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Rivera v. Berryhill

United States District Court, E.D. New York

January 12, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Plaintiff Elizabeth Rivera (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration's (“SSA”) denial of her claim for Disability Insurance Benefits (“DIB”) and of Supplemental Security Income (“SSI”). The parties have cross-moved for judgment on the pleadings. (Dkts. 12, 13.) Plaintiff seeks reversal of the Commissioner's decision and an immediate award of benefits, or alternatively, remand for further administrative proceedings. The Commissioner seeks affirmance of the denial of Plaintiff's claims. For the reasons set forth below, the Court grants Plaintiff's motion for judgment on the pleadings and denies the Commissioner's motion. The case is remanded for further proceedings consistent with this Order.



         On May 8, 2013, Plaintiff filed an application for DIB and SSI, claiming that she has been disabled since July 11, 2009, due to a back disorder and obesity. (Tr. 159-68, 179-83.)[2] Plaintiff appeared for a hearing before an administrative law judge (“ALJ”) on March 19, 2015. (Tr. 140.) By decision dated April 6, 2015, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act at any time between July 11, 2009 and April 6, 2015. (Tr. 31.) After the SSA denied Plaintiff's application for review, Plaintiff filed an administrative appeal with the Appeals Council. (Tr. 3.) As part of Plaintiff's appeal, she submitted additional MRI records that indicate spine problems. (Tr. 23.) Plaintiff also submitted a Physical Residual Functional Capacity (“RFC”) Questionnaire completed by Dr. Isaac Kreizman. (Tr. 11-14.) The Appeals Council denied review on July 13, 2016, because it did not find a reason under its rules to review the ALJ's decision. (Tr. 4-5.) Based upon this denial, Plaintiff filed this action on September 9, 2016 seeking reversal or remand of the ALJ's April 6, 2015 decision.


         Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”) may bring an action in federal district court seeking judicial review of the Commissioner's denial of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the Court's role is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation omitted). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (alterations and internal quotation marks omitted)). In determining whether the Commissioner's findings were based upon substantial evidence, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation omitted). However, “it is up to the agency, and not this court, to weigh the conflicting evidence in the record.” Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there is substantial evidence in the record to support the Commissioner's findings as to any fact, those findings are conclusive and must be upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013).


         To receive DIB and SSI, claimants must be disabled within the meaning of the Act. Claimants establish disability status by demonstrating an inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The claimant bears the initial burden of proof on disability status and must demonstrate disability status by presenting medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic techniques, ” as well as any other evidence the Commissioner may require. 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D). However, the ALJ has an affirmative obligation to develop the administrative record. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). This means that the ALJ must seek additional evidence or clarification when the claimant's medical reports contain conflicts or ambiguities, if the reports do not contain all necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic techniques. Demera v. Astrue, No. 12 Civ. 432, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013); Mantovani v. Astrue, No. 09 Civ. 3957, 2011 WL 1304148, at *3 (E.D.N.Y. March 31, 2011).

         In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant bears the burden of proof in the first four steps in the inquiry; the Commissioner bears the burden in the final step. Talavera, 697 F.3d at 151. First, the ALJ determines whether the claimant is currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful activity, ” the ALJ proceeds to the second step to determine whether the claimant suffers from a “severe impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe when it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not disabled within the meaning of the Act. However, if the impairment is severe, the ALJ proceeds to the third step, which considers whether the impairment meets or equals one of the impairments listed in the Act's regulations (the “Listings”). 20 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1.

         If the ALJ determines at step three that the claimant has one of the listed impairments, then the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant does not have a listed impairment, the ALJ must determine the claimant's “residual functional capacity” (“RFC”) before continuing with steps four and five. The claimant's RFC is an assessment which considers the claimant's “impairment(s), and any related symptoms . . . [which] may cause physical and mental limitations that affect what [the claimant] can do in the work setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the answer is yes, the claimant is not disabled. Otherwise the ALJ will proceed to step five where the Commissioner then must determine whether the claimant, given the claimant's RFC, age, education, and work experience, has the capacity to perform other substantial gainful work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not disabled; otherwise the claimant is disabled and is entitled to benefits. Id.


         Plaintiff's claim of disability stems from a motor vehicle accident (“MVA”) that occurred on July 9, 2009. (Tr. 49.) Plaintiff's truck was rear-ended and she hit her head on the dashboard and back window. (Tr. 286.) After the accident, Magnetic Resonance Imaging (“MRI”) performed on September 4, 2009, of Plaintiff's lumbar spine revealed thoracic strain/sprain with radiculopathy[3], lumbosacral strain/sprain with right radiculopathy, herniated nucleus pulposes at ¶ 2-3 and L5-S1 with disc bulges at ¶ 3-4 and L4-5. (Tr. 289.) Plaintiff's treating doctor stated that her pain would increase over time due to a pinched nerve in her back, and even with surgery, Plaintiff may end up in a wheelchair. (Tr. 54.) Plaintiff visited a neurologist, Dr. Kimberly A. Tobon, on November 9, 2009. Dr. Tobon reported that Plaintiff complained of “constant low back pain, radiating into the right leg, with numbness and tingling in the right leg and thigh, 7-9/10 level.” (Tr. 286.) Plaintiff also complained of middle back pain that radiated between the shoulder blades, affecting the left arm more than the right. (Id.) Plaintiff reported that therapy with Dr. Torres, a chiropractor, helps “a little.” (Id.) Dr. Tobon recommended further treatment and opined that the problems are likely related to the MVA. (Tr. 289.) Dr. Tobon further noted that range of motion on flexion was limited to 30 degrees, and Plaintiff experienced spasms in the lumbosacral paraspinal muscles. (Tr. 288.) Dr. Tobon prescribed Neurontin 300 mg, Vicodin ES, NCV/EMG[4], and continuing therapy. Straight leg raising was negative. (Id.)

         Plaintiff visited University Community Hospital Emergency Room on January 21, 2011, and was diagnosed with acute sciatica.[5] (Tr. 413.) Plaintiff complained of constant, sharp pain radiating down to the right upper thigh and in the lower back, at a score of 9/10. Plaintiff stated that the pain was exacerbated by movement. (Tr. 410-11.)

         Plaintiff's X-ray, of the lumbar spine, taken on June 28, 2013, revealed mild tilting towards the right with straightening of the normal lordosis[6], degenerative disc disease L5-S1, and multilevel facet arthropathy[7] with significant canal stenosis[8] at ¶ 5-S1. (Tr. 427.) A x-ray of the thoracic spine revealed straightening of the normal kyphosis[9] with tilting lower thoracic spine towards the right, and noted that a previous MRI of the thoracic spine indicated disc bulging and spondylitic[10] changes. (Tr. 428.) An x-ray of the cervical spine revealed straightening of the normal lordosis, and spondylitic changes with no acute bony abnormality. (Tr. 429.) The following day, June 29, 2013, Plaintiff was seen by Dr. Usman Ahmad, D.O., for a consultative examination. Plaintiff complained of pain, numbness, swelling in the right leg, and no feeling in the toes on the right foot. (Tr. 430.) Plaintiff reported the pain to be chronic and radiating to her right side and hip. (Id.) Dr. Ahmad noted that Plaintiff's gait was within normal limits and that she was able to tandem walk, but that she had difficulty squatting. (Tr. 433.) Dr. Ahmad opined that Plaintiff did not have any acute neurologic deficits or injury to the back, but noted that Plaintiff had “some mild paravertebral spinal tenderness and spasm in the right lumbar area.” (Id.)

         On November 4, 2013, Dr. Isaac Kreizman of Pain & Rehabilitation Services examined Plaintiff for stabbing low back pain, lumbar radiculopathy, and hip pain. (Tr. 497-98.) An MRI performed that day demonstrated circumferential disc bulge with mild to moderate broad-based midline disc herniation at ¶ 5-S1. (Tr. 448.) Plaintiff was prescribed Oxycodone, Flexcril, Gabapentin, and Cymbalta. (Tr. 495.) Plaintiff followed up with Dr. Kreizman for treatment in February, March, April, May, June, August, September, October, and December of 2014, and Dr. Kreizman reported that, as of December 1, 2014, Plaintiff experienced severe low back pain, hip pain, tingling and numbness in the legs, at a pain level of 8/10. (Tr. 451-98.) Throughout the months of Plaintiff's follow up visits, Dr. Kreizman treated Plaintiff with Kenalog steroid injections for pain management, lumbar trigger injection, and three epidural injections. (Tr. 467, 476, 480, 489, 494, 499, 521.)

         On August 20, 2014, Dr. Paul McClung performed an MRI of Plaintiff's lumbosacral spine and reported that Plaintiff had a left herniated disk at ¶ 5-S1, a midline annulus[11] tear at ¶ 4-L5, facet hypertrophy at ¶ 3-L4, and a “left foraminal herniated disc with compression of the left L5 nerve root.” (Tr. 449.) On December 18, 2014, Dr. Paul McClung diagnosed Plaintiff with low back pain, back spasms, lumbar herniated disc L5-S1, and lumbar disc annular tear L4-L5. (Tr. 519.) Dr. McClung reported that Plaintiff had “difficulty sitting, standing, or walking for more than 15-20 minutes and must rest for 10-20 minutes because of the back pains[, ]” and that Plaintiff wears a back brace for lumbar support. (Id.)

         On October 6, 2014, Dr. Leon Reyfman, pain specialist, examined Plaintiff. (Tr. 444.) Plaintiff complained of “lower back pain radiating to the both leg with numbness/tingling in toes.” (Id.) Dr. Reyfman reported diffuse tenderness in the lower back, sacroiliac region, and spinous processes L3-S1. (Tr. 445.) Plaintiff had limited range of motion of lumbar spine and pelvis, with flexion pain. (Id.) Dr. Reyfman noted moderate muscle spasm along lumbar paravertebral, multifidus[12], sacrospinalis, gluteus and piriformis bilaterally. (Id.) Dr. Reyfman diagnosed Plaintiff with lumbosacral neuritis radiculopathy and lumbar disc displacement, and instructed Plaintiff to continue with current medication (Oxycodone, Gabapentin, Cymbalta), physical therapy, and to “avoid repetitive forceful, strenuous, ...

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