Branca v. Comm'r of Soc. Sec.
| Decision Date | 18 September 2013 |
| Docket Number | No 12-CV-643 (JFB),12-CV-643 (JFB) |
| Parties | MICHAEL A. BRANCA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Michael A. Branca ("plaintiff" or "Branca") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("SSA"), challenging the final decision of the Commissioner of Social Security ("defendant" or "Commissioner") denying plaintiff's application for disability insurance benefits. The Administrative Law Judge ("ALJ") found that plaintiff could perform his past relevant work as an insurance underwriter, and, thus, was not entitled to benefits. The Appeals Council overturned that determination, but concluded that plaintiff was nevertheless not disabled because he could perform unskilled sedentary work.
The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings, alleging that the ALJ erred by: (1) failing to apply the treating physician rule or explain the weight given to the opinion of plaintiff's treating physicians; (2) improperly weighing his physical observations of plaintiff in determining plaintiff's residual functional capacity; (3) applying the incorrect legal standard in determining plaintiff's credibility; (4) mischaracterizing plaintiff's testimony and other evidence in the record; and (5) failing to consider evidence supporting plaintiff's testimony and the conclusions of plaintiff's treating physicians. Plaintiff also contends that the Appeals Council failed to: (1) conduct a function-by function analysis in determining that plaintiff could perform unskilled work; and (2) employ a vocational expert to determine that plaintiff could perform work that is available in the national economy.
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's cross-motion for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. Accordingly, the case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Remand is warranted because the ALJ erred by: (1) failing to explain the weight he assigned to the opinions of plaintiff's treating physicians and failing to properly assess the factors for determining what weight to give those opinions; (2) overlooking some of plaintiff's testimony and other evidence in the record regarding the limitations on his daily activities; (3) emphasizing plaintiff's physical appearance at the hearing in discounting plaintiff's subjective complaints of pain; (4) failing to make a credibility assessment of plaintiff before, and independently from, the residual functional capacity determination; (5) failing to consider and/or address portions of the record that were consistent with plaintiff's statements regarding the severity of his symptoms; and (6) failing to consider plaintiff's daily activities in the context of the entire record. Although the Appeals Council overturned the ALJ's decision that plaintiff could perform his past relevant work, the Appeals Council still found that plaintiff could perform sedentary work, and thus that plaintiff was not disabled. However, the case must be remanded because, given the errors by the ALJ, the Court is unable to determine whether that determination is supported by substantial evidence.1
The following summary of the relevant facts is based upon the Administrative Record ("AR") as developed by the ALJ. A more exhaustive recitation of the facts is contained in the parties' submissions to the Court and is not repeated herein.
Plaintiff fell from scaffolding on March 12, 2008, and was treated at Winthrop University Hospital five days later for headaches, drowsiness, weakness, and lower back pain. (AR at 164-65.) Plaintiff was 32 years old. (Id. at 164.) Prior to this injury, plaintiff worked as a messenger, mover, phone clerk, assistant underwriter, and in building maintenance. (Id. at 128.) Seven years before his fall, plaintiff sustained a work-related injury to his lower back when he was lifting a heavy object, and he still experienced some pain from that injury at the time of his fall. (Id. at 199.) Plaintiff was working in building maintenance at the time of his injury. (Id. at 128.)
Plaintiff spends much of his days at home. (Id. at 48.) Although plaintiff occasionally drives, his father drove him to the hearing before the ALJ. (Id. at 49.) When plaintiff does drive, it is usually to doctors' appointments and he spends no longer than ten minutes in the car. (Id. at 61.) Plaintiff tries to walk around the neighborhood, but he experiences "a lot of pain," so he does not leave the house often. (Id. at 49.) He can only sit for 20 or 30 minutes at a time, and approximates that he can only lift ten pounds. (Id. at 50-51.) Plaintiff can "gingerly" climb the stairs,kneel and squat with pain, and has trouble reaching with his left hand. (Id. at 141.)
At the hearing, plaintiff stated that he is able to do "minimal" household chores and that his mother does the laundry and cooking. (Id.) Previously, plaintiff had indicated that he could do laundry, but that he is not able do any other household chores. (Id. at 139.) The longest amount of sleep plaintiff gets in a night is three hours because of the "constant pain." (Id. at 55.) Plaintiff has trouble putting on pants, socks, and sneakers. (Id. at 137.) He can care for most of his other personal needs on his own, but does need reminders to take his medication. (Id. at 138.) His parents prepare his meals for him (id.), and he shops sparingly "when needed" (id. at 140). Most of plaintiff's time is spent watching sports and movies (id.), and though he still talks with family and friends on the phone, he does not socialize with them as often as he did before the accident (id. at 141).
Plaintiff has no trouble with his vision, hearing, or speech. (Id.) However, plaintiff's "mind goes in another direction" and he has trouble concentrating. (Id. at 142) He can follow spoken (but not written) instructions, and has no trouble "getting along" with authority figures. (Id.) Plaintiff has high anxiety and needs to be reminded to do things. (Id. at 143.)
Plaintiff was examined by Dr. Paul Lerner on March 24, 2008. (Id. at 175.) Dr. Lerner found that plaintiff was suffering from post-concussion syndrome, post-traumatic vertigo, cervical strain, lumbar radiculitis and abdominal pain, and concluded that plaintiff was totally disabled. (Id. at 176.) Plaintiff scored a 30/30 on a mental status exam, and 5/5 for motor strength on all tested groups. (Id. at 175.) Also, on March 24, 2008, Dr. John S. Boccio treated plaintiff. (Id. at 223.) Dr. Boccio found neck pain, pain under the rib cage, and paraspinal muscle pain, and also concluded that plaintiff was suffering from post-concussion syndrome, headaches, cervical pain, and lumbar pain. (Id.)
On March 25, 2008, plaintiff was treated by Dr. Bruce Ross, an orthopedist. (Id. at 244.) Dr. Ross diagnosed plaintiff with cervical lumbar radiculitis and requested physical therapy. (Id.) Plaintiff was treated by Dr. Boccio again on April 7, 2008. (Id. at 222.) Dr. Boccio found a decreased range of motion in plaintiff's neck, pain in plaintiff's lumbar paraspinal muscles, and 4/5 strength in plaintiff's hip muscles. (Id.) Plaintiff complained of "persistent headaches and dizziness," but was alert and oriented. (Id.) When plaintiff saw Dr. Ross on April 8, 2008, Dr. Ross again recommended physical therapy and ordered an MRI of the spine and left shoulder, as well as EMG studies of plaintiffs lower extremities. (Id. at 245.) Dr. Ross also stated that plaintiff was "unemployable." (Id.)
On April 28, 2008, plaintiff followed up with Dr. Lerner. (Id. at 178.) Dr. Lerner also requested an MRI of the spine and left shoulder, as well as an EMG of the lower extremities, and recommended physical therapy. (Id.) He concluded that plaintiff was suffering from lumbar radiculitis, cervical strain, left shoulder strain, and post-concussion syndrome, but that plaintiff's abdominal pain had improved. (Id.) Dr. Ross again examined plaintiff on May 1, 2008, finding that there was a limited range of motion in the left shoulder and lumbar spine. (Id. at 245.)
An MRI of the cervical spine was performed on May 5, 2008, which revealeddesiccatory changes at all the cervical discs, but no stenosis or other abnormalities. (Id. at 260. ) Plaintiff had an MRI ofhis left shoulder performed on May 7, 2008. (Id. at 261.) Although there was no evidence of fractures, dislocations, or rotator cuff tears, there was "mild impingement of the supraspinatus muscle secondary to hypertrophic change at the acromioclavicular joint." (Id.) An MRI of the lumbosacral spine performed on May 8, 2008, revealed a bulging disc at L4-L5 and central herniation at L5-S1. (Id. at 262.)
Dr. Mathew Chacko conducted an independent neurological evaluation of plaintiff on May 26, 2008. (Id. at 179.) Plaintiff was alert and oriented during the examination, "exhibited a mild limitation of active range of motion of the neck in all directions," and had normal strength and tone in all extremities. (Id. at 180.) Although plaintiff walked with a "mild stooping gait, favoring his right" leg, there was no sign of cerebellar dysfunction, tenderness, or muscle spasm. (Id. at 181.) Dr. Chacko determined that there was a history of cervical and lumbar strain, as well as of post-traumatic headaches, and concluded that plaintiff had a "marked" disability. (Id.)
On June 3, 2008, plaintiff visited Dr. Boccio, who noted plaintiff's neck and lumbar pain, as well as decreased range of motion in plaintiff's left shoulder. (Id. at 218.) On June 5, 2008, Dr....
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