Smith v. Comm'r of Soc. Sec.
| Decision Date | 04 January 2017 |
| Docket Number | 15 Civ. 5356 (ER) (JCF) |
| Parties | CRAIG B. SMITH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
The plaintiff, Craig B. Smith, brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), seeking review, under 42 U.S.C. § 405(g), of a determination of the Commissioner of Social Security (the "Commissioner") finding that he is not entitled to Supplemental Security Income ("SSI") or Social Security Disability Insurance ("SSDI"). The parties have submitted cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the Commissioner's motion be denied, the plaintiff's motion be granted, and the case be remanded to the Social Security Administration (the "SSA") for further proceedings.
The plaintiff, who was born on May 9, 1968, filed an application for SSI and SSDI on March 22, 2012, when he was forty- three years old. (Administrative Record ("R.") at 126). Mr. Smith has a GED. (R. at 27). He worked as a Metropolitan Transportation Authority ("MTA") bus operator from January 2000 until his injury in June 2011 and has not worked since. (R. at 28, 161). Mr. Smith lives in New Jersey with his wife and fourteen-year-old daughter. (R. at 24-26).
On June 29, 2011, the plaintiff went to St. Luke's-Roosevelt Hospital Center complaining of mild to moderate left knee pain after a toaster fell on his knee at work. (R. at 221, 226). An x-ray of the knee revealed no acute fracture, no subluxation, no joint space narrowing, and no effusion. (R. at 221, 229). There was osseous productive change at the anterior patella and left tibial tubercle. (R. at 221). The plaintiff was treated with ibuprofen, diagnosed with contusion of the knee, and discharged that same day. (R. at 221-22, 227). The plaintiff was ambulatory upon discharge, and his pain level was one out of ten. (R. at 222).
On September 16, 2011, the plaintiff saw Dr. Maxim Tyorkin, an orthopedic surgeon. (R. at 327). Mr. Smith reported swelling, weakness, cracking, and popping in his left knee. (R. at 327). Physical therapy and medication "help[ed] somewhat." (R. at 327,329). Upon examination, Dr. Tyorkin noted joint pain, stiffness, muscle pain, and cramps. (R. at 328). The plaintiff was in no apparent distress, and range of motion in the left knee was 0-90 degrees (normal range was noted to be 0-140 degrees). (R. at 238). There was pain with deep flexion as well as medial joint line tenderness. (R. at 328). Ligamentous examination was grossly intact, as was the plaintiff's neurovascular status. (R. at 328). Dr. Tyorkin assessed left knee internal derangement, osteochondral lesion, and post-traumatic chondromalacia. (R. at 328). He recommended activity modification, physical therapy, anti-inflammatories, and pain management. (R. at 328). Dr. Tyorkin noted that the plaintiff was temporarily totally disabled, and the prognosis was guarded. (R. at 329).
Dr. Tyorkin noted no significant changes at an October 21, 2011 follow-up appointment. (R. at 330). The plaintiff reported minimal relief with physical therapy. (R. at 330). Dr. Tyorkin administered a hyaluronic acid injection in the left knee. (R. at 331). On January 12, 2012, the plaintiff underwent left knee arthroscopy, chrondroplasty, partial synovectomy, and medial femoral condyle microfracture. (R. at 323). The procedures were performed by Dr. Tyorkin with no noted complications. (R. at 323).
At a January 20, 2012 follow-up appointment with Dr. Tyorkin, the plaintiff was using crutches and not bearing weight on his left leg. (R. at 332). On February 17, 2012, Mr. Smith said hewas "somewhat improved" and was using a cane instead of crutches. (R. at 334). Range of motion in his left knee was 0-90 degrees, and mild effusion was present. (R. at 334). The prognosis was guarded and the plaintiff was characterized as temporarily totally disabled. (R. at 334). On March 6, 2012, he complained of continuing pain in his left knee and was using a cane and knee brace. (R. at 336). The plaintiff also noted right knee pain from increased weight bearing due to compensation for the left knee. (R. at 336). Range of motion in the left knee had improved to 0-110 degrees. (R. at 336). There was pain with deep flexion, and he had mild effusion and moderate quadriceps atrophy. (R. at 336).
At an April 20, 2012 follow-up appointment, Dr. Tyorkin noted that the range of motion in the plaintiff's left knee was 0-115 degrees and 0-130 degrees in the right knee. (R. at 338). The plaintiff also complained of elbow pain due to his use of a cane. (R. at 338). The prognosis was guarded, and the plaintiff was noted to be temporarily totally disabled. (R. at 339).
Mr. Smith returned to Dr. Tyorkin on May 25, 2012. (R. at 340). He complained of pain in both knees and was using a cane and a brace. (R. at 340). Range of motion in the left knee was 0-110 degrees and 0-130 degrees in the right knee. (R. at 340). The plaintiff returned to Dr. Tyorkin on October 5, 2012. (R. at 342). He complained of pain in both knees and was using a caneand a brace. (R. at 342). Range of motion in the left knee was 0-115 degrees. (R. at 342). There was pain with deep flexion and joint line tenderness. (R. at 342). Dr. Tyorkin administered a hyaluronic acid injection to the left knee. (R. at 342). The plaintiff was noted to have a moderate, partial disability and a poor prognosis. (R. at 343). Mr. Smith saw Dr. Tyorkin again on January 4, 2013, and May 17, 2013, with no significant changes noted. (R. at 344-47). Range of motion in his left knee had improved to 0-120 degrees in May, and he had a moderate, partial disability as related to the left knee only. (R. at 346-47).
The plaintiff attended physical therapy at Central Medical Services of Westrock ("Westrock") approximately two to three times per week from July 13, 2011, through January 6, 2014. (R. at 350-475, 482-89, 490-506). There, the plaintiff was treated by Dr. Michael Hearns1 regularly. (R. at 270). At his initial session on July 13, 2011, the plaintiff reported that his pain level was six to seven out of ten (moderate) and was present all day. (R. at 352). He described it as an aching pain, aggravated by bending, twisting, climbing, and kneeling. (R. at 352). It was relievedby lying down or taking medication. (R. at 352). Standing, walking, lifting, sitting, self-care, or repetitive movement did not aggravate the pain. (R. at 352). Upon examination, flexion and extension in the left knee were to 110 degrees (normal was noted to be 135 degrees). (R. at 351). The plaintiff tolerated his treatment well. (R. at 354).
Throughout Dr. Hearns' treatment of the plaintiff from July 2011 through January 2014, he consistently noted limitations for standing, walking, climbing, kneeling, and repetitive motions. (R. at 236-46, 251-57, 487-89, 496-506). On June 13, 2012, Dr. Hearns completed a progress report for the New York State Workers' Compensation Board. (R. at 241-42). He noted that the plaintiff was unable to work and had a 100% temporary impairment. (R. at 242).
On July 10, 2012, Dr. Hearns completed a Function Report. (R. at 270). Dr. Hearns noted that he first saw Mr. Smith on July 13, 2011, and saw him three times a month for physical therapy. (R. at 270). The plaintiff could lift and carry up to thirty pounds, stand or walk less than two hours per day, and had no limitations in sitting. (R. at 270). The plaintiff also had unspecified limitations in pushing and pulling. (R. at 270).
On July 5, 2011, the plaintiff saw Dr. Matthew Clarke, a specialist in family medicine and occupational medicine. (R. at247-49). The plaintiff complained of left knee pain and stated that he had been walking with a cane. (R. at 247). The plaintiff had also developed pain in his right knee due to compensation for the left knee. (R. at 247). His right knee pain was becoming worse than his left knee pain. (R. at 247). Upon examination, there was tenderness in both knees. (R. at 248). He had full range of motion in both knees. (R. at 248). Dr. Clarke assessed a left knee contusion and stated that the plaintiff had temporary total disability for his job as a bus driver. (R. at 248). He further noted that the plaintiff had developed right knee overuse syndrome and right knee pain, and he referred the plaintiff to physical therapy. (R. at 248). The plaintiff was to continue treating his pain with ibuprofen. (R. at 248). The prognosis was guarded, and the plaintiff was restricted from lifting, pushing, pulling, carrying, sitting, standing, walking, climbing, and kneeling. (R. at 248-49).
An MTA Work Status/Availability Checklist, completed by a physician on March 30, 2012, noted that Mr. Smith was unable to lift, push, or pull any amount of weight and could not operate a motor vehicle. (R. at 423). The plaintiff's abilities to climb and kneel were also limited. (R. at 423). No limitations in sitting, walking, twisting, or bending were reported. (R. at 423).
On May 19, 2012, Dr. Roger Daniel Ignatius, a hand and plastic surgeon, completed a progress report for the New York StateWorkers' Compensation Board. (R. at 264-67). Dr. Ignatius noted that Mr. Smith had a torn ligament, tendon, or muscle. (R. at 265). The plaintiff had reduced range of motion in his left knee and was unable to work due to his left knee injury. (R. at 266-67). The prognosis for recovery was poor. (R. at 266).
On August 10, 2012, Dr. Samuel Wilchfort conducted a consultative examination of the plaintiff. (R. at 276-77). The plaintiff reported that a toaster had fallen on his left knee in June 2011 and that he underwent an arthroscopic procedure on...
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