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Jakubowski v. Berryhill

United States District Court, E.D. New York

March 22, 2017

KIMBERLY JAKUBOWSKI, Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE United States District Judge.

         Plaintiff Kimberly Jakubowski filed the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her claim for social security disability benefits under the Social Security Act (the “SSA”). (Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that Administrative Law Judge Patrick Kilgannon (the “ALJ”) erred by (1) improperly weighing the medical opinion evidence and (2) failing to consider the effects of Plaintiff's pain and pain medications in assessing her residual functional capacity (“RFC”). (Pl. Mot. for J. on the Pleadings, Docket Entry No. 14; Pl. Mem. in Supp. of Pl. Mot. (“Pl. Mem.”) 1, Docket Entry No. 15.) The Commissioner cross-moves for judgment on the pleadings, arguing that the ALJ's decision is supported by substantial evidence and should be affirmed. (Comm'r Cross-Mot. for J. on the Pleadings, Docket Entry No. 16; Comm'r Mem. in Supp. of Def. Cross-Mot. (“Comm'r Mem.”) 1, Docket Entry No. 17.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted and the Commissioner's cross-motion for judgment on the pleadings is denied.

         I. Background

         Plaintiff was born in 1982. (Certified Admin. Record (“R.”) 130, Docket Entry No. 7.) Plaintiff graduated high school in 2000 and worked as a nursing aide in the maternity ward of Staten Island University Hospital from mid-2000 to September of 2011. (R. 49-50, 140-47, 160-62.) Plaintiff is married and has three children. (R. 130-31.) On September 7, 2012, Plaintiff applied for social security disability benefits, alleging she was disabled as of September 20, 2011, due to “stenosis of the spine and back injury.” (R. 151.) Plaintiff's application was denied after initial review, and she subsequently requested a hearing before the ALJ. (R. 71-82.) Plaintiff appeared with her attorney before the ALJ on March 7, 2014. (R. 42-60.) By decision dated May 28, 2014, the ALJ determined that Plaintiff was not disabled and denied Plaintiff's application. (R. 24-41.) On September 10, 2015, the Appeals Council denied review of the ALJ's decision. (R. 1-7.)

         a. Plaintiff's testimony

         At the March 7, 2014 administrative hearing, Plaintiff testified that she, her husband and their three children lived with Plaintiff's parents. (R. 49-50.) After graduating from high school, Plaintiff worked for twelve years as a nursing assistant and personal care aide in the maternity ward of Staten Island University Hospital. (R. 50-51.) Plaintiff explained that she was injured when she was assisting a heavy patient who fell on top of her. (R. 51.) As a result, Plaintiff sustained injuries to her lower back and numbness and tingling down her legs. (R. 51- 52.) Plaintiff had seen a chiropractor, undergone physical therapy, acupuncture, two epidurals and non-invasive electro-stimulation therapy (“scrambler therapy”). (R. 51.) At the time of the hearing, she was prescribed and taking Exalgo, Motrin 800, Tramadol, Klonopin and Flexeril and she wore a morphine patch for her pain. (R. 52.) Plaintiff's medications made her “very drowsy” and prevented her from having a daily routine. (R. 52.) She was able to braid her daughter's hair but could not otherwise take care of her children by herself. (R. 52.) Plaintiff did not leave the house often because she lacked money and required the flexibility to sit and stand at will. (R. 53.) She had not undergone surgery, to date. (R. 53.) Plaintiff explained that some of her medication was intended to treat anxiety and depression. (R. 53.)

         b. Vocational expert testimony

         Gerald Bellcheck, a vocational expert, testified that Plaintiff's past work as a personal care aide at a hospital was a semi-skilled occupation with a specific vocational preparation of four and required medium exertion. (R. 51.) He testified that a hypothetical person of Plaintiff's age, education and work experience could not perform Plaintiff's past work if her residual functional capacity limited her to: (1) lift up to twenty pounds occasionally and lift or carry up to ten pounds frequently; (2) stand or walk for approximately six hours per eight-hour work day and sit for approximately six hours per eight-hour work day with “normal breaks”; (3) occasionally climb ramps or stairs, balance, stoop, crouch, kneel and crawl, but not climb ladders or scaffolds; and (4) operate without mental non-exertional or visual communicative limitation. (R. 55-56.) However, Bellcheck testified that the same hypothetical person could perform unskilled work as a “cashier II” with a “sit/stand option, ” an office mail clerk, or a companion or personal attendant in someone's home. (R. 55-56.) The ALJ asked Bellcheck whether his analysis would change if the hypothetical person had a “sedentary exertional limitation, ” meaning she could lift up to ten pounds occasionally, stand or walk for approximately two hours per eight-hour work day and sit for approximately six hours per eight-hour work day with “normal breaks.” (R. 56-57.) Bellcheck testified that someone with those limitations could perform unskilled, sedentary work as an order clerk, taking telephone orders at large hotels; a bench or final assembler at a manufacturing plant; or a charge account clerk at a department store. (R. 57.) Finally, the ALJ asked Bellcheck whether a hypothetical person who could occasionally lift up to ten pounds, sit for fewer than two hours in an eight-hour work day and stand or walk for fewer than two hours in an eight-hour work day could perform any work. (R. 58.) Bellcheck testified that such a person would be precluded from working in the national economy. (R. 58.)

         c. Medical evidence

         i. Medical evidence before the alleged onset date

         On November 29, 2010, Plaintiff saw neurosurgeon John Shiau, M.D., complaining of lower back pain that she had experienced for the previous four months. (R. 274-77.) Plaintiff filled out a pain scale report and indicated that her pain came and went and was “very severe, ” that she did not have to change her personal care habits in order to avoid pain, that she could not walk “at all” without increasing pain, that she avoided sitting because it immediately increased pain, that she could not stand for longer than a half-hour without experiencing pain and that her pain restricted her to “short necessary journeys under [a half-hour].” (R. 273.) Dr. Shiau noted that a November 16, 2010 magnetic resonance image (“MRI”) of Plaintiff's lumbar spine showed L4-L5 degenerative disc disease with a mild disc bulge and a degenerative disc bulge at the L5-S1 disc level with a right paracentral herniated disc. (R. 276, 289.) The MRI also reflected a mild left foraminal disc protrusion at ¶ 3-L4, producing mild left neural foraminal narrowing. (R. 289.) On examination, Dr. Shiau found that Plaintiff could not sit on the coccygeal region and was constantly fidgeting. (R. 276.) The pain near her coccyx had resulted in further mid-lower back pain that occasionally radiated into her thoracic region and her calf. (R. 276.) Dr. Shiau noted that Plaintiff's muscle tone was normal, she had full range of motion of the cervical and lumbar spines and she was alert and oriented. (R. 276.) He diagnosed her with “some type of coccydynia, perhaps related to ligamentous inflammation, ” and “a secondary problem of the L5-S1 herniated disc with degenerative disease.” (R. 276.) Dr. Shiau gave Plaintiff a prescription for Celebrex and recommended physical therapy and, failing that, a resection of the coccyx or a microdisectomy. (R. 276.)

         On April 9, 2012, Plaintiff received an MRI at Dr. Shiau's request because she was experiencing numbness and tingling in her right leg. (R. 390.) The MRI found disc desiccation at Plaintiff's L5-S1 discs, mild diffuse disc bulges at ¶ 3-L4 and L4-L5 and mild bilateral neural foraminal stenosis. (R. 390-91.)

         ii. Medical evidence after the alleged onset date

         On September 21, 2011, Plaintiff was treated in the emergency room at Staten Island University Hospital for lower back pain radiating down her right leg. (R. 241-54.) She had been injured while transferring a heavy patient at work. (R. 241.) Plaintiff declined to take “sedating medication” because she was driving home and refused anti-inflammatory drugs because she could take Motrin at home. (R. 242.) On examination, Plaintiff had full range of motion in her extremities and was neurologically sound. (R. 245.) The attending physician prescribed rest, heating pads, Valium, Percoset and Ibuprofen. (R. 245.) The physician noted that Plaintiff could return to work in two days and that she should return for a follow-up evaluation and further treatment within the week. (R. 246.)

         1. Dr. Stephen Costa

         On September 22, 2011, Stephen Costa, Doctor of Chiropractic (“D.C.”), examined Plaintiff for pain in her back, right buttock and right thigh. (R. 434-35.) Plaintiff had reduced lumbar range of motion and pain and spasms on palpation. (R. 436-37.) Dr. Costa restricted Plaintiff from all work-related activities and found her “totally temporarily disabled.” (R. 438.) He advised that Plaintiff receive chiropractic treatments three times per week. (R. 438.) Dr. Costa also completed a form in support of Plaintiff's claim for worker's compensation benefits, noting that Plaintiff had a guarded gait, lumbar and thoracic spine muscle spasms, painful back range of motion and weakness in her right leg and thigh. (R. 331-34.) Dr. Costa's prognosis of Plaintiff was “guarded, ” and he noted that she had a temporary disability. (R. 333-34.) He further noted that Plaintiff was unable to lift anything greater than five pounds and advised that she avoid crouching, bending, lifting, climbing or standing for long periods of time. (R. 334.)

         Dr. Costa provided Plaintiff with chiropractic care from September of 2011 through July of 2012. (R. 360-64, 374-89, 397-411, 416-33.) Plaintiff's symptoms improved slightly and then worsened again during the period of Dr. Costa's treatment. (R. 374-89.) Dr. Costa performed manual adjustments and treated Plaintiff's back with moist heat. (R. 374-80, 382, 385, 387-89, 392-93.)

         On October 1, 2011, Plaintiff visited Central Broadway Medical, an independent company that performs comprehensive functional evaluations, at Dr. Costa's request and referral. (R. 397-411.) Plaintiff was administered a physical performance evaluation, which reflected Dr. Costa's diagnosis of Plaintiff's lumbar radiculopathy and lower back syndrome, both on her right side. (R. 397.) Plaintiff reported extreme restrictions in her lifestyle and, on a scale of one to ten, she indicated that her pain “interfered” at a level ten with her ability to walk one block; at a level ten with her ability to sit for a half-hour and stand for a half-hour; at a level nine with her ability to do daily activities or jobs around the home; and at a level six with her ability to concentrate. (R. 399.) Based on the functional testing, the report assigned Plaintiff's body an “impairment value” at each source of pain. Plaintiff had pain in her right hip, knee and ankle, which rendered her eighty-seven percent impaired in her right leg and thirty-five percent impaired in her overall person. (R. 400-02.) In summary, the physical performance evaluation report indicated that based on Plaintiff's strength data in conducting various lifts, she could lift between seventeen and nineteen pounds occasionally. (R. 410.) Plaintiff was strength-deficient between fifteen and sixty-three percent on the right side of her lower body. (R. 410.) Plaintiff also had reduced range of motion in her lumbar spine. (R. 411.)

         On October 7, 2011, Plaintiff received an MRI at Dr. Costa's referral. (R. 395-96.) The MRI revealed moderate to marked spinal stenosis in Plaintiff's L4-L5 discs, secondary to a herniated disc compressing the thecal sac and bilateral L5 nerve roots. (R. 396.) This was causing bilateral neuroforaminal stenosis and deformity on Plaintiff's existing L4 nerve roots. (R. 396.) The MRI also revealed a diffuse posterior bulging disc at ¶ 3-L4, affecting the nerve roots and loss of normal disc signal intensity and height. (R. 396.)

         On November 19, 2011, Plaintiff underwent another physical performance evaluation of the lumbar spine. (R. 416.) Plaintiff again assessed how her pain restricted her lifestyle and, on a scale of one to ten, she reported that her pain “interfered” at a level seven with her ability to walk one block; at a level ten with her ability to sit for a half-hour and stand for a half-hour; at a level nine with her ability to do daily activities or jobs around the home; at a level seven with her ability to concentrate; and at a level seven with her ability to lift ten pounds. (R. 418.) Based on various impairment measures, Plaintiff's right leg, which included her right hip, knee and ankle, was ninety percent impaired. (R. 419.) Her left leg and spine, which in October had reflected no impairments, were now impaired twenty-eight percent and twelve percent, respectively. (R. 419.) In total, Plaintiff's whole body was fifty percent impaired, according to the physical performance evaluation report. (R. 419, 421.) Plaintiff's static strength and ability to lift were re-tested, and she exhibited a nearly 100 percent decline in strength across the tested tasks. (R. 424.) Plaintiff was expected to be able to occasionally lift between one and six pounds. (R. 424.) Plaintiff's results also reflected between a twenty- and fifty-percent decrease in hip flexion and extension strength. (R. 425-26.)

         From October of 2011 through September of 2012, Dr. Costa reported on Plaintiff's workers' compensation forms that Plaintiff could not lift more than five pounds and could not crouch or bend. (R. 336, 338, 341, 346, 349, 351, 353, 355, 357.)

         2. Dr. Christopher Perez

         On September 26, 2011, Plaintiff visited Christopher Perez, M.D., a pain management and rehabilitation physician, for lower back and right leg pain. (R. 503.) Plaintiff reported back and leg pain that was exacerbated by sitting, driving, lifting, coughing and sneezing and improved by standing or lying supine. (R. 504.) Plaintiff ambulated without the use of an assistive device. (R. 504.) Dr. Perez noted that Plaintiff had no postural deficits but did have diffuse right lower paraspinal and right sciatic notch tenderness. (R. 504.) Examination also revealed positive straight leg raising at forty-five degrees in the right leg, forward lumbar flexion limited to thirty degrees and diffuse lower paraspinal and right sciatic notch tenderness. (R. 504.) Dr. Perez diagnosed right lumbar radiculopathy and prescribed a course of physical therapy, Prednisone and Nucynta as needed. (R. 504.) He recommended an MRI and electromyography (“EMG”) if Plaintiff's symptoms did not improve. (R. 504.) Dr. Perez also advised Plaintiff to remain out of work for two weeks, at which time she could be re-evaluated. (R. 505.)

         On October 17, 2011, Dr. Perez explained to Plaintiff that the MRI from October 6, 2011 showed herniated discs at ¶ 4-5 and L5-S1. (R. 499-500.) He recommended continued use of Nucynta and Neurontin and recommended an EMG to further evaluate her symptoms. (R. 499- 500.) Dr. Perez also advised Plaintiff to remain out of work for the following four weeks, until she could be re-evaluated. (R. 500, 502.) Plaintiff presented for a lower extremity EMG on November 7, 2011. (R. 495-98.) Dr. Perez administered the EMG, which revealed “abnormal” findings consistent with a right L5 radiculopathy. (R. 498.) Based on the results of the EMG, Dr. Perez advised Plaintiff to continue physical therapy and schedule lumbar epidural steroid injections and a pain management consultation. (R. 498.) Plaintiff returned to Dr. Perez on November 21, 2011, complaining of continued lower back and right leg pain exacerbated by sitting, driving, bending, coughing and sneezing. (R. 493-94.) Dr. Perez prescribed Vicodin as needed and scheduled Plaintiff for an epidural steroid injection.[2] (R. 493-94.)

         On December 19, 2011, Plaintiff returned to Dr. Perez with continued complaints of lower back and right leg pain. (R. 491-92.) Plaintiff reported no relief from her two recent epidural steroid injections and, in fact, felt worse from the procedures. (R. 491.) Dr. Perez advised her to stay out of work for four weeks and referred her to Dr. Shiau for a neurosurgical consultation. (R. 492.) On January 17, 2012, Plaintiff informed Dr. Perez that Dr. Shiau recommended a microdisectomy and fusion surgery of her lumbar spine. (R. 489-90.) Dr. Perez recommended that she seek a second opinion from a spine surgeon. (R. 490.)

         From February of 2012 through August of 2012, Dr. Perez treated Plaintiff for pain in her lower back, right thigh and right leg. (R. 465, 472, 475, 480, 482, 487, 491, 493.) Plaintiff consistently reported that physical therapy, chiropractic treatment and acupuncture afforded her only minimal improvement, and that she continued to take Vicodin, Neurontin and Motrin. (R. 465, 472, 475, 480, 482, 487, 491, 493.) Her examinations consistently revealed diffuse lower paraspinal and right sciatic notch tenderness, reduced lumbar range of motion and full right hip range of motion. (R. 470, 473, 476, 479, 481, 483, 485, 488, 490, 492, 494, 506.) Plaintiff consistently reported having difficulty sleeping at night and reported the same radiating and tingling sensations through her back, thigh and down to her foot. (R. 470, 473, 476, 479, 481, 483, 485, 488, 490, 492, 494, 506.) Dr. Perez's impressions remained the same throughout this period, and he diagnosed Plaintiff with “right lumbar radiculopathy-L5 level” and lumbosacral disc herniation. (R. 470, 473, 476, 479, 481, 483, 485, 488, 490, 492, 494, 506.) He continued to advise Plaintiff to remain out of work during this time because she maintained a “total 100% disability from her occupation” and could not sit for more than fifteen-to-twenty minutes at a time. (R. 471, 474, 476, 479, 481, 483, 485, 488, 490, 492, 494, 506.)

         An April 9, 2012, an MRI of Plaintiff's lumbar spine revealed multilevel disc bulges at discs L3-L4, L4-L5 and more severe bulges at ¶ 5-S1, desiccation and mild bilateral foraminal stenosis. (R. 390-91.) Dr. Perez examined Plaintiff after the MRI and noted that Plaintiff was treating her pain with Motrin, Vicodin and Neurontin, and that Dr. Shiau had recommended both a discectomy and a fusion. (R. 480.) Dr. Perez also advised Plaintiff not to sit for more than fifteen or twenty consecutive minutes and to avoid lifting and bending. (R. 481.) Between April and June of 2012, Dr. Perez maintained this diagnosis and recommendation, advising against bending, lifting or sitting for longer than twenty minutes. (R. 475-83.) He also encouraged Plaintiff to continue regular chiropractic and physical therapy treatments. (R. 475-83.)

         In July of 2012, Plaintiff returned to see Dr. Perez, having obtained a second opinion regarding her need for surgery. (R. 472.) Dr. Perez noted that Plaintiff had seen Dr. James Farmer, a spine surgeon, twice, and Dr. Farmer had concluded that surgery would not alleviate Plaintiff's pain. (R. 472.) Dr. Perez continued to note that Plaintiff had experienced only minimal improvement from her therapy, chiropractic and acupuncture treatments. (R. 472.) Given Plaintiff's failed response to conservative treatment and having been told she was not a good candidate for surgery, Dr. Perez recommended Calmare scrambler therapy for symptomatic relief of Plaintiff's radicular lower back and leg pain. (R. 470-71, 473-74.) Plaintiff and Dr. Perez then waited for workers' compensation to authorize scrambler therapy. (R. 468.)

         On September 6, 2012, Plaintiff underwent an MRI of her pelvis, which returned “unremarkable” results. (R. 520.) Dr. Perez advised that she undergo an MRI of her right hip, but Plaintiff's workers' compensation denied the authorization. (R. 520.)

         Workers' compensation records indicate that Dr. Perez continued to treat Plaintiff through May of 2013. (R. 516, 531-55.) Plaintiff added Tramadol and Butrans patches to her pain relief medications sometime in the fall of 2012, when her insurance declined to re-authorize her chiropractic treatments and physical therapy and she discontinued those courses of treatment. (R. 520.) As of January 14, 2013, Dr. Perez noted that Plaintiff was unable to sleep for more than three hours per night and could not sit for longer than ten-to-fifteen minutes, bend, or lift more than five-to-ten pounds. (R. 521.) She also could not stand or walk for longer than ten-to- fifteen minutes. (R. 521.) In early 2013, Plaintiff's insurance had not yet approved the proposed Calmare scrambler therapy to treat Plaintiff's pain. (R. 521.)

         According to workers' compensation forms, Dr. Perez administered scrambler therapy to Plaintiff on July 3, 2013, September 6, 2013, October 4, 2013, November 4, 2013, November 8, 2013, November 18, 2013, December 4, 2013 and January 8, 2014. (R. 557-64, 569-72, 576- 79, 584-608.) Throughout this period, Dr. Perez indicated that Plaintiff was seventy-five percent physically impaired. (R. 533, 552, 554, 558, 563, 571, 578, 586, 590, 594, 598, 602, 606.)

         On August 12, 2013, Dr. Perez completed a medical source statement. (R. 635-38.) He noted that he had treated Plaintiff since September of 2011 for lumbar disc herniation and lumbar radiculopathy. (R. 635.) Dr. Perez considered Plaintiff's prognosis “poor.” (R. 635.) Her symptoms included lower back pain, right thigh pain and leg pain with leg numbness exacerbated by sitting, bending and lifting. (R. 635.) Plaintiff reported a shooting, burning pain in the lower back to the buttock, thigh and calf. (R. 635.) She showed a reduced lumbar range of motion, a positive straight-leg test on the right side and an abnormal gait. (R. 636.) Plaintiff became dizzy and drowsy throughout the day because of her pain medication. (R. 636.) Dr. Perez opined that Plaintiff could sit for fewer than two hours in an eight-hour work day and could stand or walk for fewer than two hours in an eight-hour work day. (R. 646.) He also indicated that Plaintiff could sit for ten minutes before needing to stand or shift positions and could stand for ten minutes before needing to sit or change positions. (R. 646.) Dr. Perez opined that Plaintiff could occasionally lift and carry less than ten pounds and could never carry more than ten pounds. (R. 637.) Plaintiff could rarely twist and stoop and could never crouch, squat, or climb ladders or stairs. (R. 637.) Dr. Perez also opined that Plaintiff was capable of moderate work stress and likely would be absent from work more than four days per month as a result of her impairment. (R. 638.) Dr. Perez estimated that Plaintiff's pain would interfere with approximately twenty-five percent of her time at work. (R. 638.)

         On November 4, 2013, Dr. Perez completed a workers' compensation form in which he stated that Plaintiff had reached her maximum medical improvement and was unable to work. (R. 526.) Dr. Perez indicated that Plaintiff could “never” climb, kneel, bend, stoop, squat, or operate machinery; that Plaintiff could “occasionally”[3] lift, carry, push and pull up to ten pounds and drive a car; and that Plaintiff could “constantly” perform simple grasping activities and fine manipulations, reach overhead or at shoulder level and operate machinery. (R. 527.) He further checked a box indicating that Plaintiff was “unable to meet the requirements of sedentary work.” (R. 527.)

         On February 14, 2014, Plaintiff returned to Dr. Perez for a follow-up consultation. (R. 203-05.) Dr. Perez described Plaintiff's course of physical therapy, chiropractic treatment, lumbar epidural steroid injections and Calmare scrambler therapy. (R. 203.) Plaintiff continued to complain of lower back pain that radiated down her posterior right thigh, extending to her right lateral calf and into her right foot with numbness, tingling and shock-like sensations. (R. 203.) She also described radiating pain in her buttocks and weakness in her right thigh and calf. (R. 203.) Dr. Perez noted that Plaintiff reported having a hard time sleeping because of her pain, despite using Flexeril and Klonopin at bedtime. (R. 203.) Plaintiff could not sit or stand for longer than ten-to-fifteen minutes each, lift more than five-to-ten pounds, or bend. (R. 203.) Dr. Perez indicated that Plaintiff was referred to a psychiatrist for her depressed mood, resulting from her chronic pain and inability to work. (R. 203.) Dr. Perez wrote that his plan was for Plaintiff to continue taking long-acting opioids and see an interventional pain management specialist for a spinal cord stimulator. (R. 204.) He noted that Plaintiff had applied for social security disability benefits and was “permanently unable to maintain any type of gainful employment.” (R. 204.)

         On June 24, 2014, Plaintiff returned to Dr. Perez for a follow-up evaluation. (R. 651.) Plaintiff reported no improvement of her radicular pain and was still equally limited in her ability to sit, stand, walk, lift and bend. (R. 651.) She had developed a partial right foot drop with gait dysfunction, and she walked with a cane. (R. 652.) Dr. Perez reviewed and changed Plaintiff's medications to remedy her side effects. (R. 653.) Dr. Perez noted that he had ordered a carbon-fiber ankle and foot orthosis for Plaintiff's gait dysfunction, and he advised Plaintiff to follow-up with further psychiatric care. (R. 653.)

         3. Dr. ...


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