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Jones v. Berryhill

United States District Court, W.D. New York

May 22, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          For the Plaintiff: Justin M. Goldstein Kenneth R. Hiller Law Offices of Kenneth Hiller

          For the Defendant: Susan J. Reiss Social Security Administration Office of General Counsel, Kathryn L. Smith, A.U.S.A. Office of the United States Attorney


          CHARLES J. SIRAGUSA United States District Judge


         This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied the application of Sabrina Jones (“Plaintiff”) for Disability Insurance Benefits and Supplemental Security Income Benefits. Now before the Court is Plaintiff's motion (Docket No. [#9]) for judgment on the pleadings and Defendant's cross-motion [#13] for judgment on the pleadings. Plaintiff's application is granted and Defendant's application is denied.


         The reader is presumed to be familiar with the parties' submissions, which contain detailed recitations of the pertinent facts. The Court has reviewed the administrative record [#7] and will offer only a brief summary of those facts.

         On November 26, 2012, Plaintiff filed for benefits, claiming to have become disabled from working on June 9, 2011. Plaintiff stated that her impairments were physical in nature.[1] In that regard, the record indicates that on June 9, 2011, Plaintiff was working as a housekeeper[2] at Strong Memorial Hospital, when she tripped over her cleaning-supply cart and fell to the floor, resulting in pain in her left knee, left hip and left thumb. See, e.g., (181, 223, 234). Plaintiff described the impairment as “a burning and aching feeling in [her] hip and knee and [an “aching feeling” in her] thumb.” (234).

         Plaintiff subsequently added depression to this list of impairments. In that regard, Plaintiff stated that she feels depressed because she cannot continue working in her chosen field as a cleaner, due to her physical pain. (46, 50-51). Although Plaintiff has not worked as a cleaner since her accident, she subsequently became certified as a daycare provider, and cares for three children in her home, whose ages are one, seven and ten. (40).

         Generally, the medical evidence shows that Plaintiff received conservative medical care following her accident, and that her injuries have improved, but that she still claims to experience disabling pain. Plaintiff's hip and knee injuries were treated with rest, pain treatments and physical therapy, while her thumb injury required surgery. For her pain, Plaintiff uses ibuprofen, lidoderm patches and a transcutaneous electric nerve stimulation (“TENS”) unit, as needed.

         On December 16, 2011, Brian Giordano, M.D. (“Giordano”) reported that Plaintiff continued to have tenderness upon palpation over her left hip joint, but that she had full “pain free” movement of the hip. (177). On January 10, 2012, Plaintiff told Giordano that her knee pain had improved overall, and Giordano noted that after exhausting “all conservative measures” “her [knee] symptoms [were] manageable for her.” (175). Plaintiff stated that the knee bothered her “occasionally with kneeling, sitting for prolonged periods of time or strenuous activities.” (175). Giordano reported that Plaintiff was “walking with a minimally antalgic gait, not using an assistive device.” (175). On January 30, 2012, Giordano reported that Plaintiff was complaining of pain in the left knee and hip, but that she was still capable of working light duty, with lifting restrictions. (169). On October 17, 2012, Giordano indicated that Plaintiff was in no acute distress, and had only “mild” limitations in her ability to move her left hip and left knee joints. (156). On October 15, 2012, Giordano indicated that Plaintiff had reached maximum medical improvement, with only mild residual limitations. (153). Giordano noted that Plaintiff was using “conservative modalities” to treat her pain, and that he had advised her to follow up with him as needed. (153).

         Plaintiff's thumb injury consisted of a ligament injury that was initially treated non-operatively. (165). Plaintiff subsequently developed “trigger thumb, ” and on December 22, 2011, she had surgery. On July 12, 2012, John Elfar, M.D. (“Elfar”) reported that Plaintiff had reached maximum medical improvement following surgery on her thumb six months earlier. (160). Elfar stated that the surgery had “largely resolved” Plaintiff's trigger thumb condition. (160). Plaintiff reported that her pain was “a lot less” than before the surgery, and that she was “doing well overall.” (160). Elfar stated that, “[o]verall, she has excellent use of her thumb.” (160). A nurse practitioner noted that Plaintiff “ha[d] good range of motion in her thumb, ” and no pain. (164). The same nurse practitioner indicated that any disability relating to Plaintiff's thumb was “mild.” (165).

         On April 3, 2012, Andre Lefebvre, M.D. (“Lefebvre”) issued a report that summarized the various treatments that Plaintiff received following her accident, as well as his own physical examination of Plaintiff. (180-192). At the conclusion of the report, Lefebvre opined that while Plaintiff still had some physical limitations relating to the accident, they were temporary, and that Plaintiff retained the ability to work. (191).

         On February 25, 2014, a hearing was conducted before an Administrative Law Judge (“ALJ”). Plaintiff appeared without a representative, and the ALJ explained to her that she had the right to a representative. The ALJ stated that if Plaintiff chose to proceed pro se, the ALJ herself would “obtain the necessary medical and other evidence.” (30). Plaintiff elected to represent herself. (30).

         Plaintiff testified that she took ibuprofen as needed for her hip and knee pain, and also used lidoderm patches and a TENS unit. (48, 50). Plaintiff indicated that those treatments were helpful, but did not completely alleviate her pain. (50). Plaintiff stated that she stopped attending counseling sessions for depression in 2012, and that she was not currently taking medication for depression. (46-51). Plaintiff stated, though, that her doctor planned to place her back on depression medication at a later time. (52).

         As the ALJ was reviewing the evidence that had been submitted, she stated, “we don't have all current medical evidence, ” and told Plaintiff that she would “request updated medical records from Highland Family Medicine so that we can get additional evidence[.]” (32-33, 38). In that regard, Plaintiff had indicated that she continued to receive treatment from Highland Family Medicine, but the ALJ observed that the file was missing treatment notes from December 2012 onward. (38-39). The ALJ told Plaintiff that she would request additional records from Highland Family Medicine, and would provide Plaintiff with a copy of whatever was received, and that Plaintiff would have the opportunity to “to request a supplemental hearing.” (66).

         Plaintiff indicated that, apart from Highland Family Medicine, she had not received any other treatment since 2012:

Q. Other than Highland Family Medicine, have you receive[d] any other treatment through 2013 or to the present?
A. No.
Q. Okay. Have you gone to any emergency rooms or anything like that?
A. No.

(38-39). Plaintiff noted that her workers' compensation case had remained pending until May 2013, when it was settled, but she did not indicate that she had been seen by any workers' compensation doctors during 2013 or 2014. (43).

         Highland Family Medicine is a department of Highland Hospital, which is under the umbrella of the University of Rochester Medical Center (“URMC”). Presently, the URMC website indicates that medical records pertaining to treatment at Highland Hospital must be requested from one address, while records pertaining to “clinic or office visits” must be requested from a different address.[3] Specifically, the address for Highland Hospital is 1000 South Avenue, Box 55, Rochester, New York 14620, while the current address for Highland Family Medicine is 777 South Clinton Avenue, Rochester, NY 14620. However, some of the earlier records from Highland Family Medicine in the record, from 2010-2012, bear the same address as Highland Hospital, which is 1000 South Avenue, Box 55, Rochester NY 14620. (Exhibit 11F, 492-505). The ALJ requested additional medical records from Highland Family Medicine, but sent the request ...

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