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Giambrone v. Colvin

United States District Court, E.D. New York

March 30, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          PAMELA K. CHEN, United States District Judge:

         Plaintiff Denny Ann Giambrone (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration's (“SSA”) denial of her claim for Disability Insurance Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts. 15, 17.) Plaintiff seeks reversal of the Commissioner's decision and an immediate award of benefits, or alternatively, remand for further administrative proceedings. The Commissioner seeks affirmation of the denial of Plaintiff's claims. For the reasons set forth below, the Court GRANTS Plaintiff's motion for judgment on the pleadings and DENIES the Commissioner's motion. The case is remanded for further proceedings consistent with this opinion.



         Plaintiff filed an application for DIB on September 27, 2011, alleging disability beginning January 15, 2010 due to asthma, diabetes, arthritis, gout, [1] generalized anxiety disorder, colitis, [2]diverticulosis, [3] thyroid disease, and hormone problems. (Tr. 167-69, 202.)[4] Her last date insured was June 30, 2012. (Tr. 4.) On February 01, 2012, the SSA denied Plaintiff's claim. (Tr. 101.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on March 26, 2012. (Tr. 107.) Plaintiff, represented by counsel, appeared at a hearing before ALJ Miriam L. Shire on April 24, 2013 (“ALJ Hearing”). (Tr. 25-80.) In a decision dated December 27, 2013, the ALJ denied Plaintiff's claims. (Tr. 88-96.) Subsequently, the Appeals Council granted Plaintiff's request for review. In a decision dated August 18, 2015, the Council reversed the ALJ's finding that Plaintiff was able to perform her past relevant work. (Tr. 5.) However, it adopted the ALJ's ultimate conclusion that Plaintiff was not disabled, because it found that Plaintiff was capable of performing a number of other jobs that exist in significant numbers in the national economy. (Tr. 5.) Plaintiff timely filed this action on October 13, 2015. (Dkt. 1.)


         A. Medical Evidence

         1. Treating Physicians

         a. Dr. Martha Anthony

          From December 2007 through March 2013, Drs. Martha Anthony and Joseph Vento treated Plaintiff for a variety of conditions at Millennium Medical Services, P.C., including generalized anxiety disorder, hyperthyroidism, [5] diabetes, hematuria, [6] asthma, ulcerative colitis, amenorrhea, [7]and gout. (Tr. 424-529.)

         Plaintiff's primary treating physician, Dr. Anthony, began treating Plaintiff on September 26, 2011. (Tr. 523, 535.) Dr. Anthony completed a walking questionnaire regarding Plaintiff's condition on April 16, 2013, the conclusions of which were effective as of September 26, 2011. (Tr. 532.) The report stated that Plaintiff was unable to use public transportation, and was unable to walk for one block at a reasonable pace on rough or uneven surfaces. (Id.) The report also stated that Plaintiff was able to carry out routine ambulatory activities and climb a few steps at a reasonable pace with the use of a handrail, and did not require an assistive device to walk. (Id.) Dr. Anthony also indicated that Plaintiff had severe pain due to a full-thickness chondral injury to her knee.[8] A separate questionnaire indicated that Plaintiff had joint pain, swelling and tenderness in her knee and lumbar spine, which was expected to last for at least 12 months. (Tr. 533.)

         Dr. Anthony completed a residual function capacity form dated April 16, 2013, the conclusions of which were applicable as of September 26, 2011. (Tr. 535.) Dr. Anthony wrote that Plaintiff was not able to use standard public transportation or carry out routine ambulatory activities such as shopping or banking. (Tr. 531.) She reported that Plaintiff did not require assistive devices to walk. (Tr. 531.) Dr. Anthony opined that Plaintiff was able to sit for two hours over an eight-hour workday, but was not able to stand or walk for any period of time over an eight-hour workday. (Tr. 534.) The form also noted that Plaintiff was unable to bend, squat, crawl, climb, or lift or carry over ten pounds. (Tr. 535.) It stated that Plaintiff had moderate persistent asthma and that she could not be exposed to extreme temperature, humidity, or strong odors. (Tr. 535.)

         Dr. Anthony wrote that Plaintiff had severe pain, and that medical signs or laboratory findings, i.e., an MRI, showed the existence of a medically determinable impairment-full-thickness chondral knee injury-that could reasonably be expected to produce the pain. (Tr. 531.)[9]

          b. Lutheran Medical Center

          From November 21 to November 23, 2011, Plaintiff was treated for pneumonia at Lutheran Medical Center. (Tr. 273-323.) While there, she complained about left groin pain, dysuria, [10]abdominal pain, and shortness of breath. (Tr. 273-79.) She reported a past medical history of asthma, gout, colitis, hyperlipidemia, [11] diverticulosis, diabetes, and hypothyroidism. (Tr. 273.) She was discharged against medical advice because of family reasons. (Tr. 273-78.)

         On March 25, 2012, Plaintiff received treatment at the Lutheran Medical Center emergency room, where she was diagnosed with a calcaneal spur.[12] (Tr. 399-400.)

         On April 13, 2012, she returned the emergency room with bronchitis. (Tr. 384.)

         c. January 28, 2012 MRI and X-Ray images

          Multiple MRI and X-Ray images of Plaintiff's feet and ankles were taken by Doshi diagnostic imaging services in early 2012. (Tr. 391-96.) X-Rays of Plaintiff's ankles revealed bilateral posterior and plantar calcaneal spurs; the images also revealed a widening of the lateral ankle mortise, [13] which may suggest lateral ankle ligament disruption. (Tr. 396.) X-Ray images of Plaintiff's feet showed calcaneal spurs and bilateral hallux valgus.[14] (Tr. 395.) An MRI of the right ankle showed irregularity of the anterior talofibular ligament, [15] which was consistent with a partial tear, mild effusion, [16] and a mild subchondral signal abnormality of the distal fibula[17] and adjacent talus.[18] (Tr. 391.) An MRI of the left ankle showed tissue edema, joint effusion, mild subchondral signal abnormality of the distal fibula and adjacent talus, and osteochondritis dissecans of the lateral talar dome.[19] (Tr. 393.) An MRI of the right foot showed mild soft tissue edema and mild subchondral signal abnormality of the tarsal bones, which may suggest arthritic changes. (Tr. 294.) MRI of the left foot showed the same issues.

         d. March 2, 2013 MRI Images

         In March 2013, MRI images of Plaintiff's spine and knees were taken, along with x-rays of Plaintiff's right knee. (Tr. 412-19.) The MRI of Plaintiff's spine revealed mild facet arthropathy[20] in the lower lumbar spine with mild disc bulges. (Tr. 413.) X-Rays of the right knee showed early osteoarthritis in the medial and patellofemoral compartments. (Tr. 415.) MRI of the left knee showed a full-thickness chondral injury along the lateral facet of the patella[21] with subchondral cyst formation and malformation, along with a bony infarct[22] in the medial femoral condyle[23] and discoid lateral meniscus.[24] (Tr. 416.) The image also showed a Baker's cyst.[25](Id.)

         e. Dr. Henry Tischler

          On Dr. Anthony's referral, Plaintiff was examined by Dr. Henry Tischler on March 11, 2013. (Tr. 538.) Dr. Tischler noted that Plaintiff had a history of bilateral knee pain, primarily in the left knee, which radiated down her leg. (Id.) Dr. Tischler's report also indicated that Plaintiff was using a cane, and had “significant” difficulty negotiating stairs, with episodes of giving way. (Id.) Dr. Tischler noted that Plaintiff could ambulate “approximately half a block and back, ” and could ambulate two blocks with the assistance of a cane. (Id.) He noted crepitation[26] with range of motion in both knees. (Tr. 540.) Plaintiff reported having difficulty with work and household activities, and experiencing “continuous, excruciating, pulsating, throbbing” pain in her knee. Plaintiff described the pain as an eight on a scale from one to ten when at rest or ambulating straight, and a ten out of ten when using stairs, changing positions, or engaging in other activity. (Tr. 539.) Dr. Tischler's exam further indicated that Plaintiff suffered from depression, anxiety, difficulty sleeping, dizziness, abdominal cramping, and difficulty breathing. (Tr. 539.) Plaintiff reported to Dr. Tischler that she smoked. (Tr. 539.)

         Dr. Tischler reviewed the March 2, 2013 MRI images of Plaintiff's knees and lumbar spine. This analysis revealed a full-thickness chondral injury in the left knee, along with subchondral cyst formation and malformation, along with a bony infarct in the medial femoral condyle and a discoid lateral meniscus. (Tr. 542.) Dr. Tischler diagnosed patellofemoral syndrome[27] in both knees, left greater than right. (Id.) The MRI of Plaintiff's spine revealed mild facet arthropathy in the lower lumbar spine, along with mild disc bulges. (Id.) Dr. Tischler prescribed physical therapy and strengthening activities for these injuries, including stretching and the use of a stationary bicycle. (Tr. 414.)

         f. Dr. Soheila Jafari

          Between March 11, 2013 and April 8, 2013, Plaintiff saw Dr. Soheila Jafari, a pain medicine specialist, three times for back and knee pain. (Tr. 251-56.) Dr. Jafari reported that Plaintiff had an antalgic gait, [28] knee tenderness, reduced range of motion in her right knee, trigger points in the lumbar paraspinal muscle, and claudication.[29] (Tr. 252, 254, 256.) She noted that an MRI of Plaintiff's left knee showed full-thickness chondral injury along the lateral facet of the patella with subchondral cyst formation, bony infarct within the medical femoral condyle, discoid lateral meniscus without evidence of a tear, and a Baker's cyst. (Tr. 252.) Dr. Jafari diagnosed Plaintiff with PMHx DM, asthma, obesity, hypothyroidism, UC and CLBP[30] and back pain, and stated that Plaintiff “presents with multiple pain problems including axial back pain” and bilateral knee pain, with the left greater than the right.[31] (Tr. 256.)

         2. Consultative Physicians

         a. Dr. Benjamin Kropsky

         On December 29, 2011, Dr. Benjamin Kropsky, an internist, performed a consultative medical examination of Plaintiff. (Tr. 345-54.) He reported that Plaintiff had a history of gout that mainly affected her toes, ankles, and knees, with pain that could reach a nine out of ten. (Tr. 345.) He reported that her gout prohibited her from prolonged walking and climbing stairs. (Id.) He also diagnosed her with irritable bowel syndrome, diverticulosis, diabetes, and low thyroid levels, and reported that Plaintiff stated that she often had diarrhea and abdominal cramping. (Id.)

         Dr. Kropsky noted that Plaintiff, who had asthma, had been smoking two packs a day since the age of 16, but was only smoking half a pack per day at the time of her examination, and was attempting to quit. (Tr. 346.)

         Regarding daily activities, Dr. Kropsky reported that Plaintiff was able to cook daily with some help and do light cleaning, although she could not tolerate dust or fumes. (Tr. 346.) She was also able to bathe and dress herself daily, but needed help when the gout was severe. (Id.) She would not shower unless someone was home because she was afraid she might fall. (Id.) Plaintiff did not do laundry or shopping, and enjoyed watching TV, listening to the radio, reading, and going on family holidays. (Id.)

         In his report, Dr. Kropsky stated that Plaintiff had a normal gait and was in no “acute distress.” (Tr. 347.) While she had “great” difficulty walking on her toes, Plaintiff could walk on her heels without difficulty. (Id.) She could squat halfway down with some pain in her right ankle. (Id.) Plaintiff did not use an assistive device, and she did not require help changing for the exam or getting on and off the examination table. (Id.) Plaintiff experienced mild difficulty rising from a chair. (Id.)

         Dr. Kropsky found that Plaintiff had full range of motion in her cervical spine, lumbar spine, shoulders, elbows, forearms, and wrists. (Tr. 347-48.) He found no abnormality in Plaintiff's spine, and stated that she had full range of motion in both knees. (Tr. 347.) Plaintiff had mild swelling and moderate tenderness in her right ankle. (Id.) A pulmonary examination showed that Plaintiff did not have significant lung function abnormality, although her lung function was not fully normal. (Tr. 353.) The x-rays of Plaintiff's knees that Dr. Kropsky examined were both negative. (Tr. 348, 350-51.)

         Dr. Kropsky reported light wheezing but normal diaphragmatic motion. (Tr. 347.) Plaintiff's cervical spine and lumbar spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally, and she did not have scoliosis. (Tr. 348-49.) Dr. Kropsky found that Plaintiff had full range of motion of her knees bilaterally, that her ankles lacked some flexion, and were mildly swollen and mildly to moderately tender. (Tr. 348.)

         In sum, Dr. Kropsky diagnosed Plaintiff with asthma, gout, irritable bowel syndrome, hypothyroidism, and diabetes. (Tr. 348-49.) Dr. Kropsky opined that Plaintiff had “moderate” limitations on climbing stairs, squatting, and kneeling, and “mild to moderate” limitation for prolonged walking. (Tr. 349.) Dr. Kropsky also opined that Plaintiff should avoid smoke, dust, and other respiratory irritants because of her asthma. (Id.)

         b. Dr. Alan Dubro

         On December 29, 2011, Plaintiff underwent a consultative psychiatric evaluation performed by Dr. Alan Dubro, Ph.D. (Tr. 339-43.) At this consultation, Plaintiff reported that she had a history of anxiety spanning many years, which was heightened due to medical problems she had experienced over the previous months. (Tr. 340.) She described general difficulty dealing with day-to-day stress and feelings of anxiety in social situations. (Id.) She reported that medication was “helpful.” (Id.) Dr. Dubro also noted that Plaintiff had cut her smoking back to half a pack per day at the time of the examination.

         Plaintiff reported that she dressed herself and maintained her hygiene independently, prepared meals for herself and her family on a daily basis, did general cleaning at home several times per week, and did laundry and went food shopping on her own several times per week. (Tr. at 341-42.)

         Dr. Dubro noted that Plaintiff's mood was mildly anxious; her attention and concentration were mildly impaired, due to distractibility associated with nervousness. (Tr. 341.) Her recent and remote memory skills were also mildly impaired for the same reason. (Id.) Her cognitive functioning was estimated to fall in the low-average range. (Id.)

         Dr. Dubro diagnosed Plaintiff with generalized anxiety disorder. (Tr. 342.) He opined that Plaintiff's attention span and concentration were mildly impaired and that she would experience mild difficulty in learning new tasks, interacting with others, regularly attending to a routine, and maintaining a schedule. (Id.) However, Dr. Dubro stated that these difficulties did not significantly interfere with Plaintiff's ability to function on a daily basis. (Id.)

          c. W. Skranovski

          On January 26, 2012, State agency psychiatric consultant W. Skranovski, M.D., reviewed the record and assessed Plaintiff's degree of psychological impairment. (Tr. 355-68.) Dr. Skranovski rated Plaintiff's functioning under paragraph B of listing 12.06, concluding that she had no limitation with regard to the activities of daily living, maintaining social functioning, maintaining concentration, persistence, or pace. (Tr. 365.) Further, Dr. Skranovski indicated that Plaintiff had never experienced repeated and extended episodes of deterioration. (Id.) While Plaintiff reported that she was unable to travel alone, the consultant concluded that these assertions were not supported by any related pathology, such as agoraphobia, dementia, or other active psychotic symptoms. (Tr. 367.) Dr. Skranovski reported that her statements about poor cognition and social skills were not supported by examination or any objective data. (Tr. 367.) Additionally, Dr. Skranovski concluded that the objective data did not show any functional limitations resulting from Plaintiff's alleged anxiety disorder. (Id.)

         d. Dr. Malcolm Druskin

          In a case analysis dated June 12, 2012, state agency medical consultant Malcolm Druskin, M.D., reviewed Plaintiff's claim. Dr. Druskin found that Plaintiff's claim of disability was not credible, and that the record evidence did not support a claim of musculoskeletal limitations. (Tr. 384-85.)

         e. Expert Medical Testimony: Dr. Gerald Galst

         A medical expert, Dr. Gerald Galst, an internist and cardiologist, testified at the ALJ Hearing on April 24, 2013. (Tr. 55-66.)[32] Dr. Galst described Plaintiff, who was 5'4” tall and 275 pounds at the time of the hearing, as morbidly obese. (Tr. 56.) He testified that Plaintiff's thyroid and lung function were normal, and that she showed minimal elevation of blood sugar levels. (Tr. 57.) Reviewing the X-rays and MRI images of Plaintiff's spine, feet, ankles, and knees, Dr. Galst opined that these studies did not reveal any conditions that would be severe enough to meet a 104 Listing, and that he did not believe they met a 102 listing, either. (Tr. 58.) While Plaintiff did suffer from asthma, pulmonary testing showed that her lung function was normal. (Tr. 59.) He also testified that the diagnosis of Plaintiff's treating physician, Dr. Anthony-i.e., that Plaintiff was unable to stand or walk for any length of time-was not consistent with the medical records or the X-ray findings in the record. (Id.) In response to questioning by Plaintiff's attorney, Dr. Galst testified that the bony infarct in the medial femoral condyle shown in the MRI of Plaintiff's left knee was a nonspecific finding, which showed that there may have been some vascular injury to the bone at some point in time. (Tr. 62.) The full-thickness chondral injury to the same knee, Dr. Galst testified, could cause knee pain and limit Plaintiff's ability to walk, although it would not usually limit the range of motion in the knee. (Tr. 63.) He also stated that the bulging disk in Plaintiff's back shown by the MRI was a nonspecific finding, which was common in most older individuals. (Id.) He found that the bunions and calcaneal spurs in Plaintiff's feet and ankles could limit Plaintiff's ability to walk “somewhat.” (Tr. 64.) Dr. Galst also stated that the signal abnormality of the tarsal bones in Plaintiff's ankles suggested arthritis, but doubted that this condition would be disabling. (Tr. 65.) When asked whether Plaintiff would have difficulty walking for a block on an uneven surface in light of her conditions, Dr. Galst testified that Plaintiff should be able to walk “more than a block.” (Id.)

         B. Non-Medical Evidence

         1. Questionnaires

         In a November 1, 2011 Disability Report, Plaintiff reported that her last employment was in September 2011, where she worked for four hours per day, five days per week, as a telemarketer for Neighborhood Outreach. (Tr. 186, 202-03.)

         She reported that she could no longer work due to constant diarrhea and stomach pain, rectal bleeding due to colitis and medications, and diabetes. (Tr. 208.) She also reported that she could not walk up or down stairs without help because of constant pain in her knees, ankles, and wrists and trouble breathing, that she could not walk with a cane because of pain in her wrists, and that she was allergic to all NSAIDs[33] and could not take them because of drug interactions. (Tr. 208.) She wrote that she could only stand for ten to fifteen minutes at a time before having to sit, due to gout pain, and that she sat for three to five hours each day. (Tr. 214-15.) Plaintiff stated that pain in her ankles, big toes, knees, and wrists was “stabbing, throbbing, shooting up and down from [her] toes to [her] knees, ” and that it also spread to her hip and pelvic area, as well as to her elbows. (Tr. 218.) The pain was there “all the time, ” and to manage the pain, she took Tramadol, Acetaminophen, Allopurinol, Pantoprazanole, Albuterol, Dicyclomine, Levothyroxine, and Aprazolam. (Tr. 218.)

         She further reported that she got diarrhea at least 15 times per day, and that diabetes caused her to urinate in her pants frequently. (Tr. 208, 217.) Coughing and breathing difficulties from asthma made it difficult to talk on the phone, and she used a nebulizer and a daily fast-acting asthma pump. (Tr. 208, 220.) When those did not work she would go to the emergency room or to her doctor for steroid injections. (Tr. 220.) Plaintiff also wrote that she was in so much pain that she could not complete tasks at work or travel to work without pain or dizziness and fear of fainting or a diabetic coma. (Tr. 208.)

         Plaintiff reported that in the mornings, after making her son breakfast and sending him to school, she would take medicine and fall asleep. (Tr. 210.) She wrote that her husband and son helped take care of her. (Id.) Plaintiff wrote that it was hard to cook, stand too long, or walk up stairs, and that she could feed herself but, most of the time, needed help getting up off the toilet. (Tr. 210-11.) She needed help with cleaning, because dusting would bring on asthma, and lifting a laundry bag. She could use her hands all the time, except for opening jars and lids, although after using her hands for a long period of time, her wrist and fingers would hurt and she would need to take a break. (Tr. 215.)

         On the form, Plaintiff stated that she went outside once or twice a week, but that when she walked, her gout hurt and her body would produce uric acid, and her ankles and knees would be swollen and in pain. (Tr. 212.) She stated that she never went out alone because of fear that she would faint, having fainted in the street in the past, and because being alone made her anxious. (Id.) She wrote that she used her cane all the time, but sometimes could not use it because of gout in her wrist. (Tr. 216.)

         Regarding social activities, Plaintiff reported that about twice a month she would invite friends to watch movies at her house, but that she did not go out. (Tr. 214.) She wrote that her heart would race when she met new people, and when she went to the doctor. (Tr. 221.) Socializing had become a task because it was hard to get dressed and her feet would swell, such that her shoes did not fit. (Tr. 219.) As a result, she would stay home and elevate her legs. (Tr. 219.) ...

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