United States District Court, S.D. New York
REPORT AND RECOMMENDATION
Margaret Smith United States Magistrate Judge
HONORABLE VINCENT L. BRICCETTI
Bemaldino Padilla brings this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of the final decision
of Defendant, the Commissioner of Social Security (the
"Commissioner"), which denied his application for
Disability Insurance Benefits ("DIB"). ECF No. 1.
Each party has moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. ECF
Nos. 19, 23. For the reasons discussed below, I conclude, and
respectfully recommend that Your Honor should conclude, that
Plaintiffs motion (ECF No. 23) be granted and the
Commissioner's motion (ECF No. 19) be denied.
November 26, 2012, Plaintiff protectively filed for DIB,
alleging October 10, 2012, as the onset date of his
disability. Administrative Record ("AR"), at 73,
148-49. After the Social Security Administration
(the "SSA" or "Agency") denied his claim,
Plaintiff requested a hearing before an administrative law
judge ("ALJ"), Id. at 83-84, which was
held on March 20, 2014. Id. at 41-62. On June 20,
2014, the ALJ issued an unfavorable decision, finding that
Plaintiff was not disabled within the meaning of the Social
Security Act (the "Act") from the alleged onset
date through the date of the decision. Id. at 21-31.
Plaintiff subsequently filed a request for review of that
decision with the SSA's Appeals Council, which was denied
on October 8, 2015. Id. at 1-4. This made the
ALJ's June 20, 2014, decision the operative, final action
of the Commissioner. See Lesterhuis v. Colvin, 805
F.3d 83, 87 (2d Cir. 2015) ("If the Appeals Council
denies review of a case, the ALJ's decision, and not the
Appeals Council's, is the final agency decision.")
(citation omitted). The instant lawsuit, seeking judicial
review of that decision, followed.
Preceding the October 10. 2012, Disability Onset
preceding the alleged onset date reveal Plaintiffs history of
left ankle and back injuries. On January 18, 1995, Plaintiff
sustained a fracture dislocation and medial wound of the left
ankle and a fibular fracture while effectuating an arrest as
a New York City Police Department ("NYPD") Officer.
AR 408-09. Many years later, on February 27, 2007, Plaintiff
re-injured the same ankle in a motor vehicle accident.
Id. at 409. Although there were no fractures or
dislocations, the accident had caused the left ankle to incur
"a good deal of soft tissue crushing resulting in
numbness in the foot that subsequently resolved."
Id. Thereafter, in January of 2009, Plaintiff was
involved in another motor vehicle accident, resulting in a
sprained left ankle and a muscle strain to the neck and back.
January 26, 2011, Plaintiff suffered yet another sprain to
the left ankle, as well as a lower back injury, when he
slipped on snow and ice while on the job as a NYPD officer.
Id. at 229, 421, 425, 427-33. On the same date, an
x-ray of Plaintiff s lower back was performed at New
York-Presbyterian Hospital Queens, revealing loss of
intervertebral disc space at L5-S1; retrolysthesis of L4 with
respect to L5; and partial sacralization of the L5 vertebral
body. Id. at 237.
January 29, 2011, Plaintiff presented to Dr. Jacob Sadigh of
New York Medical & Diagnostic Center, complaining of
severe neck, moderate left ankle, and moderate-to-severe
lower back pain. Id. at 553. After reviewing x-ray
results, Dr. Sadigh diagnosed Plaintiff with several
musculoskeletal conditions, including cervical and
lumbal' radiculitis, segmental dysfunctions in the
cervical, lumbar, and thoracic regions of the spine, as well
as a left ankle sprain. Id. at 554. Dr. Sadigh
prescribed a lower back belt; gave Plaintiff an ice pack to
use on his neck, lower back, and left ankle; and advised
Plaintiff to avoid unspecified activities which could
exacerbate his symptoms. Id.
February 14, 2011, Plaintiff presented to Dr. Steven Rokito,
an orthopedic surgeon, at Long Island Jewish Medical Center
("LIJ"). Id. at 473-74. A physical
examination revealed tenderness in the right paraspinal
musculature with forward bending and a slightly antalgic
gait. Id. at 473. Dr. Rokito diagnosed lumbar strain
and left ankle sprain, while noting that previous magnetic
resonance imaging ("MRI") showed a preexisting
degenerative change to L4-L5 and broad based central -
right-sided paracenral disc herniation. Id. at 474.
Dr. Rokito opined that Plaintiff could return to work on
"light duty" and treat his conditions with
non-operative care such as physical therapy,
March 14, 2011, Plaintiff returned to Dr. Rokito, reporting
that his lumbar strain had improved but that he continued to
experience left ankle pain upon walking. Id. at 470.
Dr. Rokito prescribed Voltaren,  and recommended that
Plaintiff undergo an MRI of the left ankle and use an ankle
stabilizing orthosis brace. Id. According to Dr.
Rokito, Plaintiff remained "disabled from returning to
full duty at work" pending the results of the MRI scan.
Id. A March 21, 2011, MRI showed marked tibiotalar
arthritis with reactive bone marrow swelling and subchondral
cysts; chronic disruption to the anterior talofibular
ligament; and chronic partial tear of the deltoid ligament
with mild tendinosis and partial thickness tearing of the
peroneus brevis tendon. Id. at 556.
March 28, 2011, Dr. Rokito conducted a physical examination
of Plaintiff, reviewed recent MRI results, and diagnosed
Plaintiff with left ankle pain and tibiotalar joint
arthritis. Id. at 476. Plaintiff had full
dorsiflexion, plantarflexion, inversion, and eversion of the
left foot and ankle against manual resistance. Id.
Although Plaintiff possessed a normal heel-toe gait, he
displayed tenderness across the anterior aspect of the ankle
tibiotalar joint. Id. Dr. Rokito concluded that
Plaintiff could return to full status at work, while taking
anti-inflammatory medication, using an ankle brace, and
beginning a home physical therapy regimen. Id.
once again met with Dr. Rokito on July 14, 2011, complaining
of increased ankle pain. Id. 477. Upon physical
examination, Dr. Rokito noted slow heel-toe gait, and mild
swelling of the left ankle, along with tenderness across the
anterior aspect of the tibiotalar joint. Id. Dr.
Rokito diagnosed left ankle pain and arthritis, and referred
Plaintiff to Dr. Mark Drakos, an orthopedic foot and ankle
first presented to Dr. Drakos on July 25, 2011, with
tenderness and swelling over the left ankle. Id. at
478-79. Plaintiff walked with mild difficulty, and possessed
functional ranges of motion of the hips, knees, and ankles.
Id. at 478. Plaintiffs deep tendon reflexes were
symmetrical and did not have gross adenopathy. Id.
Plaintiff demonstrated full strength in dorsiflexion,
plantarflexion, inversion, and eversion of the left ankle;
and was "grossly sensate to light touch on the dorsal
and plantar aspects of the foot." Id. Dr.
Drakos diagnosed Plaintiff with symptomatic ankle hardware
and early ankle arthrosis. Id.
August 3, 2011, Plaintiff returned to Dr. Drakos, with no
significant changes noted since the prior visit. Id.
at 480. Once again, Plaintiff displayed functional ranges of
motion of the hips, knees, and ankles; symmetrical deep
tendon reflexes; and full strength in dorsiflexion, plantar
flexion, inversion, and eversion of the left ankle.
Id. Unlike the previous visit, however, Plaintiff
walked with difficulty. Id. He also reported pain
over the lateral plate and the anterior ankle joint line and
showed mild crepitus with range of motion. Id. Dr.
Drakos recommended ankle arthroscopy, debridement, and
removal of ankle hardware. Id. at 481.
November 30, 2011, Dr. Drakos noted that Plaintiff was doing
poorly overall despite taking appropriate, albeit
"conservative [, ] measures." Id. at 482.
Still, Plaintiff displayed functional ranges of motion of the
hips, knees, and ankles; as well as full strength in
dorsiflexion, plantarflexion, inversion, and inversion.
Id. X-rays reviewed by Dr. Drakos showed good
overall alignment of the left leg, with no obvious fractures,
and early arthrosis of the ankle joint and loose bodies.
Id. Dr. Drakos again recommended arthroscopy and
removal of the hardware from Plaintiffs left ankle. Id.at
482-83. He also suggested that Plaintiff receive Synvisc
injections to slow the progression of the arthritis.
Id. at 483.
began Synvisc injection treatment with Dr. Drakos on December
21, 2011. Id. at 484-85. After the first injection,
Dr. Drakos recommended rest, ice, compression, and elevation
to reduce swelling or discomfort. Id. Shortly
thereafter, Dr. Drakos administered the second and third
injections, on December 28, 2011, and January 4, 2012,
respectively. Id. at 484-86, 488-89.
April 26, 2012, Plaintiff met with Dr. Rokito, reporting that
his ankle and back pain had worsened in the previous weeks.
Id. at 262. Plaintiff complained of back pain after
sitting, and ankle pain after walking, for long durations.
Id. He had an antalgic gait, tenderness on his right
lumbar paraspinal region, and pain with forward bending.
Id. Dr. Rokito also noted tenderness across
Plaintiffs tibiotalar joint, and painful range of motion
limited in dorsiflexion to a few degrees, and plantarflexion
to 35 degrees. Id. Dr. Rokito diagnosed traumatic
arthritis of the left ankle and a bulging lumbar disc.
Id. He recommended that Plaintiff return to Dr.
Drakos, as well as consult with an orthopedic back
specialist. Id. at 263. Dr. Rokito then prescribed
Meloxicam and indicated that Plaintiff could remain
at work on light duty. Id.
9, 2012, Dr. Drakos reported that Plaintiff was doing poorly.
Id. at 490. Upon physical examination, Plaintiff
demonstrated full strength in dorsiflexion, plantarflexion,
inversion and eversion, gross sensation to light touch on the
dorsal and plantar aspects of the left foot, and intact pedal
pulses. Id. He was in pain over the lateral incision
and anterior joint line of the left ankle. Id. Dr.
Drakos diagnosed symptomatic ankle hardware, early ankle
arthrosis, and prescribed another set of Synvisc injections.
11, 2012, Plaintiff presented to Dr. Jeffrey Silber at North
Shore Medical Group. Id. at 559-60. Plaintiff
reported worsening symptoms, and rated the severity of his
pain, both back and ankle, at a six on a ten-point scale.
Id. at 559. He was then working on light duty, and
indicated that his pain worsened upon prolonged sitting.
Id. Upon examination, Plaintiff had a normal gait,
full motor strength, and intact sensation. Id. He
also had full ranges of motion in his knees, shoulders, and
elbows. Id. Results were negative for Hoffman's
sign, pronator drift, and straight leg raise. Id.
Dr. Silber diagnosed a herniated lumbar disc and lumbar
radiculopathy, noting there was no indication of stenosis or
foraminal compromise. Id. at 560. He prescribed
After the October 10, 2012, Disability Onset
October 22, 2012, Plaintiff began treatment with Dr. Ali E.
Guy of Gramercy Park Physical Medicine and Rehabilitation
("GPMR"). Id. at 289-91. Plaintiff had
lower back pain, which radiated into his right leg, along
with numbness and tingling; and occasional numbness and
tingling in his left ankle. Id. at 289. Plaintiffs
gait was slow and antalgic. Id.at 290. Results from a
physical examination revealed diffuse tenderness, moderate
spasm, and multiple trigger points present in the back.
Id. at 289-90. Plaintiffs active range of motion and
muscle strength were normal, aside from reduced limits
regarding his left ankle. Id. at 290. Sensation was
intact to pinprick and touch except for decreased sensation
in Plaintiffs left calf and left dorsal foot. Id.
Dr. Guy diagnosed multiple traumatic injuries; lumbar disc
herniation; traumatic myofascial pain syndrome; internal
derangement of left ankle with exacerbation, multiple partial
tendon tears of the ATF, and peroneus brevis tendon; rule out
TTS. Id. According to Dr. Guy, Plaintiff appeared
"totally disabled." Id.
met with Dr. Guy once again on December 5, 2012. M. at
292-94. Plaintiff reported that physical therapy had improved
his ranges of motion and flexibility, as well as reduced some
of his pain and spasms. Id. at 292. Indeed,
Plaintiff exhibited normal muscle power, ranges of motion,
and symmetrical reflexes. Id. at 292-93.
Nonetheless, he described having lower back pain which
radiated into his right leg, causing numbness and tingling,
as well as numbness and tingling in his left ankle.
Id. at 292. Dr. Guy changed his diagnoses to include
multiple traumatic injuries; L4-L5 disc bulge with
superimposed right paracentral disc herniation; bilateral L-5
lumbar radiculopathy; traumatic myofascial pain syndrome; and
internal derangement of left ankle with exacerbation,
multiple partial tendon tears of ATF, deltoid ligaments, and
peroneus brevis tendon. Id. at 294. Dr. Guy advised
Plaintiff to consider trigger point/epidural injections.
December 14, 2012, Dr. Guy administered an epidural
injection. Id. at 319-23. Plaintiff tolerated the
procedure well and left in stable condition. Id. at
320. He subsequently received a series of epidural injections
on January 4, May 17, September 6, and November 1, 2013.
Id. at 324-35.
January 15, 2013, Dr. Drakos completed a medical source
statement ("MSS"), diagnosing Plaintiff with
posttraumatic ankle arthritis and symptoms of pain and
swelling. Id. at 277. Dr. Drakos noted that
Plaintiff used an ankle brace but did not require an
assistive device to walk. Id. at 280-81. According
to Dr. Drakos, Plaintiff was limited in his ability to push
or pull (including hand and foot controls) and could only
occasionally engage in lifting and carrying. Id. at
282-83. Dr. Drakos also opined that Plaintiff could stand or
walk for up to six hours in an eight-hour workday.
February 15, 2014, Dr. Guy completed a functional assessment
regarding Plaintiffs ability to perform sedentary work.
Id. at 287-88. The assessment read that Plaintiff
could stand and walk for less than one hour, and sit for less
than two hours during an eight-hour workday. Id. at
287. In addition, Dr. Guy opined that Plaintiff could lift
and carry less than five pounds for up to approximately two
hours and forty minutes, and lift and carry less than three
pounds for up to approximately five hours and twenty minutes
during an eight-hour workday. Id. Dr. Guy noted
several other limitations, such as the need to frequently
take breaks of 15 minutes or more, and difficulty
concentrating. Id. at 288.
January 30, 2013, Plaintiff met with Dr. Charlene
Andrews-Watson for a consultative examination. Id.
at 269-76. Plaintiffs chief complaints were severe lower back
pain and osteoarthritis of the left ankle. Id. at
269. He also indicated that his ankle buckled at times, and
described increased pain with weight bearing, running,
sitting, and walking. Id. Plaintiff stated that he
was unable to cook, clean, or do laundry due to his
condition, but independently dressed himself and showered.
Id. at 270, He shopped once a week along with his
wife, and listened to the radio, read, and browsed the
internet in his spare time. Id. Dr. Andrews-Watson
noted that Plaintiff had a mild limp favoring his left leg,
and was unable to walk on his heels or toes. Id.
Plaintiff could squat halfway down, did not require
assistance changing for the examination or getting on and off
the examination table, and could rise from the chair without
Andrews-Watson noted full flexion/extension and rotation in
Plaintiffs cervical spine, while his lateral flexion was
limited to 40 degrees. Id. at 271. Plaintiffs lumbar
spine showed flexion/extension to 75 degrees, full lateral
flexion, and rotation to 25 degrees right and to 30 degrees
left. Id. A straight leg test was negative
bilaterally. Id. Ranges of motion for Plaintiffs
ankles were as follows: dorsiflexion to 20 degrees for the
right and to 10 degrees for the left; and plantar flexion to
40 degrees for the right and to 20 degrees for the left.
Id. Plaintiff s joints were stable and did not show
any subluxations, contractures, ankylosis, or thickening.
Id. Dr. Andrews-Watson also noted "tenderness
to palpation of the medial and lateral aspects of the left
ankle" and mild left ankle swelling. Id. She
diagnosed low back pain and osteoarthritis of the left ankle
secondary to multiple injuries. Id. at 272. Dr.
Andrews-Watson concluded that Plaintiff possessed mild
restrictions with prolonged sitting, and moderate