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Abarzua v. Berryhill

United States District Court, S.D. New York

January 11, 2018

YASSNA NATHALIE ABARZUA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          KATHERINE B. FORREST, UNITED STATES DISTRICT JUDGE

         Plaintiff Yassna Nathalie Abarzua seeks review of the decision by defendant Commissioner of Social Security (“the Commissioner”), finding that she was not disabled and not entitled to Social Security Disability (“SSD”) benefits under Title II of the Social Security Act (the “Act”). Plaintiff filed for disability benefits based on a myriad of injuries: thirteen physical impairments, including back, knee, heart impairments, vertigo, hearing loss, hepatitis C, diabetes, hypertension and morbid obesity; and four mental impairments, including depression, bipolar disorder, anxiety disorder, and post-traumatic stress disorder (“PTSD”).

         Now before the Court are the parties' cross-motions for judgment on the pleadings. For the reasons set forth below, defendant's motion is GRANTED and plaintiff's motion is DENIED.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         A. Procedural Background

         Plaintiff applied for SSD benefits on July 10, 2010. (Tr. 360-63, 388-95.)[1]The Social Security Administration (“SSA”) denied her claims. Plaintiff then requested a hearing before an administrative law judge (“ALJ”) which was held on June 17, 2011. (Tr. 42-59.) On November 4, 2011, the ALJ issued a decision finding that plaintiff was not disabled. (Tr. 145-61.) On April 25, 2013, the Appeals Council vacated the ALJ's decision and remanded the case for another hearing. (Tr. 162-67.) The plaintiff and her attorney appeared three additional times in a continued series of hearings on October 16, 2013 (Tr. 68-75), April 24, 2014 (Tr. 60-67), and June 19, 2014 (Tr. 76-143). On April 7, 2015, the ALJ issued a second decision, again finding that plaintiff was not disabled. (Tr. 12-40.)

         The ALJ's 2015 decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on August 8, 2016. (Tr. 1- 7.)

         B. Factual Background

         The Court recites only those facts relevant to its review. A more thorough summary of plaintiff's medical history can be found in the parties' briefing and in the extensive administrative record. The period at issue for this appeal is from July 10, 2010, the date on which plaintiff applied for SSA benefits, through April 7, 2015, the date of the ALJ's final decision.

         1. Plaintiff's Personal History

         Plaintiff was born in 1971. (Tr. 144.) She completed ninth grade but did not graduate from high school or obtain a General Equivalency Degree. (Tr. 390.) Plaintiff was employed briefly from January through August of 2008, as a childcare provider for her neighbor. (Tr. 55.) Otherwise, she has not been employed.

         Plaintiff was in prison from 2000-2001 for burglary. (Tr. 47.) She used heroin, crack cocaine, and cocaine from 1991 until March 2007, and during the relevant period was in a methadone program. (Tr. 47, 104, 568.)

         Plaintiff is able to speak a little bit of English, but her preferred language is Spanish. (Tr. 80-81.) Through an interpreter, she testified that she is not able to read or write in English. (Id.)

         At her hearings, plaintiff testified that she lived with her nineteen-year-old daughter. (Tr. 46-47.) She reported that she attended a methadone program on a daily basis; travel to the program involved changing subway lines twice and walking about four blocks. (Tr. 56-57.) In sum, her travel each way was about thirty minutes. (Tr. 56.) She reported that she would often stop at church on the way home. (Tr. 57.) She further testified to traveling to Puerto Rico for seven days in 2010 in order to attend to family matters. (Id.)

         In her June 2011 hearings, she testified that it was difficult for her to lift more than five pounds and to stand or walk for long without rest. (Tr. 52-53.) She reported pain in her back, numbness in her legs, which made standing difficult, and arthritis, which caused her to drop things. (Tr. 46.) In her June 2014 hearing, she reported pain in her neck, low back, and right knee. (Tr. 82.)

         2. Plaintiff's Medical History

         a. Plaintiff's Physical Health

         At the time of her application for benefits, plaintiff alleged that she had dislocated discs and hepatitis C. (Tr. 389.) She was subsequently diagnosed with several other medical conditions: bilateral carpal tunnel syndrome, right knee anterior cruciate ligament (“ACL”) partial tear, right knee grade II lateral collateral ligament (“LCL”) sprain, severe arterial narrowing, vertigo, hearing loss, diabetes, uncontrolled hypertension, and morbid obesity. (ECF No. 17.)

         Over the relevant period the plaintiff was examined by several doctors. The Court will review each in turn.

         First, on August 10, 2010, plaintiff was examined by consultative physical Dr. William Lathan. (Tr. 571-74.) Dr. Lathan observed that plaintiff had a normal gait, could walk on her heels and toes without difficulty, could perform a full squat, and had a normal stance. (Tr. 572.) He noted that she was not in acute distress, and that, though she carried a cane, she was able to walk without one, and did not need help changing or getting on or off of the examination table. (Id.)

         Dr. Lathan's examination showed a full range of motion in plaintiff's shoulders, elbows, forearms, wrists, hips, knees, and ankles. (Tr. 573.) She had full flexion, extension, lateral flexion, and rotary movement of both her cervical and lumbar spine. (Id.) She had no scoliosis or other abnormalities in her thoracic spine. (Id.) Her joints were stable and non-tender; straight leg raising (“SLR”) was negative.[2] (Id.) Her neurologic examination showed that she had full strength in both her upper and lower extremities and that her deep tendon reflexes were physiologic and equal in her upper and lower extremities. (Id.) She had full grip strength and intact hand and finger dexterity. (Id.)

         As a result of his examination, Dr. Lathan found that plaintiff had a moderate restriction for prolonged standing, prolonged walking, lifting, pushing, pulling, and strenuous exertion. (Id.)

         On September 14, 2011, plaintiff had a magnetic resonance imaging (an “MRI”) of her spine at Madison Avenue Radiology Center. (Tr. 1170-71, 1305-08, 1650-53.) The MRI of her cervical spine showed a mild disc bulge at ¶ 5-6, a straightening of the cervical spine, possibly due to muscle spasms, and no significant spinal stenosis or myelopathy.[3] (Tr. 1170.) The MRI of her lumbar spine showed multilevel bulges at ¶ 3-4, L4-5, and L5-S1, straightening of the lumbar spine, possibly due to muscle spasms, and no significant spinal stenosis or severe neural foraminal narrowing.[4] (Tr. 1171.) The physicians' assistant who ordered the MRI, Angela Rosenberg, PhD, noted that she responded well to medication and did not suggest surgery, and checked the box on the functional assessment form that indicated that plaintiff would be unable to work for at least 12 months. (Tr. 1262.)

         On November 10, 2011, plaintiff was examined by physical medicine and rehabilitation specialist, Dr. Robert Hecht. (Tr. 1172-73.) Dr. Hecht noted tenderness and a restricted range of motion in both the cervical and lumbar spine, and positive SLR, but no spasms and normal lordosis.[5] (Tr. 1172.) Hecht also observed a full range of motion and full strength in her shoulders, elbows, and wrists, intact sensation, and full reflexes in her triceps, biceps, and wrists. (Id.) He further observed that she had full range of motion and strength in both hips, knees, and ankles, intact sensation, and full reflexes. (Tr. 1173.) He diagnosed plaintiff with cervical and lumbosacral sprain-strain and disc bulges and recommended physical therapy. (Id.)

         Plaintiff sought care at the White Pines Medical Group in Rochester, New York, at a time when she relocated there temporarily. (Tr. 1393-1425.) She sought treatment between February and May 2013, at which time she left the practice when Dr. Daniel Koretz told plaintiff he would no longer prescribe controlled substances, due to the fact that she had not reported her methadone treatment after signing a controlled substance agreement. (Tr. 1415.)

         Plaintiff sought occasional care from Dr. David Khasidy starting in December 2012.[6] (Tr. 1501.) On January 6, 2014, he filled out a “multiple impairment questionnaire.” (Tr. 1501-07.) He diagnosed plaintiff with cervical and lumbar spine radiculopathy with disc herniations, borderline carpal tunnel syndrome, hypertension, and an enlarged thyroid. (Tr. 1501.) He further noted that plaintiff had a decreased range of motion, decreased sensation in the lower and upper extremities, decreased ambulation, pain, and loss of sensation, as well as anxiety and depression. (Tr. 1501-02.) When asked to indicate plaintiff's abilities, he noted that she could never lift or carry anything, even objects under ten pounds, that she could not sit continuously, that she needed to get up from sitting every ten minutes for fifteen minutes, and that she could not walk continuously. (Tr. 1503.) He found that she had significant limitations in doing repetitive reaching, handling, fingering, and lifting, and marked limitations in grasping, turning, twisting, using her fingers and hands for fine manipulations, and using her arms for reaching and overhead reaching. (Tr. 1504.) He opined that she was unable to keep her neck in a constant position, that she was incapable of even “low stress” work, and that she would need breaks every fifteen minutes. (Tr. 1505-06.) When asked what “other limitations” plaintiff had, Dr. Khasidy chose all available limitations: psychological, the need to avoid wetness, noise, fumes, gases, humidity, temperature extremes, dust, and heights, limited vision, and no pushing, pulling, kneeling, bending, or stooping. (Tr. 1507.)

         On June 4, 2014, plaintiff was examined by Dr. Tamer Elbaz, who performed an arthrocentesis (aspiration of fluid) and steroid injection in her right knee. (Tr. 1658-64.) He recommended that plaintiff avoid “repetitive forceful, strenuous, twisting, jerky activities” which might aggravate her “lumbar disc displacement” and also to avoid “activities like pulling, bending, lifting, or carrying anything heavy.” (Tr. 1662.)

         Finally, in September 2014, plaintiff was examined by consultative physician Dr. Joseph Ha. (Tr. 1741-1745.) Dr. Ha noted that plaintiff's gait was antalgic, that she was unable to walk on heels and toes, and that she walked with a cane. (Tr. 1743.) He found her hand and finger dexterity clumsy, but noted that she had full strength in both hands. (Id.) He noted limitations in her upper extremities as well as in her cervical spine, mild tenderness in her lumbar spine, but no spasm, positive SLR, and limitations in her lower extremities. (Tr. 1743-44.) He opined that she had “marked limitations” in heavy lifting, squatting, kneeling, crouching, stair climbing, walking long distances, standing long periods, sitting long periods, and using her hands for fine/gross manual activities. (Tr. 1744.) He noted that she reported difficulty with daily activities such as cooking, cleaning, laundry, and shopping. (Tr. 1742.)

         He opined that she could frequently lift and carry items up to ten pounds, and could occasionally reach overhead, handle, finger, feel and push and pull objects with both hands. (Tr. 1746-48.) He recommended that she never climb ladders or scaffolds, balance, stoop, kneel, crouch, crawl, or be exposed to heights, moving mechanical parts, humidity, wetness, dust, odors, fumes, extreme cold or heat and vibrations. (Tr. 1749-50.) He stated that she could sit for a total of 120 minutes per workday, stand for 60 minutes per workday, and walk for 60 minutes per workday. (Tr. 1747.) Finally, he opined that she could shop, travel alone, use public transportation, prepare meals, sort, handle, and use paper and files but could not walk far without a cane. (Tr. 1751.)

         b. Plaintiff's Mental Health

         Plaintiff was examined by several mental health professionals during the relevant period. The Court will discuss each in turn.

         First, on August 10, 2010, plaintiff was examined by consultative psychiatrist Dr. Dmitri Bougakov. (Tr. 567-71.) Dr. Bougakov diagnosed plaintiff with depressive and anxiety disorders, current opioid dependence, and cocaine dependence in remission. (Tr. 569-70.) Plaintiff reported that she performed household chores by herself on a daily basis, that she was capable of traveling alone but preferred to go with someone else because she was “uncomfortable by herself around people, ” that she spent little time with friends, but had a good relationship with her family, despite “often get[ting] into fights because of her moods.” (Tr. 569.) She reported that on a typical day, she watched television and took care of her household. (Id.) Dr. Bougakov noted that she appeared her stated age, was sufficiently groomed, significantly overweight, and that she made appropriate eye contact. (Tr. 568.) He further reported that her speech was fluent, her language was adequate, her thought processes were “coherent and goal directed, ” that she was well-oriented, and that her attention and concentration were “intact for counting, simple calculations, and serial 3s.” (Id.) He found her affect ...


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