United States District Court, W.D. New York
THOMAS J. TUDISCO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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. 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.
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.
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
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.
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.
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.
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.
24, 2012, Plaintiff filed a Title II 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.
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.
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).
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