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Crutch v. Colvin

United States District Court, E.D. New York

July 18, 2017

BENJAMIN CRUTCH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          SANDRA L. TOWNES United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         A. Procedural History

         Plaintiff filed for disability insurance benefits on July 16, 2012, alleging a disability onset date of June 12, 2012. (Tr. 203, 222.)[1] 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.

         B. Plaintiffs Evidence

         At the 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.)

         On May 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.)

         When 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.)

         Plaintiff 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.)

         Crutch 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.)

         To 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.)

         C. Medical Evidence

         1. Ramkumar Panhani, M.D., Internist

         On May 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. 339.)

         2. Michael Genco, D.C., Chiropractor

         Also on 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.)

         3. Jagga Alluri, M.D., Neurologist

         On 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.)

         The 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. 382-384.)

         4. Joshua B. Bederson, M.D., Neurosurgeon

         On 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. (Id.)

         5. Xinqi Xu, M.D., Family Doctor

         Plaintiff 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 ...


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