Brown v. Berryhill
| Decision Date | 07 February 2019 |
| Docket Number | 17-CV-03685 (JMA) |
| Parties | SLATE BROWN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
For Online Publication Only
Law Offices of Charles E. Binder and Harry J. Binder
New York, NY 10022
212-677-6801
Sean P. Greene
United States Attorney's Office, EDNY
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
718-254-6484
Plaintiff Slate Brown ("Plaintiff") seeks review of the final determination by the Commissioner of Social Security, reached after a hearing before an administrative law judge, denying Plaintiff Supplemental Security Income ("SSI") under the Social Security Act. The case is before the Court on the parties' cross-motions for judgment on the pleadings. Because the administrative law judge's decision was supported by substantial evidence and applied the proper legal standards, Plaintiff's motion for judgment on the pleadings is DENIED, and defendant's cross-motion is GRANTED.
On August 30, 2013, Plaintiff filed for SSI, alleging disability as of September 5, 2012 due to a disc bulge at L4-L5 and disc herniation at L5-S1 in Plaintiff's lumbar spine. (Tr. 67, 138, 175.1) Following denial of his SSI application, Plaintiff requested a hearing and appeared with his attorney for an administrative hearing before Administrative Law Judge Patrick Kilgannon (the "ALJ") on October 8, 2015. (Tr. 68-70, 77-79, 37-58.)
In a decision dated January 13, 2016, the ALJ denied Plaintiff's claim, finding that he was not disabled for purposes of receiving SSI benefits under the Social Security Act. (Tr. 22-36.) Plaintiff timely filed a request for review before the Appeals Council. (Tr. 20-21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on April 17, 2017. (Tr. 1-6.) This appeal followed. (ECF No. 1.)
Plaintiff was born on October 27, 1962 and was 51 years old when he filed the instant application for SSI. (Tr. 138.) In an undated disability report, Plaintiff indicated that he worked as a handyman from 1994 until 2000, and then as a laborer from 2001 until September 2012. (Tr. 176.) In a function report dated November 15, 2013, Plaintiff stated that he had difficulty walking and getting dressed, and could not lift, stand in one place, kneel, bend, or squat. (Tr. 184-92.) He could walk only 30 feet without having to stop to rest. (Tr. 191.) He could bathe and groom himself, and use the toilet, but did so slowly. (Tr. 185-86.) He did not cook any meals and ate only fast food only because he was homeless. (Tr. 186, 188.) When he traveled, he rode in a car or took public transportation. (Tr. 187.) He spent a lot of time watchingtelevision and texting on his telephone. (Tr. 188-89.) He noted that he was under significant stress due to his homelessness. (Tr. 192.)
Plaintiff stated that his pain was in his lower back, near the base of his spine. (Tr. 193.) When he bent slightly, he felt a stabbing pain and heard popping sounds coming from his back. (Tr. 192.) He stated that he was in pain all day, every day, and the pain worsened with movement. (Tr. 193.) He was taking pain medications for the pain, including cyclobenzaprine, meloxicam, and oxycodone. (Id.) He said that the medications relieved his pain for two hours at a time and made him sleepy. (Tr. 193-94.)
At the administrative hearing held on October 8, 2015, Plaintiff testified that he was last employed in 2005 as a porter/cleaner in a senior citizen home. (Tr. 43-44.) He injured his back in 2000 while pulling 300 feet of hose to spray pesticides. (Tr. 46.) He testified that he could not work because bending, twisting, and leaning caused pain, and his sciatica would flare up. (Tr. 47.) He testified that he could sit for half an hour, walk for about a block, and stand for a little more than 30 minutes. (Tr. 47-48.) He could not lift a gallon of milk without pain. (Tr. 48.) He had difficulty sleeping at night due to pain, and after a bad night's sleep, he felt drowsy and irritable. (Tr. 49.) He napped during the day for four hours at a time. (Id.) He had trouble tying his shoelaces, getting dressed, doing dishes, and cooking for himself due to his back pain. (Tr. 49.) He testified that he spent his days sitting around his apartment and watching television. (Tr. 50.) His pain medications caused side effects including migraine headaches, which occurred three times per week. (Tr. 52.)
In November 2012, Plaintiff underwent a lumbar spine magnetic resonance imaging (MRI) study. The MRI revealed bulging and herniation at the L5-S1 level with mild mass effect on the left S1 nerve root and mild to moderate bilateral neural foraminal stenosis. (Tr. 314.) The MRI also showed facet arthropathy and bulging causing mild spinal canal stenosis and mild-to-moderate neural foraminal stenosis at the L4-L5 level. (Id.)
In January 2014, Plaintiff underwent another MRI study of his lumbar spine. (Tr. 308-14, repeated in part at Tr. 328-32.) In a questionnaire completed prior to the study, Plaintiff indicated that his back pain was the result of a June 28, 2000 work injury. (Tr. 309.) He also stated that he could not bend, lift, or sleep on his side. (Tr. 311.) The MRI study showed disc bulging at the L4-L5 level, mild osteophytic ridging extending into the neural foramen, ligamentum flavum thickening, moderate facet arthrosis, mild thecal sac compression, and mild to moderate bilateral foraminal stenosis, a small posterior disc protrusion at the L5-S1 level with an annular tear, and mild-to-moderate foraminal stenosis at the L4-L5 and L5-S1 levels. (Tr. 313.)
In June 2013, Plaintiff saw his treating internist, Dr. Michael Lee, for a follow up on his ongoing medical conditions, including the lumbar disc herniation. (Tr. 292-299.) Plaintiff reported back pain that occasionally radiated to his buttocks and thighs as well as occasional numbness in his legs. (Tr. 293.) Plaintiff described his pain as fairly constant and rated his pain as 9 to 9.5 on a scale of 0-10, which worsened when sitting for prolonged periods of time, bending, lifting, walking, and exercising. (Id.) His medication included cyclobenzaprine(Flexeril), meloxicam (Mobic), and hydrocodone-acetaminophen. Plaintiff reported that these medications provide limited benefit. (Id.) Dr. Lee's straight leg raise test revealed mild pain, with pain in the right leg worse than the left leg. (Tr. 294.) Plaintiff's neurological testing was normal, showing no motor or sensation deficits. (Id.) Dr. Lee also noted that Plaintiff had a normal gait and stance. (Id.) Dr. Lee assessed a lumbar disc herniation, refilled Plaintiff's cyclobenzaprine and meloxicam, and prescribed Percocet. (Tr. 296.) He noted that Plaintiff had been referred to physical therapy, but had not started yet due to his work schedule. (Id.) At a follow-up examination in July 2013, Dr. Lee noted that Plaintiff was regularly exercising but had still not gone for physical therapy. (Tr. 282, 287.)
In September 2013, Plaintiff informed Dr. Lee of back pain, but denied recent radiation of pain into the buttocks and legs and numbness in the legs. (Tr. 274.) Plaintiff again described his pain as fairly constant but noted that his pain level was up to 9 to 10 on a scale of 0-10. (Id.) Dr. Lee once again found mild pain upon straight leg raise testing, and noted 4+/5 strength in Plaintiff's legs. (Tr. 275.) Plaintiff reported that he was benefiting from Percocet. (Tr. 278.)
In October 2013, Plaintiff continued to complain of back pain. (Tr. 267-72.) Dr. Lee again noted that Plaintiff's gait and stance were normal. (Tr. 268.) Dr. Lee also noted that Plaintiff had no sensory abnormalities and continued to have mild pain with a straight leg raise testing and slightly diminished motor strength (4+/5) in his legs. (Id.)
Later that month, Dr. Lee provided a medical source statement in which he opined that Plaintiff could stand for 1-2 hours, sit for 2-4 hours, and walk for 2-4 hours during an 8-hour workday. (Tr. 302.) He also opined that Plaintiff was moderately limited in his ability to climb stairs, and could only lift and carry up to 10 pounds occasionally. (Id.) He noted that Plaintiff was expected to have these limitations for the rest of his life, and that his condition was notexpected to improve. (Id.) Physical therapy was recommended. (Id.) No significant changes were found in Plaintiff's condition at a follow-up with Dr. Lee on November 18, 2013. (Tr. 246-252.)
In February 2014, Gus Katsigiorgis, D.O., provided a medical source statement based on one examination of Plaintiff. (Tr. 303.) Dr. Katsigiorgis opined that Plaintiff could stand, walk, and sit for 1-2 hours during an 8-hour workday. (Id.) He also opined that Plaintiff was moderately limited in his ability to climb stairs, very limited in his ability to push or pull, and could lift and carry only up to 10 pounds occasionally. (Id.) Dr. Katsigiorgis determined that Plaintiff was not capable of working as of the time he rendered the statement, and that he needed an MRI and physical therapy. (Id.)
In March 2014, Plaintiff had an initial evaluation with physical therapist Amitkumar H. Bharatia. (Tr. 316-17.) Plaintiff reported "constant pain and stiffness on his lower back since 2000," and explained that he had been working for a pesticide company at that time and had to pull a hose for six years. (Tr. 316.) His symptoms included hearing a clicking sound on the left side of his lower back when he walked, and "sharp stabbing" pain when he twisted his lower back. (Id.) He reported difficulty with prolonged...
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