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Littlejohn v. Colvin

United States District Court, E.D. New York

March 18, 2017



          Brian M. Cogan U.S.D.J.

         Plaintiff seeks judicial review of the determination of the Commissioner of Social Security, following a hearing before an Administrative Law Judge (“ALJ”), awarding her partial disability benefits. The ALJ found that plaintiff was not disabled as of her alleged onset date - November 17, 2011 (the “early period”) - as she had sufficient residual functional capacity to do sedentary work with significant limitations. However, the ALJ found that she became disabled as of October 8, 2013 (the “later period”), which was still within her insured period.

         Plaintiff was a New York City Corrections Officer who broke her ankle very badly, specifically, a fracture on each side of the ankle, in a slip and fall accident at work on September 14, 2010. Her ankle was set and two weeks later, she underwent surgery to install ten screws and a metal plate to stabilize the ankle. She was in a wheelchair for about three months after the surgery and was then on crutches until June 2011. She has used a cane since that time. At the time of her hearing before the ALJ (September 2, 2014), she was anticipating another surgery to remove the hardware.

         Both sides agree that the case should be remanded. Plaintiff contends that the case should be remanded only for a calculation of benefits as to the early period because there is no substantial evidence that could support a finding that she was not disabled as of November 17, 2011. Alternatively, plaintiff contends that the case should be remanded for a re-evaluation of the evidence as to the early period. Of course, in either case, plaintiff wants the remand confined to the early period, and to leave the finding of disability as to the later period undisturbed.

         The Commissioner's position is that the case should be remanded as to both the early and the later period. The Commissioner contends that the ALJ erred as to the determination of non-disability for the early period; however, the only error that the Commissioner alleges is the following:

[T]he ALJ did not properly assess testimony regarding the limiting effects of [plaintiff's] symptoms. Plaintiff testified that due to chronic ankle pain, she had to change position every ten minutes (i.e., could neither sit nor stand for more than ten minutes at a time). Plaintiff also stated that she walked with a cane. Notably, the record reflects that a cane had been prescribed. Yet, in determining Plaintiff's RFC, the ALJ does not discuss these limitations or the need for a cane.

         As to the later period, the Commissioner contends that the ALJ's finding of disability also needs to be remanded because the ALJ erroneously based his finding on a diagnosis of peripheral neuropathy made on February 24, 2014. That diagnosis, the Commissioner urges, merely provided the objective basis for plaintiff's complaint of numbness and tingling in her toes, a complaint that plaintiff had made as far back as December 2010, and it continued unabated thereafter. Therefore, the Commissioner argues, the ALJ could not have found that petitioner's condition “worsened” as of October 2013, which the Commissioner claims was necessary to find her disabled.

         I think the Commissioner has it backwards. If the ALJ had found that plaintiff was disabled for both the early and later periods, no one could criticize that finding, as there is plenty of evidence that would support it. The Commissioner does not dispute that plaintiff had peripheral neuropathy and tarsal tunnel syndrome in February 2014, as was proven by an EMG and found by her treating physician. That testing and diagnosis is clearly sufficient to support plaintiff's description of her symptoms, and all the medical evidence favorable to her prior to that date, which in turn would be more than adequate to support a finding of disability.

         Of course, the diagnosis of peripheral neuropathy with tarsal tunnel syndrome did not spring like Athena from Zeus' head. These are progressive conditions, and if she had them in February 2014, she had at least aspects of its symptomology for some time prior. The ALJ somewhat arbitrarily picked four months prior because that was when plaintiff started treatment with the orthopedist who arrived at the diagnosis on the basis of the EMG, but the ALJ discounted that orthopedist's opinion that her impairment left too little functional capacity to work as far back as her alleged onset date. Thus, the real question is, with a clear disability date of February 2014, how far back does the disability go?

         I do not see the Commissioner's allegations of errors committed by the ALJ as material. First, the use of a cane has little or no bearing on how long plaintiff can sit - which is the issue here - and thus remanding the case so that the ALJ could specifically comment on her use of a cane would serve no purpose. Moreover, the ALJ was clearly aware of her need for assistance in ambulation as he noted that plaintiff “used a cane, which had been prescribed by her orthopedist in 2011.” I therefore cannot see remanding the case as to the early period for that.

         Second, I see no need to remand the case as to the earlier period so that the ALJ can make a specific reference to plaintiff's testimony that she has to change position every ten minutes, as the Commissioner argues. It must be noted that in making an adverse credibility finding as to plaintiff, the ALJ not only included the boilerplate language (“the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible prior to October 8, 2013 …”), but he offered a specific example of why he was making this finding.

         That is not to say that I think the basis for the ALJ's adverse credibility determination was adequate. The specific example he gave to justify the finding was that Dr. Howard Baum, an orthopedic consultant of plaintiff's choosing (not a state orthopedic consultant), had found in 2012 that although plaintiff's loss of motion in the ankle and her toe numbness were permanent, and she could not resume her position as a Corrections Officer, she could do light duty for her employer if she was sitting. However, Dr. Baum did not opine on how long she could sit, and he was also clear that he wanted plaintiff to have additional surgery. In addition, as Dr. Baum noted, plaintiff told Dr. Baum that she needed the money and wanted to try to return to work in any capacity. Read in its totality, Dr. Baum's report is merely stating that she could try. I thus see nothing in Dr. Baum's report that would support the ALJ's finding that plaintiff was not sufficiently credible as to the early period, but was sufficiently credible as to the later period.

         Putting aside plaintiff's credibility, the important point is that the Commissioner is seizing on alleged “errors” committed by the ALJ even though, in other cases, the Commissioner takes the position that similar omissions by the ALJ do not warrant remand. See, e.g., Avera v. Colvin, No. 15-cv-1253, 2017 WL 473842 (E.D.N.Y. Feb. 3, 2017) (Commissioner opposed remand even though “the ALJ gave no precise reason for disregarding . . . [the plaintiff's] medical need for a cane”); Koch v. Comm'r of Soc. Sec., 14-CV-4755, 2016 WL 1273238 (E.D.N.Y. March 30, 2016) (Commissioner opposed remand where the ALJ omitted from her credibility analysis certain activities that the plaintiff stated she couldn't do, but accounted for activities the plaintiff stated she could do); Kennedy v. Astrue, 09-CV-00143, 2010 WL 3338620 (N.D.N.Y. June 14, 2010) (Commissioner opposed remand where, in assessing the plaintiff's credibility, the ALJ failed to mention a majority of the plaintiff's testimony regarding her significant difficulty in performing daily activities). This leads me to conclude that the Commissioner has searched the record for some arguable error as to the early period solely for the purpose of justifying remand as to the later period. In effect, the Commissioner is seeking reversal of the favorable decision of the ALJ and the Appeals Council.

         The Commissioner's stand-alone argument as to the later period is similarly unpersuasive. There is no requirement in the regulations that an ALJ find a “worsening” of a condition to select a later onset date than the one claimant asserts. Such a worsening can be one justification for picking a particular date, but it would be equally plausible, in a hypothetical case, for an ALJ to find insufficient evidence of disability before a certain date, and to still find disability based on the addition of later-generated evidence that reflects a later date. See Trombetta v. Chater, No. 95 Civ. 3216, 1997 WL 4573 (S.D.N.Y. Jan. 7, 1997) (affirming the ALJ's finding ...

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