Boston v. Colvin
| Decision Date | 09 March 2015 |
| Docket Number | 13cv3271 (GHW) (DF) |
| Parties | ELISHA SHANIQUE BOSTON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Elisha Shanique Boston, a/k/a Elisha S. Floyd1 ("Plaintiff") seeks review of the final decision of the Acting Commissioner of Social Security ("Defendant" or the "Commissioner"), denying Plaintiff Supplemental Security Income ("SSI") on the ground that Plaintiff's claimed impairments did not constitute a disability under section 1614(a)(3)(A) of the Social Security Act. Plaintiff has moved, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the decision of the Commissioner, or, in the alternative, remanding the case. (Dkt. 23.) Defendant has cross-moved for judgment on the pleadings affirming the Commissioner's decision. (Dkt. 28.)
For the reasons set forth below, I respectfully recommend (a) that Plaintiff's motion be granted, to the extent that Plaintiff requests that her claim be remanded for further consideration, and (b) that Defendant's cross-motion be denied.
BACKGROUND
Plaintiff filed an application for SSI on August 26, 20102 (see R. at 182), alleging disability beginning December 27, 2007 (id.).
The facts set forth herein are taken from the SSA Administrative Record, which includes, inter alia, Plaintiff's medical records and the transcript of a February 28, 2012 hearing held before Administrative Law Judge ("ALJ") Mark Hecht, at which Plaintiff testified.
Plaintiff was born on November 9, 1978, and was 31 years old at the time she filed her application. (See id. at 65, 138.) According to her testimony and disability report form, Plaintiff finished her senior year of high school and then obtained a general equivalency diploma. (Id. at 66, 169.) Plaintiff testified that she has five children. (Id. at 75.)
Plaintiff provided information regarding her previous employment on her work history report, as well as through subsequent testimony before the ALJ. (Id. at 66-68, 196.) She stated that, from 1998 to 2001, she worked at various McDonald's locations, primarily as a cashier. (Id. at 66-67, 196.) Plaintiff indicated that, from 2001 to 2004, she worked as a home health aide and personal health aide, and, from 2006 to 2007, she was employed as a security guard. (Id. at 67-68, 196.) She stated that her most recent job - which she still held in 2010, at the time she applied for SSI (see id. at 68, 168, 196) - consisted of working three days a week with autistic children (id. at 68-69). She testified that this job involved "teaching [the children] the way oflife [and] [t]aking them out into the community." (Id. at 69.) Plaintiff testified that she last worked in July of 2011. (Id. at 68.)
In the disability report that Plaintiff submitted to the SSA, Plaintiff listed a bone spur in her left foot, muscle spasms, anxiety, and depression as the conditions that limited her ability to work. (Id. at 168.) Plaintiff's medical records and hearing testimony also revealed plantar fasciitis3 in her left foot, lingering effects of a fractured right ankle, and neck and back issues.4 (See, e.g., id. at 69-73, 257-58, 475.)
(Dr. Charles Lawrence, December 27, 2007)
On December 27, 2007, Plaintiff was brought to the emergency room at Interfaith Medical Center ("Interfaith"), after falling and injuring her right ankle. (Id. at 232, 235.) Plaintiff was seen by Dr. Charles Lawrence, who diagnosed Plaintiff with a right ankle sprain. (Id. at 233.) Later on the same date, Plaintiff had a consultation with another doctor at Interfaith,who noted swelling in the ankle, but described Plaintiff's injury as a "right ankle sprain/strain." (Id. at 234.)
(Id. at 251.) Dr. Tanaka also noted that there was probably "small anterior joint capsule effusion."9 (Id.) Plaintiff was proscribed Vicodin,10 her foot was placed in a splint, and she was instructed to use crutches. (Id. at 337.)
Additional X-rays of Plaintiff's right foot and right ankle appear to have been taken on January 10, 2008. (Id. at 246-47.) These X-rays showed that "[t]here [was] a 3 mm avulsion fracture at the inferior aspect of the lateral malleolus," although "[t]he visualized joint spaces appear[ed] well maintained." (Id.) An Orthopedic Clinic report from St. Luke's-Roosevelt, made on the same date, indicates that Plaintiff was instructed to place weight on her right foot as tolerated,11 with the use of a cane, and to return to the clinic in two weeks. (Id. at 346.)
Plaintiff returned to the Orthopedic Clinic on January 24, 2008. (Id. at 345.) The progress report reflects that Plaintiff had been using a cane and bearing weight on her right foot as tolerated. (Id.) The notes further indicate that Plaintiff reported that her pain and swelling was improving, but that the area over her lateral malleolus was tender to palpation. (Id.) Plaintiff was directed to attend physical therapy for ankle strengthening and to return to the clinic in six weeks. (Id.)
Plaintiff returned to the Orthopedic Clinic on March 6, 2008, and was referred to the Foot Clinic (id. at 335), which she visited on March 12, 2008 (id. at 334). On April 17, 2008, she again returned to the Orthopedic Clinic. (Id. at 333.) The progress report from that dateindicates that Plaintiff had completed four months of physical therapy, was able to tolerate walking and weight bearing with a splint, and was not experiencing any numbness or tingling. (Id.) Plaintiff did, however, have significant swelling in the lateral malleolus and felt pain from the doctor's palpation of the area. (Id.) The doctor reported that Plaintiff's strength in her right lower extremity was four out of five, and that, in her left lower extremity, her strength was five out of five. (Id.) The report recommended continued physical therapy at home. (Id.)
On June 20, 2008, Plaintiff went to Roosevelt because of left knee pain. (Id. at 330.) Records suggest that Plaintiff had injured her knee three days earlier by twisting it. (See id.; see also id. at 332.) Plaintiff indicated that the knee felt like it had "popped" out of place. (Id. at 330.) She reported, though, that she had been walking since the date of the injury. (Id.) X-rays of Plaintiff's left knee were taken, and the findings appeared to be normal. (Id. at 245.) Specifically, the report stated that there was "no plain film evidence of fracture, dislocation, or bony destruction," that there was "no effusion," that "[t]he joint space [was] well maintained," that "[n]o radiopaque foreign body [was] identified," and that "no abnormal calcification [was] seen." (Id.) Plaintiff was diagnosed with a left knee sprain and proscribed Ibuprofen. (Id. at 326, 332.)
On July 17, 2008, Plaintiff returned to the Orthopedic Clinic, complaining of left knee pain, and had both her left knee and right ankle examined. (Id. at 325.) The report indicates that Plaintiff's right ankle was not tender to palpation at the lateral malleolus and that Plaintiff did not have right ankle instability. (Id.) Regarding Plaintiff's left knee, the report reflects that it was not tender to palpation and that there were no anterior or posterior drawer signs12 nor a positiveMcMurray sign.13 (Id.) Plaintiff was instructed to do physical therapy and to return to the clinic in six to eight weeks. (Id.) The report also indicates that an MRI of the left knee would be ordered if pain persisted after Plaintiff completed physical therapy. (Id.)
Plaintiff returned to the Orthopedic Clinic on October 23, 2008. (Id. at 324.) The clinic report from this date reflects that Plaintiff had experienced "slight improvement" since doing physical therapy. (Id.) The report noted a number of findings regarding Plaintiff's left knee, including that Plaintiff was tender to palpation and had a positive McMurray sign. (Id.) An MRI of Plaintiff's left knee was ordered14 and Plaintiff was directed to physical therapy for what was described as patellar tendonitis in her left knee and plantar fasciitis in her left foot.15 (Id.) Plaintiff again visited the Orthopedic Clinic on December 4, 2008. (Id. at 485.) The report of this visit states that Plaintiff likely had plantar fasciitis, and that she was instructed to add stretches to her existing physical therapy and encouraged to lose weight. (Id.)
On January 7, 2009, Plaintiff returned to the Emergency Department at St. Luke's-Roosevelt, with a chief complaint of pain in her left heel. (Id. at 413, 419.) The attending physician listed a primary diagnosis of plantar fasciitis and noted that Plaintiff walked with a cane, but ambulated without difficulty. (Id. at 419, 421.) The physician recorded Plaintiff'shistory of pain in the heel, which Plaintiff described as having had a gradual onset, but as progressively worsening and having caused constant pain for one year. (Id. at 419.) The physician stated that Plaintiff could "return to work with restrictions" and directed Plaintiff to continue to use a cane as needed. (Id. at 422.) Plaintiff was prescribed Ibuprofen and Vicodin. (Id. at 413.)
On May 21, 2009, X-rays were taken of Plainti...
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