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Trancynger v. Commissioner of Social Security

United States District Court, S.D. New York

September 5, 2017

DARREN TRANCYNGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.[1] For the following reasons, the Commissioner's motion for judgment on the pleadings is granted and Trancynger's motion to remand is denied.

         I. BACKGROUND

         A. Procedural History

         Trancynger 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).

         Trancynger 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.

         B. The Hearings Before the ALJ

         1. October 4, 2013, Hearing

         At the 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.

         Trancynger 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.

         The ALJ 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.

         Trancynger 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.

         The ALJ 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.

         Trancynger 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.

         Trancynger 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. 1393-400.

         Trancynger 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.

         Trancynger 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 R. 62-63.

         Evidence 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.

         2. February 7, 2014, Hearing

         At the 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.

         Between 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.

         Shortly 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 R. 122-23.

         While 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.

         At the 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.

         Based 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.

         The ALJ 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.

         Finally, 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.

         Trancynger's 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. ...


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