United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. Koeltl United States District Judge.
plaintiff, Diane Foster, brings this action pursuant to 42
U.S.C. § 405(g) seeking review of a final decision by
the Commissioner of Social Security
(“Commissioner”) denying the plaintiff's
claim for Disability Insurance Benefits (“DIB”)
under the Social Security Act (“SSA”).
filed her DIB application on July 5, 2013, alleging
disability that began on March 29, 2013. A hearing
determining her eligibility for benefits was held before an
Administrative Law Judge (“ALJ”) on October 14,
2014. The ALJ denied the application on March 4, 2015. On May
23, 2016, the Appeals Council denied the plaintiff's
claim for review, making the ALJ's decision the final
decision of the Commissioner. The plaintiff then brought this
action appealing that decision. The parties have filed
cross-motions for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). The plaintiff seeks
reversal of the decision of the Commissioner and remand to
the administrative agency for the calculation of benefits or,
in the alternative, remand for a new hearing. The
Commissioner seeks to have this case dismissed.
administrative record contains the following facts relevant
to this motion.
plaintiff, born November 1, 1957, has a high school education
and vocational training in the field of court administration.
Tr. 14, 150. Foster has been employed as a sanitation
enforcement agent and a court clerk, and was last employed as
a court assistant by the New York State Unified Court System,
a position she held from 2012 to 2013. Tr. 14, 44-49, 184.
She lives with her husband. Her daily activities include
light cooking, cleaning and shopping, and watching television
and reading. Tr. 221.
suffers from cervical myelopathy and degenerative disc
disease. On December 6, 2010, Foster underwent cervical
fusion surgery to treat these ailments. Tr. 235.
January 16, 2012, Foster was seen by her neurologist, Dr.
Rina Caprarella. Foster complained about neck pain, severe
headaches, and difficulty speaking and swallowing. Dr.
Caprarella noted that Foster's job as a court assistant
required “multiple repetitive activities of the
neck.” Dr. Caprarella also noted that Foster had
briefly received physical therapy until “financial
limitations” forced her to discontinue that treatment.
electromyography and nerve conduction study performed on
January 19, 2012, revealed that Foster had cervical
radiculopathy and mild bilateral carpal tunnel syndrome that
had “worsened in degree” since 2010. Tr. 267-68.
August 9, 2012, Dr. Caprarella observed that Foster had
continued “swallowing difficulties, ”
“significant muscular spasm over the bilateral
trapezius and cervical paraspinal muscles” and a
“tremendously limited range of motion.” Tr. 240.
Dr. Caprarella expressed concern that a change in
Foster's work responsibilities that required Foster to
lift heavy files multiple times a day could endanger
Foster's neck safety. Tr. 240. Dr. Caprarella noted that
such activities would likely “result in further
degenerative changes and the need for further surgery.”
Caprarella reiterated these concerns at a follow-up
appointment on November 30, 2012, and advised Foster to seek
additional treatments, including physical therapy. Tr. 241.
February 20, 2013, Dr. Caprarella again reiterated her
concerns, observing that the plaintiff was experiencing
muscle spasms and pain in additional areas. Dr. Caprarella
advised Foster to consider applying for DIB if Foster could
not access other modalities of care, such as physical therapy
and myofascial release therapy, and if her work-related
responsibilities continued to limit her ability to take care
of herself. Tr. 242.
March 4, 2013, Foster underwent an MRI of the lumbar spine
that revealed multilevel degenerative changes in the lower
thoracic and lower lumbar spine. Tr. 258-59.
accordance with Dr. Caprarella's medical advice, the
plaintiff requested that her employer assign her to a
position with less physically demanding work
responsibilities, which was denied. Tr. 45. As a result, on
March 29, 2013, the plaintiff retired from her position as a
court assistant. Tr. 12.
21, 2013, Dr. Caprarella noted that Foster's ailments had
persisted and that Foster was unable to access physical
therapy. Tr. 243. The plaintiff filed a DIB application on
July 5, 2013, alleging disability that began on March 29,
2013. Tr. 161.
September 27, 2013, Dr. Gilbert Jenouri conducted a
consultative examination in connection with Foster's DIB
claim. Dr. Jenouri reported that Foster had mild restrictions
on walking, standing, sitting for long periods of time,
bending, stair climbing, lifting and carrying. Tr. 220-24.
October 23, 2013, the Social Security Administration
determined that Foster was not eligible for DIB. Tr. 85. On
November 18, 2013, the plaintiff filed a written request for
a hearing. Tr. 93.
April 25, 2014, Dr. Caprarella submitted a Medical Source
Statement of Ability to Do Work-Related Activities (the
“Medical Source Statement”) to the Social
Security Administration indicating that the plaintiff could
only work 4 hours a day and would need 30 minute breaks
between continuous periods of sitting, standing or walking.
Dr. Caprarella also indicated that Foster could not stoop,
reach overhead, or lift or carry objects up to and in excess
of 10 pounds. Tr. 228-33.
hearing to determine disability was held on October 14, 2014.
The plaintiff testified to severe pain, headaches and other
impairments related to her neck, including difficulty moving
her neck in any direction, holding her neck in a still
position, sitting and standing for long periods,
“lifting things, ” swallowing, reading, raising
her hands over her head, and opening doors. Tr. 51, 54,
59-60. The plaintiff also testified that she could not afford
recommended treatments, such as MRIs, physical therapy and
acupuncture. Tr. 52 (the plaintiff testifying that she earned
$509 per month while her last MRI cost her $386). Instead,
the plaintiff self-treated her ailments with “gentle
stretching exercises” based on instructional videos
that she viewed ...