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Foster v. Berryhill

United States District Court, S.D. New York

July 21, 2017

FOSTER, Plaintiff,
BERRYHILL, Acting Commissioner of Social Security, Defendant.


          John G. Koeltl United States District Judge.

         The 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”).

         Foster 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.


         The administrative record contains the following facts relevant to this motion.

         The 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.

         Foster suffers from cervical myelopathy and degenerative disc disease. On December 6, 2010, Foster underwent cervical fusion surgery to treat these ailments. Tr. 235.

         On 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. Tr. 237.

         An 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.

         On 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.” Tr. 240.

         Dr. 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.

         On 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.

         On 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.

         In 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.

         On June 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.

         On 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.

         On 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.

         On 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.

         A 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 ...

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