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Tudisco v. Commissioner of Social Security

United States District Court, W.D. New York

July 7, 2017





         Before the Court, in a Social Security Action filed by Thomas J. Tudisco (“Plaintiff”) against the Commissioner of Social Security (“Defendant”), is Plaintiff's motion for judgment on the pleadings, ECF. No. 7, and Defendant's cross-motion for judgment on the pleadings, ECF No. 11. For the reasons stated below, Plaintiff's motion is granted and Defendant's cross-motion is denied.


         Factual Background

         Plaintiff filed for disability insurance benefits on May 24, 2012, stating he was disabled beginning October 1, 2009, as a result of the following: a back injury; sleep apnea; high blood pressure; anxiety; and depression. Plaintiff worked thirty-four years in maintenance and construction until 2006. R. 39-40. In 2006, the company for which Plaintiff worked encountered financial problems and he was subsequently laid off. R. 40-41. Plaintiff then began working for himself preparing tax returns. He worked full-time during tax season (January through April) from 2010 through 2012. R. 17, referring to R. 41-42, 232-37. During this time, he worked between 40 and 80 hours a week. Id.

         In 2012, Plaintiff sold his business to Neubart Financial services for $60, 000, $45, 000 of which was paid for Plaintiff's client list. R. 296-97. After the sale in 2012, Plaintiff remained an employee of the company, working only part time due to back pain. R. 47- 49.

         Medical Opinions

         Plaintiff suffered from a mild loss of disc space in his lower lumbar spine at ¶ 3-4, a moderate loss of disc height at ¶ 5-S1, and a moderate to severe loss of disc height at ¶ 4-5 with anterior spurring noted. R. 323.

         Dr. Jeffery Liberman referred Plaintiff for a steroid injection on November 2, 2009. R. 426. On December 10, 2009, Plaintiff was seen by Dr. Morris at the Rochester Brain and Spine Institute, who recommended that Plaintiff undergo a laser discectomy to alleviate displacement of lumbar intervertebral discs. R. 310, 360.[1] Plaintiff underwent three surgeries regarding lumbar disc issues: (1) on April 15, 2010, Dr. Morris performed a lumbar laminotomy with foraminotomy, and decompression, R. 384-85; (2) on May 5, 2010, Plaintiff underwent his second lumbar laminotomy with foraminotomy, decompression, and a lumbar discectomy, R. 386-88; and (3) On December 9, 2010, Plaintiff underwent his third lumbar laminotomy with foraminotomy, a partial facetecomoy, and decompression. R. 393.

         Following the back surgeries, on March 14, 2012, Plaintiff saw Dr. William Capicotto, an orthopedic and spinal surgeon, for pain in his lower back and weakness in his legs. R.404-08. Plaintiff's pain increased with activity and was intensified by walking for extended periods of time. Id. Dr. Capicotto diagnosed Plaintiff with lumbar disc herniation, and concluded that Plaintiff's disability was “marked, permanent.” R. 408. Dr. Capicotto informed Plaintiff that “further surgery in my hands would involve at a minimum laminectomy at one or two levels and probably a fusion.” R. 408-09. Dr. Capicotto noted that Plaintiff “has had profound changes in his lumbar spine that may require a few surgeries. At this specific point in time, his condition is stable.” R. 409.

         Plaintiff saw Dr. Capicotto numerous times for worsening lower back pain: June 28, 2012, January 31, 2013, June 26 2013, July 31, 2013, and February 11, 2014. R. 410, 469-73, 465-67, 458-63, 475-79. Dr. Capicotto's original medical opinion did not change; he consistently found Plaintiff permanently disabled. Id. In his report to the Workers' Compensation Board dated February 11, 2014, Dr. Capicotto noted that Plaintiff's pain level was “at 6/10 on the pain scale.” R. 475. In his comments, the doctor wrote the following:

It has been discussed with Thomas over the last several visits his condition, the fact that his condition has been worsening and that he will ultimately need to undergo a multilevel spinal fusion with decompression. He really is trying to avoid this for as long as possible although he does realize it is in his future. He has been working on a part time basis which has gotten more and more difficult. At this time, we have advised him to pursue looking into Social Security Disability benefits because he really is unable to continue ln the work force at any capacity.

R. 477-78.

         Plaintiff saw Dr. Liberman regularly to monitor depression and anxiety. R. 487-88. His anxiety and depression were controlled with Cymbalta in 2011. R. Id. Plaintiff's medication was switched on November 19, 2012, because the Cymbalta was not effective. R. 521. After adjusting the dosage of medication, Dr. Liberman noted Plaintiff's depression had stabilized. R. 537.

         The Commissioner requested an examination concerning Plaintiff's depression and anxiety. On September 14, 2012, consultative examiner Dr. Christine Ransom examined Plaintiff and noted his attention and concentration were moderately impaired by his depression and anxiety. R. 430. Dr. Ransom concluded Plaintiff has a moderate difficulty dealing with stress and performing complex tasks. Id. The ALJ noted in her decision that a state agency medical consultant, Dr. E. Kamin, concluded Plaintiff had moderate restrictions with concentration, pace, and persistence. R. 21, 61, 64.

         The Commissioner also requested that Plaintiff receive an internal medicine exam. On September 14, 2012, Plaintiff saw consultative examiner Dr. Harbinder Toor. R. 434-37. In his report, Dr. Toor noted that Plaintiff had difficulty walking and getting on the examination table. R. 435. Dr. Toor reviewed X-rays of Plaintiff's back and noted degenerative joint disease. R. 438. Dr. Toor diagnosed a history of lumbar disc disease, hypertension, high cholesterol, depression, anxiety, and sleep apnea. R. 437. Dr. Toor concluded Plaintiff had moderate to severe limitations for standing, walking, squatting, bending, and lifting; in conjunction with moderate limitation on sitting for long periods of time. Id.

         Procedural History

         On May 24, 2012, Plaintiff filed a Title II[2] application for disability insurance benefits beginning in October 1, 2009. R. 15. The claim was initially denied on September 27, 2012. Id. After being denied, Plaintiff submitted a timely written request to appear before an Administrative Law Judge (“ALJ”) In that regard, a hearing was held on March 14, 2014. Id. On April 29, 2014, the ALJ issued a written opinion concluding Plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act. R. 30.

         The ALJ's Decision

         The ALJ found Plaintiff engaged in a substantial gainful activity (“SGA”) during tax season (January through April) from 2010 through 2014 based on Plaintiff's work as a self- employed tax preparer. R. 17. She found Plaintiff's work supplied a substantial income and that he provided significant services to the business. Id. The ALJ concluded that Plaintiff was not disabled pursuant to 20 CFR Part 404, Subpart P, Appendix 1. R. 22.


         Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Additionally, the statute directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. See, Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that the reviewing court does not try a benefits case de novo). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). The Court is also authorized to review the legal standards employed by the Commissioner in evaluating a plaintiff's claim. Seil v. Colvin, No. 15-CV-6275-CJS, 2016 U.S. Dist. LEXIS 34681, 2016 WL 1054759 (W.D.N.Y. Mar. 17, 2016).

         The Social Security Administration has designed a five step procedure for evaluating disability claims. 20 C.F.R. § 404.1520. That procedure is as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual ...

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