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Elder v. Commissioner of Social Security

United States District Court, E.D. New York

March 24, 2017



          MARGO K. BRODIE, United States District Judge:

         Plaintiff Anthony Elder 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 his claim for 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 Alan B. Berkowitz (the “ALJ”) erred in weighing the medical evidence, thus rendering deficient the residual functional capacity (“RFC”) and the ALJ's hypotheticals to the vocational expert. (Pl. Mot. for J. on the Pleadings, Docket Entry No. 12; Pl. Mem. in Supp. of Pl. Mot. (“Pl. Mem.”), Docket Entry No. 13.) 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. 14; Comm'r Mem. in Opp'n to Pl. Mot. and in Supp. of Def. Cross-Mot. (“Comm'r Mem.”), Docket Entry No. 15.) 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 1971. (Certified Admin. Record (“R.”) 131, Docket Entry No. 7.) Plaintiff has a high school education. (R. 17, 156.) He was employed as a customer service representative for Verizon between January of 1997 and July of 2012. (R. 156.) On August 6, 2012, Plaintiff applied for disability benefits, alleging he was disabled as of July 3, 2012 due to mental illness and a right ankle injury. (R. 131, 152, 155.) Plaintiff's application was denied after initial review, and he requested a hearing before the ALJ. (R. 93-106.) Plaintiff appeared with his attorney before the ALJ on August 13, 2014. (R. 11-38.) By decision dated September 19, 2014, the ALJ determined that Plaintiff was not disabled and denied Plaintiff's application. (R. 76-90.) On December 18, 2015, the Appeals Council denied review of the ALJ's decision. (R. 1-6.) Plaintiff commenced this action on December 29, 2015. (Compl., Docket Entry No. 1.) The parties completed the briefing of their motions on January 3, 2017. (Docket Entry Nos. 12 and 14.)

         a. Plaintiff's testimony

         Plaintiff is right-handed. (R. 16.) Plaintiff lives with his father and twelve-year-old son in a first-floor apartment. (R. 16-17.) He does not drive. (R. 17.) Plaintiff ceased working in July of 2012 and tried to return to work in 2013 but was unable to “complete” a week of work because he was unable to sit for extended periods of time and had difficulty focusing. (R. 18- 19.) Plaintiff does not leave his house often, even though he has friends. (R. 30.) He has trouble reading at home because he is unable to focus. (R. 30-31.) Plaintiff does not complete any housework and his father takes him to medical appointments. (R. 30, 32.) Plaintiff is able to sketch, which he does with his right hand for approximately ten minutes a day “on a good day.” (R. 31-32.)

         Plaintiff has chronic back pain that runs down his leg, which began after he was in a car accident in December of 2012. (R. 20, 27.) Plaintiff broke his ankle in 2012 and has neck pain that runs down his left arm and causes numbness in his left arm elbow. (R. 20, 22.) He is unable to type and can only grip a pen for five to ten minutes. (R. 22-23.) Plaintiff can only sit for fifteen-to-twenty minutes before he needs to stand up and cannot sit for an hour during an eight-hour day. (R. 24-25.) Plaintiff can only stand for fifteen minutes during the course of an eight-hour workday. (R. 26.) Plaintiff cannot lift more than four or five pounds, cannot bend and has trouble moving his neck and body side to side, squatting, tying his shoes and putting on socks. (R. 25.) Plaintiff has asthma that is aggravated by the climate, stress and other environmental factors including pollen, fumes and allergies. (R. 20-21, 26.)

         Plaintiff first sought psychiatric treatment approximately ten years before the hearing for help with depression. (R. 21.) He began treatment with his current psychiatrist in April of 2013 because he felt as though “his life was over . . . because [he] couldn't work.” (Id.) Plaintiff was hospitalized for four days for intense thoughts of suicide. (R. 29-30, 31.) Plaintiff also suffers from anxiety when he is unable to complete a task. (R. 31.) Plaintiff takes psychiatric medications. (R. 31.)

         At the time of the hearing, Plaintiff was seeing Dr. Ragna C. Krishna, a neurologist, and also Dr. Mike Hedinachya. (R. 23.) Plaintiff began seeing Dr. Krishna on a monthly basis in January of 2013. (R. 29.) Plaintiff received epidural injections in his neck and lower back. (R. 23.) Plaintiff was prescribed Lyrica and also took Flexeril, a muscle relaxer, which caused him to suffer from fatigue. (R. 24.) Plaintiff also wore a back brace when traveling and as needed. (R. 29.)

         b. Vocational expert testimony

         Vocational expert Helene Feldman testified at the ALJ hearing and categorized Plaintiff's past work as a customer complaint clerk as sedentary with a specific vocational preparation (SVP) of five. Feldman testified that a hypothetical person of Plaintiff's age, education and work experience who was limited to sedentary work with occasional use of his non-dominant hand for fingering and fine manipulation limited to occasional exposure to respiratory irritants, extreme cold, extreme heat and concentrated vapors, could perform Plaintiff's past work. (R. 33.) However, if further limited to performing simple tasks, understanding simple instructions and working in a low-stress environment, the individual would not be able to perform Plaintiff's past work. (R. 34.) But the individual would be able to perform work as a ticket checker, document preparer or order clerk. (R. 34-35.) The same work could be performed by someone who could only stand for one hour. (R. 36.) There would not be work available if that same person were off-task twenty percent of the time. (R. 35.)

         c. Medical evidence

         i. Treating physicians

         1. Dr. Eric Gordon

         Plaintiff began seeing Eric Gordon, M.D. on July 23, 2012 for a right ankle fracture resulting in stiffness and severe low back pain. (R. 204.) On January 17, 2013, Dr. Gordon completed a form for the New York State Office of Temporary and Disability Assistance Division of Disability Determinations. (R. 204-08.) Dr. Gordon found tenderness to palpation of Plaintiff's right distal tibia with limited range of motion of dorsiflexion-platarflexion; severe low back pain; and tenderness to palpation of the lumbar paraspinals with limited range of motion. (R. 205.) Dr. Gordon did not find distal radiation or neurological changes. (R. 205.) Dr. Gordon noted evidence of fracture was present and stated that Plaintiff would be able to engage in full weight-bearing by November 12, 2012, which had already passed by the January 2013 examination. (R. 205.) An x-ray showed a healed right ankle fracture “with minimal medical clear space widening.” (R. 205.) Dr. Gordon opined that Plaintiff was limited in his ability to “push and/or pull (including hand and foot controls)” due to his ankle. (R. 206.) Dr. Gordon indicated that Plaintiff had between zero-and-thirty-degree lumbar region flexion extension, five-degree lateral flexion rotation to the right and left, five-degree dorsiflexion in his right ankle and twenty-degree in his left, and fifteen-degree plantar-flexion in his right ankle and forty-degree in his left. (R. 208.) Imaging of Plaintiff's thoracic and lumbar spine on December 18, 2012 showed levoscoliosis of the lumbar spine and dextroscoliosis of the thoracic spine. (R. 300.)

         2. Dr. Ranga Krishna

         Plaintiff was first seen by neurologist Ragna C. Krishna, M.D., on January 21, 2013. (R. 266.) In a May 15, 2013 report, Dr. Krishna reported the findings and recommendations from Plaintiff's five monthly appointments between January and May of 2013. (R. 266-68.) Dr. Krishna diagnosed Plaintiff with multilevel cervical and lumbar disc herniations resulting in cervical and lumbar radiculopathy and vestibular dysfunction resulting in dizziness. (R. 266.) Plaintiff received physical therapy and pain management treatments. (R. 266.)

         Dr. Krishna reported that Plaintiff had difficulty sitting and standing. (R. 266.) Plaintiff was cooperative, alert and oriented to person, place and time. His communication ability, remote and recent insight, judgment, proverb interpretation and mood and affect were all within normal limits; as were his calculations, “reversals, ” spelling, right to left orientation, ability to follow commands, identify body parts, and face and hand tests. (R. 267.) Plaintiff exhibited normal motor system examination results except four out of five weakness in the deltoid, supraspinatus, biceps muscles, extensor halluces longus, transverse abdominis, and gluteus maximus muscles on the right side. (R. 267.) Plaintiff had a positive Tinel sign[1] at the wrist bilaterally as well as a positive Braxton-Hallpike maneuver[2] “with the left head down position.” (R. 267.)

         Dr. Krishna measured Plaintiff's spinal range of motion with objective testing performed with a bedside compass. (R. 267.) Plaintiff's cervical spine range of motion included: flexion of thirty degrees, extension of ten-to-twenty degrees, lateral flexion of twenty-to-thirty degrees and rotation of eighty degrees.[3] (R. 267.) Plaintiff's lumbar spine range of motion included: flexion of thirty-to-fifty degrees, extension of ten-to-fifteen degrees and lateral rotation of ten-to-fifteen degrees.[4] (R. 267.) Plaintiff had decreased sensation on the outer aspect of the right leg and arm. (R. 267.) Plaintiff's deep tendon reflexes were “2” and symmetrical with flexor plantar responses bilaterally, except for the right ankle and biceps jerks which were “1.” (R. 268.)

         Dr. Krishna opined that Plaintiff's range of motion was fifty to seventy percent below normal and it “functionally impair[ed] him from performing [] work activities.” (R. 268.) Dr. Krishna also opined that Plaintiff's positive Braxton-Hallpike maneuver and dizziness secondary to vestibulopathy were functionally impairing him from obtaining gainful employment. (R. 268.) Dr. Krishna's prognosis was “guarded” due to the nature, severity and permanency of Plaintiff's injuries. (R. 268.)

         On January 21, 2013, Dr. Krishna's impressions from electrodiagnostic studies were evidence of chronic right C5-C6 cervical radiculopathy and moderate bilateral sensorimotor median nerve neuropathy at the wrist, consistent with a clinical diagnosis of Carpal Tunnel Syndrome. (R. 234-38.) On January 23, 2013, Plaintiff had magnetic resonance imaging (“MRI”) of his cervical and lumbar spine that Dr. Krishna ordered. (R. 209, 211.) Narayan Paruchuri, M.D., had the following impressions based on the MRI: board-based central disc herniation and a diffuse disc bulge with anterior thecal sac impingement and bilateral foraminal impingement at the C6-C7 level, (R. 209-10); disc bulge and right and left foraminal herniation, with bilateral foraminal impingement that was severe on the right and significant on the left, and anterior thecal sac impingement at the C5-C6 level, (R. 210); diffuse disc bulge and left foraminal herniation with anterior thecal sac impingement and left foraminal impingement at the C4-C5 level, (R. 210); disc bulge and right foraminal herniation, with right foraminal impingement, anterior thecal sac impingement and to a lesser degree left foraminal impingement at the C3-C4 level, (R. 210); and disc bulge with anterior thecal sac impingement but no foraminal impingement at the L2-L3 level, (R. 211). On February 4, 2013, Dr. Krishna's impressions from electrodiagnostic studies was evidence of right L5-S1 lumbosacral radiculopathy. (R. 229-33.)

         On June 17, 2013, Dr. Krishna examined Plaintiff and found he was alert, awake and oriented to time, place and person. (R. 251.) Plaintiff had an antalgic gait. (R. 251.) Dr.

         Krishna noted moderate tenderness and muscle spasms in the upper trapezius and paraspinal muscles. Plaintiff had a positive Spurling sign.[5] (R. 252.) Plaintiff's cervical spine range of motion included flexion of forty degrees, extension of twenty-five degrees, lateral rotation of forty degrees bilaterally and lateral flexion of twenty degrees bilaterally. (R. 252.) Plaintiff's lumbar spine range of motion included flexion of eighty degrees, extension of twenty degrees, rotation of twenty degrees bilaterally, and lateral flexion of fifteen degrees bilaterally. (R. 252.) Dull sharp pains and muscle spasms were noted in both the cervical and lumbar spine. (R. 252.) Straight leg-raising test was sixty degrees on the right and forty degrees on the left. (R. 252.) Deep tendon reflexes were “2” and symmetrical, except for the left biceps and Achilles, which were “1.” (R. 253.) Plaintiff had diminished sensation to light touch over both legs L5-S1 dermatomes and over the left arm C5-C6 dermatomes. (R. 253.) Muscles in the upper and lower extremities were symmetrical with normal motor tone and no atrophy noted. (R. 253.) Muscle strength was four out of five on the left. (R. 253.) Dr. Krishna noted chronic right C5-C6 radiculopathy and right L5-S1 radiculopathy as well as disc bulging in the lumbar and cervical spine. (R. 253.) Dr. Krishna's impressions were the same as reported in his May 2013 report. (R. 253.) Dr. Krishna prescribed Lyrica and continued physical therapy. (R. 254.) Examination findings, diagnostic testing and Dr. Krishna's impressions and recommendations remained unchanged upon Plaintiff's July 2 and July 29, 2013 examinations. (R. 247-50, 255-58.)

         On September 30, 2013, Dr. Krishna indicated in a letter that Plaintiff had a diagnosis of cervical and lumbar radiculopathy and “cervical spine surgery” is “pending.” (R. 246.) Dr. Krishna noted Plaintiff's symptoms are constant and he is “totally disabled” and had a “guarded” prognosis. (R. 246.)

         On October 29, 2013 and November 26, 2013, Dr. Krishna saw Plaintiff for persistent neck and back pain and diagnosed him with cervical and lumbar spine radiculopathy as well as post-traumatic stress disorder. (R. 244-45.) Dr. Krishna noted Plaintiff's prognosis was guarded and that he was “totally” disabled. (R. 244-45.) Dr. Krishna also noted that Plaintiff's conditions and symptoms were not improving but that Plaintiff should continue therapy, medication and pain management. (R. 244-45.)

         Dr. Krishna completed a functional capacities evaluation on October 29, 2013. (R. 295- 98.) Plaintiff reported that he requires seventy-five percent assistance with household activities such as cleaning, cooking, vacuuming, grocery shopping and laundry. (R. 296.) Plaintiff also indicated that he requires assistance from his son with upper- and lower-body dressing. (R. 296.) Dr. Krishna reported that Plaintiff was cooperative with the testing procedures but refused to complete some of the lifting activities due to pain and weakness in his neck and lower back muscles. (R. 296.) Plaintiff rated his neck and lower back pain as an eight on a scale of zero to ten. (R. 296.) Plaintiff was able to stand for approximately ten minutes, lift approximately two pounds and bend forward and rotate in a sitting position. (R. 296.) Dr. Krishna noted that Plaintiff's functional capabilities were limited by: increased lower back pain and trunk instability with strong efforts; decreased range of motion of the cervical and lumbar spine; loss of balance with strong efforts; tolerance for sitting for about ten minutes; ability for above shoulder activities and bilateral grip strength; and an inability to lift more than two pounds, squat, crawl or kneel. (R. 296.) Dr. Krishna also noted that Plaintiff's cervical spine range of motion included: flexion of thirty-five degrees, extension of thirty degrees, rotation of forty degrees bilaterally and lateral flexion of twenty degrees bilaterally. (R. 296.) Plaintiff's lumbar spine range of motion included: flexion of fifty-five degrees, extension of five degrees, rotation of ten degrees bilaterally and lateral flexion of ten degrees bilaterally. (R. 296.) Dr. Krishna opined that Plaintiff was not able to meet the requirements of sedentary work according to workers' compensation guidelines. (R. 297.)

         On August 7, 2014, Dr. Krishna completed a medical assessment of Plaintiff's ability to do work-related activities. (R. 302-04.) Based on upper and lower MRI evidence, Dr. Krishna opined that Plaintiff could occasionally lift and/or carry a maximum of less than ten pounds but not ten pounds and sit with periodic alternate sitting and standing to relieve pain or discomfort during an eight-hour workday. (R. 302-03.) Dr. Krishna also opined, based on the same MRI findings, that Plaintiff was limited in his ability to push and/or pull with upper and lower extremities. (R. 303.) Dr. Krishna opined that ...

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