Nigro v. Astrue, No. 2:2010cv01431 - Document 12 (E.D.N.Y. 2011)
Court Description: MEMORANDUM AND ORDER denying 8 Motion for Judgment on the Pleadings. For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is DENIED and this matter is remanded to the Commissioner for further administrative proceedings consistent with this Memorandum & Order. 42 U.S.C. § 405(g). The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/30/2011. C/ECF (Valle, Christine)
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Nigro v. Astrue Doc. 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X ROBERT NIGRO, Plaintiff, -against- MEMORANDUM & ORDER 10-CV-1431(JS)(ARL) MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. --------------------------------------X APPEARANCES: For Plaintiff: Jonathan R. Klee, Esq. Klee & Woolf 350 Willis Avenue Mineola, NY 11501 For Defendant: Candace Scott Appleton, Esq. Robert Randolph Schriver, Esq. United States Attorney's Office Eastern District Of New York 271 Cadman Plaza East Brooklyn, NY 11201 SEYBERT, District Judge: Robert pursuant to amended, Nigro Section 42 U.S.C. (“Plaintiff”) 205(g) § of the 405(g), commenced Social this Security challenging the action Act, as Defendant Commissioner of Social Security’s (the “Commissioner”) decision that Plaintiff Pending before was the not disabled Court is judgment on the pleadings. motion is DENIED, and prior the to February Commissioner’s 9, 2009. motion for For the following reasons, this this matter is remanded to the Dockets.Justia.com Commissioner for further administrative proceedings consistent with this Memorandum & Order. BACKGROUND In this section, the Court sets necessary to put its analysis in context. forth the facts Plaintiff applied for disability insurance benefits and supplemental security income, claiming that he became disabled on March 1, 2004. Following a hearing, Administrative Law Judge Brian J. Crawley (the “ALJ”) issued a partially favorable ruling benefits as of February 9, 2009. that awarded Plaintiff On January 29, 2010, the Commissioner issued a final decision denying Plaintiff benefits for the period between March 1, 2004 and February 9, 2009. and some Plaintiff appeals that decision here. Plaintiff has a high vocational training in electronics. school diploma His prior jobs include a deli worker, a delivery van driver, a department store stockroom worker, a warehouse worker, and a vacuum salesman and repairer. (R. 94, 100.) He stopped working on March 1, 2004 because of pain in his back. (R. 23.) On his initial claim, he indicated that he was suffering persistent, right-sided, lower back pain and pain that radiated into his left thigh. He also reported dizziness that would cause him to fall occasionally. 24.) 2 (See R. I. Evidence Before the ALJ The following is a brief recitation of the evidence most relevant to the present appeal. An overview of the records available to the ALJ is summarized in the letter Plaintiff’s counsel sent to the ALJ prior to the hearing. (R. 122-24) A. Plaintiff’s Testimony Plaintiff testified about his symptoms, treatment, and daily activities. He has constant or near constant pain in his feet, left thigh, the right side of his back, and neck. The neck pain varies; “[s]ometimes it’s ok, sometimes it’s not.” (R. 30.) His left thigh starts the day numb and eventually becomes more painful than a toothache. always numb. (R. 32.) (R. 31.) His toes are Throughout the day, he gradually loses strength in his legs to the point where he cannot stand. 31.) just (R. The numbness and pain eventually become so bad that he falls down. (R. 35.) These falling episodes happen without warning, (R. 37), and they occur approximately twice monthly. (R. 39.) Plaintiff said that his pain is such that he usually cannot sleep through the night. headaches three times per week. (R. 33.) He also experiences He has discussed these with his chiropractor, but so far no one has been able to discern their cause. (R. 39.) 3 To relieve elevate his legs. the pain, Plaintiff can lie down and This sometimes works, but even then he still suffers from muscle spasms. (R. 33.) He sometimes soaks his feet in a foot massage bath, which helps relieve the pain in his foot and thigh. (R. 34.) He does not use a cane or brace. His chiropractor suggested a back strap, but Plaintiff could not get his insurance to cover the expense. (R. 35.) Plaintiff also takes prescription Motrin, which helps moderate his pain. (R. 34.) Sitting and standing aggravate Plaintiff’s condition, and his fingers lock up if he sits for too long. (R. 35). He estimated that he could not sit for more than a half hour, (R. 36), and that he could stand for approximately 20-30 minutes and walk for maybe a block and a half (R. 35). Plaintiff rents a room in a house on Long Island. Three other people live in the house, and they share a bathroom. (R. 23.) Plaintiff does not need help bathing or dressing, (R. 35), and he can lift a quart of milk (but not two quarts) (R. 37). Because he cannot sit for extended periods, Plaintiff does not drive. His friends will give him rides when necessary, but he cannot sit in a car for long. (R. 28.) B. Medical Records Plaintiff’s chiropractic treatment medical (see history R. 4 148) as reveals well as ongoing occasional consultations exhaustive and examinations description of by his medical medical doctors. records A non- includes the following reports and opinions. Dr. Frank Anderson, a chiropractor, treated Plaintiff for periods during 2004 and 2006. (See R. 129, 152-154). After a March 6, 2006 examination, he opined that Plaintiff suffered “decreased lumbar spine ranges of motion, tenderness to palpation of the lumbar paraspinal musculature (most severe on the right side), loss of sensation over the right anterolateral thigh, and a positive Kemp’s test bilaterally for moderate to severe low back pain.” Dr. Keith Plaintiff in 2006. concluded that (See R. 153.) Pastuch, another (R. 133.) Plaintiff’s chiropractor, treated On June 23, 2006, Dr. Pastuch prognosis was “guarded.” In Dr. Pastuch’s opinion, Plaintiff was not capable “of performing his normal working duties and does in fact suffer with a ‘Permanent Disability.’” (R. 133.) On December 7, 2006, Linell Skeene, M.D. performed the consultative examination for the Commissioner and Plaintiff with “disc disease of [the] lumbar spine.” diagnosed (R. 139.) Among other things, Dr. Skeene observed that Plaintiff (1) was not in acute distress; (2) was unable to walk on his heels and toes without difficulty; (3) needed no help changing for the exam or getting on and off exam table; and (4) was able to rise 5 from his chair without difficulty. (R. 138.) Dr. Skeene noted that Plaintiff’s hand and finger dexterity was intact and that his grip strength Plaintiff had was normal, “moderate (R. 139), limitation for and concluded prolonged that standing, walking and heavy lifting due to limited range of motion of lumbar spine.” (R. 140.) Bradley Cohen, M.D., examined Plaintiff on February 27, 2007, accident. shortly Dr. after Cohen Plaintiff noted that was involved Plaintiff headaches, dizziness and feeling off-balance. in a car complained (R. 167.) of His impression was that Plaintiff’s symptoms were consistent with post-traumatic headaches and vertigo, and he recommended a nerve conduction velocity study. (R. 168.) II. The ALJ’s Decision The Commissioner must apply a five-step analysis when determining if a claimant is disabled. F.3d 126, 132 (2d Cir. 2000). See Shaw v. Chater, 221 First, the claimant must not be engaged in any substantial gainful activity. 404.1520(b). See 20 C.F.R. § Second, the claimant must prove that he suffers from a “severe impairment” that significantly limits his or her mental or physical ability to do basic work activities. C.F.R. § 404.1520(c). See 20 Third, the claimant must show that his impairment is equivalent to one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 6 I. See 20 C.F.R. § Fourth, if his impairment or its equivalent is not 404.1520(d). listed in the Appendix, the claimant must show that he does not have the residual functional capacity to perform tasks required in his or her previous employment. See 20 C.F.R. § 404.1520(f). Fifth, if the claimant successfully makes these showings, the Commissioner must determine if there is any other work within the national economy that the claimant is able to perform. See 20 C.F.R. § 404.1520(g). The claimant has the burden of proving the first four steps of the analysis, while the Commissioner bears the burden of proof for the last step. making the consider: opinions required (1) of the the See Shaw, 221 F.3d at 132. determinations, objective examining medical or the Commissioner facts; treating (2) the physicians; “In must medical (3) the subjective evidence of the claimant’s symptoms submitted by the claimant, his educational Barnhart, family background, No. and others; age 02-CV-2465, and 2003 and work WL (4) the experience.” 22170596, at *8 claimant’s Boryk v. (E.D.N.Y. Sept. 17, 2003) (internal citation omitted). Here, the ALJ followed the five-step analysis. He determined that Plaintiff had not engaged in meaningful work since March 1, 2004, the alleged onset date (step one). 13.) (R. The ALJ further concluded that Plaintiff suffered the following severe impairments: “cervical and lumbosacral spine 7 sprains/strains” Plaintiff’s disabling (step impairments impairments Plaintiff’s two). residual were (step He (Id.) not among the three) and went functional capacity determined list on (step of to that per se determine four). (Id.) The ALJ concluded that Plaintiff had the residual functional capacity to perform sedentary work and that, prior to February 9, 2009, there were a significant number of jobs in the national economy that Plaintiff could have performed. (R. 17.) Following agency guidelines, the ALJ ruled that Plaintiff’s age category changed on February 9, 2009 (approximately three months before Plaintiff’s fiftieth birthday). (Id.) Taking into account the adjustments that flowed from Plaintiff’s new age category, the ALJ determined that there was not a significant number of jobs in the national economy that he could perform, given his age, education, functional capacity. (Id.) work experience and residual Accordingly, the ALJ determined that Plaintiff was not disabled during the time between his alleged onset date and February 9, 2009, but that he became disabled on that date. (Id.) In reaching his decision, the ALJ summarily discounted the opinions of Plaintiff’s chiropractors: Dr. Frank Anderson, D.C., a chiropractor, reported treatment from February to November 2004 and then resuming in March 2006, for moderate to severe low back pain as well as frequent pain and numbness in the 8 anterolateral right thigh (Exhibit 8F); reports from Dr. Keith Pastuch, D.C., a chiropractor, showed treatment from June through August 2006 and October through December 2006 (Exhibits 3F and 10F) and a report from Dr. James Benston, D.C., a chiropractor, showed treatment from June 2007 through December 2007. (Exhibit 12F). Pursuant to 20 CFR 404.1513 and 416.913, evidence from chiropractors does not constitute the evidence from the “acceptable medical sources” needed to establish a medically determinable impairment; thus, the earliest evidence from an acceptable medical source is Dr. Cohen’s report of May 22, 2006. (R. 15.) That is all the ALJ wrote concerning the records of Plaintiff’s chiropractic treatment. In evaluating Plaintiff’s testimony concerning his symptoms, the ALJ relied heavily on Dr. Skeene’s opinion that Plaintiff had limitations. normal dexterity (See R. 16.) and only moderate physical The ALJ concluded that although Plaintiff’s medically-determinable impairments could be expected to produce the claimed symptoms, the alleged severity of those symptoms was not supported with objective medical evidence. With respect to Plaintiff’s dizziness and falling spells, the ALJ concluded that there was “no objective whatsoever to substantiate” these allegations. medical evidence (R. 16.) DISCUSSION In reviewing the ruling of the ALJ, this Court will not determine de novo whether Plaintiff is in fact disabled. 9 Thus, even if the Court may have reached a different decision, it must not substitute its own judgment for that of the ALJ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (internal quotations omitted). Instead, this Court must determine whether the ALJ’s findings are supported by “substantial evidence in the record as a whole or are based on an erroneous legal standard.” Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) superseded by statute on quotations other grounds omitted). evidence exists decision will exists. See to be 20 If the support upheld, Johnson v. the even C.F.R. Court § 404.1560 finds that Commissioner’s if Barnhart, evidence 269 substantial decision, to F. (internal the Supp. 2d the contrary 82, 84 (E.D.N.Y. 2003). “Substantial evidence is such evidence that a reasonable might mind conclusion.” Id. accept as adequate to support a The substantial evidence test applies not only to the ALJ’s findings of fact, but also to any inferences and conclusions of law drawn from such facts. See id. To determine if substantial evidence exists to support the ALJ’s findings, this Court must examine the entire record, including any conflicting evidence and any evidence from which conflicting inferences may be drawn when findings are supported by substantial evidence. deciding if the See Gonzalez v. Barnhart, No. 01-CV-7449, 2003 WL 21204448, at *2 (E.D.N.Y. May 21, 2003) (internal quotations omitted). 10 “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). II. Plaintiff’s Appeal In this determination capacity appeal, that Plaintiff perform the residual that the during functional Among contends work ALJ’s between his alleged onset date and February 9, 2009. he sedentary the period things, even had challenges the other to Plaintiff ALJ’s decision was not supported by substantial evidence because the ALJ gave no weight to his chiropractors’ opinions. Sedentary work The Court agrees. involves “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket 404.1567(a); files, 20 ledgers, C.F.R. § and small 416.967. tools.” Although 20 C.F.R. sedentary § work primarily involves sitting, “a certain amount of walking and standing is often necessary in carrying out job duties.” C.F.R. § 404.1567(a); 20 C.F.R. § 416.967. 20 As discussed above, Dr. Anderson found that Plaintiff suffered numbness to his thigh and severe Plaintiff lower was not back pain. capable of Dr. Pastuch performing 11 his concluded normal that working duties.1 In the Court’s view, these findings contradict Dr. Skeene’s findings and tend to corroborate Plaintiff’s version of his symptoms. The ALJ ignored these reports--and virtually every other piece of evidence from Plaintiff’s chiropractors, who appear from the record to have had a treating relationship with Plaintiff (see R. 15)-- without explaining why. Although the ALJ need not “reconcile explicitly every conflicting shred of medical testimony,” he may not unreasonably reject all Colling v. Glover v. of the Barnhard, Barnhart, (N.D.N.Y. 2009). medical evidence 245 Fed. Appx. No. 06-CV-0195, in Plaintiff’s 87, 88 2009 WL (2d Cir. 35290, favor. 2007); at *10 And, though chiropractors are not “accepted medical sources” whose opinions are entitled to controlling or even special weight, the ALJ should have considered Plaintiff’s chiropractic records. See Mortise v. Astrue, 713 F. Supp. 2d 111, 126 (N.D.N.Y. 2010); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010); Carlantone v. Astrue, No. 08-CV-7393, 2009 WL 2043888, at *5 (S.D.N.Y. July 14, 2009) (“The opinions of chiropractors, however, are acceptable to show the severity of . . . [claimant's] impairment[s]. Therefore, the ALJ should consider the opinions of Dr. Hall and Dr. Sonn and explain what weight he gives 1 those opinions.” (internal Inasmuch as Plaintiff was not working at the time of this exam, it is not clear to what “normal working duties” Dr. Pastuch was referring. 12 quotation marks and citations omitted)); see also Figueroa v. Astrue, No. 04-CV-7805, 2009 WL 4496048, *12 n.5 (S.D.N.Y. Dec. 3, 2009) (citing SSR 06-3p, 2006 WL 2329939 (S.S.A. Aug. 9, 2006)). How much weight to give their opinions is within the ALJ’s discretion, but he may not flatly reject them without See Mortise, 713 F. Supp. 2d explaining his basis for doing so. at 126; Carlantone, 2009 WL 2043888, at *5; c.f. Figueroa, at *12 (upholding ALJ’s decision to give chiropractor’s opinion where the ALJ chiropractor’s and physician’s “minimal weight” to that the explained opinions conflicted). Accordingly, the Commissioner’s decision cannot stand. On chiropractic remand, in records, addition the to Commissioner considering should Plaintiff’s take care to consider all of the evidence concerning Plaintiff’s dizziness and falling spells. that there was The Court notes that the ALJ’s conclusion no evidence substantiating Plaintiff’s allegations of dizziness and falling, (R. 16), is belied by Dr. Cohen’s observation that Plaintiff’s symptoms were consistent with vertigo (R. 168). CONCLUSION For the foregoing reasons, the Commissioner’s motion for judgment remanded to on the the pleadings is Commissioner DENIED for and further this is administrative proceedings consistent with this Memorandum & Order. 13 matter 42 U.S.C. § 405(g). The Clerk of the Court is directed to mark this case CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 30 , 2011 Central Islip, New York 14
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