United States District Court, S.D. New York
MEMORANDUM AND ORDER
Kevin Castel United States District Judge.
Debra Mercado seeks judicial review under 42 U.S.C §
405(g) of the final decision of the Commissioner of Social
Security (the “Commissioner”), who concluded that
she is not eligible for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq. Plaintiff asserts that the determination of an
Administrative Law Judge (“ALJ”) that she is not
disabled within the meaning of the Act was erroneous, not
supported by substantial evidence, and contrary to law.
(Compl't ¶ 12). Specifically, plaintiff argues that
the ALJ (1) improperly applied the treating physician rule;
(2) failed to sufficiently develop the record; and (3) erred
in his credibility assessment of plaintiff. (Pl.Mem.12-21).
and defendant have each moved for judgement on the pleadings
under Rule 12(c), Fed.R.Civ.P. For the reasons set forth
below, the plaintiff's motion is denied and the
defendant's motion is granted.
August 15, 2012, plaintiff applied to the Social Security
Administration (“SSA”) for DIB due to a
“disabling condition, ” alleging an onset date of
July 12, 2012. (R. 181). The SSA initially denied
plaintiff's claims in a letter dated December 4, 2012.
(R. 111-115). On January 21, 2013, plaintiff made a timely
request for a de novo hearing before an ALJ, which
was held through video conference on November 22, 2013. (R.
118, 49). Plaintiff appeared at the hearing and was
represented by counsel. (R. 51). At the hearing, plaintiff
testified about her age, educational background, work
history, daily activities, and physical condition. (R.
49-109). Additionally, a vocational expert appeared and
testified at the hearing. (Id.).
written decision dated September 4, 2014, the ALJ denied
plaintiff's claim for benefits. (R. 22-40). Applying the
agency's sequential five-step test for determining
whether an individual is disabled, the ALJ concluded that
plaintiff was not disabled under Sections 216(i) and 223(d)
of the Social Security Act. (R. 27-8). Based on the
evidentiary record, he concluded that although plaintiff has
several severe impairments, including “obesity, left
knee derangement status post arthroscopy, right knee internal
derangement status post right and left Achilles tendon
repairs, bilateral plantar fasciitis, lumbar spine disc
herniations and bulges with radiculopathy, cervical spine
disc bulges and minimal disc herniations, mild carpal tunnel
syndrome, and left hip bursitis, ” plaintiff did not
have an “impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.” (Id.). The ALJ concluded that the claimant
has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. § 404.1567(a),
“except that she must ambulate with a cane, she can
occasionally stoop, crouch, kneel, and climb and descend
stairs; frequently flex, extent, and rotate the neck;
frequently finger bilaterally; and she needs to be able to
sit and stand at will.” (R. 28).
October 29, 2014, plaintiff requested review of the ALJ's
decision. (R. 10-21). The SSA Appeals Council denied
plaintiff's request for review on June 9, 2016, adopting
the ALJ's decision as the final decision of the
Commissioner of Social Security. (R. 1-3).
filed a timely action in this Court seeking review of the
Commissioner's final decision. Both parties moved for
judgement on the pleadings pursuant to Rule 12(c), Fed. R.
EVIDENCE BEFORE THE ALJ
evidence before the ALJ consisted of the testimony of the
witnesses, medical records, evaluations, and reports. The
record is summarized below.
Plaintiff's Testimony and Functional Report
12, 2012, the alleged onset date of disability, Debra Mercado
was a married, 52 year old college graduate with three
children aged 17, 15 and 13. (R. 66-72). Prior to her most
recent occupation, plaintiff worked in public relations in
the music industry, supervising 200 people and earning $48,
500 per year. (R. 206, 226). She reported that this work did
not require lifting, carrying, stooping, kneeling, crouching
or the handling of big objects. (R. 226). She explained that
on an average day, her job required her to perform 2.5 hours
of each of the following activities: walking, standing,
sitting, writing, typing and handling small objects.
that, plaintiff worked as an Assistant Manager at Walmart
from September 2008 until the alleged onset date of
disability. As an Assistant Manager, she was paid $50, 000
per year to, inter alia, maintain inventory levels,
budget, forecast sales, and assess economic trends. (R. 206,
225). She also supervised 150-200 people. (R. 225).
responsibilities also included lifting objects up to 25
pounds, stocking shelves, pulling crates, and pushing carts.
(R. 69). After a surgery in December 2011 on her right foot,
(R. 231), she returned to work in February 2012 until July
12, 2012, when it became too painful to work. (R. 221).
testified that since July 12, 2012, she has experienced pain
that radiates from her lower back, down through her leg and
left foot. (R. 92). She also experiences pain in her neck,
hip and shoulder, and testified that she consistently
experiences this pain at ¶ 8 out of 10 intensity. (R.
74-5). She is prescribed Lyrica, oxycodone, and diclofenac
for the pain, but she testified that the medications are
barely effective and sometimes make her ill. (R. 73). She was
involved in a car accident in January of 2013, the effects of
which, she testified, have only exacerbated her pain. (R.
undergone multiple foot, back, and knee surgeries from June
2010 to July 2013. (R. 66). Additionally, she received
multiple back, knee and neck injections during that time
period, but noted that those procedures were not effective at
reducing her pain. (R. 76).
pain, according to her testimony, precludes her from 10 to 15
minutes of continuous walking, sitting, or standing. (R.
85-86). She reports that she has been using a cane for
“months” and now uses it all the time. (R. 87).
testified that her life has changed
“dramatically” since the onset of her ailments,
and reports that she has suffered negative personal,
emotional, and financial tolls. (R. 105). Plaintiff testified
that it is hard for her to do the “basic functions of
life.” (Id.). In her functional report,
plaintiff explained that she has trouble sleeping, cannot
bend to put socks or shoes on, cannot stand or sit long
enough to blow dry hair, needs assistance shaving legs, and
does not do household chores. (R. 214-16). She wrote that
when she goes shopping she utilizes a motorized scooter. (R.
220). She did note, however, that she could drive a car,
supervise chores, prepare meals, and take care of her own
personal hygiene. (R. 213-23). Plaintiff testified that
taking public transportation hurts and is “intense,
” and that she takes special medical transportation to
doctor's appointments. (R. 83).
testified that as a result of her mild carpal tunnel
syndrome, plaintiff occasionally drops things that she is
holding. (R. 92-3). At the time of the hearing, she testified
that she was currently attending physical therapy for her
back, (R. 105-6), after undergoing a discogram on September
11, 2013, and a discectomy on October 8, 2013. (R. 57).
Vocational Expert's Testimony
Expert Esperanza J. Distefano (the “VE”)
testified at the hearing. (R. 93). She explained that
plaintiff's most recent position as an assistant manager
at Walmart aligned with the Dictionary of Occupational Titles
(“DOT”) code 185.167-046, and that the position
entails light exertion with a vocational preparation of 7.
(R. 94-5). She further testified that public relations work,
which was plaintiff's job from 1991 to September of 2008,
(R. 222), was codified in DOT 165.167-014, and is a sedentary
position with a specific vocational preparation of 7. (R.
testified that a hypothetical person with claimant's age,
education, work history, who can only occasionally crouch,
stoop, kneel, climb, and descend stairs would be capable of
work in public relations as it is done nationally. (R. 98-9).
A hypothetical person with those same limitations, but who
also needs to be able to stand and sit at will, is also
capable of public relations work. (Id.). However,
she testified that a person with those limitations but is
either off task 20% of the work day or requires 3 or more
sick days a month would not be able to maintain employment.
(R. 101-2). Additionally, the VE testified that plaintiff has
skills that are transferable to other sedentary work
positions. (R. 97-8).
reviewed plaintiff's medical records and the clinical
assessments of plaintiff's treating and non-treating
physicians. (R. 29-38).
Treating Physician's Records
reviewed records produced by Steven Bernstein, D.P.M, a
podiatrist and board certified foot and ankle surgeon who
plaintiff visited multiple times between 2012 and 2013. On
July 13, 2012, a day after the reported onset date, Dr.
Bernstein put plaintiff on “no work status” until
further notice. (R. 358). Dr. Bernstein noted on August 27,
2012 that she was “healing nicely” after surgery
on her right foot, but wrote on multiple occasions from
August 2012 to November 1, 2012 that she had pain, swelling,
and tenderness in her Achilles tendon. (R. 359-64). Plaintiff
underwent Achillies tendon repair on November 2, 2012, and on
December 17, 2012 Dr. Bernstein wrote that her Achillies
tendon has “healed completely.” (R. 367). Dr.
Bernstein noted after plaintiff visited with him three times
in January 2013 that she had healed well from the Achilles
tendon repair, but that she complained of pain in the hip,
knees, and back. (R. 652-4).
plaintiff was involved in a car accident on January 30, 2013,
she visited Dr. Bernstein on February 4, 2013. Dr. Bernstein
noted that she reported significant pain in her neck, back,
and lower extremities and he agreed that she sustained
multiple injuries from the accident. (R. 655). On both
February 25, 2013 and March 18, 2013, he noted that plaintiff
again reported pain in her leg, knee, and back, but that her
Achilles tendon is doing well. (R. 658-9).
April 17, 2013 however, Dr. Bernstein noted that her
Achillies tendon repairs are “flaring up, ” that
her tendons are slightly swollen and painful, and that she
has foot pain stemming from her plantar fasciitis. (R. 661).
On April 24, 2013 he wrote that while she is having
discomfort with her Achillies tendon, she is for the most
part “doing well for the foot and ankle issues.”
(R. 662). He wrote that her “no work” status
should continue in light of her Achillies tendon problems.
29, 2013, Dr. Bernstein noted that while plaintiff's
Achilles tendons have “healed, ” she reported
that her “whole body hurts from her toes, ankles,
knees, hips, and back.” (R. 664). On June 12, 2013 he
stated that he would fit her for orthotic devices to address
her foot pain. (R. 666). On July 1, 2013, Dr. Bernstein noted
that plaintiff had “significant plantar
fasciitis”, and that “when the time comes to
possibly release to [sic] back to work I feel that only a
sedentary position should be obtained.” (R. 667). On
July 24, 2013, Dr. Bernstein wrote that plaintiff was doing
well after a knee surgery, but that she should not go back to
work sitting any more than two to three hours a day. (R.
668). On September 4, 2013, he noted that plaintiff was doing
well from a foot and ankle standpoint, but that she is not
doing well with her lower back. (R. 1006).
October 29, 2013, Dr. Bernstein examined plaintiff and noted
that she was still having problems with her ankles and that
her Achilles tendon is slightly tender, but that her major
problem is the pain radiating down her back. (R. 641). On
October 29, 2013, Dr. Bernstein filled out a residual
functional capacity assessment, in which he reported that
plaintiff is capable of standing or walking less than one
hour and sitting less than two hours during an eight hour
work day. (R. 639). He further noted that plaintiff takes
medication that would interfere with her ability to work,
that she suffers from pain that prevents her from performing
8 hours of work, that she required an average of 3 or more
sick days a month, and that she would be off task for more
than 10% of the work day. (R. 640).
November 25, 2013, the ALJ wrote to Dr. Bernstein to
“clarify and understand the basis” of his medical
opinion and to “resolve conflicts, inconsistencies,
ambiguities, or insufficiencies” in the medical
records. (R. 303-307). Dr. Bernstein did not respond to this
also reviewed records from David Deramo, M.D., an orthopedist
who had treated the plaintiff since July 26, 2012. (R. 30).
He noted after the first visit that plaintiff had normal gait
and deep tendon reflexes, but that she did have right and
left paraspinal tenderness of the lumbar spine, as well as
mild midline tenderness. (R. 407). He tested her range of
motion and her muscle strength, and determined that she had
patellar chondromalacia, knee joint pain, bursitis of the
hip, and lumbar sprain. (Id.). During that visit
plaintiff reported that the pain radiating from her left
knee, left hip, and lower back was a 7 out of 10 intensity,
which is exacerbated through physical activity. (R. 433).
August 16, 2012, Dr. Deramo wrote that plaintiff was not yet
able to return to work due to her left knee, left hip, and
lower back pain. (R. 431). On September 13, 2012, he noted
that plaintiff started acupuncture for her pain, but that her
physical condition was “essentially unchanged”
from August. (R. 428). On December 28, 2012, Dr. Deramo
administered a cortisone injection in her left knee, and
again noted that she was not yet ready to return to work. (R.
plaintiff's car accident, she was examined by Dr. Deramo
on February 28, 2013. His examination revealed that she was
not in acute distress, that she had normal gait, and normal
deep tendon reflexes. (R. 930-1). His findings were similar
to those after previous examinations, and included tenderness
in her back, shoulder, buttock, knees, and sciatic notch, and
a positive straight leg raise test. (R. 931). He recommended
that she continue chiropractic treatment, physical therapy,
and medication. (Id.).
March 27, 2013, Dr. Deramo examined plaintiff again and noted
that her knees had not significantly improved with therapy,
and that she continued to experience neck and lower back
pain, as well as pain in her right and left knees. (R. 928).
Physical examination showed that she had full muscle
right knee MRI on April 1, 2013 revealed a grade I MCL
sprain, small joint effusion, and a tear on the posterior
horn of the medial meniscus, Dr. Deramo administered a right
knee cortisone injection on April 17, 2013. (R. 924). He
noted that plaintiff demonstrated muscle strength of 5- out
of 5, and that she was ligamentously stable. (R. 925).
29, 2013, he wrote that plaintiff reported that the cortisone
injection helped, but that she still had significant pain in
her left knee. (R. 919). On June 14, 2013, he wrote that
plaintiff was “disabled and unable to return back to
the line of work that she is currently in.” (R. 690).
He indicated that her diagnoses were patellar chondromalacia,
knee joint pain, bursitis of the hip, lumbar sprain, and
internal derangement of the knee. (R. 689).
Deramo performed a left knee diagnostic arthroscopy with a
medial meniscectomy and chondroplastly on July 12, 2013. (R.
495). On July 19, 2013, he noted that plaintiff was
“doing quite well, ” but was still unable to work
because of her surgery and other injuries. On September 3,
2013, he wrote that she was making “slow and steady
progress” after the surgery, but was using a cane and
continued to have lower back and left leg pain. (R. 905).
Deramo filled out a residual functional capacity assessment
dated October 30, 2013, in which he wrote that plaintiff
could not stand or walk for more than two hours during a work
day, and that she could not sit for more than four hours in a
work day. (R. 901). Further, he reported that plaintiff takes
medication that interferes with her ability to work, suffers
from pain which prevents her from working 8 hours, and would
require an average of three or more sick days per month. (R.
November 25, 2013, the ALJ wrote to Dr. Deramo to
“clarify and understand the basis” of his medical
opinion and to “resolve conflicts, inconsistencies,
ambiguities, or insufficiencies” in the medical
records. (R. 291-94). Dr. Deramo responded, explaining that
his residual functional capacity report was based on his
clinical examinations, his expertise in the field of
orthopedics, and the plaintiff's complains of pain. (R.
1013-16). Dr. Deramo noted that he did not perform a
functional capacity examination, nor did he specifically test
plaintiff's ability to lift, sit, stand, or walk.
on January 6, 2014, Dr. Deramo completed a medical
questionnaire for Walmart, plaintiff's former employer.
(R. 1007). He wrote that the patient had sciatica, lumbar
strain, and left knee internal derangement. (Id.).
He gave her a “guarded” prognosis, and wrote that
plaintiff cannot lift more than ...