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Annabi v. Berryhill

United States District Court, S.D. New York

March 30, 2018

AMJED FARID ANNABI, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Amjed Farid Annabi brings this action pursuant to §§ 205(g) and 1631(c)(3) of the Social Security Act (the Act), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying his application for Social Security disability insurance benefits (DIB). Plaintiff moves, pursuant to Fed.R.Civ.P. 12(c), to reverse the Commissioner's determination and remand for a calculation and award of benefits, or, in the alternative, to remand to the Social Security Administration (SSA) for further consideration. The Commissioner cross-moves to uphold her determination.

         Plaintiff alleges that he became disabled as a result of a motor vehicle accident in 2010. Since the accident he has undergone five relevant surgeries, the last of which was a cervical spine discectomy and fusion in February 2013. Although the administrative record compiled by the SSA is lengthy, it contains only one medical opinion dating from the two-year period between that surgery and the final decision of the Administrative Law Judge (ALJ) in May 2015. In the course of finding the plaintiff not disabled, the ALJ rejected that opinion, choosing instead to credit several earlier (pre-spinal fusion) opinions by the same physician, as well as a portion (but not all of) an even older opinion from a one-time consultative examiner. The ALJ accorded “little weight” or “very little weight” to the opinions of two other physicians, including one of plaintiff's treating physicians, as well as an independent neurological examiner who also opined that plaintiff was not capable of working. Instead, noting that “the ultimate determination of disability is reserved to the Commissioner, ” the ALJ concluded that that the plaintiff's allegations of pain were not fully credible and that since he is capable of engaging in various activities of daily living he is also capable of sedentary work, so long as he is limited to only occasional overhead reaching, pulling and pushing. The ALJ did not discuss, plaintiff's ability to sit for the prolonged periods of time generally required by sedentary work, nor obtain any medical opinion evidence.

         For the reasons that follow, I conclude that the ALJ erred in rejecting the opinions of all of plaintiff's treating physicians, while cherry-picking, from the non-treating expert evidence, the portions that supported his conclusion as to the plaintiff's residual functional capacity. He further erred in that he failed to adequately develop the record related to plaintiff's functional impairments, particularly regarding his ability to remain seated for the prolonged periods of time required for sedentary work. Consequently, the Commissioner's motion will be denied, the plaintiff's motion will be granted, and the case will be remanded for further proceedings consistent with this opinion.

         I. BACKGROUND

         A. Personal Background and Overview

         Plaintiff was born on December 8, 1967. See Certified Administrative Record. (Dkt. No. 11) at 319 (hereinafter “R. __.”) He has a college education. (R. 351.) He worked as a police officer, project manager, and heating and air conditioning installer-servicer (R. 111) before he was injured in a car accident in January 2010. (R. 49-50, 94.) In his Disability Report, prepared in connection with his application for DIB, plaintiff listed his impairments as cervical spine impairment, bulging disc injury, herniated disc, severe back pain and “soft tissue injuries of arm” requiring multiple procedures. (R. 350.) He complained of chronic pain, not relieved by medication (R. 371-72), and explained that he had difficulty “sitting, standing, and walking for long durations” (R. 364), was significantly limited in his ability to reach, grasp, and lift, particularly with his right arm (R. 377-78), and cared for his personal needs at a “much slower pace” as a result of his conditions. (R. 367.) Among other things, plaintiff stated, he had begun to comb his hair and shave with his left hand (even though he is right-handed) to avoid exacerbating his pain. (R. 378.)

         Since the accident, plaintiff has twice attempted to return to work, most recently for almost four months in 2014, as a project manager for a heating and air conditioning company. Plaintiff testified that although he was able to take multiple breaks throughout the day (“at least a dozen”) (R. 106), he had to give up that job due to back pain and numbness in his hands and feet. (R. 94.)

         B. Procedural Background

         Plaintiff filed his application for DIB on December 23, 2010 (R. 359), alleging that he became disabled as of January 16, 2010, the date of the car accident. (R. 324.) His application was denied on May 4, 2011. (R. 155-66.) On June 27, 2011, he requested a hearing before an ALJ (R. 167-68) and on February 26, 2013 (just a few weeks after his fifth and last surgery), he appeared with counsel before ALJ Robert Gonzalez. (R. 44-89.) In a written opinion dated August 1, 2013, ALJ Gonzalez found plaintiff not disabled. (R. 131-50.)

         Plaintiff timely requested review of the ALJ's decision and on November 5, 2014, the Appeals Council remanded the claim for a new hearing and decision. (R. 151-54.) Among other things the Appeals Council directed the ALJ to “[g]ive further consideration” to the opinion of independent examiner Mark Appel, M.D., who opined on September 19, 2012 (before the cervical spine surgery) that plaintiff could return to work but could not lift more than 20 pounds with the left upper extremity and should avoid “[r]epetitive gripping motions.” (R. 152-53, 1014). The Appeals Council noted that, “[a]s appropriate, ” the ALJ could ask Dr. Appel to provide additional evidence or clarification. (R. 153.) In a report dated November 20, 2013, Dr. Appel opined that the plaintiff “cannot return to work” because he had “marked restrictions of cervical spine motion and weakness to the upper left extremity.” (R. 1300.)

         A second hearing was held before ALJ Gonzalez on February 10, 2015, at which plaintiff once again appeared with counsel. (R. 90-123.) On May 7, 2015, the ALJ again found that the plaintiff was not disabled. (R. 15-43.) On October 6, 2015, in the course of seeking review of the ALJ's decision by the Appeals Council, plaintiff submitted new evidence in the form of a September 21, 2015 Narrative Report and Disability Impairment Questionnaire prepared by Joseph DeFeo, M.D., which opined, among other things, that plaintiff could not be expected to endure an eight-hour work day. (R. 466-67, 1328-32.) On September 20, 2016, the Appeals Council denied review. (R. 1-6.) This was the final act of the Commissioner.

         II. PLAINTIFF'S MEDICAL HISTORY

         A. Treatment Records

         Shortly after the accident in January 2010 plaintiff was treated by Iyad Annabi, M.D. for pain in his right shoulder, neck, and back. (R. 468-94.)[1] Dr. Annabi noted that x-rays of plaintiff's right wrist and hand taken on December 8, 2010 were normal, an MRI of the right elbow was unremarkable; an MRI of the right shoulder showed only mild hypertophic change of the acromioclavicular (AC) joint. (R. 505, 507.)

         Plaintiff was evaluated by chiropractor Peter Sayegh, D.C., on January 18, 2010. (R. 562-64.) Dr. Sayegh diagnosed cervical and lumbar radiculitis, and cervical and lumbar sprain/strain. (Id.) Dr. Sayegh prescribed a course of “conservative chiropractic spinal correction” and physical therapy. (R. 564.) Subsequent examinations through March 24, 2010 showed plaintiff had severe tenderness to palpation and spasms in the cervical spine, lumbar spine, and multifidus, cervical malalignment and lumbar and sacral misalignment, subluxation of the cervical, lumbar, and sacral region, and decreased range of motion in the lumbar and cervical region. (R. 565-74.) During his examination, plaintiff reported slight improvement of his symptoms, but also frequently reported that his neck, hand, and left leg pain remained unchanged. (R. 565-74.)

         An MRI of plaintiff's lumbar spine on January 19, 2010 showed no instability or stenosis. (R. 976.) On January 25, 2010, an MRI of plaintiff's cervical spine showed no evidence of instability but limited motion on extension. (R. 529.)

         On January 26, 2010, plaintiff was seen by medical providers at Westchester Neurological Consultants for examination. (R. 1003.) Plaintiff reported lower back pain but that his condition had improved. (R. 1003.) A neurological exam generally showed normal muscle tone and strength, but plaintiff had a diminished grip and decreased sensation in his lower cervical spine. (R. 1004.) Plaintiff was assessed moderately severe cervical radiculopathy and lumbar spasm and was recommended for an EMG, physical therapy, and pain management. (R. 1004.)[2]

         Nerve conduction studies on February 15, 2010 confirmed radiculopathy. (R. 511.) An MRI of the right shoulder taken on May 15, 2010 showed mild hypertrophic change of the AC joint. (R. 507.)

         Plaintiff continued to see Dr. Sayegh for chiropractic treatment. On March 26, 2010, plaintiff reported pain of 8/10, aggravated by movement. (R. 575.) Dr. Sayegh diagnosed sciatica, brachial neuritis or radiculitis, lumbar sprain or strain, and cervical strain/sprain. (R. 575-683.) Treatment notes through December 10, 2010 showed that plaintiff continued to report pain ranging from 4/10 (at rest) to 9/10 in severity. (R. 575-683.) On August 11, 2010, Dr. Sayegh opined that the plaintiff's “impairments may well predispose him to further problems from the aggravation brought on by normal activities of daily living or new trauma, which not have otherwise bothered him prior to this accident.” (R. 636-83.)

         On August 18, 2010, plaintiff was evaluated by Michael Schwartz, M.D. (R. 1150.)[3]Plaintiff reported right shoulder pain, stiffness, and weakness, and stated that his pain worsened with lifting and motion. (Id.) Examination of the right shoulder showed painful arc of abduction, positive anterior bicipital tenderness, and positive O'Brien's test, [4] Speed's test, [5] and Whipple test.[6](R. 1153-55.) Dr. Schwartz noted plaintiff had full range of motion in the elbow and neck with normal strength. An MRI of the right shoulder performed on that same date showed mild hypertrophic change of the AC joint and possible rotator cuff injury. (R. 1153.) Dr. Schwartz assessed chronic right shoulder pain not responsive to non-operative management and possible chronic bicipital tenosynovitis. (Id.) Dr. Schwartz administered a corticosteroid injection. (Id.) At his next visit, on September 16, 2010, plaintiff reported relief “for one to 2 days” following the injection, “but then his symptoms seem to return.” (R. 1150.)

         On August 27, 2010, plaintiff was evaluated by neurologist Thomas Lee, M.D. for neck pain and right cervical radiculopathy. (R. 555.)[7] Dr. Lee found normal (5/5) strength except in the upper right extremity and hand muscles, where plaintiff's strength was 4-/5, and diminished pinprick sensation in the lower spine. (R. 556.) Dr. Lee diagnosed multilevel cervical disc disease associated with foraminal stenosis resulting in right C5 and C6 radiculopathy. (R. 556-57.) Dr. Lee stated that plaintiff had the “option of trying another course of pain management, ” but was “a candidate for anterior cervical decompression and fusion.” (R. 557.) Dr. Lee noted that “[e]ven if surgery is successful, he is likely to have some residual symptoms because of multilevel disc disease beyond the C4-C5 and C5-C6 levels.” (Id.)

         Plaintiff returned to Dr. Lee on September 3, 2010. (R. 767.) Physical examination once again revealed some right-sided motor weakness. (R. 767.) An MRI of the cervical spine showed abnormal spine curvature, disc herniation, and mild spinal cord impingement. (Id.) Noting that plaintiff's pain was “persistent” despite conservative treatment, Dr. Lee again recommended that plaintiff undergo anterior cervical decompression and fusion from C3 to C6. (R. 767-68.) The neurologist noted that, among the risks of surgery, there was “obviously no guarantee for a successful outcome” and that in any event, after the fusion, plaintiff would no longer be able to perform heavy lifting. (R. 768.)

         On October 5, 2010, plaintiff saw Alfred T. Ogden, M.D., [8] for another opinion regarding potential shoulder, elbow and spinal surgery. (R. 551.) Dr. Ogden noted that plaintiff reported neck and severe shoulder and elbow pain and numbness in his left arm. (Id.) Reviewing plaintiff's cervical MRI from 2010, Dr. Ogden opined that plaintiff's elbow and shoulder pain “are coming from those joints, ” and did not recommend a cervical fusion operation. (R. 553.)

         On October 13, 2010, plaintiff was seen by Dr. Schwartz for follow up of right shoulder pain and discussion of surgical treatment options. (R. 1148.) Plaintiff continued to report pain in his right shoulder. Dr. Schwartz recommended arthroscopic surgery. (R. 1148-49.)

         In a letter dated October 19, 2010, Dr. Annabi reported that plaintiff's chronic right shoulder pain had not responded to non-operative management. (R. 769.) Dr. Annabi noted that plaintiff had disc herniation around his cervical spine. (Id.)

         On December 17, 2010, Dr. Schwartz performed a right shoulder arthroscopic surgery. (R. 774-776.) On December 23 and 29, 2010, plaintiff saw Dr. Schwartz for follow-up. (R. 1144-45, 1146-47.) Plaintiff reported doing well, and felt his shoulder pain was well controlled. (R. 1144, 1146.) On December 29, 2010, examination of plaintiff's right shoulder showed improved range of motion. (Id.) However, during that same visit, plaintiff reported pain in his right elbow, and Dr. Schwartz noted tenderness and pain with resisted wrist extension. (Id.) On March 22, 2011, plaintiff continued to report decreasing right shoulder discomfort and improved range of motion with physical therapy. (R. 1131-32.)

         On January 10, 2011, Dr. Schwartz saw plaintiff for evaluation of his right elbow pain. (R. 546.) The elbow was tender on palpation and painful on resistance. (R. 547.) Dr. Schwartz recommended surgery. (Id.) On January 18, 2011, Dr. Schwartz diagnosed mild tendonosis in the right elbow (R. 1142), and again recommended surgery on that joint. On February 22, 2011, plaintiff stated that he wanted to proceed with the surgery (R. 1138), and on April 1, 2011, Dr. Schwartz performed a right elbow extensor tendon debridement and repair. (R. 799-800.)

         At a follow-up visit on April 14, 2011, plaintiff told Dr. Schwartz that he was doing “relatively well” and that “his pain [was] well controlled.” (R. 1123.) On May 12, 2011, Dr. Schwartz's exam showed “full, nonpainful” range of motion in the right elbow, as well as the right shoulder and wrist. (R. 1121.)

         Meanwhile, on April 5, 2011, Dr. Schwartz evaluated plaintiff's left shoulder pain. (R. 1127.) Plaintiff stated that the pain was chronic, similar to his right shoulder, “which was treated successfully with surgical intervention.” (Id.) The pain had not improved with physical therapy. Examination of plaintiff's left shoulder was unremarkable, revealing normal strength and full range of motion, except for anterior tenderness, a positive O'Brien's test, and a positive Speed's test. (Id.) An x-ray of the left shoulder was “essentially negative” with no evidence of fracture, dislocation, or bony or joint abnormality. (R. 1128.) Dr. Schwartz diagnosed left shoulder possible bicipital tenosynovitis/chronic tendinosis. An MRI of the left shoulder on April 11, 2011, showed supraspinatus tendinosis and moderate productive changes of the AC joint with impingement. (R. 983.) Dr. Schwartz recommended surgery on the left shoulder, noting that physical therapy had not resulted in any improvement. (R. 533.)

         On September 2, 2011, Dr. Schwartz performed arthroscopic surgery on plaintiff's left shoulder. (R. 786-88.) On September 6, 2011, when plaintiff returned for follow-up, he reported “feeling and doing relatively well” overall, but his post-surgery range of motion in his left shoulder was still limited. (R. 940.) At subsequent visits on September 15, October 11, November 15, and December 14, 2011, the left shoulder showed improving range of motion and strength. (R. 1109, 1111, 1113, 1115.) Plaintiff noted continuing numbness in his forearm, which decreased in intensity and frequency but did not disappear. (R. 1107, 1109, 1111, 1113, 1115.) During plaintiff's visits on November 15 and December 14, 2011, Dr. Schwartz noted that he had chronic cervical spine pain with radiculopathy. (R. 1110, 1112.)

         On September 13, 2011, Plaintiff saw physiatrist Dr. Syed Rahman, M.D., concerning his neck and back pain. (R. 938.) Dr. Rahman noted that plaintiff generally had normal ranges of motion, “except with forward bending/lateral bending of the lumbar spine & cervical spine secondary to increasing discomfort from pain.” (Id.) Dr. Rahman also noted cervical paraspinal spasms. (Id.) An MRI of plaintiff's cervical spine showed reverse lordosis, stenosis, and several herniated discs. (Id.) Dr. Rahman assessed neck pain, back pain, myofascial pain, pain in the cervical spine, and cervical and lumbar strain. (R. 938-39.) He prescribed Ibuprofen and Flexeril, and recommended “therapy for neck/back before proceeding with further interventions.” (R. 939.)

         On January 25, 2012, Dr. Schwartz saw plaintiff for “evaluation of a new problem concerning his left elbow.” (R. 926.) On examination, plaintiff's left elbow was tender and painful on resistance and rotation. (Id.) Dr. Schwartz prescribed nonsteroidal anti-inflammatory medications, Pennsaid topical solution, and physical therapy. (R. 927.)

         Dr. Schwartz also examined plaintiff's left shoulder, noting plaintiff had improved range of motion and improved strength, but also had AC joint tenderness, a positive cross arm test, and a positive O'Brien's test. (R. 928.) Dr. Schwartz administered a corticosteroid injection in plaintiff's left shoulder AC joint and prescribed physical therapy. (R. 929.)

         On February 23, 2012, plaintiff reported that his left shoulder was considerably improved after the corticosteroid injection and his “a.c. joint symptoms are minimal at most now, and very tolerable.” (R. 922.) His forearm numbness was still present but continued to decrease with desensitization exercise. (Id.) Examination of the AC joint was negative for tenderness. (Id.). However, Dr. Schwartz's examination of plaintiff's left elbow was positive for tenderness and pain, with resisted wrist extension and pronation. (R. 924-25.) Dr. Schwartz administered a corticosteroid injection. (R. 925.) At plaintiff's next visit on March 22, 2012, he reported improvement of his left elbow following the injection. (R. 920.)

         An MRI of the left elbow on April 24, 2012 showed subchondral cysts of the capitellum, mild effusion, and lateral epicondylitis. (R. 982.) On May 30, 2012, Dr. Schwartz diagnosed recalcitrant left elbow inflammation and recommended a left elbow extensor tendon debridement and repair (R. 883), which he performed on June 1, 2012. (R. 891-92.)

         At his visits with Dr. Schwartz through August 23, 2012, plaintiff reported doing well, with improved and non-painful motion, except that while on a two-week vacation in Aruba he developed swelling in the left arm. (R. 1081-88.) Dr. Schwartz's examination on September 6, 2012 showed negligible lateral swelling, mild tenderness on palpation of his elbow and mild lateral discomfort with resisted wrist extension. (R. 1081.)

         On December 18, 2012, plaintiff returned to Dr. Lee, reporting left-sided neck pain that radiated to the shoulder and left arm, with decreased range of motion. (R. 1161-62.) Dr. Lee observed persistent left upper extremity radicular symptoms, decreased range of motion in the left shoulder, and left upper extremity weakness and numbness. (R. 1162.) An MRI of the cervical spine on December 14, 2012, showed reversal of the normal cervical lordosis and worsening degenerative disc changes with disc herniations. (R. 1189.)

         On January 3, 2013, plaintiff saw Richard S. Obedian, M.D., concerning possible spinal surgery.[9] (R. 1190-92.) Plaintiff reported continuing pain (7 to 8 on a scale of 10), numbness in his left hand, and difficulty sleeping “secondary to the severe pain, ” which was exacerbated by standing, walking, and twisting, and unimproved by rest or pain medication. (R. 1190.) Dr. Obedian noted diffuse trapezial spasm and tenderness and limited range of motion in the cervical spine, positive Spurling's test on the left, [10] diffuse paralumbar spasms and tenderness, a limited range of motion in the lumbar spine, and diminished sensation to light touch in the left C6-C7 distribution. (R. 1029.) X-rays of the cervical spine showed mild multilevel degenerative changes with narrowing the C3-C4 disc space. (Id.) Dr. Obedian diagnosed idiopathic scoliosis, cervical degenerative disc disease, cervical radiculitis, displacement of the cervical intervertebral disc, and lumbar degeneration disc disease. (R. 1030.)

         On February 1, 2013, Dr. Obedian performed a cervical discectomy and fusion. (R. 1034-1037.) Prior to the operation, Dr. Obedian explained the risks of surgery, including the “chance of persistent pain, numbness, and weakness.” (R. 1034.)

         Plaintiff returned to Dr. Obedian for post-surgical follow-up on February 11 and March 13, 2013. (R. 1038-40.) On February 11 he reported that his left arm pain and numbness had “improved dramatically, ” but by March 13 plaintiff reported continuing neck pain and trouble sleeping because of the pain. (R. 1040.) At both visits Dr. Obedian observed normal muscle strength and sensation. An x-ray of plaintiff's cervical spine showed that the “bone graft and hardware” were in “excellent position.” (R. 1041.)

         Thereafter, over the course of another year, plaintiff continued to report neck pain and stiffness to Dr. Obedian, with numbness and tingling down the left arm, worsened with prolonged sitting, overuse, overhead lifting, bending or turning of the neck, and any range of motion. (R. 1304-1319.) However, plaintiff generally denied taking any medication for pain and, at times, reported some relief with physical therapy. (R. 1306, 1310, 1312, 1314, 1316, 1318.) On examination, plaintiff had motor strength of 5/5, intact sensation, and a negative Spurling's test and Hoffman's sign.[11] (R. 1304, 1306, 1308, 1310, 1314, 1316, 1318.) At plaintiff's final visit with Dr. Obedian on March 6, 2014, the physician wrote that plaintiff was “cleared to return to work as a volunteer fireman” and should take Tylenol as needed for pain. (R. 1305.)

         B. Opinion Evidence

         1. Treating Chiropractor Dr. Sayegh

         Dr. Sayegh, plaintiff's chiropractor, completed a questionnaire on March 4, 2011, after plaintiff's right shoulder surgery. (R. 852-56.) Dr. Sayegh diagnosed brochial neuritis, cervical and lumbar sprain/strain, and cervical disc herniation. (R. 852.) Dr. Sayegh noted plaintiff was able to ...


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