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Crocco v. Berryhill

United States District Court, E.D. New York

March 23, 2017

NANCY A. BERRYHILL [1] Acting Commissioner, Social Security Administration, Defendant.


          MARGO K. BRODIE, United States District Judge:

         Plaintiff Gina Philomena Crocco 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 supplemental security income and social security disability benefits under the Social Security Act (the “SSA”). Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that Administrative Law Judge James Kearns (the “ALJ”) erred by (1) improperly weighing the evidence, (2) improperly assessing Plaintiff's residual functioning capacity (“RFC”) and (3) improperly assessing Plaintiff's credibility. (Pl. Mot. for J. on the Pleadings, Docket Entry No. 9; Pl. Mem. in Supp. of Pl. Mot. (“Pl. Mem.”) 8, 14, Docket Entry No. 10.) 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. 12; Comm'r Mem. in Opp'n to Pl. Mot. and in Supp. of Def. Cross-Mot. (“Comm'r Mem.”) 18, 24, Docket Entry No. 13.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted, the Commissioner's cross-motion for judgment on the pleadings is denied, and the case is remanded for further proceedings consistent with this Memorandum and Order.

         I. Background

         Plaintiff was born in 1967. (Certified Admin. Record (“R.”) 183, Docket Entry No. 8.) Plaintiff has an eleventh-grade education. (R. 34.) She was previously employed as a direct care worker for mentally disabled adults and temporarily as a waitress. (R. 35, 49.) On August 3, 2012, Plaintiff applied for social security disability benefits, stating she was disabled as of December 1, 2006, due to major depressive disorder, generalized anxiety disorder, obsessive-compulsive disorder (“OCD”) and panic disorder with phobic features. (R. 104, 183, 227.) Plaintiff's application was denied after initial review, and she requested a hearing before the ALJ. (R. 127-28.) On March 11, 2014, Plaintiff submitted a supplemental security income application and requested that the application be merged with the pending social security disability application.[2] (R. 206-15, 277.) In her supplemental security income application, Plaintiff identified her conditions as “back, leg and depression.”[3] (R. 208.) Plaintiff appeared with her attorney before the ALJ on March 12, 2014. (R. 28-54.) By decision dated June 16, 2014, the ALJ determined that Plaintiff was not disabled and denied Plaintiff's application. (R. 11-23.) On September 14, 2015, the Appeals Council denied review of the ALJ's decision. (R. 1-6.) Plaintiff commenced this action on November 4, 2015. (Compl., Docket Entry No. 1.)

         a. Plaintiff's testimony

         At the March 12, 2014 administrative hearing, Plaintiff testified that she lives with her brother-in-law, but in 2011 she lived alone. (R. 33, 39.) Plaintiff's son and other family members help her when she needs to leave the house. (R. 33.) Public transportation makes her nervous but she has a driver's license and is able to drive if necessary. (R. 33, 47.) Plaintiff completed school through the eleventh grade. (R. 34.) Plaintiff regularly worked as a direct care worker for mentally disabled adults until 2006. (R. 35.) She was not able to continue that work because she hurt her back while working. (R. 36.) Plaintiff received workers compensation for a “couple [of] years.” (R. 36.) Plaintiff has not worked since 2006 but attempted to waitress approximately one year prior to the administrative hearing. (R. 34.) Plaintiff's waitressing shift was from 9:00 PM to 7:00 AM five days a week. (R. 34-35.) Plaintiff discontinued the work after less than one month because her legs would “give out” and she struggled to remember things. (R. 34-35.)

         Plaintiff has not felt well since 2006. (R. 36.) Her back and leg constantly bother her and she suffers from depression and anxiety. (R. 36.) Plaintiff's neck pain is becoming worse, her leg is always numb, she suffers from short-term memory loss and panic attacks, and the left side of her body bothers her. (R. 44, 47.) Plaintiff received lower back pain injections that helped with the pain for a few days at a time and also received an epidural injection. (R. 44-45.) Plaintiff feels anxious daily and has a low energy level. (R. 45-46.) Plaintiff received treatment from Eric Peselow, M.D., but ceased her regular psychiatric care after she lost insurance coverage approximately two years before the administrative hearing. (R. 36-37.) Plaintiff has since reobtained “health coverage.” (R. 37.) Plaintiff stopped taking her psychiatric medications after she discontinued visits with Dr. Peselow; she found the medications helpful but one of them caused her to suffer migraines. (R. 37-38.)

         Plaintiff takes Percocet to manage her pain, Propranolol for high blood pressure and to prevent migraines, Ambien to help with sleep, and Sumatriptan with a combination of Naproxen to alleviate migraines. (R. 37-38.) In response to a question from the ALJ as to whether Plaintiff previously had an addiction to Percocet, Plaintiff responded, “I didn't have addiction with that. I was trying to get better. I didn't want to really rely on it, but I need it.” (R. 38.)

         Plaintiff is capable of making herself a sandwich but her brother-in-law regularly cooks for her, she can clean but takes breaks to sit or lie down, and her son helps her with her laundry. (R. 39-40, 42.) She does not shop for her own groceries because she has to take breaks when her knee begins to bother her and because she becomes anxious in the store. (R. 46-47.) Plaintiff's leg causes her pain when she walks, even for short distances, and sometimes when she stands. (R. 41.) Plaintiff can sit for approximately a half-hour before her leg will become numb and she becomes anxious and needs to stand up. (R. 40.) Plaintiff lies down often during the day to alleviate the pain from the pinched nerve on her left side. (R. 43.) She can lift between seven and ten pounds and is able to lift her seven-pound dog. (R. 41.)

         b. Vocational expert testimony

         Raymond Cestar, vocational expert, testified that Plaintiff's past work as a direct care worker was medium work with a specific vocational preparation (“SVP”) of six. (R. 48-49.) He testified that a hypothetical person with sedentary restrictions could not perform the job of a direct care worker. (R. 49.) However, Cestar testified that the same hypothetical person with direct care work experience, though limited to sedentary work, could perform unskilled work as a clerical worker, account clerk or order clerk. (R. 49-50.) He testified that no jobs would be available to the same hypothetical individual if they either (1) required “unscheduled breaks of an hour per day in addition to normal breaks, ” (2) required absence from work more than three times per month, (3) required daily breaks to lie down for an hour during the day in addition to scheduled breaks, or (4) would not be able to sustain eight hours of sitting, standing and walking. (R. 50-52.)

         c. Medical evidence

         i. Dr. Kevin Weiner

         1. Treatment notes

         Dr. Weiner has been treating Plaintiff since February 3, 2004.[4] (R. 491.) On August 19, 2006, prior to her alleged onset date, magnetic resonance imaging (“MRI”) showed Plaintiff had L4-5 annular fissure (disc herniation). (R. 469, 472, 478.) Imaging of Plaintiff's cervical spine and lumbar on September 26, 2006 showed “straightening and slight reversal of the normal cervical lordosis suggesting spasm” and normal “lumbar vertebral bodies and intervertebral disc spaces, ” respectively. (R. 473.) Plaintiff's first visit with Dr. Weiner after her onset date was on March 20, 2007. (R. 466.) Plaintiff complained of back pain but noted that Percocet “helps to alleviate the pain.” (R. 466.) Dr. Weiner diagnosed Plaintiff with “a large L4-5 disc herniation, ” indicated Plaintiff was going to begin physical therapy and noted that she was awaiting authorization for epidural injections. (R. 466.) Dr. Weiner opined that Plaintiff “is totally disabled and unable to return to work.” (R. 466.) Plaintiff had subsequent visits with Dr. Weiner that summer and continued to complain of back pain and indicated the physical therapy made her “feel[] worse” but she continued to take Percocet to manage the pain.[5] (R. 467, 471.)

         On October 5, 2009, Plaintiff received an epidural injection and the next day “her leg [felt] lighter than normal.” (R. 464.) On November 3, 2009, Plaintiff had a follow up appointment with Dr. Weiner, and she indicated that the epidural injection provided one month of relief and she continued to have “severe back pain radiating down the left leg.” (R. 462.) Dr. Weiner indicated Plaintiff “has difficulty with activities secondary to pain.” (R. 462.) Dr. Weiner noted that a second epidural injection would be scheduled and also discussed changing Plaintiff from Percocet to “a long-acting medication.” (R. 462.)

         On December 1, 2009, Plaintiff described “numbness and pain radiating down the left leg” that was “becoming worse” and measured the pain as a nine on a scale of one to ten. (R. 461.) Plaintiff was struggling with ambulation and Dr. Weiner noted that Plaintiff “is becoming extremely depressed from the pain.” (R. 461.) Dr. Weiner opined that Plaintiff “is totally disabled and unable to return to work.” (R. 461.) Dr. Weiner recommended that Plaintiff begin physical therapy to reduce pain and inflammation, increase range of motion and improve strength to “maximize functions.” (R. 461.) At Plaintiff's December 22, 2009 and January 28, 2010 evaluations, Plaintiff continued to complain of pain and at the December 22 evaluation, Dr. Weiner indicated “tenderness to palpation along the left sciatic notch” and “triggers palpating along the gluteus minimus and maximus.”[6] (R. 459-60.)

         On February 25, 2010, Dr. Weiner noted Plaintiff “has difficulty with activities secondary to pain, ” limited lumbar spine range of motion, and that Plaintiff continued to complain of “severe pain.” (R. 458.) Dr. Weiner noted “tenderness to palpation along the left sciatic notch and triggers palpating along the gluteus minimus and maximus.” (R. 458.) On March 23, 2010, Plaintiff was scheduled for a second epidural injection several days after the appointment with Dr. Weiner and he indicated that if the symptoms continued after the injection, Plaintiff would be “sent to a neurosurgeon for evaluation.”[7] (R. 457.) Between April and December of 2010, Plaintiff continued to complain of pain, and Dr. Weiner noted tenderness to palpation along her back and knee, knee pain, limited range of motion in the lumbar spine and difficulty with daily activities during her regular visits.[8] Dr. Weiner scheduled several epidural injections during that time, and Plaintiff repeatedly postponed the injections. (R. 454, 447-49.)

         Dr. Weiner's evaluations of Plaintiff between January and June of 2011 indicated that Plaintiff “is unable to have epidural injections at this time, ” had “tenderness to palpation along the quadratus lumborum, ”a “positive McMurray's sign, ” had “tenderness to palpation along the medial and lateral joint line of the knee, ” and “tenderness to palpation along the left sciatic notch and triggers palpation along the gluteus minimus and maximus.” (R. 442-46.) Plaintiff complained of numbness in her left foot and “difficulty with activities.” (R. 445-46.) Dr. Weiner recommended physical therapy at Plaintiff's February and April evaluations. (R. 444- 45.)

         On July 5, 2011, Plaintiff received left sciatic nerve block and trigger point injections into the gluteus minimus, maximus and quadratus lumborum. (R. 441.) At that time, Plaintiff wanted to avoid the epidural injections. (R. 441.) Dr. Weiner indicated that, between August and December of 2011, Plaintiff continued to complain of back and knee pain but was “going to an OCD clinic” and “has been taking new medication.” (R. 440.) Dr. Weiner advised Plaintiff to obtain a back brace, and he offered Plaintiff an epidural injection but she indicated she wanted to “avoid the procedure.” (R. 436-40.)

         On January 17, 2012, Dr. Weiner recommended a review of Plaintiff's MRI results to determine if she required a new MRI of the lumbar spine. (R. 435.) Plaintiff and Dr. Weiner continued to discuss trigger point and epidural injections over the next four visits in February, April, May and June of 2012.[9] (R. 431-34.) On July 3, 2012, Plaintiff complained of pain measuring eight on a scale of one to ten, and Dr. Weiner ordered another MRI of her lumbar spine and noted Plaintiff would follow-up with a neurosurgeon and consider surgical intervention. (R. 430.) Dr. Weiner and Plaintiff discussed the possibility of surgery at her July 30, 2012 visit, but Plaintiff wanted to avoid any surgical procedure. (R. 429.) On August 30, 2012, Plaintiff's lumbar spine range of motion was limited in the “flexion: 55/90, ” tenderness to palpation along the left sacroiliac joint and triggers palpating along the gluteus minimus and maximus. (R. 428.) On October 25, 2012, Plaintiff received trigger point injections and Dr. Weiner reported that her range of motion was limited in the lumbar spine and also reported “tenderness to palpation along the facets at ¶ 4-5, L5-S1” and “triggers palpating along the quadratus lumborum.” (R. 426.)

         Plaintiff again saw Dr. Weiner in January, March and April of 2013 and they discussed surgery options. (R. 423.) Plaintiff continued to complain of pain, and Dr. Weiner indicated she “needs surgery.” (R. 423-25.) On May 7, 2013 and June 4, 2013, Plaintiff told Dr. Weiner that she was caring for her ill brother and “doing a lot of bending and lifting.” (R. 421-22.) At her June 4, 2013 appointment, Dr. Weiner noted a limited range of motion in the lumbar spine, “severe pain along the right leg with numbness” and “weakness in the anterior tibia and extensor halluces longus.”[10] (R. 421.)

         On July 2, 2013 and July 30, 2013, Plaintiff continued to complain of pain, but Plaintiff was without health insurance and, accordingly, could not receive her anxiety medication. (R. 419-20.) On September 24, 2013, Plaintiff described her pain as an eight on a scale of one to ten and expressed that she was “unable to sit or stand for a long period of time due to pain.” (R. 418.) Plaintiff deferred her epidural injection because she did not have insurance. (R. 418.) Similar discussions regarding Plaintiff's medication and epidural injections occurred at Plaintiff's October 22, 2013 and December 5, 2013 visits with Dr. Weiner, and Plaintiff remained uninsured. (R. 415-16.) At the December visit, Dr. Weiner reported that Plaintiff was “doing well with the pain medications.” (R. 415.)

         On January 14, 2014, Plaintiff reported neck and back pain and described her back pain as a ten out of ten. (R. 413.) Plaintiff continued to struggle with daily activities. (R. 413.) Dr. Weiner reported that she was being “worked up for migraine headaches” and might require Botox. (R. 413.) Dr. Weiner noted limited range of motion in her cervical spine flexion of “35/45” degrees and extension of “30/45” degrees and lateral flexion of “30/45” degrees bilaterally. (R. 413.) Dr. Weiner also noted Plaintiff's limited range of motion in the lumbar spine “with parethesias down the left leg” and “[p]ain along the sciatic notch.” (R. 413.) Dr. Weiner observed “tenderness to palpation along the cervical paraspinals, triggers in the upper trapezius and serratus posterior.” (R. 413.) Dr. Weiner recommended an MRI of the cervical and lumbar spine. (R. 413.) In February of 2014, Plaintiff reported continued “persistent” back pain and was awaiting authorization for epidural injections and MRIs of her lumbar spine. (R. 522.)

         2. Summary Impairment Questionnaire

         On April 8, 2014, Dr. Weiner completed a Summary Impairment Questionnaire form for Plaintiff. (R. 554-55.) In the form, Dr. Weiner indicated Plaintiff suffered from cervical and lumbar radiculopathy, which was based on his clinical findings that Plaintiff suffered from L4-L5 central annular fissure/disc herniation, limited range of motion cervical spine and tenderness to palpation along cervical paraspinals with a flexion of “35/45” degrees and extension of “30/45” degrees. (R. 554.) Dr. Weiner expected the conditions to last at least twelve months and described Plaintiff's symptoms as severe neck and back pain with radicular symptoms. (R. 554.) Treatment included Percocet (10/325 mg) and Ambien (125 mg) prescriptions, physical therapy and trigger point and epidural injections. (R. 554.) Dr. Weiner estimated that during the course of an eight-hour work day, Plaintiff could perform a job in a seated position for approximately two hours and that she could stand or walk for approximately two hours. (R. 555.) Dr. Weiner opined that Plaintiff should elevate her right leg to waist level every thirty to forty minutes, five times per day and could not lift or carry more than ten pounds, but she could occasionally lift five to ten pounds and frequently lift five pounds or less. (R. 555.) Dr. Weiner did not find any significant limitations in reaching, handling or fingering. (R. 555.) Dr. Weiner opined that Plaintiff would be likely to miss work more than three times a month as a result of her impairments. (R. 555.) Dr. Weiner indicated that Plaintiff had these symptoms and limitations as of December 1, 2006. (R. 555.)

         ii. Mental health and related evaluations

         1. FEGS evaluation

         In November of 2011, Plaintiff was evaluated by FEGS Health and Human Services (“FEGS”), a social service agency. (R. 286-318.) As part of that evaluation, Plaintiff met with social worker Robin Kaynor. (R. 286.) Plaintiff explained that she was unable to work due to “medical and mental health conditions.” (R. 292.) Plaintiff clarified that her barriers to employment included depression and anxiety, panic attacks, two herniated discs in her lower back, a pinched nerve in her left leg and insomnia. (R. 298.) Plaintiff was able to interact appropriately with others. (R. 299.) Plaintiff indicated that she never abused alcohol or any other substance. (R. 294.) Plaintiff's Patient Health Questionnaire (PHQ-9) score was fourteen, indicating moderate depression. (R. 296.) Plaintiff was able to wash dishes and clothes, sweep the floor, vacuum, make a bed, shop for groceries, cook meals, dress herself and bathe.[11](R. 298.) Plaintiff was examined by hospital physician Hun Han, M.D., who observed that Plaintiff could raise her leg thirty degrees and had “minimal difficulty” standing and walking due to the pain in her left lower back. (R. 307.) Strength in Plaintiff's left leg was “4.” (R. 307.) At the time of the exam, Plaintiff indicated her pain level was seven on a scale of one to ten but ranged from as low as three to as high as ten out of ten. (R. 308.) Plaintiff was anxious and exhibited poor attention during the exam. (R. 307.) Dr. Han referred Plaintiff for a Phase II psychiatric examination for her “depression OCD anxiety disorder.” (R. 314.) Harvey Barash, M.D., conducted the Phase II examination. (R. 314-17.) Dr. Barash's impressions were that Plaintiff suffered from generalized anxiety disorder, major depressive disorder, panic phobia and OCD features and lumbar radiculopathy migraine. (R. 312, 316.) Dr. Barash noted that Plaintiff had travel limitations, reduced sustained concentration and reduced tolerance for stress. (R. 312, 316.) Dr. Barash indicated that Plaintiff suffered from mild impairments in her ability to follow work rules, relate to co-workers, deal with the public and accept supervision. (R. 315-16.) Her ability to adapt to change was normal. (R. 315.) Dr. Barash concluded that Plaintiff required “better stabilization for employment” and that she was temporarily disabled for three months. (R. 311, 316.)

         2. Dr. Eric Peselow

         Plaintiff began seeing psychiatrist Dr. Peselow on June 6, 2011, and participated in weekly psychotherapy and medication management sessions until at least September 21, 2011.[12](R. 380.) Regina Kcarney, LMSW conducted Plaintiff's initial evaluation in Dr. Peselow's office. (R. 375-76.) Kcarney's evaluation noted that Plaintiff's “pain management doctor has mismanaged her pain medication regime, resulting in the prescription of high doses of [P]ercoset and resulting addiction.” (R. 375.) Plaintiff scored thirty-one on Becks' Depression Inventory, indicating severe depression. (R. 375.) After the initial meeting on June 21, 2011, Dr. Peselow evaluated Plaintiff on a weekly basis from July through August of 2011, and then on a monthly basis from September of 2011 through March of 2012.[13] (R. 373, 376-77.) Dr. Peselow diagnosed Plaintiff with major depressive disorder and OCD. (R. 380.) On September 21, 2011, Dr. Peselow wrote a letter on Plaintiff's behalf indicating that “[d]ue to the severity of her symptoms [Plaintiff] is unable to work.” (R. 380.)

         On March 10, 2012, Dr. Peselow completed a Treating Physician's Wellness Plan Report for Plaintiff. (R. 378-79.) Dr. Peselow diagnosed Plaintiff with generalized anxiety disorder, major depressive disorder, panic phobia and OCD features. (R. 378.) Dr. Peselow reached his diagnosis based on his observations of “depressive symptoms, decreased self-esteem, lethargy, decreased motivation, poor concentration, inability to relate to others and anxiety that is affected by feelings of tension, irritability and fatigue.” (R. 378.) Dr. Peselow concluded that Plaintiff's continued “symptoms of anxiety and depression make it impossible for her to work” and indicated that she could not work for at least twelve months. (R. 379.) Plaintiff also met with Dr. Peselow on July 23, 2012, at which time Dr. Peselow noted that Plaintiff was “upset over [a] life situation . . . OCD [ ] still prominent.” (R. 372.) Plaintiff was prescribed Luvox, Xanax, Seroquel, Zoloft and Ambien over the course of her treatment with Dr. Peselow. (R. 372-73, 378.)

         3. Dr. Salvatore Prainito

         Salvatore Prainito, M.D., conducted two separate physical exams of Plaintiff, the first on January 10, 2014, and the second on February 10, 2014. (R. 496-507.) On both occasions, Dr. Prainito indicated that Plaintiff was alert and oriented to person, place and time; exhibited “normal mood and affect;” presented as well-groomed and established good eye contact. (R. 498, 504.) In the January 10, 2014 report, Dr. Prainito indicated that Plaintiff complained of depression and diagnosed Plaintiff with major depression and anxiety. (R. 496-501.) Prainito noted the following “problems”: lumbar radiculopathy and “active” anxiety, depression and OCD. (R. 496-501.) In the February 10, 2014 report, Dr. Prainito indicated that Plaintiff “denied depression” but nevertheless listed “major depress[ion]” as one of Plaintiff's “problems” along with lumbar radiculopathy, “active” anxiety, depression status and OCD. (R. 502-07.)

         4. Dr. Stephen Kulick

         Upon Dr. Prainito's referral, Plaintiff saw Stephen A. Kulick, M.D., a neurologist, on January 29, 2014, for further assessment of her migraine headaches, which she reported she experienced five times per month. (R. 549, 551.) Dr. Kulick performed a mental status examination and concluded that Plaintiff “was oriented in time, place, person and space, ” exhibited normal “immediate, recent, and remote memory, ” and that her repetition, spelling, calculations and other similar functions were normal. (R. 551-52.) Dr. Kulick's impressions were that Plaintiff suffered from “[u]ncontrolled hypertension” that should be addressed by her primary care physician. (R. 552.) Dr. Kulick directed Plaintiff to reduce her use of Sumatriptan to no more than three times a week and prescribed her a daily dose of Inderal “to reduce the number of migraine headaches.”[14] (R. 552.) Dr. Kulick indicated he would follow up with Plaintiff and wanted her to have an MRI of the brain “to rule out an AV malformation.” (R. 552.)

         iii. Evidence submitted to ...

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