Duran v. Colvin, 14 Civ. 8677 (HBP)
| Decision Date | 23 September 2016 |
| Docket Number | 14 Civ. 8677 (HBP) |
| Parties | ANA A. DURAN, Plaintiff, v. CAROLYN W. COLVIN, ACTING, COMMISSIONER, Social Security Administration, Defendant. |
| Court | U.S. District Court — Southern District of New York |
I. Introduction
Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") and disability insurance benefits ("DIB"). The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c) (D.I. 7). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure . For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied, plaintiff's motion is granted and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
II. Facts1
Plaintiff filed an application for SSI and DIB on January 24, 2008 alleging disability due to "Lower back pain, Arm pain" (Tr. 305-12, 343). Plaintiff alleged a disability onset date of March 2007, which she later amended to December 2007 (Tr. 20, 46, 339). Her application was initially denied on April 30, 2008 (Tr. 146-52). Plaintiff requested an administrative hearing, which was held on September 23, 2009, before Administrative Law Judge ("ALJ") Robert Gonzalez (Tr. 88-124, 152). Plaintiff testified through a Spanish interpreter and was represented by a non-attorney representative from the Legal Aid Society of Rockland County (Tr. 90).
On November 13, 2009, ALJ Gonzalez denied the claim (Tr. 127-40). The ALJ found that plaintiff could not perform her past relevant light work, but could work at the sedentary exertional level2 based on limitations on her ability to stand and walk, lift and carry objects greater than 10 pounds and restrictions on her ability to bend, stoop and crawl (Tr. 139). The ALJ denied plaintiff's claim by applying the medical-vocational guidelines, Table 1, Grid Rule 201.23 (Tr. 140). The Appeals Council granted review and issued an Order of Remand, directing ALJ Gonzalez to request updated records from plaintiff's treating sources, further evaluate her subjective complaints, give further consideration to plaintiff's maximum residual functional capacity and obtain evidence from a vocational expert (Tr. 141-44).
Plaintiff appeared for two additional hearings before ALJ Gonzalez on June 7, 2012 and September 18, 2012, accompanied by her non-attorney representative and a Spanish interpreter (Tr.58-87, 39-57). Vocational expert Donald Slive testified at the second of these hearings (Tr. 49-57). The ALJ issued a second decision adverse to plaintiff on February 11, 2013 (Tr. 20-32). The ALJ's determination became the Commissioner's final decision on June 11, 2014, when the Appeals Council denied plaintiff's request for review and extended the time to file a civil action (Tr. 1-11).
Plaintiff was born in 1966 in the Dominican Republic (Tr. 31, 45). She went to elementary school in the Dominican Republic but has not taken any classes in the United States (Tr. 45, 80, 100, 350). Plaintiff's primary language is Spanish, and she speaks and reads "a little" English (Tr. 61, 78-79, 100).3 Plaintiff took the U.S. citizenship test twice and passed on her second attempt in 2012 (Tr. 44).
Plaintiff worked for 17 years as a housekeeper at Allendale Nursing Home (Tr. 43, 99, 318, 327, 343-344). Her duties included cleaning and vacuuming, cleaning toilets, lifting garbage and moving mattresses. She was on her feet 7-8 hours perday (Tr. 43, 94, 99, 344-345). Plaintiff stopped working in 2007 due to lower back pain that prevented her from doing her job (Tr. 103, 309, 343). Plaintiff has three children over the age of eighteen (Tr. 101). Plaintiff is divorced, lives alone on the second floor of a walk-up apartment building and testified that her daughters help her at home (Tr. 73, 101-02). Plaintiff explained that "Social Services helps [her]" by giving her food stamps, money for rent and paying some bills and that she also receives money from her adult son (Tr. 73).
Plaintiff alleged that she was disabled as of December 2007, and the ALJ determined that her date last insured was December 31, 2012 (Tr. 22, 323, 337). Therefore, the review of plaintiff's medical history will focus on this time period.
On April 8, 2008, plaintiff underwent a consultative orthopedic examination with Dr. Rose Chan (Tr. 507-09). Dr. Chan observed that plaintiff "appeared to be in no acute distress,"had a normal gait and station and could fully squat (Tr. 508). Plaintiff brought what Dr. Chan described as a "self-prescribed" and "self-bought" cane to the examination; Dr. Chan opined that the cane was not medically necessary (Tr. 507-08). Plaintiff was able to walk on her toes if she steadied herself with one hand on the examination table, and she "declined to walk on heels" (Tr. 508). Plaintiff "[n]eeded no help changing for the exam or getting on and off [the] exam table," and was "[a]ble to rise from [a] chair without difficulty" (Tr. 508). Dr. Chan also found that plaintiff had full flexion in her cervical spine, full range of motion in her shoulders, elbows, forearms, wrists and fingers, somewhat limited flexion in her thoracic and lumbar spines and full range of motion in her lower extremities (Tr. 508-09). Dr. Chan found that plaintiff's straight leg raising test was negative bilaterally (Tr. 508). Dr. Chan noted that an x-ray indicated that plaintiff suffered from discogenic disease at L5-S14 (Tr. 509).5 She diagnosed plaintiff with chronic lowback pain that she believed was stable (Tr. 509). Dr. Chan noted that plaintiff had a "[m]ild limitation for stooping" and "should avoid heavy lifting and pushing" (Tr. 509).
During the relevant time period, plaintiff was primarily treated by pain management specialist Dr. Deepak Vasishtha of Musculoskeletal Pain Management, P.C. for complaints of back, leg and knee pain (Tr. 97). The record contains Dr. Vasishtha's evaluations and treatment notes as well as diagnostic testing results ordered by him and others in the 2007 to 2012 time period.
On August 3, 2007 Dr. Vasishtha completed a form entitled "Disability Letter," in which he stated that plaintiffhad a diagnosis of lumbar disc herniations,6 lumbar radiculopathy7 and a gait disturbance. He stated that plaintiff was totally disabled and unable to work at that time and that her prognosis was "guarded" (Tr. 669).
On January 17, 2008, Dr. Vasishtha completed another "Disability Letter" stating that he was treating plaintiff for "Lumbar Disc Herniation, + B/L Lumbar L4, L5 Radiculopathy + Gait Disturbance" (Tr. 670). He stated that plaintiff was totally disabled, unable to work and that her prognosis was "guarded" (Tr. 670).
On January 16, 2008, Dr. Vasishtha referred plaintiff to physical therapy and ordered an MRI of plaintiff's lumbar spine (Tr. 501). The results of this MRI, conducted on January 29, 2008, indicated that plaintiff had disc desiccation and disc bulging at L5-S1, a right intraforaminal8 disc herniation that was more pronounced than it was four years earlier and impingement of the right L5 nerve root (Tr. 551-52). The report alsonoted that the posterior central disc herniation cited in a previous study was no longer present (Tr. 552).
Plaintiff's primary care physician Dr. Amir Shahid also ordered electro-diagnostic testing in June 9, 2008; that testing showed evidence of chronic S1 radiculopathy (Tr. 671-74). Dr. David Colarusso, who performed the electro-diagnostic testing, recommended additional testing to determine the cause of the impingement and "conservative therapy to [the] affected region" (Tr. 672).
Dr. Vasishtha ordered nerve conduction testing in August 2008 to evaluate plaintiff's continuing complaints of lower back pain and pain and tingling radiating to her legs (Tr. 539-544). The testing revealed electro-diagnostic evidence of left lumbosacral radiculopathy involving the S1 and S2 nerve roots (Tr. 541).
In January 2009, Dr. Vasishtha completed a form for the New York State Office of Temporary and Disability Assistance assessing plaintiff's employability (Tr. 675-76). He indicated that plaintiff had low back pain radiating down both legs and pain in both knees that caused difficulty walking and completing activities of daily living (Tr. 675). Dr. Vasishtha indicated that plaintiff's physical examination showed that she had a limited range of motion of the lumbosacral spine with tendernessat L4-S1 and that her straight leg raising test was positive bilaterally (Tr. 675).9 As treatment, the doctor recommended physical therapy, NSAIDs (nonsteroidal anti-inflammatory drugs), pain medication and "bracing" (Tr. 675). Dr. Vasistha prescribed Gabapentin, Tylenol #3 and Medrol dose pak (Tr. 675). Dr. Vasishtha opined that plaintiff was "very limited" in her ability to lift, carry, push, pull and bend; she was moderately limited in her ability to walk, stand, sit and climb stairs (Tr. 675). Dr. Vasistha restricted plaintiff from any physical exertion (Tr. 676).
A June 2009 motor nerve study ordered by Dr. Sarwar Sharfuddin showed that plaintiff had chronic left S1 radiculopathy (Tr. 683-86).
In a document entitled "Physician's Report for Claim of Disability Due to Physical Impairment," dated August 25, 2009, Dr. Vasishtha indicated that he had seen plaintiff twice per week for the past year and...
To continue reading
Request your trial