Delacruz v. Astrue
| Decision Date | 01 December 2011 |
| Docket Number | 10 Civ. 05749 (JGK)(MHD) |
| Parties | MERCEDES DELACRUZ, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT & RECOMMENDATION
Plaintiff Mercedes Delacruz filed this action pursuant to the Social Security Act, 42 U.S.C. §§ 405 (g) and 1383(c)(3). She seeks review of a February 19, 2010 determination by the Commissioner of the Social Security Administration ("Commissioner") denying her application for Social Security disability insurance benefits, based on a finding that she was not disabled.
Ms. Delacruz seeks an order reversing the Commissioner's determination that she was not disabled and awarding her benefits, or in the alternative, a remand of her case for a new hearing and decision. The Commissioner seeks affirmance of the decision. For the reasons set forth below, we recommend that the case be remanded for further consideration and that in all other respects both parties' motions be denied.
On January 30, 2008, Ms. Delacruz filed a Title II application for a period of disability and disability insurance benefits under the Social Security Act, alleging that she had been disabled since June 3, 2006. (Tr. 106-10). The Social Security Administration ("SSA") denied her claim initially on June 24, 2008. (Tr. 52-54). The SSA denied benefits again on September 15, 2008, based on a finding that Ms. Delacruz was capable of substantial gainful activity. (Tr. 112). She then requested a hearing before an administrative law judge ("ALJ"). ALJ Robert Gonzalez considered the matter de novo at a hearing held on January 14, 2010. (Tr. 23-47). Plaintiff, represented by counsel, appeared and testified. On February 19, 2010, the ALJ issued a decision that she was not disabled. (Tr. 16). On May 28, 2010, the Appeals Council denied her request for review. (Tr. 1-5). Ms. Delacruz now seeks judicial review, claiming that she suffers from a herniated cervical disc at C5-6, with right C6 and right L5 radiculopathy, uncontrolled diabetes, uncontrolled hypertension and asthma. (Compl. 2).
Both parties have now moved for judgment on the pleadings. Plaintiff argues that: (1) the ALJ failed to properly apply the treating-physician rule by not giving due deference to the medical opinion of claimant's treating doctor; (2) the ALJ failed to acknowledge additional severe impairments documented in claimant's MRI and EMG imaging studies; (3) the ALJ incorrectly determined that claimant is able to communicate in English; (4) the ALJ incorrectly concluded that claimant retained a residual functional capacity for light work despite her impairments; and (5) the ALJ applied improper legal standards in reaching his decision by failing to take into account plaintiff's subjective testimony regarding her pain. Ms. Delacruz therefore seeks an order reversing the Commissioner's decision and awarding her benefits or, alternatively, an order remanding the case for a new hearing.
The Commissioner responds that the determination that plaintiff is not disabled is supported by substantial evidence and not infected with legal error.
On June 3, 2006, while Ms. Delacruz was at work, she was struck by a boxed child car seat that fell from a conveyor belt. (Tr. 171). She was treated in the emergency room and released the same day without x-rays having been taken. (Tr. 171). On July 31, 2006, Dr. Walter Nieves (whom plaintiff was seeing for pain management) obtained an MRI of Ms. Delacruz's cervical spine, which showed that there was "straightening of the cervical spine with loss of the normal lordosis[1]", as well as "degenerative disc disease with disc space narrowing, spondylosis[2], and arthrosis[3]of the joints . . . at C5-C6." (Tr. 178). He also noticed a "disc herniation[4] into the right neural foramen abutting the exiting right C6 nerve root." (Id.). Additionally, he obtained an MRI of the lumbosacral spine, which was performed on August 2, 2006. (Tr. 179). This MRI showed disc degeneration5 from L1-2 through L4-5, and partial disc dessication at the L4-5 disc. (Id.). An MRI of the brain performed on July 31, 2006 found nothing abnormal. (Tr. 171).
Dr. Annarose Polifrone became plaintiff's regular treating physician. She first saw Ms. Delacruz on August 23, 2006, and in her report noted Dr. Nieves' findings. (Tr. 171). Ms. Delacruz had ongoing headaches, and ongoing back and neck pain for which she was receiving physical therapy from a chiropractor, Dr. Mark Leichter. She also reported spasms and tenderness in her back and neck, and her movement was restricted in all planes. (Tr. 173). Dr. Polifrone noted "decreased sensation to pinprick in the right L5 dermatome and the right C6 dermatome" as well as a decreased biceps reflex onthe right. (Id.). Additionally, plaintiff had a slight limp, secondary to low back pain, and a straight leg raise test was positive bilaterally. (Id.). Dr. Polifrone advised Ms. Delacruz to continue with chiropractic care and to bring in her medications at the next visit for review. (Id.).
From August 23, 2006 to April 29, 2009, Ms. Delacruz visited Dr. Polifrone approximately every five to six weeks with no significant changes in condition; on some visits the pain was worse and on others it was about the same. (Tr. 171, 174-77, 205-08). On February 20, 2008, Dr. Polifrone told plaintiff to continue taking her medications, and ordered a new MRI because Ms. Delacruz had stated that her neck pain was getting worse. (Tr. 174). As per Dr. Polifrone's request, on September 8, 2008 Ms. Delacruz had another MRI of the lumbosacral spine, which showed "[m]inimal osteophyte6 formation . . . at the anterior margins of the bodies of L3 to L5" and "[m]ild degenerative changes, L3-L5 levels." (Tr. 212). The MRI of the cervical spine, taken on the same date, showed degenerative disc disease at C5-6. (Tr. 211). On October 6, 2008, plaintiff had another MRI taken of the cervical spine, which indicated no changefrom the prior MRI with respect to the C-6 disc, but early degenerative change of the C6-7 intervertebral disc. (Tr. 206, 209).
In reports dated June 10, 2009 and July 29, 2009, Dr. Polifrone concluded that Ms. Delacruz suffered from a 100 percent temporary impairment and advised that she could not return to work because of "ongoing symptoms." (Tr. 203, 204).
Plaintiff received chiropractic care from Mark Leichter, D.C. twice weekly beginning June 5, 2006. (Tr. 164). Plaintiff complained of upper back and neck pain with radiating symptoms. (Tr. 164). Dr. Leichter indicated that plaintiff had limited lifting, carrying, standing, walking, sitting, and pushing/pulling abilities. (Tr. 167-68). His diagnoses were: "847.0, 723.3, 850.9 and 847.1." (Tr. 164). These four codes correspond to: neck strain/sprain, cervicobrachial7 syndrome (diffuse), concussion (unspecified), and thoracic strain/sprain8, respectively. (Tr.213).9 Dr. Leichter stated that plaintiff's prognosis was "severely chronic [and] guarded." (Tr. 165).10 On a form for the New York State Workers' Compensation Board, he indicated that plaintiff was unable to perform regular duties at work and that her degree of impairment was "total". (Tr. 213).
Ms. Delacruz underwent an independent chiropractic examination by Jeffrey C. Ritholtz, D.C. (Tr. 239). Dr. Ritholtz indicated that he had reviewed plaintiff's MRIs of the brain and cervical spine (both dated July 31, 2006) as well as the MRI of her lumbar spine (dated August 2, 2006). (Tr. 242).11 He also mentioned having reviewed notes from a Silvia Epelman, M.D. and a disability letterfrom Dr. Leichter (Id.). Dr. Ritholtz found that Ms. Delacruz tested positive on her right cervical compression test and diagnosed her with cervical sprain/strain and thoracic sprain/strain. (Tr. 240-41). He recommended chiropractic intervention consisting of two visits a week for six weeks. (Tr. 241). He also opined that plaintiff could "return to work full time with the restrictions of no lifting, pushing, pulling or carrying over 20 pounds." (Id.).
On June 12, 2008, plaintiff was examined by Social Security consultant and internist Dr. Nabila Salama. In connection with this examination, Dr. Salama did not see Ms. Delacruz's MRI and EMG studies of the back and neck. (See Tr. 188-92). She examined Ms. Delacruz's spine, and noted no restrictions in movement. (Tr. 190). She also examined plaintiff's knee, noting a "[r]ight knee flexion/extension 90 degrees, and left 150 degrees" and "[n]o redness, heat, swelling, or effusion." (Tr. 191). Dr. Salama also stated that plaintiff had "moderate to severe restriction from bending and squatting because of the right knee arthritis." (Id.). In her report she diagnosed claimant with hypertension, diabetes, asthma and possible arthritis in her right knee and back. (Id.).
On June 18, 2008, disability analyst C. Hernandez, who is not a physician (see, e.g., Tr. 163), undertook a residual functional capacity assessment based on a review of plaintiff's medical history and her MRI imaging studies. (Tr. 193-98). His report indicated a diagnosis of a discogenic12 and degenerative back disorder, with a secondary diagnosis of hypertension. (Tr. 193). Nonetheless, analyst Hernandez opined that plaintiff could stand and/or walk (with normal breaks) for a total of about six hours in an eight hour workday and could also sit for the same amount of time. (Tr. 194). He referred to Ms. Delacruz as having occasional postural limitations due to pain, but no manipulative, visual or communicative limitations. (Tr. 195). He also indicated that she could occasionally lift up to 20 pounds and had no...
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