Lopez v. Berryhill

• Decision Date: 24 March 2020
• Docket Number: 18cv12201 (JGK)
• Citation: 448 F.Supp.3d 328
• Parties: Jorge LOPEZ, Plaintiff, v. Nancy BERRYHILL, Defendant.
• Court: U.S. District Court — Southern District of New York

448 F.Supp.3d 328

Jorge LOPEZ, Plaintiff,

v.Nancy BERRYHILL, Defendant.

18cv12201 (JGK)

United States District Court, S.D. New York.

Signed March 24, 2020

ORDER

JOHN G. KOELTL, District Judge:

The Court has received and reviewed the Report and Recommendation of Magistrate Judge Lehrburger dated March 2, 2020. No objections have been filed and the time for filing objections has passed. In any event, the Court finds that the Report and Recommendation are well founded and should be adopted.

Therefore, the Commissioner's motion for judgment on the pleadings is granted and the plaintiff's motion for judgment on the pleadings is denied. The Clerk is directed to enter judgment in favor of the Commissioner and to close this case. The Clerk is also directed to close all pending motions.

SO ORDERED.

REPORT AND RECOMMENDATION TO HON. JOHN G. KOELTL: SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, United States Magistrate Judge.

JORGE LOPEZ, Plaintiff,

- against -

COMMISSIONER OF SOCIAL SECURITY, Defendant.

Plaintiff Jorge Lopez, represented by counsel, commenced the instant action against Defendant Commissioner of the Social Security Administration (the "Commissioner"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Lopez is not entitled to disability insurance benefits under 42 U.S.C. § 423 et seq. The parties have submitted cross-motions pursuant to Rule 12(c) seeking judgment on the pleadings. (Dkts. 21, 23.) For the reasons stated below, the Commissioner's motion should be GRANTED, and Lopez's motion should be DENIED.

Background

A. Summary of Claim and Procedural History

For several years, Lopez worked as a truck driver for the United Parcel Service ("UPS"). On May 19, 2015, however, Lopez filed an application for disability insurance benefits, alleging disability beginning on January 3, 2015. (See Administrative Record, Dkt. 16 ("R.") at 182.) Lopez claimed disability due to a right shoulder injury (which required multiple surgeries), a left knee injury

, and wrist injuries. (R. at 98, 213.) On June 29, 2015, the Social Security Administration (the "Administration") denied his claim, determining that Lopez's conditions, taken together with his "age of 51 years, [his] education of 8 years, and [his] experience" would not "prevent [him] from working" within a year of January 3, 2015. (R. at 111.) Lopez subsequently requested a hearing before an Administrative Law Judge ("ALJ") to review his claim (R. at 115), which took place on August 8, 2017 before ALJ Michael Carr (the "Hearing"). (R. at 46-86.) At the Hearing, Lopez was represented by his current counsel, Edward J. Madigan. (R. at 46.) On February 14, 2018, ALJ Carr issued a decision finding Lopez not disabled for the relevant time period. (R. at 25, 28-39.) Lopez timely appealed the ALJ's decision to the Appeals Council, which denied Lopez's request for review on November 2, 2018, rendering it the final determination of the Commissioner. (R. at 1-7.)

On December 26, 2018, Lopez filed the operative complaint (Dkt. 1, the "Complaint") seeking district court review pursuant to 42 U.S.C. § 405(g). On July 31, 2019, the Honorable John G. Koeltl (U.S.D.J.) referred this matter to the undersigned for a Report and Recommendation. (Dkt. 17.)

B. Relevant Medical Evidence¹

As stated above, Lopez's initial application for disability insurance benefits claimed disability due to a right shoulder injury, a left knee injury

, and wrist injuries. (R. at 98 (listing "post right shoulder arthroscopy, double row rotator cuff repair, left knee, both wrists" as injuries causing disability).) But, at the Hearing, Lopez testified that he also suffers from diabetes, vertigo, obesity, sciatica, and depression, all of which prevent him from working. (R. at 68, 72-74.) The following discussion addresses each of the claimed injuries and conditions.

1. Right Shoulder Injury

On or about January 3, 2015, Lopez injured his right shoulder while "trying to turn [a] lever" at work and immediately felt a "popping sensation" followed by "severe pain." (R. at 374.) Five days later, Lopez had an initial consultation with Dr. Marc Levinson of Seaport Orthopedic Associates where he reported that his right shoulder pain was "constant" and rated it a "10" on a scale of 1 to 10, limiting "his ability to lift, stand, carry, walk, run, climb stairs, exercise, do overhead activities and reach behind back" and leaving him unable to bathe or dress without assistance. (R. at 361.) Dr. Levinson diagnosed Lopez with "[i]nternal derangement of the right shoulder" and a "rotator cuff tear

" and concluded that Lopez was "totally disabled" at that time. (R. at 363.) On January 14, 2015, Lopez met with orthopedic surgeon Dr. Darren F. Friedman of Seaport Orthopedic Associates. (R. at 366-368.) Dr. Friedman concluded that "[s]econdary to findings on MRI as well as findings on clinical examination [Lopez] is a candidate for right shoulder arthroscopy

and rotator cuff repair and debridement." (R. at 367.) After discussing treatment options with Dr. Friedman, Lopez elected to proceed with surgery. (Id. )

Dr. Friedman performed surgery on February 10, 2015, which included "glenohumeral joint debridement

" and an "arthroscopic double-row rotator cuff repair." (R. at 290-291.) Dr. Friedman noted that there were no complications during the surgery. (R. at 291.) Following the procedure, Dr. Friedman noted that Lopez's postoperative plan included use of an abduction sling for six weeks with immediate "table slide and passive motion," with active motion beginning when the sling was removed and rotator cuff strengthening beginning after three months. (Id. )

On February 18, 2015, Lopez had a follow up visit with Dr. Friedman. (R. at 281-282.) Dr. Friedman noted that Lopez "d[id] not complain of any significant discomfort," but had "pain on and off" that was treatable with medication. (Id. ) At that time, Lopez was "ambulating without any assistive devices" and his right arm was in a sling (as prescribed) and would remain in a sling for another five weeks. (Id. ) Lopez visited Dr. Friedman again on March 13, 2015, when he reported "pain and aching" in his right shoulder. (R. at 283.) Dr. Friedman recommended that Lopez keep his right arm in a sling, continue with physical therapy for "passive motion and modalities" and begin active motion "after 6 weeks." (Id. )

On April 20, 2015, Lopez returned for another follow up visit with Dr. Friedman. (R. at 284-285.) At that visit, Lopez reported that he "continue[d] to have significant pain and discomfort" in his right shoulder, leaving him "[u]nable to actively move the arm" and causing him difficulty with physical therapy and sleeping. (R. at 284.) Dr. Friedman expressed concern about Lopez's "worsening discomfort," requested an ultrasound to assess the rotator cuff repair

, and concluded that, at that time, Lopez was 100% disabled regarding his right shoulder. (Id. ) Lopez had the ultrasound on May 5, 2015, and attended another follow up appointment with Dr. Friedman the next day. (R. at 292-294, 286-287.) During that appointment, Dr. Friedman noted that the ultrasound "pick[ed] up biceps tenosynovitis" and, taken together with Lopez's "persistent pain and discomfort," recommended a "right shoulder ultrasound-guided intra-articular glenohumeral corticosteroid injection" and a "proximal biceps tendon sheath ultrasound-guided corticosteroid injection," both to be done by Dr. Levinson. (R. at 286.) On May 8, 2015, two days later, Dr. Friedman drafted a letter stating that Lopez "is totally disabled for work pending next evaluation." (R. at 297.)

Dr. Levinson performed the prescribed steroid injection on May 21, 2015. (R. at 353.) Dr. Levinson reported that Lopez felt "relief" after the injection. (Id. ) On June 1, 2015, Lopez had another follow up appointment with Dr. Friedman following the prescribed injections. (R. at 348-49.) Lopez reported that the injection was "quite helpful" and that he was feeling "significantly better," experiencing minimal pain and no sleeping issues. (R. at 348.) Dr. Friedman concluded that Lopez was "currently 50% temporarily disabled regarding right shoulder," prescribed physical therapy to work on stretching and strengthening and asked to see Lopez for another follow up appointment in approximately two months to discuss "return to work dates." (Id. )

On July 10, 2015, Lopez had an initial consultation with Dr. Andrew Brown of NYU Langone Seaport Orthopedics. (R. at 338-342.) At that appointment, Lopez reported constant pain that rated a "5" on a scale from 1 to 10, but worsened with exercise, walking, showering, and lifting and inhibited his ability to lift, carry, walk, and run. (R. at 338.) Dr. Brown reported that Lopez's mobility was "minimally impaired;" that Lopez used no ambulatory aids; that Lopez was able to dress slowly and with pain; and that Lopez's gait was normal, heel walking was normal, and toe walking was normal. (R. at 339.) Further, Dr. Brown reported that "[a]ll joints of the upper extremities show range of motion was within normal limits except for at the left shoulder," that "[m]uscle testing was normal except for at the left shoulder and the right hand," and that there was "right anterior shoulder and posterior shoulder tenderness." (Id. ) Dr. Brown recommended that Lopez continue physical therapy and exercise at home, and prescribed Mobic

(an anti-inflammatory drug). (R. at 340.) Dr. Brown concluded that Lopez was "totally disable[d] from his job and partially disabled (60% temporary impairment) for a different job involving light work." (Id. )

Lopez had a follow up appointment with Dr. Brown on August 27, 2015 where he reported that, while physical therapy afforded him temporary relief and some improvement in function, he remained "significantly limited" in movement of his right upper extremity. (R. at 311.) Dr. Brown concluded that Lopez remained "totally disabled for his job...