United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Elizabeth Valentin brings this action seeking review of the
final decision of the Acting Commissioner of Social Security
(“Commissioner”), who found that Valentin was not
disabled before December 29, 2013, and is thus ineligible for
Social Security Disability (“SSD”) or
Supplemental Security Income (“SSI”) payments
before that date. Both parties have moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure
12(c). For the reasons stated below,
Valentin's motion is granted and the Commissioner's
motion is denied.
Valentin's Claim for Benefits and Procedural
filed her application for SSD and SSI on December 6, 2010.
See Certified Administrative Record, filed July 8,
2016 (Docket # 10) (“R.”), 220-36. Her
application was initially denied on March 4, 2011. R. 121-28.
She requested a hearing before an Administrative Law Judge
(“ALJ”) and retained counsel on March 16, 2011.
R. 132-33. An ALJ conducted a hearing on December 8, 2011. R.
48-63. In a decision dated January 30, 2012, the ALJ found
that Valentin was not disabled. R. 97-114.
requested review of the ALJ's decision by the Appeals
Council. R. 172-73. The Appeals Council granted review and
remanded the claim on March 12, 2013, instructing the ALJ to
consult a vocational expert and further evaluate
Valentin's physical and mental impairments. R. 115-20.
The ALJ held a second hearing on March 11, 2014. R. 64-94. On
April 9, 2014, the ALJ issued a partially favorable decision
finding Valentin disabled as of December 23, 2013, but not
before that date. R. 19-47. Valentin requested review by the
Appeals Council for the portion denying her benefits prior to
December 29, 2013. R. 16. On February 24, 2016, the Appeals
Council denied her request for review. R. 1-6.
April 21, 2016, Valentin filed this lawsuit seeking review of
the Commissioner's decision. See Civil
Complaint, filed Apr. 21, 2016 (Docket # 1).
Summary of Testimony at the Two Hearings
testified that she had last worked as a teacher's aide,
and before that had assisted at a nursing home. R. 53, 81. On
the date she asserted her disability began, May 18, 2009, she
was fired from her job because she was “under
investigation” for a “personal issue.” R.
55; see also R. 220, 414, 1003, 1185. She became
unable to work also due to pain in her joints, shoulder,
knees, back, ankles, and neck. R. 54, 56-57, 76-77. She is
unable to sit, stand, or walk for long periods, and must
alternate between sitting and standing. R. 54, 57, 76. She
can only carry light weight, no more than a gallon of milk,
with her left arm, and has trouble with repeated use of her
right arm. R. 74-76. She struggles to perform household
chores, relying on her two adult children to help her cook,
clean, and do grocery shopping. R. 58-59, 79. Valentin also
testified that she is depressed. R. 77-78. She has anxiety,
feels “scared all the time, ” and is
“always flipping out” in stressful situations,
such as when waiting for a doctor's appointment.
See R. 61. She is lonely, but did not socialize with
friends or belong to any social or church groups. R. 61-62.
Her medications affect her ability to think straight, and
make her forgetful. R. 68-69.
March 11, 2014, hearing, the ALJ took testimony from a
vocational expert and asked her to consider a hypothetical
person, age 45, who had completed high school, was limited to
sedentary work with only occasional (meaning up to one-third
of the day) use of the person's left, non-dominant hand,
and who could perform simple work with occasional contact
with others. R. 86-87. The vocational expert testified that
at least three jobs existed in the regional and national
economy that such a hypothetical person could perform:
charge-account clerk, call-out operator, and ticket-checker.
R. 87-88. The vocational expert testified that the
ticket-checker position required “no real interpersonal
contact.” R. 88.
was born on December 30, 1963, R. 95, and completed the 12th
grade, R. 312. Prior to Valentin's alleged disability
onset date in May 2009, she had two major surgeries. A lumbar
spine MRI from July 21, 2005, showed a herniated disc,
hydration lost, and a pinching of the L5 nerve roots in
Valentin's spine. R. 576-78. At the time, Valentin tried
physical therapy, Flexeril, Naproxen, and Motrin for
treatment. Id. Dr. Jose A. Torres-Gluck, a
neurologist at Metropolitan Hospital Center in Manhattan
(“Metropolitan”), performed a lumbar fusion to
repair the disc on December 8, 2005. R. 653-58. After the
surgery, Valentin continued to work as a rehabilitation
counselor. See R. 293, 345. At a follow-up
examination on May 1, 2007, Dr. Torres-Gluck reported that
she “[f]eels great. Has no back or radicular symptoms.
[Is a]ble to do heavy [physical] labor with minimal or no
problems.” R. 633.
also complained of left knee and left shoulder pain in 2008.
See R. 494-501. X-rays and MRIs of her shoulder
showed degenerative changes to her acromioclavicular
(“AC”) joint and a subscapularis bursal effusion,
no fracture. R. 499, 501. An MRI of her left knee revealed a
medial meniscus tear. R. 497. Dr. Tyler S. Lucas, an
orthopedic surgeon at Metropolitan, performed arthroscopic
surgery on her left shoulder on November 17, 2008, with a
postoperative diagnosis of left shoulder impingement syndrome
and AC joint arthritis. R. 502-04. He reported, on November
24, that she was able to move her shoulder well and could
start physical therapy. R. 627.
October 2008, Valentin complained of neck pain. R. 630. Dr.
Torres-Gluck identified muscular spasms as a likely cause,
and prescribed Naprosyn, Flexeril, and physical therapy.
Id. An appointment with Dr. Lucas in February 2009
revealed continuing pain at Valentin's left AC joint, but
with full motion and full strength in the shoulder. R. 622.
Valentin also complained of pain to her neck near the C4-C5
vertebrae and pain in her left knee. Id. Comments
from Dr. Joji Sakuma at Metropolitan reference an x-ray from
October 2008 that revealed degenerative joint disease, a
reverse of the curvature of her spine, and muscle spasms. R.
619. Valentin continued to work until May 2009. See
R. 54-55, 319, 345.
Lucas continued to treat Valentin after May 2009 for knee
pain and shoulder pain. See, e.g., R.
447-48, 458, 634, 670, 793, 1122, 1160, 1169. An injection of
Dexamethasone to the AC joint, see R. 460, improved
the pain, but only to a six on a ten-point scale,
see R. 458. X-rays of her left shoulder in May 2009
revealed no fracture, but a possible dislocation of the AC
joint and positive indications of arthritis. R. 380. Dr.
Lucas also performed arthroscopic surgery on Valentin's
left knee on November 4, 2009. R. 506-07. On May 17, 2010,
Dr. Lucas noted that Valentin's hips and knee had full
range of motion, that she had tightness in her quads and
hamstring, and that her shoulder had full range of motion
with pain to palpation at her left neck and left AC joint. R.
447. He noted that her left shoulder and left knee had
reached maximal improvement, although it was also reported
that she had 4/5 strength in her shoulder and “chronic
swelling and pain” in her left knee. Id.
17, 2010, Dr. Lucas reported to the New York State
Worker's Compensation Board that Valentin had a permanent
impairment of her left knee and shoulder due to persistent
swelling and pain. R. 513-15. He indicated limitations in
climbing stairs or ladders, kneeling, lifting, or operating
heavy equipment, but did not indicate any limitations in
sitting, standing, using public transit, using her upper
extremities, or bending or twisting. R. 515.
16, 2011, Valentin complained to Dr. Lucas about pain to her
left shoulder AC joint. R. 634. She was also diagnosed with
fibromyalgia around that date. Id. A new MRI of the
shoulder revealed no rotator cuff tear and flat acromion,
with the shoulder at full motion and full strength. See
id. Her left knee also showed pain to the lateral joint
line, but negative McMurray test and no pain or laxity to
varus or valgus strain. Id. Nevertheless, Dr. Lucas
declared her “disabled due to multiple chronic regional
pain syndromes.” Id.
Lucas repeated these diagnoses in Medical Impairment
Questionnaires (“MIQs”) on September 28, 2011,
and October 2, 2013, but his view of her limitations changed
from the May 17, 2010, report to the Worker's
Compensation Board. R. 759-67, 907-14. The MIQs, which are
substantially the same, opine that Valentin had fibromyalgia,
degenerative joint disease in her spine, spinal stenosis, and
chronic fatigue syndrome, based on x-rays and MRIs of her
neck and back. R. 760, 907. Dr. Lucas noted that Valentin had
pain in her left shoulder, knees, ankles, “jaw &
teeth, ” neck, and upper and lower back. R. 761, 908.
He stated that she could not sit or stand more than one hour
in an eight hour work day and would need to change position
every half-hour. R. 762, 909. He noted that she could
frequently lift and carry up to five pounds and could
occasionally lift and carry up to 10 pounds, but that pain to
her shoulder and neck significantly limited her ability to
repeatedly reach, handle, finger, or lift. R. 763, 910. He
said that she had marked limitations with grasping, turning,
and twisting objects; moderate limits in using her fingers
and hands for fine manipulations; and marked difficulty using
her arms for reaching, including overhead. R. 763-64, 910-11.
He listed several of Valentin's medications but did not
indicate any of their side effects. R. 764, 911. He said that
she could tolerate “low” work stress, and said
the basis for this conclusion was “intuition.” R.
765, 912. He said that she would likely need a half-hour
break every half-hour during a workday, would likely miss
more than three days of work per month, could not bend,
stoop, push, pull, or kneel, and should avoid humidity,
temperature extremes, and wetness. R. 765-66, 912-13. In a
narrative report on October 20, 2011, Dr. Lucas opined that
Valentin's prognosis is “poor, ” and wrote:
“I do not believe she can participate in full time
competitive work and that she is disabled permanently.”
Drs. Torres-Gluck and Kleiman
Drs. Torres-Gluck and Anne Kleiman regularly saw Valentin for
complaints of neck pain and headaches. See,
e.g., R. 375, 428, 437, 449-54, 602-08, 612-14,
664-66, 781-85. At an examination in September 2009, Dr.
Torres-Gluck noted that Valentin had neck pain radiating to
her left arm associated with numbness and
paresthesias. R. 613. She had normal range of motion and
power, but x-rays showed degenerative disc disease and
reversal of lordosis at ¶ 4-5. R. 613-14. He believed
that radiculopathy due to degenerative disc disease was
likely. R. 614.
Kleiman provided further treatment in early March 2010 when
Valentin complained chiefly of headaches. R. 607. Dr. Kleiman
noted a history of “overus[ing] analgesics of man[y]
[t]ypes in her frustration over the pain.” Id.
A cervical spine MRI on March 2, 2010, showed reversal of the
normal cervical curvature near the C5-6 vertebrae, patchy
bone marrow edema within C6, and herniated discs at ¶
4-5 and C5-6 creating central canal stenosis. R. 376.
Reviewing the MRI on April 27, 2010, Dr. Torres-Gluck
observed that Valentin had severe degenerative disc disease
at vertebrae C4-5, C5-6, and C6-7, with reversal of lordosis
and herniation near discs C5-6 and C6-7. R. 453.
follow-up consultation on June 14, 2010, a resident noted
that Valentin's headaches are likely caused by the
stiffness in her neck and a herniated disc, not by migraines.
R. 587. Reviewing the resident's findings, Dr. Kleiman
reported that Valentin continued to have “paraspinal
lower cervical and trapezious muscle spasm[s]” and
“decreased cranial range of motion.” R. 588. To
address the pain, Valentin was prescribed at various points
Indocin, Lyrica, Clonazepam, Zanaflex, Lamictal, Ultram,
Savella, and Norflex. R. 394, 410, 421, 821.
continued to complain of back pain after her 2005 lumbar
fusion, but a lumbosacral spine MRI showed little besides
“[s]hort posterior spinous rods at the L5-S1
level” and “[m]ild lumbar spondylosis.” R.
378. She had a surgical breast reduction on October 2, 2010,
apparently in an effort reduce back and neck pain. R. 508-10,
her breast reduction, Valentin was considered for cervical
surgery. R. 421, 428, 665, 673. She was evaluated at both
Metropolitan and the Hospital for Joint Disease at NYU for
this treatment. R. 665, 784. Ultimately both the Hospital for
Joint Disease and Metropolitan recommended against surgery.
See R. 769, 784. Instead she continued to receive
pain management treatment from Alexandru Burducea, D.O., at
Mount Sinai, as well as at Metropolitan. R. 541-73. She
reported great relief - as much as 50% improvement - from the
treatment at Mt. Sinai. R. 552-53.
Kleiman wrote two reports on Valentin's condition. The
first one, dated August 3, 2011, indicates that it was
“written as requested by my patient's
attorneys.” R. 684. Dr. Kleiman explained the history
of her treatment of Valentin, noting that Valentin had
“two large herniated discs, ” did not respond to
pain management, and was being considered for neurosurgery.
Id. She said that her examination showed
restrictions to Valentin's ability to move her head and
neck and use her left arm due to pain. Id. Dr.
Kleiman said that her patient “remains debilitated, can
not [sic] work and is generally disabled” unless she
undergoes decompressive surgery. Id. In a shorter
report written on October 7, 2011, Dr. Kleiman said that
Valentin was diagnosed with cervical stenosis and a herniated
disc at ¶ 4-C5, based on an MRI. R. 769. Dr. Kleiman
said that, despite physical therapy and pain medication,
Valentin “remains limited in her ability to perform her
daily activities” and “continues to have limited
movement of her head and ongoing pain.” Id.
completed by Dr. Kleiman on September 26, 2011, noted that
Valentin suffers from “neck pain [due] to cervical
radiculopathy [and due] to herniated cervical discs.”
R. 751. Dr. Kleiman noted that Valentin's condition
improved moderately with pain management “and
may continue to improve slowly, ” and that
Valentin suffers from “cervical muscle spasms, ”
“decreased ability to rotate the head, ” and
“shooting pain into the arms to the hands.”
Id. (emphasis in original). Dr. Kleiman said that
her examination and the MRIs of Valentin supported her
conclusion. R. 752. She opined that Valentin could sit for
four hours in an eight-hour work day, and could stand or walk
for only two hours; that Valentin could occasionally lift or
carry up to five pounds, but that muscle spasms in her neck
that are increased with activity may limit her ability to do
repetitive reaching, handling, fingering, or lifting; and
that Valentin would have marked difficulty, with either side
of her body, grasping, turning, and twisting objects; using
her hands or fingers for fine manipulations; or using her
arms for reaching, including overhead. R. 753-55. She noted
that Valentin is capable of moderate work stress, but would
have to take a 15 minute break every two hours, and possibly
miss two to three days per month of work. R. 756-57.
Rahel Eyassu conducted a consultative physical evaluation on
February 8, 2011. R. 409-13. Dr. Eyassu noted that Valentin
complains of chronic neck pain, as well as episodic knee
pain, some pain when using her arms, and arthritis. R.
409-10. Dr. Eyassu noted Valentin's claims that she
cannot cook, clean, launder, or shop due to pain, but can
shower and dress herself. R. 410. Dr. Eyassu observed that
Valentin presented herself in mild pain, exhibited difficulty
in walking on heels and toes, and declined to squat due to
left knee pain. Id. Dr. Eyassu wrote that Valentin
could change herself for the exam, could get on and off an
exam table, and rise from a chair without difficulty or
assistance. Id. Dr. Eyassu observed that
“[s]pontaneous movement of the neck elicits pain,
” but noted no muscle spasms, and that “[p]ushing
on top of the head while neck was in flexion did not elicit
radicular pain.” R. 411. Dr. Eyassu noted that
Valentin's left shoulder could raise to 130 degrees and
abduct to 130 degrees, adduct and externally rotate without
limitation, but only rotate internally “0-30
degrees.” R. 412. Dr. Eyassu observed “[f]ull
range of motion of hips, knees, and ankles bilaterally,
” and “[f]ull range of motion of the right
shoulder, elbows, forearms, and wrists bilaterally.”
Id. Dr. Eyassu said that strength was 5/5 in the
upper and lower extremities, and that “[h]and and
finger dexterity is intact” and grip strength was 5/5.
Id. Dr. Eyassu diagnosed Valentin with a history of
cervical spine derangement, cervical myelopathy, status post
lumber spine fusion, status post left shoulder rotator cuff
repair, status post left knee arthroscopy, arthritis, and
depression. Id. Regarding her activities, Dr. Eyassu
opined that Valentin had only the following limitation:
“Marked limitation on activities that would require
reaching up, sustained pulling, pushing, excessive neck
movement, repetitive bending, lifting, squatting, kneeling,
and crawling.” Id.
Other Treatment at Metropolitan
received treatment at Metropolitan from rheumatologist Dr.
Sushama Mody beginning in December 2010. E.g. R.
421, 660-61, 673, 821. Dr. Mody diagnosed her with
osteoarthritis in her spine, knees, and shoulders, and with
probable fibromyalgia syndrome. R. 424-25. Dr. Mody based
this initial diagnosis on Valentin's “extensive
history of degenerative joint disease, ” as well as her
existing radiology and lab results. R. 424. Valentin was
treated with “alternating muscle relaxers, ”
Ultram, and Lyrica. R. 424-25.
was also treated for bilateral foot pain at Metropolitan in
late 2009. E.g. R. 385, 388, 610. She received
medicated gel, injections, and cold sprays for treatment. R.
St. Luke's Roosevelt Hospital Treatment
began psychiatric treatment at St. Luke's Roosevelt
Hospital (“St. Luke's”) in Manhattan in
January 2010. See R. 839. Her diagnosis as of
October 26, 2011, was “major depressive disorder,
recurrent, moderate severity”, evinced by
“symptoms of depressed mood, changes in sleep,
tearfulness, and anhedonia.” Id. Other
diagnoses and reports have included generalized anxiety
disorder, see R. 1005, general affective disorder,
see, e.g., 1056, and “personality
disorder not otherwise specified”, see R. 949,
999. She was treated by psychiatrists Drs. Joseph Yuen, Abha
Gupta, Noam Koenigsberg, and Alexandra Canetti. See
R. 840-48, 944-51, 1041-48, 1250-53. She was treated by
psychologists Drs. Anne Bohraus, Roshnee Vazquez, and Shara
Marrero. R. 1003-06, 1109-12, 1250-53. Valentin generally
behaved with appropriate affect, eye contact, and speech
during her meetings, though with varying insight and
judgment. See R. 930, 1023, 1033, 1109. She
consistently reported “rampaging, ” or cursing
and screaming at others as a way to release her angry
feelings, in public and private situations. See R.
1077, 1096. However, she reported progress in preventing
these episodes and in controlling her anger using techniques
learned in therapy. See R. 930. Dr. Bohraus also
noted possible symptoms of post traumatic stress disorder as
well as a very poor memory. See R. 1104.
report dated June 10, 2011, Dr. Yuen said that Valentin had
unspecified episodic mood disorder, major depressive disorder
(moderate recurrent), and generalized anxiety disorder. R.
579-80. He reported that she has “poor emotional
capacity to participate in work-related activities” due
to causes including “depressed mood, irritability,
difficulty with frustration tolerance, ” and poor
ability “to manage interpersonal relationships.”
See R. 580. Dr. Yuen said that he expected, with
treatment, that Valentin's issues would be resolved by
June 2012, and that she was “temporarily
unemployable” for up to one year. Id.
Gupta also produced a narrative report on October 26, 2011.
R. 839. Dr. Gupta stated that Valentin had been a patient at
St. Luke's Psychiatric Outpatient Clinic since January
2010. Id. He noted that a combination of medication
and therapy had helped prevent recurrent episodes of
depression. Id. An impairment questionnaire
completed by Dr. Gupta noted that Valentin has “major
depressive disorder, recurrent, moderate, ” and
“personality disorder not otherwise specified.”
R. 830. He noted that she suffered from trouble sleeping,
mood disturbance and emotional lability, anhedonia or
pervasive loss of interest, difficulty thinking or
concentrating, feelings of guilt or worthlessness, hostility
and irritability, persistent irrational fears, intrusive
recollections of a traumatic exercise, decreased energy, and
social withdrawal or isolation. R. 831. He opined that
Valentin had moderate limitations in her ability to sustain
an ordinary routine without supervision, to appropriately
interact with the general public, to respond to criticism
from supervisors, to get along with coworkers without
exhibiting behavioral extremes, and to be aware of normal
hazards and take appropriate precautions. R. 833-35. He