United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. TOWNES United States District Judge
Benjamin Crutch ("Plaintiff or "Crutch")
commenced this action against the Commissioner of Social
Security ("Commissioner") pursuant to 42 U.S.C.
§405(g), seeking judicial review of the
Commissioner's final decision denying disability
insurance benefits under Title II of the Social Security Act.
Currently before the Court are the parties' cross-motions
for judgment on the pleadings. (Docs. 13 and 15.) The
Commissioner requests that her final decision upholding the
determination of Administrative Law Judge ("ALJ")
David Z. Nisnewitz be affirmed. Plaintiff challenges the
ALJ's decision on various grounds. For the reasons
explained below, the Commissioner's motion for judgment
on the pleadings is DENIED, Plaintiffs cross-motion for
judgment on the pleadings is GRANTED to the extent it seeks
remand, and the Commissioner's decision is vacated and
the case is REMANDED for further administrative proceedings
under sentence four of 42 U.S.C. § 405(g). The Clerk of
Court is respectfully directed to close the case.
filed for disability insurance benefits on July 16, 2012,
alleging a disability onset date of June 12, 2012. (Tr. 203,
222.) His claim was initially denied on
September 17, 2012, (Tr. 154-159), and he then requested a
hearing before an ALJ, which was held on September 25, 2013.
(Tr. 166-167, 65-141.) On December 9, 2013, ALJ Nisnewitz
issued a written decision finding Plaintiff not disabled
under the Social Security Act. (Tr. 27-42.) The ALJ's
findings became the Commissioner's final decision with
respect to Plaintiffs claim when the Appeals Council declined
review on April 15, 2014. (Tr. 1-6.) Plaintiff filed the
instant action on May 22, 2014, seeking judicial review of
the Commissioner's final decision.
hearing before the ALJ, Plaintiff testified that he was born
in 1964 and, after graduating high school, joined the United
States Air Force. (Tr. 76.) He currently lives with his
girlfriend and toddler-aged son; he has been separated from
his wife, with whom he has five older children, for eight
years. (Tr. 68-69.) Most recently, he worked as a courier for
Federal Express for approximately four years before joining
the Department of Sanitation, where he worked as a
driver/collector for thirteen years. (Tr. 77.)
10, 2010, while riding in the passenger seat of a sanitation
vehicle on the way to his route, Crutch sustained injuries to
his neck, back, and hip when the vehicle was struck on the
passenger side by an unmarked police truck. (Tr. 78-81.) He
was treated in the emergency room and released the same day
with pain medication. (Tr. 81.) He then followed up with his
generalist a few days later, who referred him to an
orthopedist and to a pain management center, where he
received two steroid injections. (Tr. 83, 88.) Plaintiff
returned at an unspecified point after the accident to work
on light-duty status, and he continued to be on light-duty
status until June 12, 2012, the alleged onset date of his
disability. (Tr. 86.)
the pain from the accident did not subside, Plaintiff sought
further treatment and eventually underwent back surgery. (Tr.
88-90.) Following surgery, the pain temporarily grew
"tolerable" until, sometime later, Plaintiff
slipped and fell in the shower. (Tr. 90.) Plaintiffs pain was
worse after the fall, but gradually improved. (Tr. 96.)
Plaintiff nevertheless experiences pain every day,
approximately a six or seven on a scale of one to ten. (Tr.
96, 112.) He has been weening himself off prescription pain
medication but still takes ibuprofen and Advil PM three or
four times a week. (Tr. 97-98.) If he does not take the Advil
PM, he has a sleepless night. (Tr. 115.) He also sometimes
needs to take Tramadol, although he takes nothing
approximately two to three days per week because he is
concerned about taking too much medication. (Id.)
also testified that his pain interferes with his ability to
work, stating that he cannot sit or stand for too long
without experiencing pain. (Tr. 98-99.) He can sit for about
fifteen to twenty minutes at a time before needing to get up
and move around, for a total of about four or five hours in
an eight hour work day. (Tr. 108-109.) He usually lays down
the rest of the day. (Tr. 111.) He can lift twenty pounds but
experiences pain when doing so. (Tr. 109.) At home, he can
cook quick meals and do a little sweeping, but does not do
laundry, mop, dust, or take out the garbage. (Tr. 110-111.)
can drive locally, but does not drive himself long distances
because it is "irritating." (Tr. 105.) However, he
has travelled since his accident in May 2010. He flew to the
Dominican Republic in the fall of 2010 for a vacation. (Tr.
102.) He also took a car trip to North Carolina in 2011 for a
funeral, and visited friends in the Poconos and in New
Jersey. (Tr. 103-105.) He spends time with this
three-year-old son, watches him play in the yard, and walks
him to a nearby park. (Tr. 106.) Crutch can walk about three
or four blocks before feeling pain and needing to rest, and
can walk about seven blocks total. (Tr. 106-107.)
treat his pain, Crutch does exercises at home, including leg
lifts for ten minutes a day, three times a week. (Tr. 112.)
Twice a week, for about 15 minutes, he rides a stationary
bike. (Tr. 112-113.) Crutch also does pushups, and can do
about ten total if he rests after five. (Tr. 114.)
Ramkumar Panhani, M.D., Internist
3, 2010, just two days after his accident, Plaintiff was
evaluated by Dr. Ramkumar Panhani. Dr. Panhani noted that
Crutch was in "mild distress." (Tr. 337.) The
physical examination revealed neck pain, tenderness of
paraspinal muscles radiating into the right shoulder,
tenderness of lumbar spine on palpation, and tenderness of
paravertebral muscles. (Tr. 338.) Straight leg raising test
was positive at approximately forty degrees, and lumbosacral
flexion and extension was reduced, as was squatting.
(Id.) Plaintiff also exhibited decreased range of
motion and tenderness in the right shoulder. (Id.)
Dr. Panhani recommended he continue NSAID's for pain,
obtain chiropractic treatment, and get an MRI if needed. (Tr.
Michael Genco, D.C., Chiropractor
May 3, 2010, Plaintiff sought chiropractic treatment from Dr.
Michael Genco, D.C. (Tr. 341-342.) Dr. Genco observed reduced
cervical and dorso-lumbar ranges of motion and visible and
palpable muscle spasms of the cervical, thoracic,
periscapular and lumbar paraspinal musculature. (Tr.
341-342.) He also observed marked tenderness in the affected
areas, except in cervical musculature. (Id.)
Jagga Alluri, M.D., Neurologist
January 6, 2011, Plaintiff consulted Dr. Jagga Alluri, a
neurologist and clinical neurophysiologist. (Tr. 373-376.)
Dr. Alluri observed weakness (4/5) in the dorsiflexion in the
left lower extremity, as well as a weakness (4/5) in the left
quadriceps. (Tr. 375.) A straight leg raising test was
positive at 30 degrees. (Id.) Dr. Alluri noted in a
written report that Plaintiff had decreased and painful range
of motion on the flexion in the lumbar region. (Id.)
Importantly, while a nerve conduction study was within normal
limits, Dr. Alluri found evidence of left SI radiculopathy.
(Tr. 375, 377-380.) Dr. Alluri prescribed pain medication,
and recommended physical therapy and an MRI. (Tr. 375-376.)
He also recommended Plaintiff avoid driving and heavy
lifting. (Id.) An MRI performed one week later
revealed straightening of the lumbar lordosis, which Dr.
Charles Demarco, M.D., of Middle Village Radiology deemed
consistent with muscle strain and posterior disc herniation
at ¶ 4-L5 and L5-S1. (Tr. 385.)
following week, on January 21, 2011, Dr. Alluri evaluated
Plaintiff again and diagnosed left SI radiculopathy and
posterior herniated disc at ¶ 4-L5 and L5-S1. (Tr. 381.)
Upon examination, Plaintiff showed mild improvement, but
still exhibited weakness in the dorsiflexion of the left
lower extremity, and lumbar paraspinal muscles.
(Id.) Straight leg raising test was positive at 30
degrees. (Id.) Nevertheless, his gait was
"normal." (Id.) In follow up consultations
on February 9, March 14, and April 20, 2011, Dr. Alluri
determined that Plaintiffs symptoms remained unchanged. (Tr.
Joshua B. Bederson, M.D., Neurosurgeon
March 18, 2011, several months after his initial visit to Dr.
Alluri, Plaintiff also visited Dr. Joshua B. Bederson, M.D.,
a neurosurgeon and professor of neurosurgery. (Tr. 371-372.)
In a written report, Dr. Bederson opined that Crutch was
antalgic, but did not demonstrate any focal deficits and had
normal anterior tibialis, extensor halluces, and plantar
flexion. (Tr. 371.) However, Dr. Bederson did observe left L5
and partial SI sensory loss, a "remarkably"
positive straight leg raising test, and supressed deep tendon
reflexes on the left side. (Id.) Dr. Bederson also
noted that these observations are confirmed by Plaintiffs
January 2011 MRI. (Id.) Dr. Bederson further opined
that Crutch "has lumbar degenerative changes including
herniated disk at ¶ 4-L5 and L5-S1. He has evidence of a
left L5 and possibly to a lesser extent SI sensory
radiculopathy with no motor changes." (Tr. 372.) Dr.
Bederson did not recommend surgery at that time.
Xinqi Xu, M.D., Family Doctor
also saw his family doctor, Dr. Xinqi Xu, M.D., for back pain
treatment. (Tr. 318.) At visits on March 26, June 28, and
October 4, 2011, Dr. Xu monitored his pain medication and
course of treatment. (Tr. 318, 320-323.) In March, Crutch
reported to Dr. Xu that pain in his lower back, radiating
down his left leg, was tolerable at a level of six out often.
(Tr. 318.) The pain remained after his surgery, but no ...