Rodriguez v. Berryhill, 16 Civ. 8752 (AJP)

Decision Date28 August 2017
Docket Number16 Civ. 8752 (AJP)
PartiesROSA RODRIGUEZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
CourtU.S. District Court — Southern District of New York

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Rosa Rodriguez, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits ("DIB"). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 10: Rodriguez Notice of Mot.; Dkt. No. 14: Comm'r Notice of Mot.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED and Rodriguez's motion (Dkt. No. 10) is DENIED.

Procedural Background

Rodriguez filed for benefits on April 7, 2011, alleging a disability onset date of October 21, 2010. (Dkt. No. 7: Administrative Record ("R.") 254-58.) On April 25, 2012, Rodriguez, represented by counsel, had a hearing before Administrative Law Judge ("ALJ") Robert Dorf, who denied Rodriguez's benefits application. (R. 85-108, 123-33.) On June 28, 2013, the Social Security Appeals Council remanded the matter for further proceedings before ALJ Dorf, including obtaining vocational expert testimony. (R. 134-37.)

On November 13, 2013, Rodriguez, still represented by counsel, attended a second hearing before ALJ Dorf. (R. 47-84.) On March 24, 2014, ALJ Dorf issued a written decision finding Rodriguez not disabled within the meaning of the Social Security Act. (R. 29-41.) ALJ Dorf's decision became the Commissioner's final decision when the Appeals Council denied review on September 12, 2016 and March 21, 2017. (R. 1, 3-6.)

Non-Medical Evidence and Testimony

Born on November 1, 1968, Rodriguez was forty-one years old at the alleged October 21, 2010 onset of her disability. (R. 58, 255-56.) Rodriguez lives with her husband and two children, ages eighteen and seven months. (R. 55.) Rodriguez sometimes is able to lift and change her seven month old, who weighs seventeen pounds, and take him to appointments or the grocery store once every one or two weeks. (R. 56-57, 70, 275.) She can lift a gallon of milk (R. 103), has no issues with personal care (R. 272-73), and watches television and talks on the phone daily (R. 275-76). Rodriguez prepares food daily (R. 273) but experiences pain in her arms and back when she cooks or washes dishes (R. 107, 278). Rodriguez is able to pay bills and handle a savings account. (R. 275.) She has no issues getting along with family, friends, neighbors or others, and no problems paying attention or following written and spoken instructions. (R. 276, 278.)

When her husband is unavailable, Rodriguez drives to appointments, or takes the bus or train. (R. 60, 63, 274.) Rodriguez does not use an assistive device such as a cane when she "take[s] the train, or bus, or walk[s]" (R. 63, 101) although she suffers from low back pain (R. 57-58, 277) and testified that she "can only stand up for two minutes because [her] muscles start bothering" her (R. 74). Rodriguez testified that she can walk two blocks before she has to stop and rest, and sit for ten to twenty minutes at a time (R. 102, 106, 278), but there are times when sitting is unbearable and she has to lay down (R. 75). Rodriguez described the pain in her neck and back as an eight to nine out of ten. (R. 102-03.) Rodriguez previously worked as a home attendant and babysitter (R. 59, 65, 103) although she can no longer perform such work because she "just freeze[s] up [and her] muscles tense" (R. 63).

Vocational expert Helene Feldman testified that a person of Rodriguez's age, education, vocational background and RFC could not perform the duties of a home attendant or babysitter, but that sedentary jobs existed in significant numbers in the national economy that such an individual could perform, including plastic design applier, stuffer, and gauger. (R. 64-68.)1 These jobs all are sedentary positions that could be performed either sitting or standing. (R. 66-68, 81-82.)

Medical Evidence Before the ALJ

Physical Impairments

Dr. Vikas Varma

On September 20, 2010, Dr. Vikas Varma examined Rodriguez, who complained of progressively worsening pain in the back, hip, buttocks and legs causing cramps, numbness, weakness and tingling with no relief from medication or physical therapy. (R. 337.) Dr. Varma found Rodriguez's strength "[g]ood 5/5 in all" muscle groups in the upper and lower extremities withno wasting, weakness, atrophy or fasciculations. (R. 338.) Rodriguez had a positive straight leg test and her MRI showed multilevel L3-4, L4-5, and L5-S1 disc bulges. (Id.) Dr. Varma examined Rodriguez on October 18, 2010 at which time her muscle strength remained "5/5," but her thoracic and lumbar pain was progressively worse. (R. 339.) An electrodiagnostic study revealed mild right carpal tunnel syndrome and chronic bilateral L5-S1 radiculopathy. (R. 344.)

On November 1, 2010, November 29, 2010 and January 3, 2011, Dr. Varma completed continued disability statements in which he opined that Rodriguez cannot do any heavy lifting, pulling, pushing, or bending. (R. 348-50.) Dr. Varma diagnosed Rodriguez with lumbar radiculopathy, and he opined that Rodriguez should not sit or stand for longer than four hours and cannot return to work even with restrictions. (Id.)

On June 8, 2011, Dr. Varma completed a spinal impairment questionnaire, listing the "[d]ate of most recent exam" as January 3, 2011. (R. 404-10.) Dr. Varma reiterated that Rodriguez had disc bulges at L3-L4, L4-L5 and L5-S1 and degenerative disc disease. (R. 404.) Rodriguez had limited range of motion in her cervical and lumbar spine, tenderness and reflex changes in her lumbar spine, a positive straight right leg raise test at 25 degrees, and burning low back pain that radiated to her right leg daily, precipitated by bending and carrying heavy items. (R. 404-07.) Rodriguez had no muscle spasms, sensory loss, muscle atrophy or weakness in her cervical or lumbar spine, and no abnormal gait, swelling, crepitus or trigger points. (R. 405.) Dr. Varma opined that Rodriguez could sit for four hours and stand or walk for two hours in an eight hour workday; however, Rodriguez would have to take five minute breaks two to three times during her workday, and her impairments would cause her to be absent more than three times a month. (R. 407, 409.) Rodriguez could lift five pounds frequently and ten pounds occasionally, and carry up to ten pounds occasionally, but could never lift or carry any weight over ten pounds. (R. 407-08.) Rodriguez could do no pushing, pulling, kneeling, bending or stooping. (R. 410.) Rodriguez's symptoms would frequently interfere with her attention and concentration and were expected to last at least twelve months. (R. 408.) In the "[a]dditional comments" section, Dr. Varma wrote that Rodriguez "does not wish to try epidural injections to relieve symptoms." (R. 410.) Dr. Varma reiterated these findings in an April 6, 2012 "To Whom It May Concern" letter. (R. 541.)

Dr. Teresella Gondolo

On January 20, 2011, Dr. Teresella Gondolo evaluated Rodriguez for her complaints of neck and low back pain, difficulty walking, numbness and paresthesias of the upper and lower extremities with antalgic gait. (R. 386.) Rodriguez also complained of episodes of lightheadedness, dizziness and vertigo. (Id.) Rodriguez denied joint pain, swelling, muscle cramps, stiffness or arthritis. (R. 387.) On examination, Dr. Gondolo noted neck stiffness with no reduction of movement, mild tenderness in the paracervical and sternocleidomastoid, no lower back tenderness in the lumbosacral and sacroiliac region, a negative foramina compression test, and a normal thoracic spine examination. (R. 389.) Rodriguez's muscle strength was "5/5" in her bilateral upper and lower extremities and she had normal gait, tiptoe and heel walk. (R. 390.) Rodriguez's cervical spine examination revealed tenderness and diminished range of motion "in all cervical planes secondary to pain." (R. 391.) Rodriguez also experienced pain in her lumbar spine on flexion with diminished range of motion, "visible spasm as well as tenderness at [the] L4-L5 level," "bilateral paralumbar tenderness and spasm," and positive "[s]acroiliac joint palpation" and a positive straight leg raise at 40 degrees. (Id.) Dr. Gondolo diagnosed Rodriguez with cervical and lumbar radiculopathy. (Id.)

On March 17, 2011, Dr. Gondolo opined, without explanation, that Rodriguez was "totally disabled for 12 months due to lumbar radiculopathy." (R. 486.) Dr. Gondolo completed a continued disability statement form on February 10, 2011 and another after Rodriguez's March 17, 2011 visit. (R. 351-52.) Both forms diagnose Rodriguez with lumbar radiculopathy and state that Rodriguez cannot return to work even with restrictions. (Id.) The latter report states that Rodriguez cannot stand for more than two hours, cannot do any lifting, pushing and pulling over five pounds, and is "totally disabled." (R. 352.)

Industrial Medicine Associates

Dr. Marilee Mescon of Industrial Medicine Associates performed an internal medicine examination of Rodriguez on May 17, 2011. (R. 510-13.) Dr. Mescon noted that Rodriguez had a history of low back pain that radiated to her hips, feet and neck that was worse when standing, rated "10/10" and improving to "6/10" with medication. (R. 510.) Rodriguez could cook, shower, bathe and dress, and spent her time listening to the radio, watching television and reading; family members did the cleaning, laundry and shopping. (R. 511.) Rodriguez appeared in no acute distress, with normal stance and gait, could...

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