Gomez Rosario v. Colvin

Filing 19

DECISION AND ORDER granting 12 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. The Court denies the Commissioners motion for judgment on the pleadings, ECF No. 15, and grants Plaintiffs motion, ECF No. 12. This matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by Hon. Charles J. Siragusa on 2/17/17. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOMARY GOMEZ ROSARIO,
Plaintiff,
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

13-CV-6623 CJS

APPEARANCES
For the Plaintiff:

Mollie A. Dapolito, Esq.
Martha Alice Roberts, Esq.
361 South Main Street
Geneva, New York 14456
(315) 781-14456

For the Defendant:

Sergei Aden, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza
Room 3904
New York, NY 10278
[phone]
INTRODUCTION

Siragusa, J. This Social Security case is before the Court on cross-motions for
judgment on the pleadings. For the reasons stated below, the Court grants Plaintiff’s motion in part, reverses the Commissioner’s decision, and remands for a new hearing pursuant to the fourth sentence of 42 U.S.C. § 405(g).
BACKGROUND
With an assumed onset date of January 1, 2007, Plaintiff filed an application for
Supplementary Security Income (“SSI”) Benefits on July 16, 2010. This was denied on

November 4, 2010, and Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”) on January 12, 2011. On July 17, 2012, Plaintiff appeared before and ALJ who
ruled in a decision dated August 23, 2012, that Plaintiff has not been under a disability
since July 16, 2010, the date her application was filed. R. 25–31.
Following the five-step sequential analysis set out in 20 C.F.R. § 416.920(a), the
ALJ determined that Plaintiff was not engaging in substantial gainful activity and does in
fact have the severe impairments of lumbar disc herniation and occasional blurred vision.
At step three, he determined that Plaintiff’s impairments did not meet or exceed the listings in Appendix 1, 20 C.F.R Part 404, Subpart P. R. 27. At step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFI”) to perform light work, except that she is only occasionally able to stoop, crouch, and crawl, must change her positions every forty-five minutes, and “is limited to performing work that does not require fine
visual acuity.” R. 27. Plaintiff did not have any past relevant work, thus leading the ALJ to
progress to step five where the burden shifted to the Commissioner to show that Plaintiff
was capable of performing work that exists in substantial numbers in the national economy. In that regard, the ALJ heard testimony from a vocational expert and concluded that
Plaintiff could perform the jobs of café attendant and cleaner/housekeeper, both of which
are unskilled, light exertion jobs with substantial positions available nationally.
In her memorandum of law in support of her motion for judgment on the pleadings,
ECF No. 12-1, and her reply, ECF No. 16, to the Commissioner’s memorandum, Plaintiff
argues that the ALJ erred in evaluating Plaintiff’s RFC and that his decision is not supported by substantial evidence.

2

Medical Evidence
On June 15, 2009, Plaintiff began a series of seven appointments under treating
physician Eric Ramirez Diaz, M.D. at the Instituto Fisiátrico del Caribe at Ave. José Mercado, Puerto Rico. R. 326. Plaintiff was referred by Dr. Ramirez to Vallejo Ricard, M.D.
for an MRI, which was completed June 23, 2009. R. 380. In that regard, the radiology report dated June 23, 2009, shows that “[a]t L5-S1, there is a broad based, somewhat extruded central disk herniation causing significant compression on the thecal sac1 and mild
compression on the neural foramina2 bilaterally.” R. 380.
Following the MRI, Plaintiff participated in six therapy sessions ending on July 16,
2009. R. 326. The initial treatment options included physical therapy and antiinflammatory medication which proved unsuccessful. R. 369. A tertiary action of a L45S1
selective nerve root block was administered in February 2010 “with significant improvement of her pain.” R. 369. In a final therapy progress note, Plaintiff’s pain was reported as
mild and Plaintiff’s transfers and ambulation as independent in a progress note for physical therapy dated July 16, 2009. R. 335. Plaintiff continued selective nerve root blocks at
the L45S1 paravertebral areas through the Las Americas Pain Interventional Center
(“LAPIC”) in Hato Rey, Puerto Rico, beginning care on August 8, 2009, under Aurea T.
Negrón Valcárcel, M.D. R. 442. Plaintiff had four epidural steroid injection procedures:
August 26, 2009, October 10, 2009, November 17, 2009, and February 23, 2010. R. 308,

1

[T]he membranous sac of dura mater covering the spinal cord and cauda equina and containing
cerebrospinal fluid. “thecal sac,” Merriam-Webster Medical Dictionary, http://c.merriamwebster.com/medlineplus/thecal%20sac (last visited Feb. 3, 2017).
2

[A] small opening, perforation, or orifice. “foramen,” Merriam-Webster Medical Dictionary,
http://c.merriam-webster.com/medlineplus/foramen (last visited Feb. 3, 2017).

3

310, 312, 314. Per Dr. Valcárcel’s notes, Plaintiff found significant improvement of pain
through the nerve block in February. R. 369.
Plaintiff testified before the ALJ that she came to the continental United States in
2010 from Puerto Rico seeking different doctors and the opportunity for a better life. R.
52. Plaintiff was seen on October 26, 2010, by Suzanne Picinich, D.O., a consultative
doctor, for an internal medicine examination. Noted as a chief complaint in Dr. Picinich’s
report is low back pain beginning in 20063 and a herniated disc at the L5 level. Plaintiff
also complained of more recent neck pain radiating to her left arm and mid forearm. In
addition, noted in the report is a past diagnosis of diabetes mellitus type II, hypoglycemia
and hypertension. R. 318–22. Dr. Picinich stated in her written report that Plaintiff has
mild to moderate limitations for bending, lifting, and carrying, for standing
and sitting for long periods without a change in position. Mild to moderate
limitations for climbing stairs and inclines, as well for manipulating objects
of anything more than lightweight above the level of her waist. She also has
mild to moderate limitations for kneeling, squatting, stooping, and pushing,
and pulling. She has moderate limitations for traveling.
R. 322.
On December 13, 2010, Plaintiff was seen at The Center for Pain Management by
Dr. Calvin Chiang where Plaintiff rated her average pain on a scale of one to ten as a ten.
R. 374. Dr. Chiang concluded that Plaintiff “does not have any frank neurologic symptoms that suggest an emergent evaluation by a neurosurgeon,” and he recommended
using transforaminal4 injections and prescription tramadol and Flexeril. R. 372. On Feb-

3

When asked by the ALJ, “when did you first start having problems with your back,” Plaintiff responded, “2008, I believe.” R. 54. In a Disability Report – Field Office – Form SSA-3367, Plaintiff’s alleged onset date is listed as “01/01/2007.” R. 213. This confusion remains unclarified.
4

“[T]ransforaminal epidural injections have gained rapid and widespread acceptance for the
treatment of lumbar and lower extremity pain.” National Institutes of Health, US National Library

4

ruary 8, 2011, she received prescriptions for Tramadol and Flexeril, and on May 9, 2011,
received an epidural injection. R. 384, 381.
Plaintiff testified she lost vision after the May injection, and was referred to Joseph
D. Silverberg, M.D., an ophthalmologist. R. 59. On July 14, 2011, Plaintiff was diagnosed
with central serous retinophy (“CSR”) which was accredited to the recent steroid injection,
according to resident Brook Miller M.D. R. 399. Transiforaminal injections were thereafter
terminated as a form of treatment. R. 399.
Plaintiff began additional physical therapy on December 21, 2011, under Farley
Wagner, P.T., M.D.T. R. 427. In the initial evaluation, Plaintiff was described with “clinical
signs and symptoms of lumbar derangement,” experienced “pain is never less than 5/10,”
and “Lumbar range of motion (ROM) is limited into flexion and extension at 40-50% loss
in both directions.” R. 427. Treatment concluded February 7, 2012. R. 441 Plaintiff was
discharged from the program because of poor attendance, four cancellations and three
no shows to appointments. R. 441. The status of the discharge observes that Plaintiff still
complained of lumbar pain, continued difficulty with sleeping, and has “questionable
compliance with follow through with strengthening.” R. 441.
Ester S. Tanzman, M.D., in an appointment on April 16, 2012, reported that Plaintiff had a slow gait, was able to get on the exam table, had tenderness with slow leg raising, and pain in all directions. R. 472. Nevertheless, Plaintiff was still able to fully complete each action.

of Medicine, Effectiveness of Therapeutic Lumbar Epidural Steroid Injections in Managing Lumbar Spinal Pain, https://www.ncbi.nlm.nih.gov/pubmed/22622912 (last visited Feb. 3, 2017).

5

Plaintiff underwent an MRI imaging on May 4, 2012. R. 479–80. Nurse Practitioner
Evelyn Stelmach completed a report of Plaintiff’s visit to Dr. Tanzman’s office on May 9,
2012. She wrote that the MRI revealed a “mild grade I retrolisthesis of L5 and S1 with
moderate degenerative disc disease and mild bilateral neural foraminal narrowing,” and
that Plaintiff had a “small central disc protrusion at L5-S1 which abuts both S1 nerve
roots within the central canal.” R. 476. Ms. Stelmach recommended that Plaintiff continue
with physical therapy and follow up with Dr. Tanzman. Id.
Plaintiff testified at the July 17, 2012, hearing before an ALJ in Rochester, New
York. R. 43–70. She testified that she worked in Puerto Rico only at summer jobs while
she was in high school. Accordingly, the ALJ determined that she had no past relevant
work. R. 53. She stated that her most serious health problem was her back pain, followed
by her eye. R. 53. She said her back pain started in 2008, that the pain was not from an
accident, and that she suffered back spasms which gradually got worse over time. R. 54.
She testified that her pain as she sat at the hearing was a “5” on a scale of 1 to 10, with
10 being the worst. Id. She said she takes Flexeril® and Mobic®, mostly at night, for
pain, and tried to do the exercises her physical therapist asked her to do. R. 54–55. Four
or five times a week she is in so much pain that the medications and exercise do not
help. R. 56. She also stated she wears patches at night for the pain. Doing chores at
home, and moving up and down the stairs of her three-floor home cause her pain. R. 56.
Her oldest son carries the laundry basket for her because when she has carried it from
the basement to the main floor it caused her a lot of pain. R. 57. She sweeps the floor “a
little bit,” and her children and she vacuum the carpets. R. 57. She stated she can drive,
“but not for a long time.” R. Her doctor has not suggested surgery yet. R. 58. In Puerto

6

Rico she received nerve blocks injections every month. When she came to the continental United States, she had an injection in May 2011, but discontinued them after that one
injection caused her to become dizzy and her vision to become blurry. R. 58–59.
Plaintiff testified that she can pick up a gallon of milk if it is at table level, but not
from the floor without it bothering her back. She said she would ask her children to move
a 24-pack of soda from a table to the refrigerator instead of doing it herself. R. 59. Plaintiff testified that she could sit from 10 to no more than 30 minutes before needing to stand
and that she could stand about 15 minutes before needing to sit, “but it’s better to be
standing up than sitting down,” and lying down was best for her. R. 60. She also stated
she could walk for about 15 minutes before needing to stop, “then I can start over again.”
R. 60.
The ALJ questioned Plaintiff about a notation that her back pain became worse in
April 2012 when she lifted a child in a day care. Plaintiff explained that a friend of hers
had come from Puerto Rico and Plaintiff was doing her a favor by helping out with her
friend’s children while they were at Plaintiff’s house. R. 62. She was watching her friend’s
two children, ages one and a half and two, for the day and she had to pick them up. That
was how she had hurt her back. R. 63.
In response to questions by her representative, Plaintiff stated she completed a
form regarding her daily activities by using Google Translate. R. 63, 295–301. She said
that other than the entry on that form stating she went shopping for two hours, it was accurate. She testified that she does not shop for two hours at a time. R. 22.

7

JURISDICTION AND SCOPE OF REVIEW
Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based
on the denial of Social Security benefits. Additionally, the section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated Edision Co. v. NLRB, 305
U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). Section 405(g) limits the Court’s
scope of review to determining whether the Commissioner’s findings were supported by
substantial evidence. See, Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that the reviewing court does not try a benefits case de novo). The Court is also authorized to review the legal standards employed by the Commissioner in evaluating the
plaintiff’s claim. Seil v. Colvin, No. 15-CV-6275-CJS, 2016 U.S. Dist. LEXIS 34681
(W.D.N.Y. Mar. 17, 2016).
The Social Security Administration has designed a five step procedure for evaluating disability claims. 20 C.F.R. § 404.1520. That procedure is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors
such as age, education, and work experience.... Assuming the claimant
does not have a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past
work, the [Commissioner] then determines whether there is other work

8

which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam).
DISCUSSION
Plaintiff’s first assignment of error concerns the ALJ’s determination that she is
able to perform work at the light exertional level, with the exception of the following limitations: she can occasionally stoop, crouch, and crawl; she must change positions every
forty-five minutes; she is limited to performing work that does not require fine visual acuity. R. 27. Plaintiff argues that she is unable to perform work at any level on a sustained
basis and that the ALJ’s RFC determination is not supported by substantial evidence.
She argues that the ALJ “ignored substantial evidence of record” and “improperly discounted medical opinions of record and [Plaintiff’s] subjective symptoms….” Pl.’s Mem. of
Law, Sep’t 5, 2014, ECF No. 12-1.
English Language Abilty
First, Plaintiff points out that her English is limited and that she needed an interpreter at the hearing. Further, the ALJ found “that she’s Spanish speaking.” R. 66. The
ALJ’s RFC determination did not comment on this non-exertional limitation. The Court
notes that the Commissioner’s regulation makes one’s ability to speak and understand
English an important factor for those claimants aged 45 to 49 years, but with regard to an
individual under age 45, such as Plaintiff, the regulation states:
It is usually not a significant factor in limiting such individuals’ ability to
make an adjustment to other work, including an adjustment to unskilled
sedentary work, even when the individuals are unable to communicate in
English or are illiterate in English.
20 C.F.R. § Pt. 404, Subpt. P, App. 2, sec. 200(h)(2). In another section of the Commis-

9

sioner’s regulations, however, is this language:
Since the ability to speak, read and understand English is generally learned
or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for
someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language.
Therefore, we consider a person’s ability to communicate in English when
we evaluate what work, if any, he or she can do. It generally doesn’t matter
what other language a person may be fluent in.
20 C.F.R. § 416.964(b)(6). In a case where the claimant argues that the ALJ erred by not
considering his English language capability at step four of the sequential analysis, a district court in Kansas held:
[T]he ability to speak English is not a factor the ALJ must consider at the
fourth step, but is a factor that must be considered at the fifth step. See Ordonez v. Massanari, No. C00–4145–DEO, 2001 WL 34008720, *15, 2001
U.S. Dist. LEXIS 24634, at *42 (N.D.Iowa Sept.13, 2001) (“The ALJ only
has to consider a claimant’s limited ability to speak and understand English
if the ALJ determines [at step four] that the claimant can not perform previous relevant work.”).
Chavez v. Barnhart, 298 F. Supp. 2d 1207, 1216 (D. Kan. 2004). From the Court’s review
of the case law, and the Commissioner’s regulation in 20 C.F.R., quoted above, it concludes that the ALJ was required to consider Plaintiff’s English language capability at the
fifth step of the sequential analysis.
The Commissioner argues that the ALJ did correctly assess Plaintiff’s English language deficiency in his hypothetical questions to the vocational expert. While the vocational expert was on the stand, the ALJ informed him that Plaintiff was Spanish speaking.
R. 66. Each of the hypothetical questions the ALJ addressed to the vocational expert
asked him to assume “a hypothetical individual the same age, educational, work experi-

10

ence…” as Plaintiff. R. 66–69. Therefore, the ALJ committed no legal error in his assessment of Plaintiff’s English language ability.
Plaintiff’s Credibility
Plaintiff contends that the ALJ failed to evaluate her credibility “with sufficient specificity to permit intelligible plenary review of the record.” Pl.’s Mem. 11 (quoting Williams
o/b/o Williams v. Bowin, 859 F.2d 255, 260–61 (2d Cir. 1988). The ALJ used an oftcriticized phrase, that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.” R. 28. This boilerplate language “implies that ability to work is determined first and is then used to determine the claimant’s
credibility.” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). This language can be
harmless “[i]f the ALJ has otherwise explained his conclusion adequately,” Filus v.
Astrue, 693 F.3d 863, 868 (7th Cir. 2012). Here the ALJ did explain the basis for his credibility determination in detail:
[T]he claimant has described daily activities that are not limited to the extent
one would expect given the complaints of disabling symptoms and limitations. Although the claimant needs assistance, she is able to cook, clean
and do laundry. She is able to sweep the floor and drive a car. The claimant
has no restrictions on driving. She is able to go to the grocery store. The
claimant takes care of her children, and she was able to babysit her friend’s
children, who are both under age three (Testimony). Caring for young children is very demanding. Although the claimant indicated that she exacerbated her back injury lifting the children, she nevertheless was able to care
for them. The claimant has received various forms of treatment for the allegedly disabling symptoms, which would normally weigh in the claimant’s
favor. The record reveals, however, that the treatment has been generally
successful in controlling those symptoms. The claimant has received nerve
root blocks, which has [sic] proven to reduce her pain (Ex. 9F).
R. 29.

11

Plaintiff maintains that the ALJ failed to take into consideration the considerable
assistance she receives from her children in performing most activities of daily living. Pl.’s
Reply Mem. 6. Plaintiff urges the Court to find, as did the court in Genier v. Astrue, 606
F.3d 46, 50 (2d Cir. 2010), that the ALJ’s decision was “based on so serious a misunderstanding of [Plaintiff’s] statements that it cannot be deemed to have complied with the requirement that they be taken into account.”
The Court agrees that the ALJ’s decision did not sufficiently take into account
Plaintiff’s children’s contributions to her ability to function at home. His reference to her
ability to care for the young children of her friend implies that she is able to lift young children without a problem, whereas Plaintiff’s testimony related to one instance of caring for
her friend’s children, and no further care after that because lifting the child hurt her back.
R. 62–63. Further, his reference to the nerve blocks is inaccurate. After receiving only
one nerve block shot in the continental United States, she discontinued nerve blocks out
of fear for losing her vision completely. R. 399. Therefore, the ALJ’s statement implying
that her pain was now controlled is not supported, but rather contradicted by substantial
evidence. Even the physical therapy notes indicate a problem with sleeping due to pain,
which the ALJ did not address in his assessment of her testimony. Therefore, the Court
concludes that the ALJ’s credibility assessment does not comply with the Commissioner’s
regulations to take into account all available evidence.
The Medical Evidence
Turning to the medical evidence, Plaintiff argues that she “has proven that her
physical impairments cause significant limitations in her ability to perform the exertional

12

and nonexertional demands of work.” Pl.’s Mem. 8. The ALJ relied on the consultative
examiner’s opinion that Plaintiff’s limitations “fall into the mild to moderate range” and that
her treating physicians never indicated that her impairments were disabling. R. 29.
In her reply memorandum, Plaintiff argued that the Record contains evidence of
restrictions greater than those identified by the ALJ. Pl.’s Reply Mem. of Law 4. She
points out that physical therapist Farley Wagner stated on February 9, 2012, that Plaintiff
was “limited with lifting and waist to floor motion with 15 pounds.” R. 431. Further, she
points to Dr. Aurea T. Negron Valcarcel, M.D.’s statement that Plaintiff was limited by her
diagnosis of L5/S1 disc herniation “from standing or walking for long periods, she can neither go up or down stairways….” R. 442. Dr. Tanzman wrote in April 2012 that she should
“avoid heavy lifting and bending.” R. 473. Plaintiff also relates her testimony and complaints to medical personnel about her inability to sleep due to pain. Pl.’s Reply 4–5.
In his assessment, the ALJ wrote that Plaintiff had the RFI to perform light work,
except that she is only occasionally able to stoop, crouch, and crawl, must change her
positions every forty-five minutes, and “is limited to performing work that does not require
fine visual acuity.” R. 27. The Commissioner defines light work as follows:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this 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. To be considered capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.
20 CFR § 416.967(b). Plaintiff’s physical therapist Farley Wagner wrote that Plaintiff was

13

limited to lifting 15 pounds from floor level, and her medical doctor stated she should
avoid heavy lifting or bending. The ALJ’s determination that she could lift 20 pounds is
not supported by substantial evidence in the Record. Further, the ALJ’s RFC determination did not address Dr. Valcarcel’s statement that Plaintiff was limited from standing or
walking for long periods. Plaintiff’s own testimony described how going up and down
stairs exacerbated her pain. R. 56. She also testified that she could not walk long distances without taking time to rest. R. 60.
The ALJ’s hypotheticals to the vocational expert described an individual who was
Spanish speaking, had no past relevant work, had a 12th grade education, and was born
in 1982, so was a younger individual. R. 66. Further, he asked the vocational expert to
assume that individual could perform light work with the following limitations: occasional
stooping, crouching and crawling. R. 66. The vocational expert identified cafeteria attendant, and cleaner housekeeper jobs that hypothetical person could perform, neither of
which required visual acuity either. R. 67–68. Adding that the individual would have to
change positions every 45 minutes did not change the vocational expert’s response. R.
67. When the ALJ added that the individual could only perform sedentary jobs, the vocational expert said there would be no jobs, primarily because of the language barrier and
lack of visual acuity. R. 68. If vision were not an issue, the hypothetical individual could
perform the sedentary jobs of general assembler, and table worker. Finally, if the hypothetical individual would be off task 20 percent of the time, then no jobs would be available. R. 69.
The Court finds that the ALJ’s RFC determination is not supported by substantial
evidence in the Record. Because the vocational expert’s responses indicating that jobs

14

were available required a determination that Plaintiff had an RFC for light work, as well as
a facility with English and good visual acuity, the Commissioner’s determination that there
are jobs in the national economy that Plaintiff could perform is not supported by substantial evidence.
CONCLUSION
For all the foregoing reasons, the Court denies the Commissioner’s motion for
judgment on the pleadings, ECF No. 15, and grants Plaintiff’s motion, ECF No. 12. This
matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g).
DATED:

February 17, 2017
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

15