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Savage v. Colvin

United States District Court, E.D. New York

February 28, 2017

Richard Savage, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Defendant.

          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

          JOSEPH F. BIANCO United States District Judge

         Plaintiff, 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.

         Plaintiff 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.

         I. Background

         A. Facts

         The following summary of the relevant facts is based on the Administrative Record (“AR”) developed by the ALJ. (ECF No. 9.)

         1. 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.)

         Plaintiff 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 91.)

         Plaintiff 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 219-20.)

         Because 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 96.)

         2. Medical History

         On May 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.)

         Dr. 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.)

         A 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.)

         Plaintiff 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.)

         On 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. at 273.)

         Plaintiff 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.)

         Additional 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 officer.” (Id.)

         On 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] poor.” (Id.)

         On June 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.)

         On 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.)

         An MRI 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 256.)

         Plaintiff 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.)

         After 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.)

         On 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. ...


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