McAllister v. Colvin
| Decision Date | 09 September 2016 |
| Docket Number | No 15-CV-2673 (JFB),15-CV-2673 (JFB) |
| Citation | 205 F.Supp.3d 314 |
| Parties | Genesis MCALLISTER, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff is represented by Jeffrey Delott, of the Law Offices of Jeffrey Delott, 366 North Broadway, Suite 410, Jericho, NY 11753.
The Commissioner is represented by Candace Scott Appleton, United States Attorney, Eastern District of New York, 271 Cadman Plaza East, 7th Floor, Brooklyn, New York, 11201.
Plaintiff, Genesis McAllister ("plaintiff"), commences 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 ("Commissioner") denying plaintiff's application for disability insurance benefits. An Administrative Law Judge ("ALJ") found that plaintiff had the residual functional capacity to perform "the full range" of sedentary work, of which there were a significant number of jobs in the national economy, and, therefore, that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review.
Plaintiff now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Commissioner opposes plaintiff's motion and cross-moves for judgment on the pleadings.
For the reasons set forth herein, the Commissioner's cross-motion for judgment on the pleadings is denied. Plaintiff's 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 failing to explain the weight he assigned to the opinions of plaintiff's treating physician, Dr. Slaven,1 and failing to properly assess the factors for determining what weight to give those opinions.
The following summary of the relevant facts is based upon the Administrative Record ("AR") developed by the ALJ. A more exhaustive recitation is contained in the parties' submissions to the Court and not repeated herein.
Plaintiff was born on January 22, 1976 (AR at 97), is a high school graduate, and is trained in tax preparation. (AR at 112.) Plaintiff stated she lives with her husband and 4-year-old son. (AR at 129-30.) Plaintiff's work history consists of the following: kitchen manager/waitress from January 2003 until February 2004 (AR at 113), hotel front desk employee and housekeeper from March 2004 until August 2005, supermarket video clerk/cashier from August 2005 until September 2006 (id. ), tax consultant from September 2006 until January 2007 (AR at 141), and waitress from October 2006 to January 2008 (AR at 113). Plaintiff stopped working in 2008 after becoming pregnant and suffering from impairments. (AR at 112.)
On November 19, 2012, plaintiff completed a "Function Report," which detailed her daily activities, as well as how her condition affected her ability to perform various tasks. (AR at 129-39.) Plaintiff indicated that she "can't lift more than 20 [pounds] anymore," "can't stand for [too] long anymore about 10 minutes," that it "hurts to walk for long periods," that she cannot walk longer than one block before needing to "stop and rest," that she "can't sit for longer than 10 minutes at a time," that it "hurts to climb stairs, ... kneel, ... [and] squat," that she has "occasional pain in [her] hands and wrists," and that she has difficulty maintaining concentration and has to "write everything down so [she] can remember." (AR at 134-37.) Plaintiff indicated both of her knees have braces and immobilizers and both of her wrists have braces. (AR at 139.) Plaintiff also indicated that she "occasionally" has difficulty when dressing herself, bathing, and caring for her hair. (AR at 131.) She stated she has to "sit down now to shave [her] legs," that it is "hard to get on and off" the toilet, and that she does not feed herself. (Id. )
Plaintiff reported she cares for her 4-year-old son in the following ways: dresses, feeds, and bathes him, drives him to and from school (four days per week), launders his clothes, cooks for him, puts him to bed and plays with him. (AR at 130, 134.) Plaintiff also stated that she cooks all the meals for her family daily but not "big meals" (AR at 131-32), and that she is able to do the "cleaning," "laundry," and "household repairs." (AR at 132.) However, she indicated that she has to "sit to do dishes or fold laundry now." (Id. ) She also said she needed to rest after an hour or two of doing chores. (AR at 139.) Plaintiff also reported that she shopped once per week and maintained a savings account, but that it was "hard to drive [herself] all the time." (AR at 133.) Plaintiff stated that she watches television "everyday" but "[does not] do social activities anymore" since her conditions began. (AR at 134.)
On March 19, 2012, plaintiff saw Jodi H. Scherpirro, D.O., at Long Island Medical Care Service for an upper respiratory infection. (AR at 299-300.) Plaintiff reported her medications were Ibuprofen and Naproxen. (AR at 299.) At the time, she weighed 220 pounds. (Id. ) The lung examination was unremarkable and extremities were normal, with no edema and normal pulses. (Id. )
Plaintiff visited Dr. Ben Benatar, an orthopedic surgeon, on March 20, 2012. She reported right knee pain and clicking, as well as lower back pain radiating to her right buttock and thigh. (AR at 324.) She stated she had difficulty kneeling, sitting down, and getting up. (Id. ) Plaintiff stood erect when examined. (Id. ) She had limited motion in her lumbar spine and tenderness in her paralumbar muscles. (Id. ) Dr. Benatar noted that, due to a lower back and right knee injury, plaintiff had reduced mobility with difficulty standing, walking, sitting and squatting. (Id. ) Consequently, Dr. Benatar recommended physical therapy in addition to a weight loss program. (Id. ) He concluded that plaintiff had a "marked disability." (Id. )
On May 14, 2012, plaintiff returned to Dr. Benatar and complained of pain in her left wrist. (AR at 323, 325.) On examination, the only tenderness in the left wrist was on the dorsum over the distal radius at the radian carpal junction. (Id. ) Range of motion was "fairly good" and comfortable. (Id. ) Dr. Benatar indicated that plaintiff should continue to wear a wrist immobilizer brace and take Norco for pain. (Id. )
An MRI of plaintiff's right wrist was conducted on May 24, 2012. The results revealed the following: extensor carpi ulnaris tendinosis with an intrasubstance tear; small ganglion cyst of no clinical significance; mild degeneration in the anterior portion of the scapholunate ligament related to an old sprain; and trace distal radioulnar joint effusion of no clinical significance. (AR at 284-87.)
Plaintiff saw Physician Assistant Karen A. Montebello on June 14, 2012. (AR at 297.) The diagnosis was acute pharyngitis. (Id. ) At that time, she weighed 220 pounds, and her lungs were clear. (Id. )
On July 18, 2012, plaintiff consulted Dr. Benatar after suffering from wrist pain, swelling, and difficulty with movement. (AR at 321.) Upon examination, there were 20 degrees of palmar flexion and 30 degrees of dorsiflexion. (Id. ) Dr. Benatar diagnosed acute synovitis in her left wrist, and referred her to a rheumatologist and for an MRI. (Id. )
On July 20, 2012, an MRI of plaintiff's left wrist was taken. The results revealed: focal fluid collection in the extensor carpi radialis brevis tendon sheath consistent with the presence of stenosing tenosynovitis ; degeneration at the joint between the trapezoid and base of the third metacarpal with posterior osteophyte formation in a carpal boss configuration; and no evidence of tendon or ligament tears ; and mild synovitis. (AR at 288, 290.)
On July 31, 2012, plaintiff told Physician Assistant Montebello that she had pain in both wrists. (AR at 291-96.) She weighed 220 pounds at this time. (AR at 291.) Plaintiff's right wrist was tender without any redness or swelling. (Id. ) She had diffuse body tenderness. (Id. ) Physician Assistant Montebello diagnosed: pain in joint, site unspecified; unspecified adverse drug effect; absence of menstruation; and other malaise and fatigue. (AR at 291-92.) She prescribed Naproxen for plaintiff's joint pain and Zoloft for fatigue. (AR at 292.)
Plaintiff subsequently complained to Dr. Benatar, on August 15, 2012, that she had difficulty rising from a seated position, and experienced "clicking, popping, and pain in both knees." (AR at 320.) Plaintiff's left wrist was significantly swollen, tender and warm to touch, with a marked reduction in range of motion. (Id. ) Dr. Benatar indicated there was left wrist cartilage destruction on the MRI; he believed "everything is traumatic in nature," but referred plaintiff to a rheumatologist to rule out other possible sources of pathology. (Id. ) He also renewed prescriptions for Ibuprofen and Norco. (Id. )
On September 18, 2012, plaintiff spoke with rheumatologist Prachi Anand, M.D. (AR at 257-59.) Plaintiff stated she had generalized pain "all over." (AR at 258.) She further indicated she had experienced bilateral knee and wrist pain for four years, and arm pain throughout the past one to two months. (AR at 257.) There was no synovitis in the wrists, knees, ankle, or feet. (AR at 258.) There was tenderness in both arms and shoulders. (Id. ) Dr. Anand diagnosed that plaintiff "likely had fibromyalgia" and prescribed Flexeril. (Id. )
Plaintiff told Dr. Benatar, on October 2, 2012, that she had pain in her left knee. (AR at 319.) Dr. Benatar's notes indicate that plaintiff had experienced lower back and left wrist problems in the past, but her main complaint was left knee pain, with clicking, popping, and occasional buckling. (Id. ) Upon examination, there was tenderness of the...
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