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Mercado v. Berryhill

United States District Court, S.D. New York

August 3, 2017



          P. Kevin Castel United States District Judge.

         Plaintiff 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).

         Plaintiff 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.


         On 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.).

         In a 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).

         On 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).

         Plaintiff 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. Civ. P.


         The evidence before the ALJ consisted of the testimony of the witnesses, medical records, evaluations, and reports. The record is summarized below.

         A. Non-Medical Evidence

         1. Plaintiff's Testimony and Functional Report

         On July 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. (Id.).

         After 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).

         Her job 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).

         Plaintiff 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. 107-8).

         She has 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).

         Her 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).

         Plaintiff 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).

         She 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).

         2. Vocational Expert's Testimony

         Vocational 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. 95).

         The VE 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).

         B. Medical Evidence

         The ALJ reviewed plaintiff's medical records and the clinical assessments of plaintiff's treating and non-treating physicians. (R. 29-38).

         1. Treating Physician's Records

         The ALJ 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).

         After 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).

         On 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. (Id.).

         On May 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).

         On 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).

         On 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 request.

         The ALJ 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).

         On 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. 937).

         After 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.).

         On 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 strength. (Id.).

         After a 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).

         On May 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).

         Dr. 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).

         Dr. 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. 902).

         On 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. (Id.).

         Finally, 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 ...

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