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Padilla v. Berryhill

United States District Court, S.D. New York

June 22, 2018

BERNALDINO PADILLA, Plaintiff,
v.
NANCY A. BERRYHILL,[1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          Lisa Margaret Smith United States Magistrate Judge

         TO: THE HONORABLE VINCENT L. BRICCETTI

         Plaintiff 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.

         BACKGROUND

         I. Procedural Background

         On 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.[2] 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.

         II. Medical Evidence

         A. Preceding the October 10. 2012, Disability Onset Date

         Records 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. Id.

         On 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.

         On 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.

         On 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, Id.[3]

         On 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, [4] 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.

         On 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.

         Plaintiff 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 specialist. Id.

         Plaintiff 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.

         On 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.

         On 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[5] to slow the progression of the arthritis. Id. at 483.

         Plaintiff 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.

         On 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[6] and indicated that Plaintiff could remain at work on light duty. Id.

         On May 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. Id.

         On May 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 Methylprednisolone.[7] Id.

         B. After the October 10, 2012, Disability Onset Date

         On 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.[8]

         Plaintiff 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. Id.

         On 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.

         On 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. Id.

         On 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.

         C. Consultative Examination

         On 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 difficulty. Id.

         Dr. 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 ...


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