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Connolly v. Berryhill

United States District Court, E.D. New York

June 2, 2017

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

          The DeHaan Law Firm P.C. Attorneys for Plaintiff By: John W. DeHaan, Esq.

          Bridget M. Rohde Acting United States Attorney, Eastern District of New York Attorney for Defendant By: Candace Scott Appleton, AUSA


          Denis R. Hurley United States District Judge

         Plaintiff Melonie Connolly ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied her claim for disability insurance benefits. Presently before the Court are Plaintiff's motion and Defendant's cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons discussed below, Plaintiff's motion is denied and Defendant's cross-motion is granted.


         I. Procedural Background

         Plaintiff applied for disability insurance benefits (DIB) on May 8, 2013, alleging disability as of September 16, 2012, due to neck, back, right elbow, right knee, and left ankle impairments. (Transcript ("Tr.") 180, 183.) Plaintiff's DIB claim was denied on August 8, 2013. (Tr. 76-84.) Subsequently, Plaintiff filed a request for a hearing, which hearing was held on October 9, 2014, before administrative law judge ("ALJ") April M. Wexler. (Tr. 104-05, 43-75.) By Notice of Decision - Unfavorable, dated December 14, 2014, the ALJ denied Plaintiff's application for DIB, finding she was not disabled. (Tr. 26-42.) Review by the Appeals Council was requested and on February 25, 2016, the Appeals Council denied the request. (Tr. 14-25, 1-6.) This action followed.

         II. Factual Background

         A. Non-Medical Evidence

         1. Plaintiff's Testimony and Function Report

         Plaintiff was born in 1976 and is a college graduate. Her past relevant work consists of police officer for the City of New York and the Port Authority. (Tr. 46-47, 437.)

         A function report dated August 6, 2013 was completed on behalf of Plaintiff by her attorney. (Tr 182-91.) It states that she lives in a house with her family and spends her days grooming, eating, attending appointments, resting and relaxing. She cooks and prepare her three meals daily just as she did before the alleged onset date. She does light cleaning but needs help and does not do any outdoor work. She goes outside daily, can both ride in and drive a car, and shops for personal items and groceries with a family member one or two times a week for about an hour. She watches television daily but can no longer read due to her neck injury. She socializes daily in person “but not like [she] used to.” According to the report, she is limited in what she can lift, can only sit for a short period of time, and can climb stairs holding on the railing and taking her time; she has to avoid kneeling and squatting and sometimes her hands gets tired. No limitations were set forth for standing, walking, reaching, seeing, hearing and talking. The distance she can walk before having to stop and rest is not affected. She reports no problems with personal care except the need to take her time dressing and that she could no longer blow out her hair. In response to the question about what activities she could no longer engage in as a result of her condition, the answer was “work.” Plaintiff reports that she first had pain in September 2012 and it affected her activities right away. She described the pain as sharp, tingling, and numbing in the elbow and neck, which radiated from the neck to her back and from her elbow to her lower arm. She experiences it every day for most of the day. (Tr. 182-91.)

         Plaintiff testified at the hearing before the ALJ. (Tr. 43-69.) She lives in a ranch home with her husband and has a BA in social work and sociology. She has a driver's license and drives; she is 5'7" tall and weighs 293 lbs. She cannot work due to headaches, neck pain, reduced range of motion as a result of neck fusion surgery, tightness in the shoulders, weakness in her arm, and leg swelling secondary to lymphedema. Plaintiff developed lymphedema after she had lumbar surgery in 2009, neither of which prevented her from working until 2012 when she was injured on the job. She injured her knee in 2003 and still has pain and swelling as a result once or twice per week. She has weakness in her right hand which cause her to drop things once or twice a week. She cannot perform sedentary work because she is limited in using her right arm, sitting and looking down. She can walk a mile, but slowly, sit for an hour before needing to stretch, and lift five to ten pounds with her right hand. She cannot squat without pain; she can bend although she has pain when doing so. She goes to physical therapy three times per week for her neck and hand; she takes Aleve or Tylenol for her headaches and uses a Lidoderm pain patch. She wears compression stockings every day for her lymphedema. Once a week she ices or heats her knee; she also does home exercises for her knee and elevates it once a day. She had neck fusion surgery in 2013 that she characterized as “successful, ” although the plate in her neck makes swallowing difficult and she regurgitates her food. (Tr. 43-69.)

         Plaintiff describes her day as waking up, feeding her dog and letting her outside. On Monday, Wednesday, and Friday she goes to physical therapy and then comes home, eats breakfast, and reads a book or the newspaper. She does light cleaning around the house, including loading the dishwasher. Her husband does the laundry. She goes to lunch with her girlfriends and her mother comes over to socialize - not help. She and her mother like to get their hair done, shop together and do “mother/daughter activities.” She goes to Manhattan by train or car every six weeks to see Dr. Fisher[2] at the Port Authority. She has a driver's license and can drive using her left hand with no problem. She cooks all of the meals for the week over the weekend. She entertains but her husband does much of the work. She crocheted but difficulty with her hands caused her stop in the past few months. She has gone to the movies only once or twice the past year as they have become expensive. (Tr. 43-69.)

         After her alleged onset date she went to Aruba, Jamaica, and Oktoberfest in Germany. When she went to Oktoberfest and Aruba her husband had to help carry her luggage and bathe and dress her as her arm was in a sling. She received early boarding. While in Jamaica she was able to go to the beach and pool - she “just basically lounged, ” “got a nice suntan” and “had a couple of Savasas [sic].”[3]

         2. Testimony of Vocational Expert

         Rocco J. Meola testified as a vocational expert during the hearing. (Tr. 69-73.) He stated that Plaintiff's past work as a police officer was medium in exertion with an SVP of 6. The ALJ then inquired whether, assuming an individual of claimant's age, education, and past relevant work with the following limitations could perform Plaintiff's past work:

[L]imited to sedentary work in that she could occasionally lift ten pounds, sit for approximately six hours; stand or walk for approximately two hours in an eight-hour day with normal breaks; occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; occasionally balance and stoop, never kneel, crouch or crawl; push and pull is limited to occasional up to the 10 pounds; and must avoid concentrated exposure to extreme heat and cold, wetness humidity, vibrations, noise, fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery and heights: and limited to frequent fine fingering with the dominant right hand.

(Tr. 70.) Meola responded she/he could not, but that such an individual could perform the following jobs, all of which are sedentary with an SVP of 2 and exist in significant numbers in the national economy: order clerk, DOT # 209.567-014; a document prep worker, DOT # 249.587-018; and preparer, DOT # 700.687-062. (Tr. 71.)

         Meola further testified in response to an inquiry by the ALJ that there would not be significant jobs if the following were added to the hypothetical: “such individual is limited to light work . . . but they can sit for four hours, stand for two hours, walk for two hours; occasionally operate foot controls; never climb ladders, ropes, scaffolds, balance, kneel or crawl; must avoid heights, moving machinery, dusts, odors, fumes, gases, extreme heat and cold; and can be exposed to moderate office noise.” (Tr. 71-72.)

         On cross-examination Meola testified that the positions of order clerk, doc prep worker and preparer would not be available to a hypothetical person who “was able to sit hours and walk two hours but could only occasionally handle[, ] finger . . . and feel with the right dominant hand and never reach overhead or in other directions, push, pull or pull with the right dominant hand and occasionally use the bilateral feet to operate foot controls.” Further, given the limitation in terms of the occasional handling and fingering there would be no jobs at the sedentary, unskilled level. Meola also opined that the jobs of order clerk, doc preparation worker, and preparer would be available if the ALJ's hypothetical person was never able to climb ladders or scaffolds, balance, stoop, kneel, crouch or crawl. “[I]f the hypothetical person could only occasionally lift and carry 5 to 10 pounds; could sit for one hour; stand for one hour; walk for one hour at a time for a total of two hours each in an eight hour workday . . . none of those positions would be available.” (Tr. 72-73.)

         B. Medical Evidence - Treating Sources

         1. Steven Beldner, M.D. - Orthopedist

         Plaintiff first saw Dr. Beldner on September 19, 2012 for a right elbow injury sustained on September 16 when she tripped over a traffic cone at work and fell. On examination, the elbow showed superficial abrasions, effusion and reduce range of motion but no sign of instability. Plaintiff's wrist had significant swelling and tenderness but was neurovascularly intact. X-rays showed a fracture of the elbow at the radial neck with acceptable alignment. The x-ray of the right wrist was normal. Dr. Beldner diagnosed fractures of the elbow and wrist and prescribed a wrist splint. He opined that Plaintiff could not work for six to eight weeks. (Tr.359-60.)

         Plaintiff returned to Dr. Beldner on October 9, 2012. She reported decreased right wrist pain despite taking off her splint at night contrary to medical advise. Dr. Beldner observed dramatic reduction in right elbow effusion and no tenderness. Range of motion increased but was still reduced. The right wrist was tender; plaintiff's digits moved well and were neurologically intact. He diagnosed closed fracture of the scaphoid bone of wrist and right elbow radial head and recommended a right wrist MRI and occupational therapy. He opined Plaintiff should remain out of work. (Tr. 283-84.)

         On November 9, 2012, Plaintiff returned to Dr. Beldner and complained of pain and stiffness in the right elbow. On examination of the elbow, Dr. Beldner found it was neurovascularly intact. There was no tenderness or instability and biceps and triceps were intact. There was mild swelling within the joint and reduced range of motion. Plaintiff's wrist was not tender, with symmetric and full range of motion. X-Rays showed excellent alignment of the prior fracture and Dr. Beldner reported that the wrist injury appeared to have resolved. Plaintiff was to begin occupational therapy for her elbow. (Tr. 285-86.)

         Plaintiff last saw Dr. Beldner on November 30, 2012. She stated she had pain and stiffness in the right elbow but it was improving with physical therapy and that she had right forearm pain and right finger numbness especially at night. Dr. Beldner wrote “no Pain” under his “pain assessment”. On examination, the right elbow showed some tenderness and reduced range of motion. The right wrist had full range of motion with no tenderness or instability, Phalen's sign was positive and grip strength was 70 pounds bilaterally. He diagnosed right radial head fracture and carpal tunnel syndrome and found the right elbow well healed. He queried whether her finger numbness was due to cervical problems or peripheral nerve entrapment and ordered electrodiagnostic studies. (Tr. 287-88.)

         2. Michael Shapiro, M.D. - Orthopedist

         On September 20, 2012, Plaintiff saw Dr. Shapiro complaining of neck, back and right shoulder pain which she described as constant, dull, aching, tight and tingling. The pain worsened with activity or dampness and was better with cold and rest. Plaintiff estimated her pain as 7/10 that day. She denied having headaches or any joint pain. She weighed 300 pounds. On examination of the neck and lumbar spine, there was reduced range of motion, muscle spasm and pain. Spurling test was negative. Reflexes, sensation, and pulses were all intact and muscle strength in the lower extremities was 4. X-rays of the cervical spine showed straightening consistent with spasm while x-rays of the lumbar and thoracic spines were normal. Dr. Shapiro diagnosed acute cervical sprain, lumbago, and thoracic back sprain. He assessed Plaintiff's temporary disability was total for Worker's Compensation purposes, opining that she could not work due to pain and drowsiness caused by medication. He ordered cervical, lumbar, and thoracic MRIs and prescribed Nucynta and orthotics. (Tr. 304-05.)

         The MRIs were conducted on September 21, 2012. The cervical MRI showed spondylitic changes, disc bulging at ¶ 3-C4, left posterolateral disc herniation at ¶ 5-C6, right posterolateral disc herniation at ¶ 6-C7 and stenosis. The thoracic spine MRI indicated mild spondylitic changes, a small posterior central disc herniation at ¶ 5-T6, and a larger paracentral disc herniation at ¶ 6-T7 with focal impingement of the anterior margin of the thoracic spinal cord. The lumbar spine MRI revealed status post laminectomy at ¶ 4-L5 with spondylitic, no recurrent disc, and degenerative facet hypertrophy at ¶ 5-S1. (Tr. 274-76.)

         Plaintiff next saw Dr. Shapiro on October 10, 2012. In addition to neck, back, and shoulder pain, she complained of right knee, left knee and left ankle pain which she described as sharp, tight, and tingling. She reported that medication had not been helpful and denied having headaches. She reported her pain as 3-4/10. Dr. Shapiro reported that his examination revealed reduced range of neck motion, lower extremities muscle strength was 4=/5, and reflexes, sensation and pulses in legs and arms were all in intact. He added herniated cervical nucleus pulposus and cervical radiculopathy to the diagnoses pronounced in his September 20, 2012 notes. (Tr. 306-07.)

         On November 19, 2012, Plaintiff again saw Dr. Shapiro, reporting pain in her neck, arm, right elbow, right wrist, right hand, right knee and left ankle, as well as tingling in the middle finger of her right hand. She described the pain as dull/aching and tingling and rated it 8/10 when active and 3/10 when at rest; that day it was 3/10. She denied having headaches and said she had attended four session of physical therapy which helped. On examination, the range of motion of her neck was diminished but sensations in arms and legs were intact. Dr. Shapiro assessed “the percentage of temporary impairment [was] total” and that plaintiff's “[l]imitations include bending/twisting, climbing stairs/ladders, kneeling and lifting.” (Tr. 308-09.) He diagnosis remained unchanged and he continued conservative treatment.

         Dr. Shapiro saw Plaintiff on January 7, 2013, at which time she reported she was going to physical therapy “and making good progress.” Dr. Shapiro noted Plaintiff was wearing a brace on her right wrist. His examination revealed diminished range of motion in her neck, her coordination was intact as were sensation in her arms and legs. There was no change in his diagnosis; he prescribed a Lidoderm patch for her thoracic back ...

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