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Coleman v. Commissioner of Social Security

United States District Court, E.D. New York

March 27, 2017

MARK F. COLEMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge.

         Plaintiff Mark F. Coleman commenced 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 claims for supplemental security income and social security disability insurance under the Social Security Act (the “SSA”). (Am. Compl., Docket Entry No. 8.)[1] The Commissioner moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that substantial evidence supports Administrative Law Judge Jay Cohen's (the “ALJ”) decision that Plaintiff was not disabled. (Comm'r Mot. for J. on the Pleadings (“Comm'r Mot.”), Docket Entry No. 13; Comm'r Mem. of Law in Supp. of Comm'r Mot. (“Comm'r Mem.”), Docket Entry No. 14.) Plaintiff cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that the ALJ (1) failed to give controlling weight to Plaintiff's treating physicians, and (2) omitted the opinions of one of Plaintiff's treating physicians from Plaintiff's residual functional capacity (“RFC”) assessment, which led to the ALJ's erroneous determination that Plaintiff could perform a job that existed in significant numbers in the economy. (Pl. Cross-Mot. for J. on the Pleadings (“Pl. Mot.”), Docket Entry No. 16; Pl. Mem. of Law in Supp. of Pl. Mot. (“Pl. Mem.”), Docket Entry No. 17.) For the reasons discussed below, the Court grants Plaintiff's cross-motion for judgment on the pleadings, denies the Commissioner's motion for judgment on the pleadings and remands the case for further proceedings consistent with this Memorandum and Order.

         I. Background

         Plaintiff is currently fifty-five years old. (Certified Admin. Record (“R.”) 184, Docket Entry No. 12.) Plaintiff has a bachelor's degree in human services. (R. 63.) From August of 2004 to April of 2011, the Salvation Army employed Plaintiff as a maintenance worker, which employment entailed various janitorial duties. (R. 226, 253, 255, 261.) Plaintiff began suffering back and shoulder pain in 2008, after he was involved in a car accident. (R. 298.) In 2010, Plaintiff was diagnosed with prostate cancer and began receiving radiation treatment shortly thereafter. (R. 318-19, 321, 342-43, 390.) The prostate cancer went into remission in 2011 and remains in remission. (R. 68, 235-36, 320, 327, 340.) Plaintiff maintains that he was unable to continue working after April 15, 2011, due to his mental and physical ailments. (R. 221, 225.)

         Plaintiff applied for supplemental security income and social security disability insurance on August 21, 2012, asserting that he was disabled based on degenerative disc disease of the spine, disc herniation, disc bulges, frank spinal stenosis, arthritis of the lower back and hips, prostate cancer, depression and alcoholism. (R. 221, 225.) On October 18, 2012, a disability adjudicator issued a report initially denying Plaintiff's application. (R. 99-111.) Plaintiff requested a hearing before an administrative law judge (“ALJ”), which hearing occurred on November 14, 2013, before the ALJ. (R. 58-93, 135.) After the hearing, the ALJ found that Plaintiff was not disabled between April 15, 2011 (the “alleged onset of disability”), and August 7, 2013, but was disabled as of August 8, 2013. (R. 20-38.) Plaintiff filed an appeal challenging the ALJ's decision that he was not disabled between April 15, 2011 and August 7, 2013 (the “Contested Period”). (R. 16.) The Appeals Council declined review, and Plaintiff filed a timely appeal with the Court. (R. 1-5; Compl., Docket Entry No. 1.)

         a. Hearing before the ALJ

         On November 14, 2013, the ALJ held a hearing regarding Plaintiff's application for social security benefits. (R. 58-92.) The ALJ heard testimony from Plaintiff, Sharon Grand, M.D., and Andrew J. Pasternak, a vocational expert.[2] (R. 58-92.) Plaintiff appeared with counsel. (R. 58- 92.)

         i. Plaintiff's testimony

         Plaintiff testified as follows. At the time of the hearing, he lived with his wife and granddaughter. (R. 63.) He was previously employed as a maintenance worker for the Salvation Army, where he performed various janitorial duties. (R. 64-65.) The heaviest items he lifted during his employment weighed between thirty-five and fifty pounds. (R. 65.) He was unable to work because he had “pain that . . . radiates down both [of his] legs, ” which pain stemmed from the pain in his back. (R. 66.) He was able to sit and stand for approximately forty-five minutes to an hour, depending on how well he slept the previous night. (R. 66.) He could walk for approximately two blocks and could lift up to ten pounds. (R. 66.) He previously suffered from prostate cancer, but it went into remission after he received radiation treatment and it remained in remission thereafter. (R. 67-68.) As a result of the radiation treatments, he had trouble with his bladder and his bowels. (R. 66.) He had trouble sleeping at night due to pain and cramps in his legs and shoulders. (R. 76.) He used a cane to ambulate and had a cane with him at the hearing. (R. 77.) Although he was prescribed the cane in 2013, he had used it since 2012. (R. 77.) He had trouble climbing the stairs in his home, and as a result, he slept on the ground level of the home occasionally. (R. 77-78.) He also had trouble dealing with his family and strangers on public transportation. (R. 78.) He had problems concentrating and remembering dates and appointments. (R. 79.) He could read if he could stay focused. (R. 79.) He was receiving psychological treatment by Dr. Imran Shaikh, who had prescribed him Wellbutrin and Seroquel. (R. 72-73.)

         Plaintiff also explained his daily activities. (R. 73.) He went to the community center, where he would talk with children who attended the community center's after-school program. (R. 73.) Sometimes, after leaving the community center, he traveled to his granddaughter's school to check in on her. (R. 73.) Whenever possible, he would get a ride to alcoholics' anonymous meetings. (R. 74.) He had been sober since August of 2012.[3] (R. 76.) Occasionally, he cooked, but he did not clean, shop or drive. (R. 74.) For leisure, he watched movies at home and sometimes his friends would visit him at home on Fridays. (R. 74.) His family, however, never visited him. (R. 75.) He was able to use public transportation, but if he was unable to get a seat and had to stand, he would lose feeling in his legs and use the support bars to prevent himself from falling. (R. 75.)

         ii. Dr. Grand's testimony

         Based on a review of the evidence in Plaintiff's record, Dr. Grand gave an opinion as to Plaintiff's mental impairments. (R. 80-81, 84.) Dr. Grand testified that Plaintiff had a history of depressive disorder, not otherwise specified, and alcohol dependence, which was in remission. (R. 81.) Plaintiff's depressive symptoms “would impact his ability to cope with stress, so he would be limited to a low-stress job and also a job that is routine, not necessarily repetitive.” (R. 82.) His time with coworkers, supervisors and the public would need to be limited to fifty-percent of his workday due to his mental impairments, and he would also need “some breaks” during the day. (R. 82.) Dr. Grand opined that nothing in the record indicated or supported a finding that Plaintiff likely would miss work more than three times per month. (R. 82-83.) She also opined that substance abuse was not a “material factor in the limitations” identified. (R. 83.) Dr. Grand concluded that Plaintiff's severe impairments failed to meet or equal a listing in Appendix 1 of the Social Security Regulations. (R. 83.)

         iii. Vocational expert testimony

         After reviewing the evidence in Plaintiff's record, Mr. Pasternak, the vocational expert, testified as follows. (R. 84.) The ALJ asked Pasternak

to consider a person of [Plaintiff's] age, education and work history, who was limited to the performance of light work with the following additional limitations: routine work . . . with the ability to be in contact with supervisors, coworkers and the public for [fifty] percent of the workday; no requirement to make job-related discretionary decisions or deal with potential conflict situations and not subject to rate quotas.

(R. 86.) Mr. Pasternak testified that such person could not perform Plaintiff's previous employment as a maintenance worker. (R. 86.) Mr. Pasternak testified that the described hypothetical person could, however, perform “light level” jobs as a “Hand Packager, ” “Assembler” and “Hotel/Motel Cleaner.” (R. 87-88.) At the “medium” level, the described hypothetical person could perform the job of a “Dishwasher, ” “Vehicle Cleaner” and “Parks Worker.” (R. 88-89.) Plaintiff's counsel asked Pasternak to assume that the described hypothetical person “required the use of a cane for ambulation.” (R. 89.) Pasternak testified that such a person could not perform the medium or light level jobs he mentioned previously. (R. 90.) The ALJ asked if such a person could perform “any jobs at the light level.” (R. 91.) Pasternak testified that the person could perform light level jobs as a “Ticket Taker, ” “Sewing Machine Operator” and “Inspector.” (R. 91-92.)

         b. Plaintiff's physical impairments

         i. Dr. Choong Kwon Kim

         In November of 2008, Plaintiff was involved in a motor vehicle accident. (R. 298.) After the accident, Plaintiff was suffering from neck, back and shoulder pain and sought treatment from Choong Kwon Kim, M.D. (R. 298.) Dr. Kim initially examined Plaintiff in December of 2008 and referred Plaintiff for a magnetic resonance imaging exam (“MRI”) of his back. (R. 298.) The MRI was conducted in January of 2009 and revealed: scoliosis and straightening of the spine possibly due to spasms; multiple herniation in the central disc; disc bulges; and frank spinal stenosis. (R. 305.)

         During a visit with Dr. Kim later that month, Plaintiff complained of moderate pain in his back that increased on flexion and extension and radiated to his lower extremities, as well as moderate and constant pain in his shoulder that increased when he elevated his arm. (R. 298- 300.) Based on an MRI, Dr. Kim noted that Plaintiff had cervical spine disc bulges. (R. 298.) Dr. Kim made the following observations after examining Plaintiff: moderate tenderness over the lower cervical spine, with left upper trapezius muscle spasm; restricted range of motion of the cervical spine due to pain; positive Spurling sign; positive Soto-Hall sign test; as to the left shoulder there was moderate tenderness over the anterior and posterior aspect; and impingement sign was positive. (R. 299.) Dr. Kim also examined Plaintiff's lumbar spine and found moderate tenderness over the lumbosacral area, with paralumbar muscle spasms; flexion and extension of the lumbar spine was painful and moderately restricted; straight leg raising test was positive bilaterally at about seventy degrees; and Milgram sign was positive. (R. 299.) The remaining tests produced negative results. (R. 299.) Dr. Kim opined that Plaintiff had cervical spine interval derangement, lumbar spine internal derangement, symptoms of cervical radiculopathy with radicular pain into the left shoulder, symptoms of lumbosacral radiculopathy with radicular pain into both lower extremities, traumatic myofascitis dysfunction syndrome and left shoulder pain. (R. 300.) Dr. Kim concluded that Plaintiff's ailments directly resulted from the motor vehicle accident and that Plaintiff was “presently and partially disabled for his work for an undetermined period as a result of his injuries.” (R. 300.) Dr. Kim recommended that Plaintiff continue physical therapy treatment. (R. 300.)

         ii. Dr. Viviane Etienne

         In March of 2009, Plaintiff visited Viviane Etienne, M.D. (R. 316.) Plaintiff complained of neck pain and lower back pain that radiated to his legs. (R. 316.) Dr. Etienne examined Plaintiff's cervical spine and observed that Plaintiff's active and passive range of motion had improved, but he had mild paracervical muscle spasms on rotation and that Plaintiff had bilateral mild muscle spasticity. (R. 316.) On examination of Plaintiff's lumbar spine, Dr. Etienne observed that Plaintiff had partial pain and restrictions in all directions, moderate lumbosacral paraspinal muscle spasms, positive bilateral straight leg raise at thirty degrees, bilateral muscle spasticity in the lumbar and gluteal/piriformis musculature and an improved active and passive range of motion. (R. 316.) Dr. Etienne noted that an MRI of Plaintiff's lumbosacral spine reflected two hernias, three bulges, spasms and stenosis. (R. 317.) Dr. Etienne diagnosed Plaintiff with traumatic cervical paraspinal myofascitis with discogenic radiculopathy and intersegmental dysarthria, traumatic lumbar paraspinal myofascitis with discogenic radiculopathy and extension of sciatic neuropathy. (R. 317.) Dr. Etienne issued rule-out[4]diagnoses as to cervical and lumbosacral radiculopathy. (R. 317.) Dr. Etienne recommended that Plaintiff continue active physical therapy two to three times per week, engage in home exercise with home-based physical therapy and that Plaintiff return for a follow-up examination in four weeks. (R. 317.)

         The following month, Plaintiff returned to Dr. Etienne for a follow-up examination. (R. 313.) Plaintiff complained that he was suffering from weakness in both legs as well as neck and lower back pain, but reported that since his last visit the severity of the pain had reduced by seventy percent in both areas. (R. 313.) Dr. Etienne examined Plaintiff's cervical spine and observed improved active and passive range of motion with mild paracervical muscle spasms; mild muscle spasticity in the cervical musculature; and that range of motion was normal regarding flexion, extension, left rotation, right rotation, left lateral flexion and right lateral flexion as measured by an inclinometer. (R. 313.) Dr. Etienne's examination of Plaintiff's lumbar spine revealed improved active and passive range of motion in all directions with mild lumbosacral and bilateral quadriceps muscle spasms; bilateral muscle spasticity in the lumbar musculature; and normal range of motion for flexion, extension, left lateral flexion and right lateral flexion as measured by an inclinometer. (R. 313.) Dr. Etienne noted that Plaintiff's electromyography (“EMG”) results were positive for C6 radiculopathy. (R. 314.) Dr. Etienne opined that Plaintiff had traumatic musculo-ligamentous sprain/strain of the neck, traumatic cervical paraspinal myofascitis with discogenic radiculopathy and intersegmental dysarthria, traumatic lumbar paraspinal myofascitis with discogenic radiculopathy, extension of sciatic neuropathy and lumbosacral joint ligament sprain. (R. 314.) Dr. Etienne issued rule-out diagnoses for cervical and lumbar radiculopathy. (R. 314.) Dr. Etienne recommended that Plaintiff continue active physical therapy one to two times per week, engage in home exercise with home-based physical therapy and perform stretch and strength exercises. (R. 314.) Dr. Etienne's prognosis was guarded.[5] (R. 314.)

         iii. Prostate cancer physicians

         In 2010, Plaintiff was under the care of William Johnson, M.D., a primary care physician, and Carlton Branswell, M.D., a urologist, who referred Plaintiff for a biopsy of the prostate under suspicion that he may have prostate cancer. (R. 318-19.) Niti Dube, M.D., conducted the biopsy in September of 2010, analyzed the biopsy sample and concluded that Plaintiff had prostate cancer. (R. 318-19.) Dr. Nube informed Plaintiff that the cancer could be treated with surgery or targeted radiation treatments. (R. 319.) Plaintiff chose the latter. (R. 319.)

         Dr. Nube also conducted a full medical history evaluation of Plaintiff, which included a bone scan and a cervical spine x-ray. (R. 318.) The bone scan revealed an abnormality at the C6 vertebrae, and the cervical spine x-ray revealed degenerative disease. (R. 318.)

         Plaintiff's radiation treatments began in April of 2011 and ended in July of 2011. (R. 320.) In August of 2011, Plaintiff had a post-radiation follow-up examination, which included a physical examination. (R. 326.) The physical examination notes stated, among other things, that Plaintiff did not have any tenderness in his neck, back, spine or ribs. (R. 326.) Plaintiff was instructed to attend future follow-up appointments with Dr. Branswell. (R. 327.)

         Between March of 2011 and February of 2012, Plaintiff was examined by Dr. Branswell on five separate occasions, and as relevant here, Dr. Branswell noted that Plaintiff never ...


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