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Valentin v. Berryhill

United States District Court, S.D. New York

September 6, 2017

NANCY A. BERRYHILL, Defendant.[1]


          GABRIEL W. GORENSTEIN, United States Magistrate Judge

         Plaintiff 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).[2] For the reasons stated below, Valentin's motion is granted and the Commissioner's motion is denied.

         I. BACKGROUND

         A. Valentin's Claim for Benefits and Procedural History

         Valentin 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.

         Valentin 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.

         On April 21, 2016, Valentin filed this lawsuit seeking review of the Commissioner's decision. See Civil Complaint, filed Apr. 21, 2016 (Docket # 1).

         B. Summary of Testimony at the Two Hearings

         Valentin 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.

         At the 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.

         C. Medical Records

         1. Pre-disability Treatment

         Valentin 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.

         Valentin 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, [3] but 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.

         In 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.

         2. Dr. Lucas

         Dr. 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.

         On May 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.

         On June 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[4] 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.

         Dr. 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.[5] 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.” R. 827-28.

         3. Drs. Torres-Gluck and Kleiman

         Neurologists 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.[6] 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.

         Dr. 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.

         At a 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.

         Valentin 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, 641-44.

         After 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.[7] 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.

         Dr. 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.

         An MIQ 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.

         4. Dr. Eyassu

         Dr. 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.

         5. Other Treatment at Metropolitan

         Valentin 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.

         Valentin 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. 385, 388.

         6. St. Luke's Roosevelt Hospital Treatment

         Valentin 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.

         In a 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.

         Dr. 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 ...

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