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Borrero v. Colvin

United States District Court, E.D. New York

July 21, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          PAMELA K. CHEN, United States District Judge

         Plaintiff Vincent Borrero, Jr. (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration's (“SSA”) denial of his claim for Disability Insurance Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts. 10 & 13.) Plaintiff seeks reversal of the Commissioner's decision and remand for an award of benefits, or alternatively, remand for further administrative proceedings. (Dkt. 10.) The Commissioner seeks affirmance of the denial of Plaintiff's claim. (Dkt. 13.) For the reasons set forth below, the Court GRANTS Plaintiff's motion for judgment on the pleadings and DENIES the Commissioner's motion. The case is remanded for further proceedings consistent with this order.



         Plaintiff filed an application for DIB on May 20, 2013, alleging disability beginning September 8, 2012 due to panic attacks, anxiety disorder, chronic back pain, and depression. (Tr. 154-55, 168.) On September 16, 2013, the SSA denied Plaintiff's claim. (Tr. 74.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on October 7, 2013. (Tr. 90.)

         Plaintiff, represented by counsel, appeared at a hearing before ALJ Michael Friedman on February 26, 2015. (Tr. 55-66.) In a decision dated March 6, 2015, ALJ Freidman denied Plaintiff's claim. (Tr. 9-11.) The Appeals Council denied Plaintiff's request for review on May 11, 2016. (Tr. 1-3.) Plaintiff timely filed this action on May 20, 2016. (Dkt. 1.)


         A. Medical Evidence Prior to September 8, 2012 (Disability Onset Date Alleged in Application)

         1. Treating Physician: Dr. Hartman Martin

         On September 9, 2011, Plaintiff visited Dr. Hartman Martin (“Dr. Martin”), a board certified internist, complaining of anxiety disorder and back pain. (Tr. 261.) Plaintiff reported dealing with anxiety for an extended duration, and reported dry mouth, sweating, difficulty swallowing, irregular heartbeat, and irritability. (Id.) Regarding his back pain, Plaintiff complained that it was in the lower region of his back, and was of an “aching nature” that was moderate to severe. (Id.) He also reported lumbar pain, muscle aches, and stiffness. (Id.) Plaintiff did not know when the back pain had started, but stated that the pain was extended and intermittent, occurring frequently. (Id.) The pain was exacerbated by heavy lifting, as well as Plaintiff's work as a sanitation worker. (Id.) Plaintiff denied having chest pain. (Id.) Plaintiff was taking Xanax, provided by Dr. Martin, as well as Roxicodone and Percocet from other providers. (Tr. 262.)

         Dr. Martin examined Plaintiff and reported that he was in no apparent distress. (Id.) Inspection revealed normal cervical and thoracic spines. (Id.) Inspection of his lumbar spine revealed lordosis and paraspinal muscle spasm. (Id.) Plaintiff had full range of motion in all joints. (Id.) Dr. Martin wrote that Plaintiff's pain was somewhat diminished because he had taken an Oxycodone pill shortly before the visit. (Id.) He diagnosed Plaintiff with unspecified backache, unspecified anxiety, and tobacco use disorder (but found that the latter was “better”). (Tr. 263.) Dr. Martin advised Plaintiff to continue taking his current medication, referred him to a psychiatrist, and encouraged him to find alternative employment or cut back on his hours because of his pain. (Id.) Dr. Martin also referred him to physical therapy, but Plaintiff stated that it did not fit his schedule. (Id.)

         During the following year, Plaintiff visited Dr. Martin twelve more times. (Tr. 264-301.) At different visits, he reported that his anxiety disorder manifested in various signs and symptoms, including twitching, headaches, sweating, irritability, panic attacks, and angry feelings. (Tr. 264, 272, 278, 281, 287.) Dr. Martin found at multiple visits that Plaintiff's mood and affect were anxious. (Tr. 265, 279.) On October 13, 2011, Dr. Martin wrote that Plaintiff's post-traumatic stress disorder (“PTSD”) was controlled by Xanax. (Tr. 265.)

         On October 13, 2011 and on January 6, 2012, Plaintiff reported medication dependency and abuse. (Tr. 264, 272.) On December 9, 2011, Plaintiff told Dr. Martin that he had lost his Oxycodone prescription, and Dr. Martin informed him that he could not give him a new supply. (Tr. 270.) He advised him to take Percocet for five days for severe pain. (Tr. 271.) On December 8, 2011, Dr. Martin wrote that Plaintiff had acute stress reaction and multiple family stressors including a death in the family. (Tr. 268.) On January 6, 2012, Dr. Martin found that Plaintiff was anxious and distressed over recent arrests of members of Plaintiff's family because of violation of an order of protection by his wife. (Tr. 273.) Regarding Plaintiff's PTSD and anxiety disorder, Dr. Martin wrote that Plaintiff was under increasing stress, and that his anxiety was worsening. (Tr. 272-73.)

         On April 5, 2012, Plaintiff reported not taking his Xanax because he had been dizzy and felt better without it. (Tr. 287.) Dr. Martin wrote that Plaintiff's anxiety symptoms were improved and that Plaintiff seemed to be benefiting from twice-weekly therapy. (Tr. 288.) On August 16, 2012, Plaintiff stated that he was experiencing a high degree of stress and anxiety as a result of his sister's suicide, which was related to the terminal illness of his father. (Tr. 299.) He had been seen by a psychiatrist and was stable without homicidal or suicidal plans, although was significantly stressed and depressed. (Id.) Plaintiff reported weight loss, depression, and insomnia or hypersomnia. (Id.)

         Regarding Plaintiff's back pain, on October 13, 2011, Dr. Martin wrote that Plaintiff had found a pain management office and was interested in getting an MRI and consultation, but that he was hesitant about getting shots. (Tr. 264.) The doctor wrote that Plaintiff's back pain was controlled by Oxycodone. (Tr. 265.) On several occasions, Dr. Martin noted that Plaintiff had paraspinal muscle spasm and trigger points in his lumbar spine. (Tr. 273, 282, 294, 301.) On January 6, 2012, he assessed Plaintiff as having chronic pain, and wrote that Plaintiff had not gotten an MRI because of family issues and an arrest. (Tr. 273.) On January 25, 2012, after receiving the results from an MRI that Plaintiff eventually underwent, Dr. Martin diagnosed Plaintiff with degenerative intervertebral disk disease (“DDD”). (Tr. 276.) He stated that the disease was complicated by the nature of Plaintiff's work. (Id.) He repeatedly told Plaintiff that his job was exacerbating his back pain. (Tr. 265, 276, 281, 285, 297.) Dr. Martin repeatedly advised Plaintiff to go to physical therapy, but Plaintiff continued to report that it was not possible because of his work and schedule. (Tr. 273, 298.)

         On February 6, 2012, Dr. Martin also assessed for the first time that Plaintiff had mixed hyperlipidemia. (Tr. 280.) On March 7, 2012, Dr. Martin discussed lowering Plaintiff's blood pressure and BMI, told him to stop smoking, and stressed diet, weight loss, exercise, and therapeutic lifestyle changes. (Tr. 282.)

         On April 5, 2012, Dr. Martin wrote that Plaintiff's DDD was stable, but that his backache was worse. (Tr. 288.) On May 4, 2012, Dr. Martin wrote that Plaintiff presented with a complaint of chest pain in the left para substernal region, which was of a squeezing nature, occurred daily, and was moderate to severe for two to three hours at a time. (Tr. 290.) Dr. Martin told Plaintiff to go to the emergency room as soon as possible. (Tr. 291.)

         On June 6, 2012, Plaintiff again presented with complaints of back and chest pain. (Tr. 293, 296.) Plaintiff also reported Epigastric pain, heartburn, and indigestion. (Tr. 296.) Dr. Martin assessed Plaintiff with atypical chest pain, esophageal reflux, and chronic back pain. (Tr. 294, 297.) Dr. Martin wrote that Plaintiff's chest pain was of a burning nature, but had improved since starting Prilosec and changing his diet. (Tr. 296.) Dr. Martin opined that Plaintiff's atypical chest pain was most likely related to anxiety “vs” airway disease. (Tr. 297.) He noted that Plaintiff was a chronic smoker and was exposed to garbage. (Id.) Dr. Martin advised Plaintiff that it was very important to comply with his referral to get an MRI because treatment without accurate diagnostic studies could jeopardize his health. (Tr. 298.) Plaintiff reported that he had been unable to find alternative employment. (Tr. 293.) Dr. Martin referred Plaintiff to a cardiologist. (Tr. 295.) He also placed him on a trial dose of Prilosec. (Id.)

         On August 16, 2012, Plaintiff denied having chest pain, but reported back pain. (Tr. 299.)

         2. MRI: January 13, 2012

         On January 13, 2012, Plaintiff had an MRI with Dr. Mark Shapiro. (Tr. 227.) There was preservation of the normal curvature in his lumbar spine. (Id.) The MRI showed left foraminal herniation[1] creating impingement[2] at ¶ 4-L5, and central disc herniation creating a ventral extradural defect[3] at ¶ 5-S1, with extension of the disc into the neuroforamen[4] bilaterally. (Id.) Dr. Shapiro diagnosed left foraminal herniation at ¶ 4-L5 and central herniation at ¶ 5-S1. (Id.) Dr. Martin subsequently diagnosed DDD at the next appointment. (Tr. 276.)

         3. Treating Psychiatrist: Christina Conciatori-Vaglica

         An intake and progress note from Dr. Christina Conciatori-Vaglica noted that Plaintiff was seen on April 2, 2012. (Tr. 259.) His anxiety was well controlled with Xanax, and he did not have depression. (Id.) Dr. Conciatori-Vaglica wrote that the plan was to continue with the Xanax. (Id.) No side effects were reported. (Id.)

         B. Medical Evidence after September 8, 2012

         1. Dr. Martin's Treatment Notes

         Plaintiff met with Dr. Martin on September 13, 2012. (Tr. 302.) He reported anxiety disorder, moderate to severe lower back pain of an aching nature that was extended, intermittent, and occurred frequently. (Id.) It was relieved by analgesics and worsened by repetitive stress and heavy lifting. (Id.) He had trigger points and paraspinal muscle spasms in his lumbar spine. (Tr. 303.) Dr. Martin assessed chronic back pain related to DDD, but found that it was stable and that Plaintiff was still not going to physical therapy. (Tr. 304.)

         Plaintiff complained of depression, stating that he had had it for more than six months, and had depressed mood and psychomotor agitation. (Tr. 302.) He also reported anxiety and angry feelings. (Id.) He was currently on Xanax and Percocet. (Tr. 303.) Dr. Martin's physical exam revealed that Plaintiff was anxious, distressed, and appeared to be in pain. (Id.) Plaintiff's judgment and insight were good, he was oriented in three dimensions, his memory was intact, and his mood and affect were normal. (Id.) He was anxious, and had multiple family stressors: the recent deaths/alleged murders of his sister and adopted niece. (Id.) Dr. Martin assessed Plaintiff's anxiety and depression as stable. (Tr. 304.) The plan was to lower Plaintiff's blood pressure and BMI, continue his current medical and treatment plan, taper Xanax with the aid of a psychiatrist, and have Plaintiff do back exercises and go to physical therapy. (Id.)

         Plaintiff continued to meet with Dr. Martin about once per month. Regarding his anxiety, Plaintiff continued to report, at different times, a variety of symptoms-dry mouth, sweating, difficulty swallowing, dizziness, difficulty sleeping, fatigue, twitching, headache, diarrhea, and irritability. (Tr. 305, 311, 326, 338, 345, 348, 350.) On March 6, 2013, Dr. Martin wrote that Plaintiff's anxiety was “better.” (Tr. 318.) On August 22, 2013, Dr. Martin wrote that Plaintiff had multiple stressors for his anxiety/depression, but was “raising [sic] to the occasion with the aid of psychotherapy.” (Tr. 334.) On October 25, 2013, Plaintiff reported that he was stressed out by his girlfriend's father's illness, which was placing stress on their relationship. (Tr. 338.) On April 3, 2014, Plaintiff reported that he was under a lot of stress from the discovery that his son may have been molested by the mother's husband. (Tr. 345.) On May 8, 2014, Dr. Martin diagnosed Plaintiff with an acute reaction to stress. (Tr. 349.)

         Dr. Martin continued to advise Plaintiff that his back pain was made worse by his failure to attend physical therapy and by his occupation. (Tr. 309, 312, 316, 326, 343.) The doctor repeatedly found trigger points and paraspinal muscle spasms in the lumbar area. (Tr. 312, 315, 318, 321.) On October 5, 2012, Dr. Martin wrote that Plaintiff limped while walking. (Tr. 306.) On December 6, 2012, Plaintiff saw Dr. Martin for an acute exacerbation of his back pain, and Dr. Martin wrote that Plaintiff “need[ed] to quit his job” and that there was a danger of being dependent on prescription narcotics. (Tr. 312.) Dr. Martin continued to find trigger points and muscle spasms. (Tr. 306, 312, 315.) On March 6, 2013, Dr. Martin reported that Plaintiff's back pain was improved because his job description had changed. (Tr. 317.) On April 4, 2013, Dr. Martin wrote that since Plaintiff had been let go from or had quit his job, he was encouraged to make a greater effort to do physical therapy. (Tr. 322.)

         On May 2, 2013, Dr. Martin reported that Plaintiff's back pain and DDD was worse since Plaintiff had returned to work, but also noted that he had a decreased schedule. (Tr. 324.) On June 25, 2013, he again reported worsening back pain. (Tr. 330.) In August and September, 2013, Plaintiff was unable to do physical therapy because he was awaiting stress test results and needed cardiac clearance. (Tr. 333-35.) On April 3, 2014, Plaintiff reported that he could not get physical therapy because he had been cut off from Medicaid coverage. (Tr. 346.) On May 8, 2014, Dr. Martin wrote that Plaintiff's chronic back pain had improved since he was not working as frequently. (Tr. 349.)

         Dr. Martin found at these appointments that Plaintiff's neurologic examinations were intact, and that Plaintiff had normal sensation and deep tendon reflexes. (Tr. 303, 318, 333, 336, 343, 346.) At most appointments, Dr. Martin found that Plaintiff had a normal gait, (Tr. 309, 318, 324, 333, 336, 340, 343, 346), with the exception of October 5, 2012, when Dr. Martin found that he was limping. (Tr. 306.).

         Plaintiff continued to complain of chest pain. (Tr. 319, 320.) On April 4, 2013, Dr. Martin wrote that Plaintiff had still not seen a cardiologist about his chest pain. (Tr. 321.) On May 2, 2013, Dr. Martin wrote that he had expressed his displeasure with Plaintiff's lack of follow-up with referrals; he had still not made a neurology appointment or a physical therapy appointment. (Tr. 324.) On June 27, 2013, Dr. Martin reported that Plaintiff needed a stress test and had scheduled a test with a cardiologist. (Tr. 327.) On August 22, 2013, Plaintiff reported that his chest pain in his substernal and left para substernal region was of a squeezing nature, with mild to moderate severity. (Tr. 332.) By this appointment, Plaintiff had gotten a stress test. (Tr. 333.) However, as of October 25, 2013, Dr. Martin wrote that Plaintiff's work-up was not complete and Plaintiff was “getting th[]e run around from the hospital.” (Tr. 340.) By November 22, 2013, Dr. Martin noted that Plaintiff had had cardiac tests done and encouraged him to follow up with cardiology. (Tr. 342, 344.)

         On March 6, 2013, Plaintiff reported hemi-torso pain and numbness in his left lower extremity. (Tr. 317.) Dr. Martin wrote that Plaintiff would need an MRI of the brain and a C/T scan of the spine to rule out MS.[5] (Tr. 319.) On April 4, 2013, Plaintiff complained of hemiparesis[6] in his left side. (Tr. 320.) Dr. Martin wrote that Plaintiff had still not seen a neurologist about the hemiparesis, but that Plaintiff was aware of the importance of doing so. (Tr. 321.) Dr. Martin also prescribed Neurontin, a new medication. (Tr. 322.) On May 2, 2013, the hemiparasthesis symptoms were not present, and Plaintiff reported that they seemed worse with movement. (Tr. 323.) Plaintiff reported that he had not gone to the neurologist, and had not continued to take Neurontin because it gave him stomach ache. (Tr. 323.) Dr. Martin examined Plaintiff and found him to be neurologically intact. (Tr. 324.) On October 25, 2013, Plaintiff's neurological exam was again normal. (Tr. 340.)

         On December 6, 2012, Dr. Martin wrote that Plaintiff's tobacco abuse disorder was worse, that he was asthmatic, and that he was a danger to himself and to his son. (Tr. 312.)

         On September 26, 2013, Dr. Martin diagnosed Plaintiff with an acute upper respiratory infection. (Tr. 337.) On November 22, 2013, Plaintiff saw Dr. Martin for vomiting and diarrhea, which Dr. Martin suspected was food poisoning. (Tr. 342-43.)

         Throughout Plaintiff's treatment with Dr. Martin, Dr. Martin advised Plaintiff to stop smoking, lower his blood pressure, and lose weight. (Tr. 340, 344, 347, 352.) Dr. Martin also treated Plaintiff for mild to moderate gastroesophageal reflux disease. (Tr. 308.) As of June 5, 2014, Plaintiff was taking Prilosec, Calcium, Zocor, Neurontin, Pravachol, Percocet, and Xanax. (Tr. 350-51.)

         Plaintiff continued to visit Dr. Martin monthly between July and October, 2014. (Tr. 353-64.) On July 9, 2014, Plaintiff was still experiencing anxiety over his son's molestation. (Tr. 353.) On August 7, 2014, Plaintiff reported that he was less stressed because court proceedings were going well, and his son was coping better. (Tr. 356, 360.) He continued to experience back pain, and Dr. Martin continued to recommend physical therapy and a change in job. (Tr. 354, 357, 363.) On October 2, 2014, Plaintiff had trigger points and paraspinal muscle spasms in the lumbar area. (Tr. 360.)

         2. Dr. Martin's November 14, 2013 Questionnaire

         On November 14, 2013, Dr. Martin reported that he had treated Plaintiff for lumbar and cervical back pain due to DDD. (Tr. 223-26.) His objective findings were disc herniation at ¶ 4-L5 and L5-S1, and neck/cervical back pain involving C2-C3, C4-C5, and C5-C6. (Tr. 223.) He wrote that Plaintiff could lift and carry a maximum of twenty pounds on a frequent basis, could stand and walk (with normal breaks) for a maximum of four hours during an eight-hour day, and could sit (with normal breaks) for a maximum of four hours during an eight-hour day. (Tr. 224.) He wrote that Plaintiff could sit for forty-five minutes before needing to change positions and could stand for thirty minutes before needing to change positions. (Id.) He needed to walk around every forty-five minutes for five minutes. (Id.) He wrote that Plaintiff needed the opportunity to shift at will from sitting or standing/walking. (Tr. 224-25.) Plaintiff did not need to lie down at unpredictable intervals. (Tr. 225.) To support these limitations, Dr. Martin wrote that Plaintiff had point tenderness in the paraspinal muscles of the neck and lower back and positive straight-leg lifting. (Id.)

         Dr. Martin wrote that Plaintiff could frequently twist, occasionally stoop (bend), crouch, climb stairs, and could not climb ladders. (Id.) Plaintiff did not need an assistive device. (Id.) Dr. Martin opined that Plaintiff's impairment affected his ability to reach and push/pull, but did not affect his handling (gross manipulation), fingering (fine manipulation), or feeling. (Id.) He wrote that Plaintiff experienced some pain with reaching and pushing/pulling. (Tr. 225-26.) This finding was supported by the MRI findings. (Tr. 226.) Plaintiff's medications were listed as Oxycodone, Neurontin, Xanax, and Ibuprofen. (Id.)

         Dr. Martin opined that Plaintiff's impairments or treatment would cause him to be absent from work three or more times per month. (Id.) He wrote that Plaintiff's limitations had been present since Dr. Martin had begun treating Plaintiff. (Id.)

         3. Dr. Martin's December 24, 2014 Submission

         On December 24, 2014, Dr. Martin indicated that he had reviewed his November 14, 2013 letter, and that “neither the patient's condition and impairments nor [Dr. Martin's] opinions ha[d] changed materially.” (Tr. 230.)

         4. Dr. Christina Conciatori-Vaglica

         Dr. Christina Conciatori-Vaglica (“Dr. Conciatori-Vaglica”) saw Plaintiff on February 4, 2013, and noted that he was doing well on Xanax. (Tr. 259.) She saw him again on May 6, 2013, August 2, 2013, November 22, 2013, April 4, 2014, and May 30, 2014, renewing his Xanax prescription and stating that he continued to do well on the Xanax. (Id.)

         5. May 13, 2013 MRI

         A May 13, 2013 cervical spine MRI, ordered by Dr. Martin, appeared to show a disc bulge with anterior use impingement and foraminal impingement at ¶ 2-C3; a left foraminal disc herniation with significant left foraminal impingement and mild right foraminal impingement at ¶ 4-C5; and a disc bulge with bilateral herniation and foraminal impingement, which was severe on the left side and moderate to severe on the right side, at ¶ 5-C6. (Tr. 228-29.)

         6. Consultative Psychiatrist: Dr. Jean Brown

         On September 9, 2013, Plaintiff was examined by consultative psychiatrist Dr. Jean Brown (“Dr. Brown”). (Tr. 213-17.) Plaintiff denied a history of psychiatric hospitalization or outpatient treatment, but reported seeing a psychiatrist between one and three times per month. (Tr. 214.) Plaintiff reported being hospitalized in 2012 for a heart attack and in 2013 for a stress test. (Id.) He reported that his current medications were Oxycodone, Xanax, Neurontin, and Ibuprofen. (Id.)

         Plaintiff reported that he frequently woke up three times per night. (Id.) His appetite was normal. (Id.) He stated that his depression symptoms began in 1996 when his father and sister passed away within a month; he also reported dysphoric mood, loss of usual interest, and social withdrawal. (Id.) He denied current thoughts of death or suicide. (Id.) Plaintiff stated that his anxiety symptoms began in 1996, and he described excessive apprehension and worry, restlessness, hypervigilance, and panic attacks during which he would experience sweating, breathing difficulties, chest pain, and choking sensation in enclosed spaces. (Tr. 214-15.) He denied manic symptoms, thought disorders, or cognitive symptoms. (Tr. 215.)

         Dr. Brown found that Plaintiff was cooperative, that his posture and motor behavior were normal, eye contact and affect were appropriate, sensorium was clear, and that he was oriented in three dimensions. (Id.) His mood was euthymic.[7] (Id.) Plaintiff's attention and concentration were intact, but his recent and remote memory skills were mildly impaired due to distractibility. (Id.) His intellectual functioning was ...

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