United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Darren Trancynger brings this action to review the final
decision of the Commissioner of Social Security, finding that
Trancynger was not disabled and thus not eligible for
disability insurance benefits. Trancynger seeks to have the
case remanded to the Commissioner for further proceedings.
See Motion to Remand and/or for Judgment on the
Pleadings, filed Sept. 21, 2016 (Docket # 22) (“Pl.
Mem.”). The Commissioner moves for judgment on the
pleadings to affirm the Commissioner's
decision. For the following reasons, the
Commissioner's motion for judgment on the pleadings is
granted and Trancynger's motion to remand is denied.
filed for disability insurance benefits on August 22, 2012.
See SSA Administrative Record, filed June 20, 2016
(Docket # 15) (“R.”), at 9, 244. The Social
Security Administration (“SSA”) denied
Trancynger's application on October 9, 2012. R. 154-61.
Trancynger then requested a hearing before an Administrative
Law Judge (“ALJ”). R. 162-64. Two hearings were
held: the first on October 4, 2013, R. 29-99, and the second
on February 7, 2014, R. 100-43. In a November 6, 2014,
ruling, the ALJ found that Trancynger was not disabled. R.
9-21. Trancynger requested review of the ALJ's decision
on December 18, 2014, R. 5, and the Appeals Council denied
that request on February 1, 2016, making the ALJ's
determination the Commissioner's final decision, R. 1-4.
Trancynger brought this action on March 23, 2016. Complaint,
filed Mar. 23, 2016 (Docket # 1).
asserts that he became disabled on August 1, 2011, when he
stepped in a hole while on patrol as a police officer,
thereby wrenching his knee. R. 77, 244, 1392, 1872.
The Hearings Before the ALJ
October 4, 2013, Hearing
first hearing, Trancynger described all of the treating
physicians he had seen for his condition. R. 35-40. His
primary doctor was Dr. Rick Sayegh, whom he saw “every
month or every few weeks.” R. 39, 84.
had had two knee surgeries, one in 2011 and one in 2012.
See R. 38-39. At the time of the first hearing,
Trancynger had also recently undergone left heel surgery. R.
40. Following the surgery on his heel, Trancynger still
experienced pain in his heel and was seeking a second opinion
as to the pain and swelling following the operation.
See R. 41-42. Trancynger experienced little pain in
his right heel. See R. 42.
noticed Trancynger using a cane and Trancynger testified that
he had been using one since August 2011. See R.
42-43. Trancynger used a cane “all the time now,
” but it appeared that the cane was not prescribed but
rather provided by an acquaintance. See R. 76.
estimated that he could remain standing for 10 minutes before
sitting down. R. 70. However, Trancynger said that sitting
down was “the worst because [he had] pain running down
the left side of [his] back into [his] buttocks.”
Id. Trancynger could remain sitting for only five
minutes before needing to move, by his own estimation.
Id. Trancynger's inability to sit or stand had
been getting progressively worse since his accident. R. 71.
He suffered back pain on the job before, but Trancynger had
never before experienced the “pain running down [his]
legs, ” as had occurred after the accident, that led to
his disability claim. See R. 71-72. Trancynger
described the pain he experienced while sitting as
“excruciating.” R. 72.
asked if Trancynger had been on a plane recently and
Trancynger testified that he had flown to see his parents in
Florida in May 2013. R. 43. Trancynger estimated that the
total flying time was around two hours. See id. At
the airport Trancynger used the “running
escalator” to move around. R. 68. Trancynger tried to
visit his parents once a year, and saw them once in 2013 and
once in 2012. See R. 69.
lived with his brother, R. 44, and used an elevator to travel
to his sixth-floor apartment, R. 68. Trancynger could not
walk up and down stairs. R. 43; accord R. 68. As
required by the police department office of internal affairs,
Trancynger had to stay at home due to his injury except that
he could leave for doctor's appointments. See
generally R. 72-73.
still worked at the police department, but was awaiting the
department's internal determination as to his disability.
See R. 44-45. As part of the state's
determination as to his workplace disability, Trancynger saw
state physician Dr. John Mazella to evaluate his knee, heel,
and back pain. See R. 45, 46-48; accord R.
was taking Vicodin, ibuprofen 800, Percocet, Realize,
Neurontin, Amrix, and an anti-inflammatory called nabumetone.
R. 59-61, 74. Trancynger previously took muscle relaxers like
Flexeril and Skelaxin. R. 60. One of the possible side
effects that Trancynger attributed to his prescribed
medications - though he was not sure if it was actually a
side effect - was a feeling “like [he is] going nuts
almost.” R. 73-74. Trancynger said he “forget[s]
some of the conversation and [he will] forget what [he is]
saying.” R. 74. His medication also made him drowsy,
though Trancynger said he was “kind of immune” to
the drowsiness caused by the medication. See id.
believed that his prescribed Vicodin was giving him severe
headaches that lasted for 20 to 30 hours, R. 60-61, but
stated that the Percocet had yet to produce such side
effects, see R. 61. When he was having long, intense
headaches, nothing would relieve the pain. R. 61. An MRI
performed by a neurologist confirmed to Trancynger that the
cause of the headaches was likely the Vicodin. See
of these headaches and their causes was not in the record at
the time of the hearing, and Trancynger said he would try to
get records of them. See R. 63-64. The hearing ended
with the ALJ's discussing with Trancynger's attorney
plans to obtain additional medical records. R. 90-99.
February 7, 2014, Hearing
second hearing, Trancynger confirmed that he was 45 years old
and had spent 15 years at the police department. R. 104-05.
Trancynger was a patrol officer. R. 105. Shortly before the
hearing, Trancynger had seen a City of Yonkers examining
physician named Dr. Tutoral regarding his right knee. R. 107.
the first and second hearings, Trancynger underwent a
laminectomy lumbar fusion surgery with Dr. Thomas Lee. R.
102, 105-06; accord R. 1407-11. Trancynger
experienced numbness in his legs after the surgery, which he
had never experienced before. See R. 110-11.
Trancynger believed that the numbness was due to inflamation.
R. 111-12. Trancynger eventually reduced the amount of
Neurontin he was taking because he “wasn't getting
the pain down the legs anymore.” R. 112-13. However, he
began taking Neurontin again in an effort to help with the
numbness. R. 113. Trancynger did not mention any side effects
of the Neurontin. R. 114. While the pain in his legs was
gone, R. 113, the numbness began to bother Trancynger and he
said he had no mobility or strength, R. 114.
before the second hearing, Trancynger began doing pool
therapy for his back. R. 115-16. Trancynger said the therapy
was “working” and he had “been feeling
good.” R. 116. The ALJ noted that Trancynger previously
stated that sitting down was painful to his back and asked
if, because Trancynger was sitting down at the hearing, the
surgery had helped his back pain. R. 117. Trancynger said it
had not. Id. Trancynger said the pain in his back
was “tremendous, ” making it hard to sit, stand
or do any other routine activity, such as using the restroom
or opening a refrigerator door. R. 118. He hoped the surgery
would eventually improve his back, but at the time of the
hearing it had not and Trancynger had “lost tremendous
amount[s] of muscle” in his back and arms. See
Trancynger had complained of pain in his heels at the
previous hearing, at the second hearing he said he did not
“have much problem with the pain in the heels
now.” R. 119. Trancynger also said his problems with
severe headaches had subsided because he was “not
overdoing” it with pain killers. Id. While his
attorney noted that Trancynger was sitting for up to 15
minutes at the hearing “with some obvious discomfort,
” Trancynger said it was difficult to sit there except
that a brace he was wearing and his medications helped him
avoid a lot of pain. See R. 120. The brace he
mentioned helped Trancynger not overextend himself after his
surgery. R. 120-21.
second hearing the ALJ took the testimony of a vocational
expert (“VE”), Ms. Stein. R. 123-24. The ALJ
asked the VE to assume a hypothetical worker with
Trancynger's age, education, and work history who could
perform a limited range of sedentary work, with the
limitations that he could only occasionally stoop, kneel, and
crouch; used a cane to walk; could only occasionally climb
and descend stairs; had to avoid unprotected heights; could
only occasionally push and pull with the upper extremities;
and could not use foot controls. R. 125-26.
on this description, the VE said the hypothetical worker
could not perform Trancynger's past work as a police
officer. Id. However, the VE found that there were
other jobs that someone with this hypothetical profile could
perform. One such job was police clerk, DOT code 375.362-010,
with a sedentary exertional level, and with 2, 808, 100 such
jobs nationally. R. 127. The VE also listed police aide, DOT
code 243.362-014, with a sedentary exertional level as
another position available. Id. There were 2, 808,
100 police aide jobs nationally. Id. The VE also
found that someone as described by the ALJ could also work as
a telephone order clerk, a identification/security clerk, or
a surveillance system monitor. R. 128-29.
then changed the hypothetical by adding an at-will sit/stand
option in addition to the hypothetical limitations listed
above. R. 129. The VE said such a worker would not be able to
perform Trancynger's past work as a police officer, but
would still be able to perform the jobs of police clerk,
police aide, telephone order clerk, identification/security
clerk, and surveillance system monitor, which all had a
sit/stand option. R. 129-30.
the ALJ altered the hypothetical by adding a requirement that
not only would the worker need an at-will sit/stand option,
but would also be off task 20% of the time in addition to
standard breaks. R. 130. The VE found no jobs available to
such a person. Id. Trancynger's attorney
examined the VE on the requirements for the police clerk
position. R. 130-31. After reading the DOT's description
of the position, the VE said that it would not be required
for a worker to handle physical files and that kneeling,
crouching, crawling, and stooping were not required for the
job. R. 131-33.
attorney asked about a hypothetical worker who could perform
a limited range of sedentary duties with occasional stair
climbing, no unprotected heights, occasional pushing and
pulling, no foot controls, use of a cane, and no kneeling,
crouching, or stooping. R. 135-36. The VE testified that even
with this further limitation of no kneeling, crouching, or
stooping, the hypothetical worker could work as a police
clerk, police aide, telephone order clerk,
identification/security clerk, or surveillance system
monitor. R. 136-38. Trancynger's attorney altered the
hypothetical again by adding the requirement that no climbing
of stairs be involved, in addition to all previously listed
limitations. R. 138. ...