Blake v. Commissioner of Social Security
MEMORANDUM DECISION AND ORDER that plaintiff's 11 Motion for Judgment on the Pleadings is GRANTED; and the Commissioner's 12 cross-motion for Judgment on the Pleadings is DENIED. The case is remanded. The ALJ shall properly construe and consider the medical opinions regarding plaintiffs knee and back pain and determine plaintiffs RFC accordingly. ( Ordered by Judge Brian M. Cogan on 11/16/2015 ) *Forwarded for jgm (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM DECISION AND
- against : ORDER
COMMISSIONER OF SOCIAL SECURITY,
: 15 Civ. 0001 (BMC)
COGAN, District Judge.
Plaintiff Leslie Blake brings this action pursuant to 42 U.S.C. § 405(g) to appeal the final
decision made by the Commissioner of Social Security (the “Commissioner”), which found that
plaintiff is not disabled, and, therefore, not entitled to disability insurance benefits under Title II
of the Social Security Act (“the Act”). Plaintiff has moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and the Commissioner has crossmoved for judgment on the pleadings. As detailed below, plaintiff’s motion is granted, and the
Commissioner’s cross-motion is denied. The case is remanded to the Commissioner for further
proceedings consistent with this opinion.
Plaintiff applied for disability insurance benefits on January 3, 2012, alleging disability
since January 10, 2011 due to spinal disease and injuries to both knees and his right shoulder. A
hearing was held before an Administrative Law Judge (the “ALJ”), at which plaintiff appeared
with counsel and testified. The ALJ denied plaintiff’s claim, finding that plaintiff could perform
a range of light work and therefore was not disabled, and had not been disabled for any period
since January 10, 2011. The Appeals Council denied plaintiff’s request for review, and this
Plaintiff was 54 years old at the time of the hearing before the ALJ. He had a high school
education and spoke fluent English. Plaintiff worked as a construction electrician for over thirty
years, until the time of his work-related shoulder injury in January 2011, and had not had
significant employment since that injury. Plaintiff testified that he suffered from pain in his right
shoulder, both knees, and his back.
Plaintiff underwent surgery on his right shoulder in August 2011, after which he
continued to experience limitations, in particular difficulty reaching, pushing, pulling, or lifting.
In February 2012, plaintiff was told by an orthopedic surgeon that he may need further revision
surgery, but plaintiff did not want to undergo a second surgery after the first one had been
Plaintiff testified that he still had limited mobility in his right shoulder and that he could
not reach, pull, or lift anything heavy with his right shoulder or lift his arm above shoulder level,
and only feels comfortable lifting eight to ten pounds. Plaintiff rated his right shoulder pain as
five to eight out of ten.
In addition to shoulder pain, plaintiff testified that he suffered from back pain and knee
pain. His back pain prevented him from lifting heavy weight; plaintiff testified he felt significant
pain, though it was unclear whether he felt pain all the time or only when lifting heavy objects.
Plaintiff had an epidural one time for his pain, but testified he did not go back because the shot
was administered without sedation and he could not undergo the pain of the procedure.
Prior to his work injury, plaintiff also suffered from knee pain, and underwent surgery on
his knees in 2009. Plaintiff stated that his knee pain had prevented him from standing or walking
for longer than thirty minutes without a break. Plaintiff’s knee pain appeared to be rooted in the
loss of cartilage in his knees after surgery.
Plaintiff took hydrocodone twice daily to treat all of his pain, but testified it did not
relieve his pain entirely. He lived at home with his wife and two children. Although plaintiff did
not require special help, he had limitations with most physical activities. His wife cared for the
children and prepared plaintiff’s meals.
Medical Evidence of Knee and Back Pain
Plaintiff conceded that he had not sought treatment for his knee pain since 2011.
Plaintiff, however, reported that he had knee surgeries on both knees and physical exams
revealed healed arthroscopic portal scars on plaintiff’s knees. As to plaintiff’s back, plaintiff
reported to an orthopedic consultant that he had a back injury at work in 2001, and that he was
treated for this condition with prescription medications and physical therapy in the past. Plaintiff
also reported that he underwent a lumbar spine MRI, but no MRI report appeared in the record.
A. Treating Physicians
Dr. Mark Decker and Dr. Lowell Barek reviewed an MRI done of both knees in March
2009. They diagnosed the right knee with a congenital condition whereby the kneecap is made
from two bones instead of one, with a lateral dislocation and high-riding patella, with full
thickness cartilage loss over the lateral patellar facet. The left knee was diagnosed with a highriding patella with lateral dislocation, significant cartilage loss in the lateral patella and apex, and
distal patellar tendonitis. Dr. Decker and Dr. Barek did not find a meniscal tear on either knee.
It is unclear whether the knee surgeries reported by plaintiff took place after the MRI or whether
more recent MRIs were done.
Plaintiff saw Dr. Mathew Lefkowitz on September 17, 2012 with a chief complaint of
low back pain. The doctor noted a twelve year history of progressively worsening low back
pain, and the failure of a conservative treatment which included prescription pain relievers and
physical therapy. Plaintiff had previously consulted with a chiropractor, acupuncturist, and
physical therapist. Dr. Lefkowitz diagnosed a lumbar sprain, lumbosacral spondylosis without
myelopathy, and lumbago, and recommended joint injections. Plaintiff returned on September
20, 2012 for lidocaine injections but declined to receive steroid injections. Plaintiff reported
80% relief ten minutes after the injections. Dr. Lefkowitz prescribed physical therapy and
recommended that plaintiff return in two weeks for a follow up appointment.
Plaintiff returned on October 15, 2012 reporting pain when sitting and reclining. Plaintiff
reported 60% relief lasting several days post-injection. Dr. Lefkowitz instructed plaintiff to
continue physical therapy and prescribed a topical medication.
B. Consulting Physicians
The Division of Disability Determination referred plaintiff to Dr. Vinod Thurkal for an
internal medicine examination on March 14, 2012. In addition to the shoulder injury, plaintiff
reported to Dr. Thurkal that he had a work-related injury involving meniscus tears to both knees
in 2009. Plaintiff continued to experience knee pain after surgery, which plaintiff stated was
precipitated by standing for a long time, walking, and going up and down stairs. During the
examination, plaintiff refused to squat due to knee pain.
Plaintiff also reported lower back pain, but denied any injury. Plaintiff stated to Dr.
Thurkal that the pain was sharp and continuous, a 10 out of 10, which was precipitated by
standing for a long time, bending, lifting, and going up and down the stairs. Plaintiff reported
relief to his knees and back with rest and pain medication. Dr. Thurkal gave plaintiff a “fair”
prognosis. He found that plaintiff had “no limitations for sitting, standing, or bending, but mild
limitations for pulling, pushing, lifting, carrying, or any other such related activities due to
multiple joint pains as depicted [in the report].”
Dr. Louis Tranese performed an orthopedic consultative examination in March 2013. Dr.
Tranese examined plaintiff and found that plaintiff’s right shoulder had a limited range of
motion. Plaintiff had also complained of lower back pain, and frequent but episodic bilateral
knee pain, with greater pain in the left knee than the right. Plaintiff reported that there was
increased pain with stair climbing, walking long distances, standing extended periods, and
squatting or kneeling. Plaintiff also noted that his back and knee pain are relieved moderately
with prescription pain medication, position changes, and rest. In her report, Dr. Tranese stated
that plaintiff had “moderate restrictions at this time with heavy lifting,” “mild restrictions with
frequent squatting and repetitive bending,” and may have had “minimal restrictions with frequent
stair climbing, walking extended distances, and standing for long periods.”
Dr. Tranese’s “Medical Source Statement Of Ability To Do Work-Related Activities
(Physical)” found that plaintiff could walk for one hour at a time, for a total of five hours per
eight-hour work day, and sit for three hours at a time, for a total of seven hours per eight-hour
work day. In addition to the limitations for overhead reaching and pushing and pulling with the
right shoulder, Dr. Tranese reported that plaintiff could only occasionally climb ladders or
scaffolds, or crawl, and could frequently (accounting for 1/3 to 2/3 of the day) climb stairs and
ramps, stoop, kneel, and crouch. Dr. Tranese noted that these limitations had lasted or would last
for twelve consecutive months.
Plaintiff alleges that the ALJ’s decision was not supported by substantial evidence and
that the ALJ did not follow the correct relevant legal principles in concluding that plaintiff was
not disabled. Principally, plaintiff argues that the ALJ failed to consider the limitations caused
by plaintiff’s back and knee problems in determining plaintiff’s residual functional capacity
(“RFC”), making the hypothetical given to the vocational expert (the “VE”) deficient.1 Plaintiff
also argues that, because he was 55 years old at the time of the Appeals Council’s decision on
December 9, 2014, he was of “advanced age” under the Act, and the matter should have been
remanded to the ALJ to reconsider that factor.
Standard of Review
A district court may set aside the ALJ's determination that a plaintiff is not disabled “only
if the factual findings are not supported by ‘substantial evidence’ or if the decision is based on
legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted).
“Substantial evidence” is “more than a scintilla” and “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). An evaluation of the “substantiality of the evidence
must also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). If there is substantial evidence in the record to support the
Commissioner's factual findings, they are conclusive and must be upheld. 42 U.S.C. § 405(g);
see also Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). In reviewing the ALJ’s decision and
the administrative record, a district court may not “substitute its own judgment for that of the
Plaintiff also argues that the ALJ did not consider limitations to pushing and pulling with plaintiff’s dominant right
arm, and therefore did not incorporate it into the hypothetical. This allegation is incorrect, as the finding as to RFC
stated that plaintiff was “precluded from using his right arm for pushing and pulling,” and this limitation was
included in the hypothetical for the VE.
ALJ, even if it might have reached a different result upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991).
The claimant bears the general burden of proving disability. Burgess, 537 F.3d at 128.
A claimant is disabled within the meaning of the Social Security Act if he has an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be of “such severity that he is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” Id. § 423(d)(2)(A). The Commissioner must consider “the combined effect of all of
the individual's impairments without regard to whether any such impairment, if considered
separately, would be of such severity.” Id. § 423(d)(2)(B).
The Social Security Administration (“SSA”) has promulgated a five step analysis
whereby the ALJ must make a finding of disability if she determines: “(1) that the claimant is not
working, (2) that he has a ‘severe impairment,’ (3) that the impairment is not one [listed in
Appendix 1 of the regulations] that conclusively requires a determination of disability, . . . (4)
that the claimant is not capable of continuing in his prior type of work, . . . [and] (5) there is not
another type of work the claimant can do.” Burgess, 537 F.3d at 120; see also 20 C.F.R. §
404.1520(a)–(g). The claimant bears the burden of proof at steps one through four; at the step
five, the burden shifts from the claimant to the Commissioner, requiring the Commissioner to
demonstrate that there is other work in the national economy that the claimant can perform.
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
When determining a claimant's RFC at step four, the ALJ is required to take the
claimant’s reports of pain and other limitations into account, but is not required to accept the
claimant’s subjective complaints without question. See 20 C.F.R. § 416.929; Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ may exercise discretion in weighing the credibility of
the claimant’s testimony in light of the other evidence in the record. Genier, 606 F.3d at 49. In
doing so, the Act’s regulations provide a two-step process. At the first step, the ALJ must decide
whether the claimant suffers from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant does suffer
from such an impairment, the ALJ must consider at the second step “the extent to which [the
claimant's] symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence” of the record. 20 C.F.R. § 404.1529(a).
a. Plaintiff’s Knee and Back Pain
Plaintiff argues that the determination of plaintiff’s RFC was not supported by substantial
evidence, and the VE was therefore given an inadequate hypothetical from which to form an
opinion about the ability of plaintiff to work. Specifically, plaintiff argues that the ALJ
incorrectly failed to include limitations in the VE hypothetical relating to plaintiff’s knee and
The ALJ determined that plaintiff had not engaged in substantial gainful activity since
January 10, 2011, the alleged onset date, and that plaintiff suffered from "severe impairments"
relating to a right shoulder labral tear (status post-surgical intervention); lumbar
sprain/lumbosacral spondylosis without myelopathy; lumbago; and bilateral knee impairment.
The ALJ stated that, “because of the residual effects from [plaintiff’s] prior knee surgery
and his back pain” the plaintiff was “limited to light work.” The ALJ found that plaintiff had the
to perform light work . . . except that he can only use his right dominant arm
occasionally to reach no higher than shoulder level and/or to reach in front of his
body. He is precluded from using his right arm for pushing and pulling. He is
limited to occasionally lifting and carrying no more than a docket file, ledger, or
small tool with his right arm. He is able to handle, finger, feel, grasp, and turn
with the right hand. He has no limitations using his left arm and hand. He is
precluded from working at heights, climb[ing] ladders or scaffolds, and should
avoid operating heavy machinery.
In reaching her decision as to plaintiff’s RFC, the ALJ considered the findings of
plaintiff’s treating and consulting doctors and determined the credibility of plaintiff’s own
testimony. In particular, the ALJ gave significant weight to the examination results of Dr.
Tranese and one statement by Dr. Thurkal relating to “light duty.” The ALJ stated that plaintiff’s
“statements concerning the intensity, persistence and limiting effects of [plaintiff’s back and
knee pain] symptoms are not entirely credible.” The ALJ stated that the medical evidence, while
supporting a finding of some shoulder limitations, did not support any serious limitations caused
by low back pain or knee impairments. The ALJ stated that this was supported by the
consultative examinations and further supported by the fact that plaintiff had not sought
treatment for any knee problems since 2011, and had not sought any treatment for shoulder pain
In making her findings, the ALJ committed several legal errors. First, the ALJ must
consider all of the plaintiff’s limitations as a whole, even if plaintiff’s knee and back pain alone
would not support a finding of disability. See 42 U.S.C. § 423(d)(2)(B). Second, as a matter of
law, "[j]ust because plaintiff's disability went untreated does not mean he was not disabled."
Shaw v. Chater, 221 F.3d 126, 133 (2d Cir. 2000). In addition, plaintiff in fact testified that he
had been taking prescription pain medication orally to treat all of his pain. The ALJ erred in
considering these symptoms in isolation and in placing significance on the fact that plaintiff had
not sought further treatment for knee pain without properly considering other facts in the record.
As to whether the medical evidence and examinations supported the RFC, the ALJ’s
findings are not supported by substantial evidence in the record. The record included evidence
of knee surgeries and an MRI that shows plaintiff had a significant loss of cartilage in one knee
and full-thickness cartilage loss in the other. Plaintiff was diagnosed with back and knee pain
and, to the extent that the objective evidence supported such an opinion, those opinions should
not have been disregarded. The orthopedic consultative examiner for the State Agency, Dr.
Tranese – whom the ALJ noted provided “a very detailed opinion” and to whose opinion the ALJ
afforded significant weight – noted that the plaintiff could not walk for more than one hour at a
time, or stand for more than three hours at a time. The ALJ’s opinion stated only the total hours
that the claimant could walk or stand in a workday, without any regard to the records implying
that claimant would need to rest rather than do those activities completely; therefore, it is unclear
whether these limitations were considered in the ALJ’s determination that plaintiff could perform
Lastly, the ALJ mischaracterized one treating physician’s opinion as supporting a finding
for light work. The ALJ stated that Dr. Sekhon, who treated plaintiff for his shoulder injury,
“did not rule out light duty” and later stated that plaintiff’s “treating orthopedic physician found
the claimant was limited to light work and this was given significant weight based on the
continuity of the treating relationship.” The latter statement is incorrect, and the former also
appears to misunderstand Dr. Sekhon’s diagnosis, which was that plaintiff was unable to return
to his job because no light duty was available as a construction electrician. Even if Dr. Sekhon’s
diagnosis was written with the SSA’s definition of “light work” in mind – and there is no
evidence that it was – such a conclusion is reserved for the ALJ after reviewing objective
medical evidence and opinions as to plaintiff’s medical abilities and limitations. In sum, the ALJ
“erred because the determination did not comply with the ALJ's obligation to consider all of the
relevant medical and other evidence.” See Padula v. Astrue, 514 F. App'x 49, 51 (2d Cir. 2013)
(internal citation omitted).
Had the ALJ properly considered the limitations to plaintiff’s knees and back, she may
have determined plaintiff’s RFC differently. The Act notes that, “[e]ven though the weight lifted
may be very little, a job is in [the light work] category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of arm or
leg controls.” 20 C.F.R. § 404.1567(b). Further walking or standing limitations may have
necessitated a finding of light work with further limitations, or a finding of sedentary work –
either of which could have resulted in a finding of disability. Notably, of the hypotheticals
submitted to the VE, only one resulted in an individual able to perform unskilled work with jobs
available in the national economy, and the ALJ ultimately determined that hypothetical to be
Finally, the ALJ determined that plaintiff was not entitled to a closed period of disability
benefits, stating merely that plaintiff’s “motion was considered but is found to be without merit.”
To the extent that this finding was based on the same errors as noted above, it is not supported by
substantial evidence in the record.
b. Plaintiff’s Age
Plaintiff also argues that, because the Appeals Council issued its decision on December 9,
2014, plaintiff was 55 years old, making him a person of “advanced age.” Plaintiff argues that
factoring in his advanced age on the date of the Appeals Council decision would have resulted in
a finding that plaintiff was disabled. Plaintiff argues that ignoring plaintiff’s age was improper,
and that the Appeals Council could have decided plaintiff was disabled or, at the very least,
could have remanded the matter to the ALJ for consideration of the effect of plaintiff’s age.
The SSA has issued regulations regarding the consideration of a claimant's age as a
vocational factor. The SSA
will not apply the age categories mechanically in a borderline situation. If [a
claimant] [is] within a few days to a few months of reaching an older age
category, and using the older age category would result in a determination or
decision that [the claimant] [is] disabled, [the SSA] will consider whether to use
the older age category after evaluating the overall impact of all the factors of [the
20 C.F.R. §§ 404.1563(b), 416.963(b). Other Circuits have held that the appropriate date for
analyzing a borderline situation is the last day of the plaintiff’s insured status before the
adjudication date. See, e.g., Byers v. Astrue, 506 F. App'x 788, 791 (10th Cir. 2012); Lockwood
v. Comm'r Soc. Sec. Admin., 616 F.3d 1068 (9th Cir. 2010). Plaintiff was born on May 7, 1959,
and the ALJ issued her decision on October 18, 2013, making plaintiff approximately 54 years
and 5 months old.
How close a claimant must be in age to qualify for the higher age range varies and
includes a consideration of various factors, including previous work experience. Compare Van
Der Maas v. Comm'r of Soc. Sec., 198 F. App'x 521 (6th Cir. 2006) (55 days shy of birthday not
considered borderline in light of other factors) with Phillips v. Astrue, 671 F.3d 699 (8th Cir.
2012) (four months shy of birthday considered borderline). In the instant case, the ALJ found
that plaintiff could perform a reduced range of light work, and that the claimant was fluent in
English and had a high school education. Further, although the ALJ’s decision noted the
plaintiff’s age at the onset of the shoulder injury, the ALJ’s hypothetical for the VE included the
plaintiff’s birthday, such that the VE could correctly consider plaintiff’s current age as a
vocational factor. Thus, the ALJ properly did not mechanically rely on the guidelines but instead
relied on the VE as to whether jobs existed in the national economy for an individual with
plaintiff’s age, education, work experience. Therefore, placing plaintiff in the “approaching
advanced age” category was not error.
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings is GRANTED
and the Commissioner’s cross-motion for judgment on the pleadings is DENIED. The case is
remanded. The ALJ shall properly construe and consider the medical opinions regarding
plaintiff’s knee and back pain and determine plaintiff’s RFC accordingly.
Digitally signed by Brian
Dated: Brooklyn, New York
November 16, 2015
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