Gentry v. Astrue
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 12 Commissioner's Motion for Judgment on the Pleadings; and remanding the case for the calculation of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/19/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MATT E. GENTRY,
Plaintiff,
12-CV-1040(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Matt E. Gentry ("Plaintiff"), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security
(“the
Commissioner”)
denying
his
application
for
Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Dkt. ##10, 12.
BACKGROUND
On December 18, 2008, Plaintiff filed an application for DIB
alleging disability beginning October 13, 2008, due to herniated
nucleus
pulposus
of
the
spine
with
neural
impingement,
radiculopathy, and radiculitis. T. 95, 105. His application was
1
Carolyn M. Colvin is automatically substituted for the
previously named Defendant Michael Astrue pursuant to Fed.R.Civ.P.
25(d). The Clerk of the Court is requested to amend the caption
accordingly.
initially denied, and Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). T. 9.
Plaintiff appeared with counsel before ALJ William M. Weir in
Buffalo, New York on October 6, 2010. T. 25-51. Following the
hearing, the ALJ found: (1) Plaintiff did not engage in substantial
gainful activity since October 13, 2008; (2) he had the severe
impairments of lumbar disc herniation and radiculitis; (3) his
impairments did not meet or equal the Listings set forth at
20 C.F.R. 404, Subpart P, Appx. 1, and that he retained the
residual functional capacity to perform the full range of light
work; (4) Plaintiff could not perform his past relevant work; and
(5) there was other work that existed in significant numbers in the
national economy that Plaintiff could perform. Applying MedicalVocational
Rules
202.21
and
202.14,
the
ALJ
concluded
that
Plaintiff was not disabled under the Act. Id.
An unfavorable decision was issued on October 21, 2010. T. 1324. The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on March 5, 2012. T. 1-5. This action followed. Dkt.#1.
Plaintiff now moves for judgment on the pleadings arguing that
the ALJ’s decision was flawed because: (1) Plaintiff’s spinal
impairments met or medically equaled Listing 1.04A; (2) the RFC
finding was based upon factual and legal error; and (3) Social
2
Security Ruling (“SSR”) 96-7p was not followed in the credibility
evaluation. Pl. Mem. (Dkt. #11) 17-24.
The Commissioner has filed a cross-motion asserting that
substantial evidence supports the ALJ’s decision that Plaintiff was
not disabled during the period at issue. Comm’r Mem. (Dkt.#12-1).
DISCUSSION
I.
General Legal Principles
A. Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
B.
Standard for Disability Claims
In order to receive disability benefits, a claimant must
become
disabled
while
he
still
meets
the
insured
status
requirements of the Act and the regulations promulgated by the
Social Security Administration. Arone v. Bowen, 882 F.2d 34, 37–38
(2d Cir. 1989). “Disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment ... which has lasted or
3
can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration has established a five-step
sequential
evaluation
for
determining
whether
a
claimant
is
disabled within the meaning of the Social Security Act. 20 C.F.R.
§ 404.1520. The Commissioner must determine: (1) whether the
claimant is engaged in substantial gainful activity; (2) whether
the claimant has a severe impairment; (3) whether the impairment
meets or medically equals an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 and meets the duration requirement such
that the claimant is per se disabled;2 (4) whether the claimant has
the residual functional capacity (“RFC”) to perform his past work;
and (5) whether the claimant has the RFC to do any other work, in
light of his age, education, and work experience. 20 C.F.R. § 404.
1520(a)(4)(i)-(v).
II.
Medical Evidence
Approximately one year after Plaintiff suffered a work injury
while pushing heavy equipment, he underwent a magnetic resonance
imaging (“MRI”) of the lumbar spine on December 5, 2008, which
revealed degenerative disc disease at T11-12 and L3-4 through L5-S1
2
If the claimant's impairment “meets or equals” one of the
listed impairments, she is per se disabled irrespective of her “age,
education, and work experience,” and the sequential evaluation stops.
20 C.F.R. § 404.1520(d).
4
and left foraminal disc herniations and L3-4 and L4-5 with right
paracentral broad-based disc protrusion at L5-S1. T. 176-77.
Plaintiff saw Dr. Cameron B. Huckell, a spine specialist, on
January 12, 2009. T. 192-97. He reported radiating pain in his left
lower back that ranged from 5 to 7/1 and burning sensation in the
left anterior thigh. T. 193. Plaintiff had been continuously
working until his position was terminated in October, 2008. T. 195.
Upon examination, Plaintiff had normal gait, paravertebral
muscle rigidity, reduced lumbar range of motion by 10-20 degrees,
full strength in the extremities, positive straight leg raise,
normal deep tendon reflexes, and intact sensation. T. 194. Dr.
Huckell noted that the MRI from the previous month showed leftsided foraminal disc herniation at L3-L4, mild disc bulge at L4-L5
with a small left-sided disc herniation, and a right-sided central
disc herniation at L5-S1. Id. Additionally, an x-ray of the lumbar
spine taken
that
day showed
narrowed disc
spacing
at
L5-S1,
satisfactory bone quality, and no evidence of spondylolysis or
spondylolisthesis. Id. Diagnoses were herniated disc of the lumbar
spine
without
myelopathy,
lumbar
radiculitis,
and
lumbar
degenerative disc disease. T. 195. Dr. Huckell recommended lumbar
epidural injections and requested authorization from Plaintiff’s
Workers’ Compensation carrier. Id.
On March 10, 2009, a
Functional Capacity Evaluation was
conducted by Mary Orrange, an occupational therapist. T. 188-91.
5
Plaintiff’s physical examination showed limited range of motion
forward trunk flexion to 50 degrees. T. 188. He reported his pain
ranged from 3 to 7/10, and did not demonstrate physical signs that
pain was present during testing. T. 188-89. Ms. Orrange concluded
that Plaintiff was able to perform light to medium physical demand
level work, with a mild limitation in postural activities such as
rotation in standing and standing bent forward; mild limitation in
kneeling; and below average right grip strength. T. 188-89.
Plaintiff
returned
to
Dr.
Huckell
on
March
13,
2009,
complaining of ongoing back pain. T. 178-81. He reported that the
pain was located on the left side of the low back and radiated to
his thigh, and that he had numbness, spasms, and burning in the
left anterior thigh. T. 178. His physical examination was unchanged
from his previous visit, including reduced range of motion in the
lumbar spine and positive straight leg raising test. T. 179-80.
Diagnoses were herniated disc without myelopathy, degenerative disc
disease–lumbar,
and
radiculitis–lumbar.
T.
180.
Spinal
decompression was discussed and continued conservative treatment
was
recommended
by
the
doctor.
Id.
Dr.
Huckell
opined
that
Plaintiff had the work restrictions of frequently lifting or
carrying up to 25 pounds, occasional lifting of up to 50 pounds,
and no prolonged standing, walking, bending, reaching, or sitting.
Id.
6
On May 5, 2009, Plaintiff underwent a consultative examination
by Cyndria Bender, M.D. T. 210-13. Plaintiff appeared uncomfortable
during the examination but was in no acute distress. Plaintiff had
marked stiffness in the upper body, a wide stance, an 80% squat,
and exhibited difficulty in rising from the chair. T. 211. He had
a decreased motion in the lumbar spine, positive straight leg
raising on the left, positive point pain, and decreased strength in
the right
lower
proximally
and
left
lower
distally.
T.
212.
Dr. Bender opined that Plaintiff had moderate limitations with
heavy lifting, carrying heavy objects, pushing or pulling heavy
objects;
and
mild
limitations
with
standing
and
sitting
for
prolonged periods of time secondary to low back pain. T. 213.
A few weeks later, Plaintiff returned for a spinal evaluation
with Dr. Huckell with reports of ongoing, increased lower back pain
that he rated 7/10 with anterior thigh numbness and parasthesis
from prolonged standing. T. 258-61. On examination, Plaintiff
walked with
abnormal
gait
partially
flexed
at
the
waist
and
exhibited paravertebral muscle rigidity, limited lumbar range of
motion, and positive straight leg raising. T. 259-60. An x-ray
showed disc space height narrowed at L5-S1, with no evidence of
spondylolysis, spondylolisthesis, or segmental instability. T. 260.
Dr. Huckell restated the same limitations as before regarding
Plaintiff’s ability to perform light-to-medium duty work with
restrictions. Id.
7
Plaintiff received regular chiropractic care from Ronald Reeb,
D.C., beginning in August, 2008. T. 227-39, 262-63. On May 28,
2009, he presented with complaints of low back pain with radiating
pain to his left leg and numbness in the left thigh. T. 232.
Plaintiff reported that Lidocaine patches decreased his pain to a
3/10 from 5/10 for 8 to 10 hours, chiropractic treatment provided
some relief for 1-2 days, and he took 3 Lortab tablets daily. Id.
Examination showed chronic spasm/hypertonicity at the thoracic and
lumbar paraspinals from T5 to L5 with associated trigger points,
active lumbar range of motion decreased with pain, tenderness over
L1 to L5, and positive straight leg raising. T. 233. Dr. Reeb noted
that the Workers’ Compensation insurance carrier denied requests
for authorization of spinal decompression, and opined that without
the procedure, Plaintiff’s prognosis was poor. T. 234.
Another lumbar spine MRI dated June 1, 2009 showed small to
moderate
right
paracentral
L5-S1
disc
herniation,
with
mild
bilateral foraminal stenosis, small left posterolateral-to-farlateral L4-5 disc herniation, slightly encroaching on the exiting
left L4
nerve
root,
and
moderate
L3-4
direct
foraminal
disc
herniation, with the disc extruding superiorly within the disc
space and markedly impinging on the existing L3 nerve root. T. 25556. Dr. Huckell stated that Plaintiff’s lumbar disc pathology
remained essentially unchanged, he was under a mild to moderate
8
disability as a result of his work-related accident, and was still
limited to light-to-medium duty work. T. 256.
Plaintiff returned to Dr. Huckell on September 18, 2009.
T. 248-52. Examination results were unchanged, including abnormal
gait, muscle rigidity, and decreased range of motion. After the
evaluation and reviewing the June, 2009 MRI study, Dr. Huckell
noted that Plaintiff had a functional tolerance of ongoing pain and
surgery
was
an
option
of
“last
resort
if
the
pain
becomes
intolerable and intractable on a daily basis or if conservative
treatments fail.” Epidural injections were discussed if Plaintiff’s
pain worsened. T. 250.
In January, 2010, Plaintiff saw Dr. Huckell complaining of
increased low back pain that radiated to the lower extremities,
anterior thigh numbness, and paresthesias with prolonged standing.
He rated his pain level at 7 to 9/10. T. 240-41. Dr. Huckell’s
examination and assessment remained essentially unchanged. T. 24143.
On April 19, 2010, Plaintiff saw Dr. Shenoy, who continued
Plaintiff’s prescription for Lortab for back pain. T. 245.
III. Non-medical Evidence
Plaintiff
was
49
years-old
on
the
date
of
his
alleged
disability onset and had a high-school education. T. 29, 145. He
had previously worked as a newspaper deliverer, carpet installer,
and material handler. T. 30-31.
9
On October 13, 2008, Plaintiff suffered injuries in a work
accident involving a 55-gallon drum. T. 33. He returned to work
shortly thereafter, but lost the job in October of 2008 for other
reasons. T. 33. He did not seek other employment due to his
injuries. Id.
Plaintiff told the ALJ that he was restricted to lifting no
more than 20 pounds with no squatting or kneeling due to herniated
discs and a pinched nerve. T. 33-34. He saw a chiropractor twice
per week and Dr. Huckell, a spine surgeon, for his lower back.
Plaintiff took 4 tablets for Lortab daily and described lower
extremity numbness, which occurred after standing for periods of
35-40 minutes. T. 34-36. He stated that he re-injured himself
kneeling and twisting while helping his friend with a project.
T. 36-38. Plaintiff reported that he could walk for 15 minutes, sit
in a chair for 30 minutes, and lift 5-10 pounds before experiencing
pain symptoms. T. 40-41. He had to lie down to relieve pain for
4 hours during the day, and his pain interrupted his sleep. T. 4142.
In an April 21, 2009 Function Report, Plaintiff stated that he
lived with his elderly father, slept 4-5 hours per night, and had
problems putting on his shoes and socks and reaching his lower legs
and feet while bathing. T. 132-33. He could perform all other self
care, prepared simple meals daily, and did limited chores as needed
with frequent breaks. T. 133-34. Plaintiff went outside daily,
10
could drive and ride in a car, went out alone, shopped in stores,
watched television, went fishing and camping, and socialized semiregularly. T. 135-36. He could not lift, squat, stand, reach, walk,
sit, climb stairs, or kneel for prolonged periods of time without
an increase of pain and discomfort. T. 136, 140.
IV.
The decision of the
substantial evidence.
A.
Commissioner
was
not
supported
by
Erroneous Step Three Analysis
Plaintiff argues that his spinal impairments met or medically
equaled the criteria for Listing 1.04A, and therefore a finding of
disabled
was
appropriate
at
step
three
of
the
sequential
evaluation. Pl. Mem. 17-18.
To be considered disabled under Listing 1.04A, a plaintiff
must demonstrate evidence of a disorder of the spine that results
in the compromise of a nerve root or the spinal cord with evidence
of nerve root compression. See 20 C.F.R. Part 404, Subpart P,
Appx. 1, §§ 1.04, 1.04A. The nerve root compression must be
“characterized by neuro-anatomic distribution of pain, limitation
of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss
and,
if
there
is
involvement
of
the
lower
back,
positive
straight-leg raising test (sitting and supine).” Id., § 1.04A.
It is the plaintiff's burden to “demonstrate that [his]
disability [meets] ‘all of the specified medical criteria’ of a
spinal disorder.” Otts v. Comm'r, 249 Fed.Appx. 887, 888 (2d Cir.
11
2007) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). “An
impairment that manifests only some of those criteria, no matter
how
severely,
does
not
qualify.”
Sullivan,
493
U.S.
at
530
(citation omitted).
In his step three finding, ALJ failed to state with adequate
specificity why Plaintiff's impairments did not meet the criteria
of the Listings. Rather, he concluded without elaboration that
Plaintiff
“does
not
have
an
impairment
or
combination
of
impairments that meets or medically equals one of the listed
impairments . . . . The undersigned specifically considered listing
1.04 and finds the criteria are not met.” T. 18.
Mere assertions
that a claimant's impairments do not meet the severity of specific
listings, without more, do not constitute the “specific factual
findings” necessary for denying a disability claim. Wood v. Colvin,
987 F.Supp.2d 180, 192–93 (N.D.N.Y. 2013) (quoting McCallum v.
Comm’r, 104 F.3d 353, *1 (2d Cir. 1996) (table)).
Moreover, evidence of nerve root compression was present in
two MRI studies dated December 2, 2008 and June 1, 2009. T. 176,
255-56. Plaintiff exhibited decreased range of motion of the lumbar
spine in nearly every examination. T. 180, 184, 212, 233, 242, 250,
255, 260. Radicular pain, radiculitis, or radiculopathy to the
lower extremities were noted repeatedly. T. 180, 185, 187, 195,
232. Sensory disturbance was noted in the form of lower extremity
numbness,
which
Dr.
Huckell
opined
12
was
consistent
with
the
pathology revealed by the MRI studies. T. 240-42, 248-50. Dr. Reeb
documented right thigh numbness in his examinations. T. 246-47,
262-63. Also uniform in the record is evidence of Plaintiff’s
positive straight leg raise tests. T. 179-80, 194. The Functional
Capacity Evaluation noted, among other things, decreased grip, and
the consultative examiner documented decreased muscle strength in
the lower extremities, as well as positive straight leg raising
from the sitting and supine positions. T. 188, 212. Even construing
the evidence conservatively, Plaintiff has made an adequate showing
to meet the requirements of Listing 1.04A. The ALJ's decision, in
contrast, did not cite evidence from the medical record to support
his determination that Plaintiff’s impairments did not qualify
under Listing 1.04A and therefore was not supported by substantial
evidence.
B.
Remedy
The record contains substantial evidence to support a finding
that
Plaintiff’s
impairments
were
severe
enough
to
meet
the
impairments described in Listing 1.04A.
Remand solely for the calculation of benefits is proper where
further evidentiary proceedings would serve no purpose in light of
persuasive proof of the plaintiff's disability. See, e.g., Butts v.
Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004) (“‘[W]here this Court
has had no apparent basis to conclude that a more complete record
might support the Commissioner's decision, we have opted simply to
13
remand for a calculation of benefits.’”); see also Cherico v.
Colvin, No. 12 Civ. 5734, 2014 WL 3939036 at *31 (S.D.N.Y. Aug. 7,
2014) (“If, however, the record provides ‘persuasive proof of
disability and a remand for further evidentiary proceedings would
serve no purpose,’ the court may reverse and remand solely for the
calculation and payment of benefits.”) (quoting Parker v. Harris,
626 F.2d 225, 235 (2d Cir. 1980)); Sanchez v. Astrue, 07 Civ. 9318,
2010 WL 101501 at *11 (S.D.N.Y. Jan. 12, 2010) (“[A] court can also
reverse and remand solely for the calculation of benefits when
‘substantial evidence on the record as a whole indicates that the
Claimant is disabled and entitled to benefits.’” (quoting Bush v.
Shalala, 94 F.3d 40, 46 (2d Cir. 1996)).
The
record
here
is
complete,
and
the
ALJ
noted
no
inconsistences among the objective imaging tests, treatment notes,
and
consultative
examinations.
T.
19-20.
The
Commissioner
acknowledges that there were no significant gaps in the record.
Comm’r Reply Mem. 3-4. Because the Court has already determined
that Plaintiff has satisfied the criteria of a listed impairment
and disability per se has been established by substantial evidence
of the record, Plaintiff is entitled to benefits without further
analysis. Accordingly, the sole remaining task for the ALJ on
remand is to calculate benefits. See Kelly v. Astrue, No. 12-CV6477,
2014
impairments
WL
3563391
satisfied
(W.D.N.Y.
July
requirements
14
of
18,
the
2014)
(plaintiff’s
Listings;
further
administrative proceedings were not warranted because there were no
inconsistencies or gaps in the record). Having concluded that a
remand for calculation of benefits is warranted, the Court need not
reach Plaintiff's remaining contentions that the ALJ erred in
determining his RFC and in assessing his credibility.
CONCLUSION
For
the
reasons
discussed
above,
the
Commissioner's
determination that Plaintiff was not disabled within the meaning of
the Act was not supported by substantial evidence in the record.
Plaintiff’s motion for judgment on the pleadings (Dkt.#10) is
granted and the case is remanded for the calculation of benefits.
The Commissioner's motion for judgment on the pleadings (Dkt.#12)
is denied. The Clerk of Court shall close the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
June 19, 2015
15
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