Stewart v. Colvin
| Decision Date | 23 February 2015 |
| Docket Number | 12-CV-5695 (SJF) |
| Parties | RICHARD STEWART, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff seeks review of the unfavorable Notice of Decision ("Decision") of the Commissioner of Social Security ("Commissioner") denying his request for social security disability benefits. The Commissioner and plaintiff have filed cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, the Commissioner's motion is DENIED and plaintiff's motion is GRANTED in part and this case is remanded for further findings consistent with this Opinion.
Plaintiff was born in December 1958 and was fifty (50) on his alleged disability onset date and fifty-two (52) as of the date of the Administrative Law Judge's ("ALJ") decision denying benefits. Tr. 102, 225.1 Plaintiff has a high school education. Tr. 234, 524. From 1987 to 2009, plaintiff was employed as a fire fighter for the New York City Fire Department ("FDNY"). Tr. 230, 247-49, 275. Plaintiff fell and injured his neck at work on April 16, 2008 and was placed on desk duty answering telephone calls, which he allegedly became unable toperform as of January 16, 2009. Tr. 229, 525-28, 537. On January 29, 2009, plaintiff was declared disabled and granted "accident disability retirement" by the FDNY based upon his neck injury. Tr. 220-22.
Plaintiff alleges that since his cervical injury, he has experienced a constant stabbing pain in his neck, back and right shoulder and arm along with tingling in his fingers. Tr. 244. He also alleges that his left bicep is easily fatigued and that he experiences weakness in both arms. Tr. 244, 260. As a result of the injury, plaintiff claims he has problems sleeping, awakens during the night due to pain, and is unable to lift heavy objects, look upwards, exercise, perform chores around the house or do yard work. Tr. 237, 239-41. He also alleges that bending over or lifting his arms above his head is painful. Tr. 237. Plaintiff is able to bathe, dress, take care of his personal needs, prepare simple meals with his wife's assistance, drive short distances and go outside by himself approximately three (3) times per week. Tr. 238-39. At his February 28, 2011 hearing before the ALJ, plaintiff testified that he takes Oxycodone twice a day for pain and reported that it helps "somewhat." Tr. 534. Plaintiff evaluated his pain at a six (6), or an eight (8) without medication, on a scale of ten (10). Id.
Plaintiff can walk for fifteen (15) minutes (Tr. 242), sit for approximately an hour and stand for an hour. Tr. 531-532. Plaintiff's pain makes it difficult for him to concentrate and affects his memory, but he can follow instructions. Tr. 242-43. Plaintiff socializes by telephone five (5) time per week for short periods and enjoys conventional relationships with family, friends, neighbors and others. Tr. 241.
According to plaintiff's FDNY medical records dated August 1, 2007 through February15, 2009, plaintiff was treated for cervical and right arm pain with medications such as Oxycodone, Vicodin and Motrin and had three (3) relatively unsuccessful cervical epidural injections. Tr. 346-66. On May 31, 2008, however, plaintiff stated that the injection helped his condition (Tr. 358) and on August 23, 2008, that the radiculopathy and neuropathy had improved with physical therapy and pain management (Tr. 353).
On April 20, 2008, magnetic resonance imaging ("MRI") of plaintiff's cervical spine showed: (1) a lateral herniated disc at C5-C6 on the right side involving the right neural foramen; (2) a small focal central herniated disc at C4-C5; (3) a bulging disc at C6-C7; (4) degenerative disc disease from C2 to T1: and (5) straightening of the normal cervical lordotic curve. Tr. 301.
Treatment notes, dated May 20, 2008 through September 17, 2009, by Noah Finkel, M.D., one of plaintiff's treating doctors, show that plaintiff was treated for cervical pain. Tr. 379-91. On May 20, 2008, plaintiff told Dr. Finkel that on April 16, 2008, he had fallen on the job when he slipped on oil while lifting his fireman's mask. Tr. 389. Upon physical examination, Dr. Finkel noted decreased: (1) neck extension; (2) range of motion of the cervical spine, especially with right lateral rotation; and (3) range of motion of right and left lateral bending- the left side was stiffer than the right. Id. Plaintiff demonstrated fairly good forward flexion, although he did complain of pain. Id. Plaintiff demonstrated 5/5 motor power in his bi-lateral upper extremities, except for right grip strength which was approximately 4+/5. Id. Plaintiff complained of tingling to light touch on the dorsolateral aspect of the forearm, thumb, index and volar aspect of the index finger. Id. There was a 2+ deep tendon reflex present at the left triceps, bilateral biceps and bilateral brachioradialis tendons. Id. Dr. Finkel was unable to elicit deep tendon reflex at the right triceps tendon and noted a 2+ radial pulse bilaterally and anegative Hoffman sign. Id. Plaintiff demonstrated significant tightness with palpitation of the cervical spine musculature and the trapezius muscles bilaterally, more so on the left than the right, and there was no specific tenderness with palpitation over the cervical spine itself. Id. Dr. Finkel prescribed Oxycodone and started plaintiff on a Decadron taper. Id.
On June 18, 2008, following one (1) epidural steroid injection, plaintiff reported that his neck pain significantly decreased and that pain and tightness in the triceps area had diminished. Tr. 390. Tingling in plaintiff's right hand remained unchanged and he reported episodes of lightheadedness when his neck was in certain positions. Id. Upon examination, plaintiff had improved mobility in his cervical spine; 5/5 grip strength; and 5/5 motor power overall in his bilateral upper extremities. Id. Plaintiff continued to experience decreased sensation to light touch in his right hand. Id.
On July 16, 2008, plaintiff reported that although he experienced no improvement after his second epidural steroid injection, his condition improved with his third injection. Tr. 388. The treatment notes indicate that plaintiff's bouts of lightheadedness had decreased and that the loss of sensation in his right hand had become more intermittent, but he continued to experience significant neck pain. Id. Upon examination, plaintiff appeared more comfortable, with better mobility, including a 5/5 motor power in bilateral upper extremities and a slight decreased sensation to light touch globally in his right hand. Id.
On August 20, 2008, plaintiff continued to complain of tingling in his fingers, pain in his neck and upper back region and increased weakness in his right upper extremity. Tr. 386. Plaintiff reported that although the epidural steroid injections were initially helpful, the relief did not last. Id. Upon examination, plaintiff had significant atrophy of the triceps muscle, weaknesswith right elbow extension and, on the left, wrist and thumb extension weakness. Id. Otherwise, plaintiff had good strength in his bilateral upper extremities. Id. Dr. Finkel noted that plaintiff needed to work on strengthening his weak muscles and advised plaintiff to stop smoking before considering surgical intervention on his spine. Id.
On September 23, 2008, plaintiff continued to complain of weakness in his left upper extremity and his condition remained relatively the same despite some progress with the steroid injections. Tr. 384. Upon examination, plaintiff demonstrated improved mobility in the spine but continued to have weakness in the right triceps muscle. Id.
In October 2008, Paul Kuflik, M.D., of the Spine Institute of New York, examined plaintiff. Tr. 419. His report indicated that plaintiff had had a herniated disc at C5-6 on the right for six (6) months and that he had been treated with epidural steroid injections, physical therapy and pain management, but that his symptoms persisted. Id. Upon examination, plaintiff had restricted motion of his cervical spine and an absent brachioradialis reflex on the right. Id. Dr. Kuflik determined that plaintiff's condition would not improve without surgery and noted that surgical intervention "is a quality of life" decision and plaintiff "certainly could accept to live with this if his symptoms are not all that bad," however, with or without surgery, plaintiff would not be able to return to work as a firefighter. Id.
Also in October 2008, Dr. K. J. Kelly, Chief Medical Officer for the FDNY Bureau of Health Services, advised the Fire Commissioner that upon examination and review of Dr. Kuflik's report and other medical evidence, the medical committee deemed plaintiff permanently unfit for firefighting duties. Tr. 447. The examination conducted by the board stated the following: (1) plaintiff is a well-developed 49 year-old man who appears in no acute distress whowas able to walk into the examination room and sits and stands without difficultly; (2) examination of his cervical spine demonstrated normal alignment; (3) plaintiff was able to move his neck in a functional range of motion but has certain degrees of pain when he extends his neck or laterally rotates to the right side; (4) neurological function of upper extremities demonstrates no loss of strength to the biceps, triceps, grip strength, wrist extensors or flexors; (5) normal sensation to light touch in the upper extremities; plaintiff reports some tingling in the fingertips of his right hand; (6) a negative Hoffman test, with no pathology reflexes noted and intact grip strength; and (7) no upper motorneuron signs and no hyperreflexia. Tr. 446. The board's diagnosis was cervical radiculopathy without neurological deficit at the C5-6 level due to a peripheral hernia...
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