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Scioscia v. Colvin

United States District Court, E.D. New York

March 9, 2017

Cosmos Joseph Scioscia, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant.

          Plaintiff is represented by John W. DeHaan of The DeHaan Law Firm P.C.

          The Commissioner is represented by Joseph A. Marutollo, Assistant United States Attorney, on behalf of Robert L. Capers, United States Attorney for the Eastern District of New York.

          MEMORANDUM AND ORDER

          Joseph F. Bianco, District Judge.

         Plaintiff Cosmos Joseph Scioscia (“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 (the “Commissioner”) denying plaintiff's application for disability insurance benefits. An Administrative Law Judge (“ALJ”) found that plaintiff had the residual functional capacity to perform the full range of light work, of which there were a significant number of jobs in the national economy, and, therefore, that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review.

         The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings.

         For the reasons set forth below, the Court denies the Commissioner's motion for judgment on the pleadings, denies plaintiff's motion for judgment on the pleadings, and remands the case to the ALJ for further proceedings consistent with this Memorandum and Order.

         I. Background

         A. Facts

         The following summary of the relevant facts is based on the Administrative Record (“AR”) developed by the ALJ. (ECF No. 7.)

         1. Personal and Work History

         Plaintiff was born on January 6, 1964. (AR at 61.) He graduated from high school and has some college education. (Id. at 26.) His past relevant work includes positions as director of special events for a country club, as a general/regional manager, and four months as a telemarketer. (Id. at 77.)

         After raising a family and working for most of his adult life, plaintiff's medical problems began on June 19, 2010, when he suffered an on-the-job accident. (Id. at 216.) He struggled to work for the next two years, but his impairments forced him to stop working. (Id. at 27-31.) Plaintiff continued to look for employment while pursuing his claim for disability benefits. (Id. at 27.)

         2. Medical History

         a. Prior to Onset Date of July 6, 2012

         On July 16, 2010, plaintiff began treatment with Dr. Enrico Mango for a work-related injury that occurred on June 19, 2010. (Id. at 216.) X-rays of plaintiff's left knee revealed patellofemoral degenerative changes. (Id. at 217-18.) Dr. Mango's clinical impression of plaintiff's condition was acute knee left anterior strain and a traumatic chondromalacia patella of the left knee. (Id. at 217.) Dr. Mango requested approval of an MRI to rule out anterior cruciate ligament tear and a meniscal tear. (Id.) Dr. Mango opined that plaintiff was “total disabled.” (Id.)

         Plaintiff subsequently visited Dr. Mango for treatment on July 27, 2010 (id. at 219), August 3, 2010 (id. at 221), and August 17, 2010 (id. at 223). On August 18, 2010, Dr. Mango approved plaintiff's return to work on a part-time basis. (Id. at 224.) On September 7, 2010, an MRI of plaintiff's left knee revealed a grade 2 signal within the posterior horn of the medial meniscus and small joint effusion. (Id. at 304.) On April 7, 2011, plaintiff underwent left knee surgery for an ACL repair performed by Dr. Mango. (Id. at 310-14.) From March 19, 2012 through April 17, 2012, Dr. Mango administered a series of five Hyalgan injections to plaintiff's left knee. (Id. at 269-78.) On April 27, 2012, Dr. Mango advised plaintiff not to return to work because plaintiff reported that his left knee buckled and that he was unable to bear full weight. (Id. at 280.)

         On May 4, 2012, an MRI of plaintiff's left knee revealed interval placement of an anterior cruciate ligament graft, with a frayed graft, which was irregular in signal consistent with a partial thickness tear. (Id. at 306.) The MRI also revealed an interval development of a horizontal tear of the posterior horn of the medial meniscus, degenerative changes of the knee medially, large joint effusion, and popliteal cyst. (Id.)

         b. After Onset Date of July 6, 2012

         Upon examination on July 20, 2012, Dr. Mango deemed plaintiff's condition as “unchanged.” (Id. at 214.) The examination findings indicated that plaintiff had decreased left knee antero-medial pain with a decreased activity level, along with weakness in the left knee with prolonged activity. (Id.) Dr. Mango opined that plaintiff had a “partial” disability, and recommended physical therapy three times a week for six weeks. (Id.) Dr. Mango's prognosis for plaintiff was “guarded.” (Id.) Dr. Mango also recommended heat treatment. (Id.)

         On August 17, 2012, Dr. Mango's assessment and prognosis of plaintiff's condition were the same as his July 20, 2012 assessment and prognosis of plaintiff's condition. (Id. at 213-14.) Plaintiff was noted as having bilateral knee pain with increased activity, and on-and-off right knee pain due to his favoring of his left knee. (Id.) Dr. Mango advised plaintiff to treat with heat and non-steroidal anti-inflammatory medicines (“NSAIDs”), as well as physical therapy three times a week for six weeks. (Id. at 213.)

         On September 19, 2012, Dr. Mango indicated that plaintiff's condition and partial disability were unchanged, but also that there were new “findings” related to right knee pain. (Id. at 211.) The examination revealed persistent left knee pain with prolonged activity, increasing right knee pain due to favoring the left leg, and right knee chondromalacia patella, which was consequential due to plaintiff's antalgic gait. (Id.) X-rays of plaintiff's right knee revealed no evidence of fracture or dislocation, with bone quality appearing normal and joint spaces intact. (Id. at 212.) Dr. Mango's prognosis was “guarded.” (Id. at 211.) Dr. Mango recommended that plaintiff use “ice/heat” for treatment, but did not recommend any additional physical therapy. (Id.)

         On October 17, 2012, Dr. Mango again indicated that plaintiff's condition was “unchanged, ” that plaintiff had a partial disability, and that plaintiff should use “ice/heat” (and not physical therapy) for treatment. (Id. at 210.) On November 14, 2012, Dr. Mango repeated his October 17, 2012 assessment of plaintiff, but noted that plaintiff should also use NSAIDs for treatment. (Id. at 209.) On December 17, 2012, January 16, 2013, and February 27, 2013, Dr. Mango's assessment and findings remained unchanged. (Id. at 207-08, 295-99.)

         On March 20, 2013, Dr. Mango's physical examination of plaintiff's left knee revealed decreased swelling, decreased effusion, decreased medial and lateral facet tenderness, and range-of-motion from 0-125 degrees. (Id. at 338.) Dr. Mango opined that plaintiff's disability status was “total” and that he could not return to work due to his left knee pain. (Id. at 338-39.)

         On April 1, 2013, Dr. Samir Dutta conducted a consultative orthopedic examination of plaintiff. (Id. at 197-98, 326-29.) Plaintiff complained of having a knee injury in 2009, which continued to cause him some pain, difficulty standing, walking, lifting, and sitting for a long period of time. (Id. at 326.) Plaintiff noted that the pain is usually sharp and shooting in nature, and that the pain is aggravated with any kind of sitting, standing, or walking. (Id.) Plaintiff noted that the pain is relieved to some extent with pain medication and intra-articular injection of steroids and Synvisc. (Id.) Plaintiff stated that he had lower back pain for one year, which plaintiff described as dull aching. (Id.)

         Upon examination, plaintiff appeared to be in no acute distress. (Id. at 327.) He limped on the left side (both with and without a cane). (Id.) Plaintiff had difficulty walking on his heels and toes. (Id.) His station was normal, but he could not squat. (Id.) Plaintiff stated that the cane was provided by his doctor a year earlier and helped to stabilize his left knee. (Id.) Without his cane, plaintiff was able to walk and stand for only a few steps. (Id.) Dr. Dutta deemed that the cane was “medically needed, ” particularly when plaintiff goes “up stairs or walks on uneven surfaces.” (Id.) Plaintiff did not need any help getting onto or off of the examination table, and was able to rise from his chair without difficulty. (Id.)

         On examination, plaintiff's range of motion in the shoulders was as follows: forward elevation to 120 degrees bilaterally; abduction to 120 degrees; and full abduction, internal rotation, and external rotation bilaterally. (Id. at 327-28.) Plaintiff had 5/5 strength in the proximal and distal muscles, no muscle atrophy, and no sensory or reflex abnormalities in the upper extremities. (Id. at 328.) Plaintiff's range of motion in the thoracic and lumbar spine was as follows: flexion to 60 degrees; lateral bending to 20 degrees; extension to 20 degrees; and rotation to 20 degrees. (Id.) There was no spinal or paraspinal tenderness and no sacroiliac joint or sciatic notch tenderness. (Id.) There was slight spasm in the lower lumbar spine. (Id.) A straight leg raising test was negative. (Id.) Knee flexion was 120 degrees on the right side and 110 on the left. (Id.) An arthroscopic scar, slight tenderness in the front and to the side, and swelling was noted in the left knee. (Id.) There was full range of motion of the ankles bilaterally. (Id.) In the lower extremities, there was no muscle atrophy; sensory or reflex loss; or effusion, inflammation, or instability. (Id.) Plaintiff declined a left ankle X-ray. (Id.)

         Dr. Dutta diagnosed a post-anterior cruciate ligament repair with cadaver bone graft in the left knee; osteoarthritis degenerative changes; being overweight; and a history of backaches. (Id.) Dr. Dutta opined that plaintiff had a mild limitation for sitting, and a moderate limitation on standing, walking, lifting things, ascending and descending stairs, and bending on a continued basis. (Id.)

         On April 17, 2013, Dr. Mango noted that plaintiff's condition was “unchanged, ” and that plaintiff's disability was “total.” (Id. at 341.) On May 15, 2013, Dr. Mango noted that plaintiff's disability status was now “partial.” (Id. at 342-43.) Dr. Mango recommended physical therapy for plaintiff's left knee, three times a week, for six weeks, along with five Hyalgan injections. (Id. at 343.) On June 27, 2013 Dr. Mango's assessment was unchanged. (Id. at 345.) In a report the following day, Dr. Mango stated that a series of Hyalgan injections worked very well and provided six months of relief. (Id. at 344.) The report made no mention of whether plaintiff could return to work. (Id.)

         On July 31, 2013, Dr. Mango found that plaintiff's disability status remained partial (Id. at 347.) He changed the status to “total” disability on September 9, 2013 because plaintiff was not responding to NSAIDs or cortisone injections. (Id. at 348-49.) Disability status remained “total” on October 8, 2013. (Id. at 350-51.) Dr. Mango recommended physical therapy three times a week for six weeks, as well as five Hyalgan injections into his left knee. (Id. at 350.) On October ...


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