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Gutierrez v. Commissioner of Social Security

United States District Court, S.D. New York

January 9, 2018

Maria C. Gutierrez, Plaintiff,
Commissioner of Social Security, Defendant.


          STEWART D. AARON, United States Magistrate Judge

         Plaintiff, Maria C. Gutierrez (“Gutierrez”), brings this action pursuant to § 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for disability insurance benefits (“DIB”). (Compl., ECF No. 2.)[1] Presently before the Court are the Commissioner's motion, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings (Def.'s Notice of Mot., ECF No. 17), and Gutierrez's cross-motion for judgment on the pleadings. (ECF No. 25.)

         For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is DENIED and Gutierrez's cross-motion is GRANTED IN PART.


         I. Procedural History

         Gutierrez applied for DIB on July 31, 2013, alleging a disability onset date of October 28, 2012, due to her neck, shoulder and back conditions. (Administrative R. [“R.”] 70, 141-42, 164, ECF No. 13.) On December 19, 2014, Gutierrez, appearing with counsel, had a hearing before Administrative Law Judge (“ALJ”) Robert Gonzalez (R. at 31-59), who denied Gutierrez's application on February 26, 2015. (R. at 15-30.) ALJ Gonzalez's decision became the Commissioner's final decision when the Appeals Council denied review on June 23, 2016. (R. at 1-6.) This action followed.

         II. Factual History[2]

         Gutierrez, who was born in 1963 and was fifty-one years of age on the date of her hearing, completed both high school and training as a nursing assistant. (R. at 35-36, 70.) She alleges she is disabled due to a neck, shoulder and back injury she suffered while lifting patients during her work as a nursing assistant on October 28, 2012. (R. at 35-36, 288, 292; Compl., ECF No. 2, at 1.) Her date last insured (“DLI”) is December 31, 2014. (R. at 18.)

         The day after her injury, Gutierrez sought medical treatment (R. at 288-89), and her medical records reflect that she received treatment throughout the period from onset to DLI. Of particular relevance to this opinion were her visits to Dr. Jozef Debiec, a pain management specialist, and Dr. Paul Kastuk, a chiropractor. On August 29, 2013, Gutierrez visited Dr. Debiec. Her physical examination by him reflected, among other things, a limited range of motion and muscle tenderness and spasms. (R. at 293.) Dr. Debiec observed that her MRI showed “[l]umbar degenerative changes and facet arthropathy[3] [as well as a] [d]egenerative disc . . . .” (Id.) He diagnosed Gutierrez with “lumbago, [4] [d]isplacement of [the] lumbar intervertebral disc without myelopathy, [5] [d]egeneration of the lumbar or lumbosacral intervertebral disc, [l]umbosacral spondylosis[6] without myelopathy, ” and lumbar sprain. (Id.) Dr. Debiec instructed the Plaintiff to avoid bending, prolonged sitting and lifting more than 15 pounds. (R. at 294.)

         On September 9, 2013, Dr. Kastuk completed a questionnaire on Gutierrez's behalf. (R. at 299-304.) He reported that Gutierrez had a diminished lumbar range of motion and severe spasms in the paraspinal muscles of her lumbar spine with radiating trigger points and tenderness. (Id. at 301.) He also reported that she had weakness in her posterior trunk muscles, gluteal muscles, quadriceps and hamstrings. (Id.) He opined that she was limited to carrying five pounds, standing and walking less than two hours per day, and sitting less than six hours per day. (Id. at 303.) He also stated that she was limited in pushing and pulling. (Id.) Significantly, Dr. Kastuk's conclusions were predicated upon twenty-two visits by Gutierrez with him over the period of February through April 2013, and based upon those visits, he found her prognosis to be “poor.” (Id. at 299-300.)

         On October 24, 2013, Dr. Debiec completed a questionnaire on Gutierrez's behalf. (R. at 309-15.) He diagnosed her with lumbar disc herniation, lumbar spondylosis and lumbar degenerative disc disease. (Id. at 308-09.) Dr. Debiec stated in the questionnaire that Gutierrez could lift and carry up to 15 pounds “frequently (up to 2/3 of a work day), ” could stand and walk up to eight hours per day, and sit less than six hours per day. (Id. at 312.) He indicated no limitations in her ability to push or pull. (Id. at 313.)[7]

         On May 22, 2014, Gutierrez returned to Dr. Debiec complaining of aching and pain in her lower back which radiated down her left leg. She reported a pain score of 8 out of 10. (R. at 388.) On physical examination, her gait was normal, and she had 30 degrees of flexion, zero degrees of extension and five degrees of lateral rotation in her lumbar spine. (Id.) Gutierrez also exhibited paraspinal muscle tenderness and spasms, but a straight leg raise was negative. (Id.) She was unable to heel-toe walk and sensory deficits to light tough were noted, but a motor examination of her lower extremities was normal. (Id.) He administered a lumber epidural steroid injection at the L5-S1 level. (Id.) During a follow-up visit with Dr. Debiec on June 4, 2014, Gutierrez reported some pain improvement (her score was 6 out of 10), but her physical examination results were unchanged. (Id. at 387.)

         Dr. Debiec next examined Gutierrez on July 17, 2014. He found her to be in “moderate distress, ” and that she had paraspinal muscle tenderness and spasms. (R. at 386.) His diagnoses were unchanged. (Id.)

         III. ALJ Gonzalez's Decision

         ALJ Gonzalez determined that Gutierrez did not have a disability within the meaning of the Act. Applying the Commissioner's five-step sequential evaluation, the ALJ found at step one that Gutierrez had not engaged in substantial gainful activity from her onset date of October 28, 2012, through the DLI date, December 31, 2014. (R. at 20.) The ALJ concluded, at the second step, that her lumbar spine stenosis[8] and facet hypertrophy, myofascial pain syndrome, [9]lumbago, diabetes mellitus, cervical spine disc bulges, obesity, left shoulder adhesive capsulitis[10]and tendonitis were all severe impairments under the Act. (Id.) At step three, the ALJ found that Gutierrez's severe impairments, singly or combined, did not meet or medically equal one of the listed impairments. (Id. at 21.) The ALJ determined that she retained the residual functional capacity to perform the full range of light work, except that she can only occasionally push and pull, kneel, crouch, stoop and occasionally reach overhead. (Id. at 21-25.) At step four, the ALJ found that Gutierrez could perform her past relevant work as an office clerk. (Id. at 26.) Notably, in reaching his conclusions, the ALJ noted that Dr. Debiec was a “treating source, ” and that “[o]verall” he gave “some weight” to “Dr. Debiec's opinion.” (Id. at 23.) Further, the ALJ gave “little weight” to the opinion of Dr. Kastuk, the chiropractor. (Id.)

         IV. New Evidence

         Gutierrez has submitted to the Court certain evidence that was not part of the record before the ALJ, as follows:

         A. Dr. Debiec's June and July 2017 letters

         Gutierrez submitted to the Court letters dated June 19, 2017 and July 3, 2017 that seek to “clarify” the October 2016 questionnaire from Dr. Debiec that was before the ALJ. (Exs. 1, 2 to Algie Decl. (ECF Nos. 27-1, 27-2).) Dr. Debiec states in the letters that “the limitations for standing, walking and sitting were for a 24 hour period, not for an 8-hour work day.” (Id.) He further states in the July 3 letter that Gutierrez “is unable to work without restrictions, ” “should sit no longer than one hour, stand no longer that one hour, no bending, no stooping, no kneeling, and no lifting or carrying of more than 15lbs.” Dr. ...

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