Dr. Pollack noted that plaintiff was “in
no acute distress, ” had a normal gait, could walk on
his heels and toes without difficulty, could squat three
quarters of the way down, used no assistive devices, needed
no help changing clothes or getting on and off the
examination table, and could rise from his chair without
difficulty. (Id. at 288.) There were full ranges of
motion in the cervical spine and no abnormalities in the
thoracic spine. (Id.) Lumber spine range of motion
was flexion to 40 degrees; lateral flexion to 15 degrees; and
rotation to 15 degrees. (Id.) Straight leg raising
was negative bilaterally. (Id.) Range of motion in
the right shoulder was forward elevation/abduction to 120
degrees, and external rotation to 70 degrees. (Id.)
He had full ranges of motion in the left shoulder, and both
elbows, forearms, wrists, hips, knees, and ankles.
(Id. at 288- 89.) Strength was full (5/5) and deep
tendon reflexes were physiologic and equal in the upper and
lower extremities. (Id. at 289.) There were no
sensory deficits. ...