Opinion
17 Civ. 4202 (GBD)(HBP)
07-24-2018
ROBERT DOLAN, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
, TO THE HONORABLE GEORGE B. DANIELS, III, United States District Judge:
I. Introduction
Plaintiff Robert Dolan brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Act (Complaint, dated June 5, 2017 (Docket Item ("D.I.") 1) ¶ 4). Dolan and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (D.I. 13-14). For the reasons set forth below, I respectfully recommend that Dolan's motion for judgment on the pleadings be denied and that the Commissioner's cross-motion for judgment on the pleadings be granted. II. Facts
I recite only those facts relevant to my resolution of the pending motions. The administrative record that the Commissioner filed pursuant to 42 U.S.C. § 405(g) (see Notice of Filing of the Administrative Record, dated Oct, 4, 2017 (D.I. 8) ("Tr.")) more fully sets forth Dolan's social and medical history.
A. Procedural Background
Dolan applied for DIB on March 5, 2014, alleging disability due to a back injury (Tr. 143-44, 166). He alleged a disability onset date of March 7, 2013 (Tr. 143-44). The Social Security Administration ("SSA") denied Dolan's application on May 15, 2014 (Tr. 87-89). Dolan timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 104-39). He appeared at a hearing before ALJ Robert Gonzalez on February 9, 2016, at which he was represented by counsel (Tr. 56-73). ALJ Gonzalez issued a decision on March 18, 2016, finding that Dolan was "not disabled" as defined by the Act (Tr. 37-54). ALJ Gonzalez's decision to deny Dolan DIB became the final decision of the Commissioner on April 7, 2017, when the Appeals Council denied Dolan's request for review (Tr. 1-7).
B. Social Background
Dolan was born on January 24, 1956 and was 57 years old at the time he allegedly became disabled and 60 years old at the time of ALJ Gonzalez's decision (Tr. 76). He completed college in approximately 1982 and subsequently completed training at a police academy in approximately 1986 (Tr. 167). Dolan was employed by the Yonkers Police Department ("YPD") from approximately September 1986 through March 2013 (Tr. 167). He began his career at YPD as a Detective in the Narcotics Unit (Tr. 58-61). In approximately 2006, he was promoted to Sergeant (Tr. 61). Dolan completed a "Disability Function Report" that he filed with the SSA on March 5, 2014 in connection with his application for DIB in which he provided information detailing the work demands of his position as Sergeant (Tr. 165-73). Dolan stated that, during a typical day as a YPD Sergeant, he would spend three hours walking, reaching, standing and sitting, one and one half hours writing, typing or handling small objects and one half hour climbing, stooping, kneeling, crouching, crawling and handling large objects (Tr. 168). He was also required to use machines, tools and equipment, and he frequently lifted objects weighing 20 pounds or more (Tr. 168).
Dolan suffered a lower back and left knee injury on March 7, 2013; Dolan was out of work on Workers' Compensation from March 7, 2013 through August 24, 2015, when the City of Yonkers "ordered" him back to work in an unspecified position in the "Property/Clerk of Court" Unit (Tr. 59, 157). Dolan retired on October 22, 2015 after the New York State and Local Police and Fire Retirement System approved his application for "Performance of Duty Disability Retirement" (Tr. 157).
Dolan lived with his wife in their home in Red Hook, New York (Tr. 165, 174). Dolan was able to bathe, dress and generally care for himself (Tr. 175-78). He would begin his typical day by stretching, bathing, eating breakfast and reading the newspaper (Tr. 175-76). Dolan frequently ran errands for his wife, namely grocery shopping, which he did about four times per week (Tr. 175). Dolan had no difficulty leaving his home alone; he had a driver's license and frequently drove a car, and he occasionally took short walks with his wife (Tr. 175, 177). Dolan's wife prepared his meals, but he was able to do home and yard work, including taking out the garbage and mowing the lawn, so long as he took "numerous long breaks" (Tr. 177). He went outside "as much as possible" when he felt well enough (Tr. 177).
Dolan spoke on the phone with his friends and family everyday and dined out approximately twice a month (Tr. 179). He also attended church approximately once a week (Tr. 179). However, Dolan stated that he seldom accepted invitations to attend social functions after his injury due to his physical discomfort (Tr. 179). According to Dolan, his memory was intact and he had no difficulty paying bills, counting change or managing his savings account (Tr. 178).
C. Medical Background
1. Information Reported by the Plaintiff
Dolan filed two Disability Reports in connection with his application for DIB -- one on March 19, 2014 ("March 19 Disability Report" and one on July 14, 2014 ("July 14 Disability Report") (Tr. 165-93). In the March 19 Disability Report, Dolan stated that he had suffered a back injury on March 7, 2013 following an accident (Tr. 166, 182-83). Dolan experienced constant "stabbing, sharp, dull [and] numb" pain in his lower back and left knee, and, at times, in his mid-back (Tr. 183). Dolan occasionally treated his pain with 200 milligrams of Advil from which he reported no side effects (Tr. 183). Dolan stopped taking Acetaminophen and Meloxicam due to adverse side effects, including dizziness and upset stomach (Tr. 184). Dolan also used a lumbar pillow and heating pad to treat his pain (Tr. 184).
Dolan stated that his ability to lift, stand, walk, sit, climb stairs, kneel, squat and reach had been compromised by his injury (Tr. 179-80). He could not walk, stand or sit for extended periods of time without feeling pain in the back of his left knee or sharp pain in his lower back, and he frequently needed to change his position to relieve this pain (Tr. 179, 183). Dolan could not squat without pain, relied on the strength of his right knee in order to kneel and climb stairs and could not reach without experiencing pain in his mid-back (Tr. 180, 183).
In his July 14 Disability Report, Dolan again reported that he had sustained a back injury that caused him severe pain (Tr. 186-93). He stated that he treated his pain with Advil, and that he was unable to take prescription pain medication due to stomach issues (Tr. 188). He reported no changes in his condition or pain (Tr. 188).
2. Treatment Records
a. Medical Evidence Prior to Alleged Disability Onset Date
i. Dr. Michael Schweppe
Dolan was seen by Dr. Michael Schweppe of Orthopedic Associates of Dutchess County ("OADC") on March 11, 2008 (Tr. 278-79). Dolan told Dr. Schweppe that he had injured his lower back and left knee on February 29, 2008; he reported exiting his patrol car, "twisting" and falling directly on his left knee (Tr. 278). Dolan complained of persistent lower back pain with radiation to his left leg (Tr. 278). Dr. Schweppe noted that Dolan had been prescribed oxycodone by his primary care physician but did not take it (Tr. 278). Dr. Schweppe recorded Dolan's medical history, which included a previous, work-related left knee injury in 2005 that was subsequently diagnosed as a meniscal tear (Tr. 278). Dolan did not undergo surgery to repair his left knee (Tr. 278).
Dolan also reported an earlier lower back injury from 1996 (Tr. 278).
On examination, Dr. Schweppe observed paravertebral muscle spasms in Dolan's lumbar region (Tr. 278). Although Dolan's straight leg raising test was "very positive" on his right leg, Dr. Schweppe noted that Dolan's straight leg raising test on his left leg was negative and that Dolan had symmetrical reflexes in his knees and ankles, full strength and "grossly" normal sensation (Tr. 278). In addition, Dolan's left knee showed no signs of effusion, but Dolan did complain of tenderness in that area (Tr. 278). Dolan's range of motion in his left knee was 0 to 120 degrees with some discomfort (Tr. 278). Dr. Schweppe diagnosed Dolan with (1) "low[er] back pain with left lower extremity radiculopathy" and (2) "left knee internal derangement" (Tr. 279). He recommended that Dolan obtain MRIs of both his lumbosacral spine and left knee, and that Dolan attend physical therapy for his lower back; Dr. Schweppe wrote Dolan a note excusing him from work for two weeks, subject to reevaluation after that time (Tr. 279, see Tr. 291).
The spinal column is comprised of four regions. The cervical region is located at the part of the spine closest to the skull and is made up of vertebrae C1 to C7 (C1 is located closest to the skull). Anatomy of the Human Spine, Mayfield Brain & Spine, https://www.mayfieldclinic.com/peanatSpine.html (last visited July, 18 2018). The thoracic region is located below the cervical region and consists of vertebrae T1 through T12 (T1 is located closest to the skull). Anatomy of the Human Spine, supra. The lumbar region is located below the thoracic region and is made up of vertebrae L1 to L5 (L1 is located closest to the skull). Anatomy of the Human Spine, supra. Finally, the sacral region is located below the lumbar region and is made up of vertebrae S1 to S5 (S1 is located closest to the skull). Anatomy of the Human Spine, supra.
A straight leg raising test is conducted by having a patient lie in a supine position and lifting the symptomatic leg with the knee fully extended. Pain in the leg at between 30 and 90 degrees of elevation indicates lumbar radiculopathy, with the distribution of the pain indicating the nerve root is involved. Dorland's Illustrated Medical Dictionary ("Dorland's") at 1900 (32nd Ed. 2012).
Normal flexion of the knee is 130 and normal extension is 0 degrees. Physical Exam Modules: Lower Extremities, University of Virginia School of Medicine, available at, https://www.med-ed.Virginia.edu/courses/pom1/pexams/LowExtrExam/ (last visited July 18, 2018). Flexion refers to bending. Dorland's at 717. Extension refers to "the movement that straightens or increases the angle between the bones or parts of the body." Dorland's at 662.
Radiculopathy refers to a disease of the nerve roots caused by "inflammation or impingement by a tumor or a bony spur." Dorland's at 1571.
Internal knee derangement is the partial dislocation of the knee joint. It is typically marked by significant pain and spasm of the muscles surrounding the joint. See Dorland's at 493.
On March 18, 2008, Dr. Charles Drocea conducted an MRI study of Dolan's lumbosacral spine at Northern Dutchess Hospital (Tr. 250-54, 277). Dr. Docea diagnosed Dolan with (1) a disc bulge at L4-L5 with "mild" canal and neural stenosis; (2) a disc bulge at L3-L4 and (3) a torn annulus at L5-S1 (Tr. 251-52). Although the record is not entirely clear, it also appears that an MRI exam of Dolan's left knee was conducted in March 2008, and it showed tears at the "anterior horn of the lateral meniscus and posterior horn of the medial meniscus" (Tr. 277). Dolan saw Dr. Schweppe on March 25, 2008 to discuss the results of his MRIs (Tr. 277). Dr. Schweppe recommended that Dolan have an arthroscopic meniscectomy of his left knee and excused Dolan from work pending further evaluation (Tr. 277). Dolan saw Dr. Schweppe on April 29 and May 6, 2008; Dr. Schweppe noted no improvement in Dolan's condition on each of these occasions.
Stenosis refers to an obstruction or a constriction. Dorland's, at 1769. The central canal of the spinal cord is "a small canal extending throughout the length of the spinal cord, lined by ependymal cells." Dorland's at 278.
The medical record does not contain any records from Northern Dutchess Hospital indicating that Dolan had had an MRI of his left knee on March 18, 2008.
An arthroscopic meniscectomy is a minimally invasive, outpatient surgical procedure used to repair a torn meniscus in the knee by removing the damaged portion of the meniscus. Meniscectomy, University of Washington Medicine, Orthopaedics and Sports Medicine, available at http://www.orthop.washington.edu/?q=patient-care/articles/sports/meniscectomy.html (last visited on July 9, 2018).
Dr. Schweppe performed surgery on Dolan's left knee on May 23, 2008 (Tr. 285-86). Dr. Schweppe completed an operative report noting that Dolan had tolerated the procedure well and was in good condition (Tr. 285-86).
On June 2, 2008, Dolan saw Dr. Schweppe for his postoperative appointment (Tr. 274). Dolan reported feeling fairly comfortable (Tr. 274). Dr. Schweppe examined Dolan's left knee and observed that it had healed well (Tr. 274). Dr. Schweppe also observed that Dolan had "trace" effusion of the left knee and a decreased range of motion of 0 degrees extension and 100 degrees flexion in that same knee (Tr. 274). Dr. Schweppe excused Dolan from work for an additional two weeks (Tr. 274).
Dr. Schweppe treated Dolan again on June 16, 2008 (Tr. 273). Dolan exhibited an improved flexion of 105 degrees in his left knee, but Dr. Schweppe nevertheless recommended an additional two weeks of therapy (Tr. 273). Dr. Schweppe set a tentative date of July 1, 2008 for Dolan to return to work (Tr. 273).
On August 25, 2008, Dr. Schweppe noted that Dolan had returned to work without any difficulty and that Dolan complained only of intermittent discomfort (Tr. 272). On examination, Dr. Schweppe found that Dolan had full range of motion in his left knee and no instability or effusion (Tr. 272). Dr. Schweppe recommended that Dolan continue with his daily activities and work as tolerated, exercise as recommended and follow-up as needed (Tr. 272).
b. Medical Evidence Following Alleged Disability Onset Date
i. St. John's Riverside Hospital
Dolan went to the Emergency Room ("ER") at St. John's Riverside Hospital just before midnight on March 7, 2013 (Tr. 299-302). Dolan reported to ER staff that he had slipped and fell as he was exiting his patrol car in a "slippery" and "slushy" parking lot (Tr. 299). Dolan complained of "moderate" pain in his back and joints, but denied joint swelling or muscle weakness (Tr. 300). Dolan had muscle spasms in his lower back, but his straight leg raising tests were negative bilaterally (Tr. 301). Dolan displayed a full range of motion and full motor strength in his arms and legs (Tr. 301). Dr. Laura Michaeli, the attending ER physician, diagnosed Dolan with a lower back strain and a left knee sprain (Tr. 301). She instructed Dolan to do gentle stretches (Tr. 301). She prescribed Flexeril and directed that Dolan also take Ibuprofin (Tr. 301). Dr. Michaeli discharged Dolan approximately one hour after he had arrived (Tr. 292, see 293-301)
ii. Orthopedic Associates of Dutchess County
On March 18, 2013, Dolan saw Dr. Schweppe and told him about the injury he had sustained on March 7, 2013 (Tr. 270). Dolan said that he was having difficulty walking and that he was in severe pain (Tr. 270). Dr. Schweppe noted that Dolan was not in acute distress, but a physical examination revealed paravertebral muscle spasms in his lower lumbar region (Tr. 270). Dolan was able to bend forward and touch the ground, had normal reflexes and had normal sensation (Tr. 270). Dolan had full strength, no effusion and an improved range of motion of 0 degrees extension and 130 degrees flexion in his left knee, without any instability (Tr. 270). However, Dr. Schweppe observed that a McMurray's test was "mildly" positive (Tr. 270). Dr. Schweppe noted that radiographs of Dolan's lumbar spine showed no degenerative changes and that radiographs of Dolan's left knee showed only "minimal" degenerative changes (Tr. 271). Dr. Schweppe diagnosed Dolan with lumbar radiculopathy and a left knee sprain (Tr. 271). Dr. Schweppe planned to obtain an MRI of Dolan's lumbosacral spine to check for possible disc herniation; Dr. Schweppe opined that Dolan's knee sprain would improve with time (Tr. 271).
A McMurray's test is used to diagnose a torn meniscus. Dorland's at 1894.
Dr. Susan Connors of OADC conducted an MRI study of Dolan's lumbar spine on March 27, 2013 (Tr. 248). The MRI disclosed disc herniations and/or osteophytes at T6-T7 and T7-T8 (Tr 248). It also showed mild degenerative changes and ligament thickening at L4-L5 and L5-S1 (Tr. 248). Dolan had "mild" to "moderate" stenosis at the L2 through S1 levels (Tr. 248). Dr. Connors noted a density at the left side of the L2-L3 level that mildly compressed the dural sac, displaced the nerve roots and caused mild stenosis (Tr. 248). Upon review of the MRI, Dr. Schweppe opined that this density at the L2-L3 level was most likely a disc herniation (Tr. 248). Dr. Schweppe further concluded that multilevel degenerative changes and foraminal stenosis had "probably" increased since Dolan's March 2008 MRI of his lumbar spine (Tr. 248). Finally, Dr. Schweppe found cervical spondylosis and mid-thoracic disc herniations that mildly compressed the spinal cord (Tr. 248).
Spondylosis refers to immobility and consolidation of the vertebral joint due to disease, injury or surgical procedure. Dorland's at 94, 1755.
On April 8, 2013, Dr. Richard Perkins, also of OADC, treated Dolan (Tr. 267-69). Dolan reported lower back pain and some pain and numbness in his left knee (Tr. 267). Dr. Perkins opined that his review of Dolan's most recent MRI showed left-sided L2-L3 disc herniation in the lumbar spine (Tr. 267). Dr. Perkins' physical examination of Dolan revealed no abnormalities and showed that Dolan had full strength in his arms and legs, intact sensation, symmetric reflexes and full, painless range of motion in his knees (Tr. 267). However, Dolan had a decreased lumbosacral range of motion (Tr. 267). Dr. Perkins diagnosed Dolan with (1) lower back pain, (2) lumbar radiculitis and (3) a lumbar herniated "nucleus pulposus" (Tr. 267). Dr. Perkins deemed Dolan unable to work for a month due to a temporary, partial disability of the lumbar spine (Tr. 269). Dr. Perkins noted that Dolan may be a candidate for an epidural steroid injection ("ESI") (Tr. 269).
Radiculitis is "inflammation of the root of a spine nerve, especially of that portion of the root which lies between the spinal cord and the intervertebral canal." Dorland's at 1571.
The nucleus pulposus refers to a "semifluid mass of fine white and elastic fibers that forms the central portion of an intervertebral dis[c]." Dorland's at 1301. A herniated disc is the protrusion of the nucleus pulposus or anulus fibrosus of an intervertebral disc, which may impinge on spinal nerve roots. Dorland's at 852.
An ESI is a minimally invasive procedure that delivers both a corticosteroid and an anesthetic numbing agent into the "space of the spine, which is the area between the protective covering (dura) of the spinal cord and the nerves of the bony vertebrae." Steroid Injection (ESI), Mayfield Brain & Spine, https://www.mayfieldclinic.com/PE-ESI.htm (Last visited on July 9, 2018).
On May 15, 2013, Dr. Richard Dentico, a physiatrist at OADC, conducted a physiatric examination of Dolan at the request of Dr. Perkins (Tr 264-66). Dr. Dentico noted that Dolan complained chiefly of a burning, sharp pain in his lower back around the L2-L3 level that radiated to his left leg (Tr. 264). Dolan reported that his pain was exacerbated by sleeping, walking and bending, and that it improved with rest and standing (Tr. 264). On average, Dolan rated his pain as a three out of ten, with ten being the worst; at its most severe, Dolan rated his pain as a seven out of ten (Tr. 264). Dolan reported that he had recently begun physical therapy, which provided him "great" relief (Tr. 264). Dr. Dentico conducted a physical examination during which Dolan could get on and off the examination table with little difficulty and was able to toe and heel walk (Tr. 265). Dolan had full muscle strength, including in his left knee, and symmetric reflexes (Tr. 265). However, Dr. Dentico noted that Dolan's range of motion in his lumbar spine was 75 percent of the normal range (Tr. 265). Both flexion and extension of his lumbar spine caused Dolan pain, but he experienced greater pain with flexion than extension (Tr. 265). Dolan had an antalgic gait, decreased sensation in the left L2 distribution and tenderness in his paraspinal region (Tr. 265). Straight leg raising tests were positive for Dolan's left leg, but negative for his right leg (Tr. 265). Dr. Dentico diagnosed Dolan with (1) lower back pain with lumbar radiculopathy and (2) an L2-L3 herniated disc with an L2 radiculopathy on the left side (Tr. 265). He prescribed a 10-day course of Meloxicam and encouraged Dolan to continue to attend physical therapy (Tr. 265). He further noted that he would request authorization to administer Dolan a transforaminal, lumbar ESI at the left L2-L3 level (Tr. 265). Dr. Dentico opined that Dolan was "temporarily totally disabled from injury" and excused Dolan from work indefinitely (Tr. 265).
On July 23, 2013, Dr. Dentico administered a transforaminal ESI on the left side of Dolan's L2-L3 level to treat his lumbar radiculopathy (Tr. 283). On August 8, 2013, Dr. Dentico noted that the ESI had helped Dolan "quite a bit", but that its benefits had begun to wear off (Tr. 262). Dr. Dentico diagnosed Dolan with a left-sided L2-L3 herniated nucleus pulposus and lumbar radiculopathy, and recommended that Dolan return for a second ESI (Tr. 262). Dr. Dentico opined that Dolan was still unable to work due to a "temporary marked partial disability" (Tr. 262).
Apparently, Dr. Dentico administered a second ESI between July 23, 2013, the date of Dolan's first ESI, and November 21, 2013, the date of Dolan's first appointment with Dr. Dentico following his first ESI (Tr. 260). The medical record contains no evidence from that procedure.
On November 21, 2013, Dolan visited Dr. Dentico reporting "significant" and "lasting" relief from the ESI (Tr. 260). However, Dolan had aggravated his lower back injury while swimming (Tr. 260). Dolan treated his pain with Ibuprofen, as needed, but requested another ESI (Tr. 260). A physical examination showed that Dolan could rise from a seated position with minimal difficulties, had a mildly antalgic gait without ataxia, could walk without assistance, had intact sensation and full strength in his arms and legs (Tr. 260). Dr. Dentico prescribed Dolan a small dose of hydrocodone to take as needed, and scheduled Dolan for a third ESI (Tr. 261). Dr. Dentico deemed Dolan "moderate[ly] disab[led]" due to his injury, but did not state whether Dolan was capable of returning to work (Tr. 261). Dr. Dentico administered another left-sided L2-L3 transforaminal ESI on December 13, 2013 (Tr. 281-82).
Ataxia refers to muscle coordination failure or an irregularity in muscle function. Dorland's at 170.
On January 13, 2014, Dolan visited Dr. Dentico again complaining of sharp, stabbing and aching lower back pain that radiated to his left leg causing numbness in his left thigh (Tr. 257-59). Dolan rated his pain as a four or five out of ten (Tr. 257). Dolan reported that his pain was exacerbated by sitting or standing for prolonged periods of time or sudden movements (Tr. 257). Dolan's physical exam was within normal limits with the exception of his mildly antalgic gait (Tr. 258). Dr. Dentico diagnosed Dolan with, among other things, a herniated lumbar disc and being overweight (Tr. 258). Noting that Dolan had previously experienced significant relief from physical therapy, Dr. Dentico referred Dolan for 18 sessions of physical therapy, and recommended that Dolan manage his weight (Tr. 258). Dr. Dentico discussed the surgical options for disc herniation with Dolan, but Dolan decided to pursue more conservative treatments before resorting to surgery (Tr. 259).
On March 10, 2014, Dolan saw Dr. Dentico for a reevaluation of his lower back (Tr. 255-56). Dolan complained of sharp pain around the L2-L3 area, and rated his pain as a five or six out of ten (Tr. 255). Dr. Dentico noted that Dolan had had three ESIs and that none of them had provided "lasting relief" (Tr. 255). Dr. Dentico conducted a physical examination of Dolan that was entirely within normal limits, including Dolan's gait (Tr. 256). Dr. Dentico diagnosed Dolan with a lumbar herniated disc and lumbar radiculopathy (Tr. 256). Dr. Dentico prescribed Tizanidine to treat Dolan's muscle spasms (Tr. 256). Dr. Dentico noted that he was referring Dolan back to Dr. Perkins because he had "failed conservative treatments with physical therapy, medications and injections"; Dr. Dentico opined that he did not believe Dolan's condition required surgery (Tr. 256).
On April 8, 2014, Dr. Dentico completed a "Primary Care Physician's Statement of Disability" in connection with Dolan's application for disability benefits (Tr. 329-30). Dr. Dentico stated that he had diagnosed Dolan with (1) lower back pain and associated lumbar radiculopathy and (2) a lumbar herniated disc (Tr. 329). He noted that Dolan had had an MRI that showed disc herniation at the L2 and L3 distribution, and that Dolan had been treated with physical therapy, ESIs and pain medication (Tr. 329). Dr. Dentico opined that Dolan had failed conservative treatments and that surgical intervention may improve his condition (Tr. 330). Dr. Dentico assessed Dolan's prognosis as "guarded" and deemed him incapable of working as a sergeant at YPD (Tr. 330).
iii. Dr. M.L. Sobin, Family Practice
1. Chiropractor Marc Habif
On January 30, 2015, Dolan visited the Dr. M.L. Sobin Family Practice and was assessed by chiropractor Marc Habif (Tr. 374-76). Dolan complained of pain, weakness and numbness in his left leg and constant aching in his lower back provoked by prolonged standing, sitting or walking (Tr. 374). Apparently, Habif had treated Dolan approximately three times a week for an unidentified period of time prior to January 30, 2015 (Tr. 374). Habif employed electrical stimulation therapy, heat therapy, therapeutic muscle work and chiropractic adjustments to treat Dolan's condition (Tr. 374).
Habif noted that Dolan was in moderate discomfort, but that his gait and posture were normal and that he did not require any assistive devices in order to walk (Tr. 375). Dolan displayed "moderate" tenderness in, and a decreased range of motion of, his lumbar spine (Tr. 375). Dolan's straight leg raising test was positive bilaterally, and certain orthopaedic testing, including Yoeman's, Nachlas and Kemp's testing, also yielded positive results indicating radicular pain with nerve root compression (Tr. 375-76). Habif diagnosed Dolan with (1) "multi- level disc damage with [an] extruded disc at L2-L3 with compres sion"; (2) "subjective residuals of lumbosacral sprain/strain" and (3) lumbar radicular syndrome (Tr. 376). Habif opined that, in light of Dolan's age, medical history, symptomatology and diagnostic test results, he was totally disabled (Tr. 376).
Habif completed a "Medical Source Statement" on November 27, 2015 in connection with Dolan's application for DIB (Tr. 322-27). He stated that he had treated Dolan since January 2015 for lumbar disc herniations (Tr. 327). Habif opined that Dolan could: (1) frequently lift up to ten pounds, (2) never lift anything heavier than ten pounds and (3) sit, stand and walk for a total of two hours during an eight hour work day (Tr. 323). Habif further opined that Dolan could occasionally reach overhead using both arms and hands, but could never push or pull using either arm or hand (Tr. 324). With respect to postural limitations, Habif opined that Dolan's ability to climb stairs or ladders, balance, stoop, kneel, crouch and crawl were totally compromised due to his herniated disc (Tr. 325).
On July 20, 2015, Habif conducted range of motion testing on Dolan (Tr. 368-72). The testing indicated that Dolan had decreased lumbar flexion, decreased lumbar extension and decreased lumbar lateral left and right flexion range of motion (Tr. 370-71). Habif completed a narrative report assessing Dolan's condition and treatment on January 6, 2016 that was essentially identical to his January 30, 2015 report (Tr. 365-66).
2. Dr. M.L. Sobin
Dr. M.L. Sobin evaluated Dolan on three occasions in 2015 and 2016 (Tr. 355-64). On February 11, 2015, Dr. Sobin noted that Dolan's lower left back was tender, his lumbar range of motion was restricted, his straight leg raising test was positive on the left side and that he could neither perform a heel or toe walk nor squat fully (Tr. 363). Dr. Sobin rated Dolan's left knee strength as a four out of five, five being full strength (Tr. 363). Dr. Sobin diagnosed Dolan with lumbalgia and ruled out lumbosacral radiculopathy (Tr. 364). He opined that Dolan was "100%" disabled (Tr. 364).
Lumbalgia, or lumbago, is a"non-medical term for any pain in the lower back." Dorland's at 1076.
On October 9, 2015, Dr. Sobin re-examined Dolan (Tr. 359-62). Dr. Sobin noted that he had referred Dolan to Dr. Grigory Schinder, a physical medicine and rehabilitation specialist, who performed two additional diagnostic studies on February 16, 2015 (Tr. 359, see Tr. 336-43). First, an electromyography was performed on Dolan's lumbosacral spine that disclosed left S1 radiculopathy (Tr. 359). Second, a neurofiber study showed "marked" and "very severe" changes to nerve conduction at L4 and L5 (Tr. 359). Dolan continued to complain of constant lower back pain that radiated to his left leg and caused numbness in his left thigh (Tr. 359). He also complained of left knee pain that he rated as a nine out of ten (Tr. 359). He said that his pain was aggravated by walking, lying flat and prolonged sitting (Tr. 359). Dolan's physical examination showed a limited range of motion in his left knee, antalgic gait, positive bilateral straight leg raising tests and diminished left knee strength (Tr. 360-61). Dr. Sobin opined that Dolan was "75%" disabled and that his prognosis was "guarded" (Tr. 361). On January 6, 2016, Dr. Sobin diagnosed Dolan with a left knee sprain and deemed him totally disabled (Tr. 357).
3. Consultative Examinations
a. Dr. Richard Goccia
On May 2, 2014, Dr. Richard Goccia, an internist, examined Dolan in connection with Dolan's application for state disability benefits (Tr. 312-20). Dolan reported discomfort in his lower back caused by a slip-and-fall accident at work in 2013 (Tr. 312). Dolan said that he formerly attended physical therapy, which he reported as being somewhat effective, and that he had had multiple ESIs, which he reported were "much less effective" (Tr. 312). Dr. Goccia noted that plaintiff took Advil, Tizanidine and Vicodin, all as needed, to treat his pain (Tr. 312). Dolan reported a past history of smoking and current use of alcohol (Tr. 312-13). According to Dolan, his wife prepared his meals, cleaned their house and did his laundry (Tr. 313). However, Dolan said that he often did their grocery shopping and was able to bathe and dress himself (Tr. 313).
Dr. Goccia noted that Dolan did not appear to be in any distress, had normal gait and stance and was able to rise from his chair without any difficulty (Tr. 313). However, Dr. Goccia did observe that Dolan had difficulty balancing while attempting to toe and heel walk, and that Dolan could not complete a full squat (Tr. 313). A musculoskeletal exam showed that Dolan had full range of motion in his cervical spine, no scoliosis, kyphosis or abnormality in his thoracic spine and full range of motion in his lumbar spine (Tr. 314). An x-ray study of Dolan's left knee showed the joint spaces to be "relatively well defined" and revealed no fracture, dislocation or other damage (Tr. 316). Dr. Goccia opined that Dolan's left knee did not display any abnormalities (Tr. 316).
Dr. Goccia diagnosed Dolan with lower back pain and left knee pain, and deemed Dolan's prognosis "fair" (Tr. 315). Dr. Goccia also provided a medical source statement in which he opined that Dolan was "mildly limited for activities which require squatting and fine balance to include working on ladders" (Tr. 315).
b. Dr. Leonard Simpson
Dr. Leonard Simpson, a state appointed medical consultant, reviewed Dolan's medical record and the SSA's initial decision to deny Dolan's application for DIB (Tr. 320-21). Based on this information, Dr. Simpson completed a "Medical Consultant's Review of Physical RFC" form on June 9, 2014 ("Medical Consultant's Review")(Tr. 320-21). In his Medical Consultant's Review, Dr. Simpson indicated that all of the SSA's findings with respect to Dolan's exertional limitations were supported by substantial evidence (Tr. 320). Specifically, he agreed that the medical record provided substantial support to the SSA's findings that Dolan could: (1) occasionally lift and/or carry 20 pounds; (2) frequently lift and/or carry 10 pounds; (3) stand and or walk a total of six hours in an eight hour work day; (4) push and/or pull, including operation of hand and/or foot controls without any additional limitations; (5) occasionally climb ramps, stairs, ladders, ropes and scaffolds and (6) occasionally balance, stoop, kneel, crouch and crawl (Tr. 320-21, see Tr. 80-82). Dr. Simpson also checked a box indicating that he agreed with the SSA's conclusions that Dolan was capable of performing "light" exertional work, as defined by the regulations, and that Dolan was not disabled under the Act (Tr. 321, see Tr. 83)
c. Dr. Charles M. Totero
On September 10, 2014, Dr. Charles Totero examined Dolan and reviewed his medical record as of that date (Tr. 384-88). Dr. Totero noted that Dolan appeared uncomfortable throughout the examination; however, Dolan was able to heel and toe walk, could get on and off the examination table without assistance and had an unspecified lumbar range of motion that allowed him to reach his fingers to the distal third of his tibia in forward flexion (Tr. 385). Examination of Dolan's back revealed mild spasm, but his reflexes were symmetrical and neurovascular status intact (Tr. 385). His straight leg raising tests were negative on the right and positive on the left (Tr. 385). Dr. Totero diagnosed Dolan with an extruded L2-L3 herniated nucleus pulposus and a left knee sprain (Tr. 387). Dr. Totero opined that Dolan was an appropriate candidate for back surgery given the fact that conservative treatment had not resolved his condition (Tr. 387). He further opined that Dolan was incapable of returning to work as a sergeant for the YPD, but that Dolan "was capable of restricted duty work" (Tr. 387). Specifically, Dr. Totero opined that Dolan was capable of lifting, pushing or pulling weights no greater than 15-20 pounds, but could not be involved in physical altercations and should be allowed to sit and/or stand as his condition required (Tr. 388).
d. Dr. Alexander Haselkorn
Dolan visited Dr. Alexander Haselkorn on February 4, 2015 in connection with Dolan's application for Worker's Compensation benefits (Tr. 331-35). Dolan presented with complaints of severe lower back pain and numbness in his left thigh (Tr. 331). For the first time, Dolan also complained of moderate upper back pain (Tr. 331). Based on his examination of Dolan's cervical and lumbar spine, Dr. Haselkorn concluded that Dolan had a limited range of motion in every plane of movement for the neck and the lumbar spine (Tr. 334). Dr. Haselkorn also reviewed Dolan's medical records from Drs. Schweppe, Perkins and Dentico (Tr. 332). Based on Dolan's medical record and his own examination, Dr. Haselkorn opined that Dolan was restricted in pushing, pulling, lifting or carrying objects greater than 15 to 20 pounds. (Tr. 333). Dr. Haselkorn urged Dolan to pursue "conservative" therapies given Dolan's aversion to taking pain medication, and that Dolan lose 60 pounds (Tr. 334).
e. Dr. John Mazella
Dr. John Mazella, an orthopedic surgeon, examined Dolan, reviewed his medical records and completed a consultative report on March 23, 2015 (Tr. 344-53). Dolan reported constant lower back and left thigh, leg and knee pain that was exacerbated by walking (Tr. 346). Dr. Mazella noted that Dolan took Advil, used Diclofenac gel, heating pads and a transcutaneous electrical nerve stimulation ("TENS") device to relieve his pain (Tr. 347).
TENS therapy is the use of "low-voltage electric currents to treat pain." Transcutaneous Electrical Nerve Stimulation (TENS), The Cleveland Clinic, https://my.clevelandclinic.org/health/articles/tens (last visited July 9, 2018). Electrodes or other mediums for electricity are placed at the site of pain and deliver electricity through the nerve fibers. Transcutaneous Electrical Nerve Stimulation.
Dr. Mazella noted that Dolan had a slightly antalgic gait, but that Dolan was nevertheless able to do a limited heel and toe walk (Tr. 351). An examination showed no lumbar deformity, no trigger points, normal range of lumbar motion (except for forward flexion of 60 out of 90 degrees), intact reflexes, nearly full strength (four out of five) in his left hip, foot and ankle and slightly more diminished strength (three to four out of five) in his left knee (Tr. 351). Dolan had decreased sensation at L5 and mild to moderate localized pain over the left sacroiliac joint (Tr. 351-52). Dolan's left knee displayed mild, diffuse swelling with trace effusion, and mildly positive patella femoral compression testing (Tr. 351-52). Dolan also exhibited quadricep atrophy and weakness, but had flexion to 115 degrees, negative McMurray, Lachman's and anterior drawer testing and stable medial collateral ligament testing (Tr. 352).
A Lachman's test is used for "cases of severe knee injury." Dorland's at 1893. It tests for tears of the anterior cruciate ligament. Key v. Comm'r of Soc. Sec., No. 13-CV-364 (SLT), 2014 WL 1338311 at *5 n.7 (E.D.N.Y. Mar. 31, 2014).
An anterior drawer test assesses cruciate ligament rupture. See Knee Anterior Drawer Test, Family Practice Notebook, available at, https://fpnotebook.com/Ortho/Exam/KnAntrDrwrTst.htm (last visited July 18, 2018); see also Ashby v. Astrue, 11 Civ. 2010 (RMB)(DF), 2012 WL 2477595 at *3 n.7 (S.D.N.Y. Mar. 27, 2012) (Freeman, M.J.) (report & recommendation)
Dr. Mazella diagnosed Dolan with (1) osteoarthritis of the left knee and (2) chronic strain and sacroiliac sprain with a left-sided L4-L5 radiculopathy and underlying, preexisting multilevel degenerative changes (Tr. 352). Dr. Mazella opined that Dolan was permanently disabled by his left knee and lower back conditions, and that there were no safe medical or surgical conditions that could correct either (Tr. 352-53).
D. Proceeding Before the ALJ
1. Plaintiff's Testimony
Dolan testified at the February 9, 2016 hearing before ALJ Gonzalez; he was represented by counsel and appeared in person (Tr. 55-74). Dolan testified that he had been a detective in the YPD from approximately 1996 through approximately June 2006 (Tr. 60). In approximately June 2006, he was promoted to sergeant (Tr. 59). Dolan testified that, due to his lower back and left leg injury, he did not work from March 7, 2013 through approximately August 2015, at which point he was ordered back to work by the City of Yonkers (Tr. 58-60). When asked why he was ordered back to work, Dolan answered that he had not received a determination from the New York State Pension Board regarding his alleged disability, so the City of Yonkers placed him in a "light-duty" position as a "property clerk" (Tr. 59). Dolan testified that, in this position, he essentially had no responsibilities or duties other than to show up for work each day and that, on some days, he would stay for two to three hours only (Tr. 59). Dolan retired on October 22, 2015, when the New York State and Local Police and Fire Retirement System approved Dolan's application for disability benefits (Tr. 59, see Tr. 157).
ALJ Gonzalez asked Dolan whether his physical duties as a YPD sergeant or narcotics detective were the same as those required of a patrolman or officer (Tr. 60-61). Dolan answered that they were (Tr. 60-61). Specifically, he testified that his the physical requirements of his work as a YPD sergeant were identical to those of a police officer, except that he occasionally supervised police officers (Tr. 61).
Dolan testified that he had injured his back on March 7, 2013, as he was exiting his patrol car (Tr. 64). Dolan testified that he received treatment from Dr. Dentico, who administered several ESIs, which, according to Dolan, provided him no relief (Tr. 64-65). Dolan also testified that Dr. Dentico had prescribed him oxycodone, but that he had stopped taking it shortly afterwards due to adverse side effects, including stomach and esophageal problems (Tr. 65). At the time of the hearing, Dolan had not taken any medication since approximately September 2015 (Tr. 66).
2. Vocational Expert's Testimony
ALJ Gonzalez also obtained testimony from Vocational Expert ("VE") Melissa J. Fass-Karlin (Tr. 67-71). VE Fass-Carlin testified that the Dictionary of Occupational Titles ("DOT") classified Dolan's previous occupations as a police sergeant and a narcotics detective as light skilled work (Tr 67-71). However, VE Fass-Karlin testified that Dolan's previous position as a police sergeant at YPD, as Dolan had described it, was more appropriately classified as medium exertional work (Tr. 68).
The transcript of the hearing before ALJ Gonzalez refers to this individual as "Vess-Carlisle" (Tr. 67-71). However, ALJ Gonzalez's decision indicates that the VE's surname is actually "Fass-Karlin" (Tr. 40). I shall use the name accorded to the VE by ALJ Gonzalez for purposes of resolving the pending motions.
ALJ Gonzalez then asked VE Fass-Karlin whether an individual with Dolan's age, education and work history, and with a residual functional capacity ("RFC") to engage in a full range of light exertional work, but who has additional postural limitations, namely, that he can climb ramps, stairs, ladders, ropes and scaffolds, and balance, stoop, kneel, crouch and crawl only occasionally, could perform any of Dolan's past work (1) as it was actually performed by Dolan and (2) as it is performed in the national economy (Tr. 69). VE Fass-Karlin answered that such an individual would be incapable of performing the physical requirements of a police sergeant for the YPD because it was medium level work (Tr. 69). However, VE Fass-Karlin testified that such an individual would be able to perform the physical requirements of a police sergeant or narcotics detective as defined in the DOT and, thus, "as generally performed in the national economy", because it is classified as light exertional work (Tr. 69). Finally, ALJ Gonzalez asked VE Fass-Karlin whether that same individual would be able to do Dolan's past work if they were off-task 15% of the workday; VE Fass-Karlin answered that he could not (Tr. 69).
III. Analysis
A. Applicable Legal Principles
1. Standard of Review
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2014) (per curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). Moreover, the court cannot "affirm an administrative action on grounds different from those considered by the agency." Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015), quoting Burgess v. Astrue, supra, 537 F.3d a 128.
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence. Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003), citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (Marrero, D.J.). However, "where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
"'Substantial evidence' is 'more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera v. Astrue, supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Consequently, "[e]ven where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam), quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Thus, "[i]n determining whether the agency's findings were supported by substantial evidence, 'the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'" Selian v. Astrue, supra, 708 F.3d at 417 (citation omitted).
2. Determination of Disability
Under Title II of the Act, a claimant is entitled to DIB if he can establish an "inability to engage in any substantial gainful activity by reason of a 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. § 432(d)(1)(A); see Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (both impairment and inability to work must last twelve months). The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and it must be
The standards that must be met to receive DIB under Title II of the Act are the same as the standards that must be met to receive SSI under Title XVI of te Act. Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases addressing the latter are equally applicable to cases involving the former.
of such severity that [the claimant] 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, regardless of whether such work exists in the immediate area in which [he] lives, or whether a specific job vacancy exists for [him], or whether [he] would be hired if [he] applied for work.42 U.S.C. § 423(d)(2)(A). In addition, to obtain DIB, the claimant must have become disabled between the alleged onset date and the date on which he was last insured. See 42 U.S.C. §§ 416(i), 423(a); see also 20 C.F.R. § 404.130; McKinstry v. Astrue, 511 F. App'x 110, 111 (2d Cir. 2013) (summary order), citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). In making the disability determination, the Commissioner must consider: "'(1) the objective medical facts; (2) the diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.'" Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); see Selian v. Astrue, supra, 708 F.3d at 417-18; Talavera v. Astrue, supra, 697 F.3d at 151. The first step is a determination of whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. § 404.1520(a)(4)(i). If he is not, the second step requires determining whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does not have a severe medically determinable impairment or combination of impairments, he is not disabled. 20 C.F.R. § 404.1520(c); see Henningsen v. Comm'r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 264 (E.D.N.Y. 2015). If he does, the inquiry at the third step is whether any of claimant's impairments meet or are medically equivalent to one of the listings in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the answer to this inquiry is affirmative, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not meet or medically equal any of the listings in Appendix 1, step four requires an assessment of the claimant's RFC and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. § 404.1520(a)(4)(iv); see Barnhart v. Thomas, supra, 540 U.S. at 24-25. If he cannot, then the fifth step requires an assessment of whether, given claimant's RFC, he can make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If he cannot, he will be found disabled. 20 C.F.R. § 404.1520(a)(4)(v).
RFC is defined in the applicable regulations as "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1). To determine RFC, the ALJ "'identifies] the [claimant's] functional limitations or restrictions and assess[es] . . . [his] work-related abilities on a function-by-function basis, including the limitations in paragraphs (b), (c), and (d) of 20 [C.F.R. §] 404.1545 . . . .'" Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam), quoting Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 at *1 (July 2, 1996). The results of this assessment determine the claimant's ability to perform the exertional demands of sustained work which may be categorized as sedentary, light, medium, heavy or very heavy. 20 C.F.R. § 404.1567; see Schal v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998). This ability may then be found to be limited further by nonexertional factors that restrict the claimant's ability to work. See Michaels v. Colvin, 621 F. App'x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010).
Exertional limitations are those which "affect only [the claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
Nonexertional limitations are those which "affect only [the claimant's] ability to meet the demands of jobs other than the strength demands," including difficulty functioning because of nervousness, anxiety or depression, maintaining attention or concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping, climbing, crawling or crouching. 20 C.F.R. § 404.1569a(c).
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step -- that the claimant's RFC allows the claimant to perform some work other than his past work. Selian v. Astrue, supra, 708 F.3d at 418; Burgess v. Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended in part on other grounds on reh'g, 416 F.3d 101 (2d Cir. 2005).
If the claimant is unable to meet his burden at the fourth step of the five-step sequential analysis and a finding by the Commissioner of "not disabled" is warranted under the Act, the ALJ is not required to advance to the fifth step. See 20 C.F.R. § 404.1520(a)(4) ("If [the Commissioner] can find that [claimant] [is] disabled or not disabled at a step, [the Commissioner] make[s] [her] determination or decision and [she] do[es] not go on to the next step."); see also Swainbank v. Astrue, 356 F. App'x 545, 547 (2d Cir. 2009) ("If an individual is found to be not disabled at any step, the Commissioner need not proceed to the next step.").
B. The ALJ's Decision
ALJ Gonzalez applied the five-step analysis described above and, relying on the testimony offered at the hearing and the documentary evidence in the record, he determined that Dolan was "not disabled" under the Act (Tr. 40-50).
At step one, ALJ Gonzalez found that Dolan had not engaged in SGA since March 7, 2013 (Tr. 42, citing 20 C.F.R. §§ 404.1571 et seq.). In so finding, ALJ Gonzalez concluded that Dolan's employment for the City of Yonkers between August and October 2015 was an "unsuccessful work attempt" within the meaning of the regulations, and, thus, did not constitute SGA (Tr. 42, citing, inter alia, 20 C.F.R. §§ 404.1574(c), 404.1575(d) and SSR 84-25, 1984 WL 49799 (Jan. 1, 1984)).
At step two, ALJ Gonzalez concluded that Dolan had the following severe impairments: (1) lumbar spine degenerative disc disease, disc bulges and disc herniation; (2) osteoarthritis of the left knee and (3) obesity (Tr. 42, citing 20 C.F.R. § 404.1520(c)).
At step three, ALJ Gonzalez concluded that Dolan's impairments did not meet or medically equal the criteria of any listed impairment, and that Dolan was not, therefore, entitled to a presumption of disability (Tr. 18-19, citing 20 C.F.R. Pt. 404, Subpt. App'x 1 and §§ 404.1520(d), 404.1525). Specifically, ALJ Gonzalez stated that he had considered whether Dolan's impairments met the requirements of listings 1.02 (major dysfunction of a joint(s)), 1.04 (disorders of the spine), and listing 14.09 (inflammatory arthritis), and concluded that they did not (Tr. 43). ALJ Gonzalez also expressly stated that he had considered whether Dolan's obesity was, either alone or in combination with his other impairments, of sufficient severity to diminish his ability to do basic work pursuant to SSR 02-01, and concluded that it did not (Tr. 43). See 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §§ 1.02, 1.04, 14.09; SSR 02-01p).
ALJ Gonzalez then determined that Dolan had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), "except [that Dolan] can [only] occasionally climb ramps, stairs, ladders, ropes and scaffolds . . . [and] can [only] occasionally stoop, kneel, crouch and crawl" (Tr. 43-44).
The regulations define light work as:
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 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 and 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 C.F.R. § 404.1567(b).
To reach his RFC determination, ALJ Gonzalez examined the opinions of plaintiff's treating and consultative physicians and sources, and assessed the weight to be given to each based on the objective medical record (Tr. 44-49).
First, ALJ Gonzalez gave Dr. Goccia's opinion that Dolan was "mildly limited" for activities requiring squatting and fine balance "great weight" in light of the facts that Dr. Goccia had actually examined Dolan and that Dr. Goccia's opinion was supported by his own clinical findings, as well as those of Dr. Haselkorn (Tr. 48).
Second, ALJ Gonzalez accorded "great weight" to Dr. Totero's opinions that Dolan was capable of restricted-duty work that involved "no lifting, pushing, [or] pulling of weights greater than 15 to 20 pounds and no involvement in combative altercations[,]" and that Dolan should be allowed to sit and stand as his condition requires (Tr. 48). In so finding, ALJ Gonzalez deemed it significant that Dr. Totero specialized in orthopedic surgery and that his opinions were supported by his clinical evaluation (Tr. 48). However, he gave "little weight" to Dr. Totero's opinion that Dolan was incapable of returning to work in a regular duty capacity as a police sergeant because it was a "vocational assessment[,] not a functional assessment" (Tr. 48).
Third, ALJ Gonzalez gave "great weight" to Dr. Haselkorn's opinion that Dolan was limited in pushing, pulling, lifting and carrying no greater than 15 to 20 pounds of weight (Tr. 48). ALJ Katz found it significant that Dr. Haselkorn was an expert in occupational medicine and trauma, and that he had actually examined Dolan (Tr 48).
Fourth ALJ Gonzalez accorded "little weight" to the opinions of Drs. Dentico and Perkins, including that Dolan had a moderate to marked disability (Tr. 48). ALJ Gonzalez found it significant that the opinions were "vague", unaccompanied by function-by-function assessments and unsupported by the clinical results of the consultative examinations of Drs. Goccia, Haselkorn and Totero (Tr. 48).
Fifth, ALJ Gonzalez accorded "little weight" to Dr. Sobin's opinion that Dolan was "100% impaired" and fully disabled beginning on March 7, 2013 (Tr. 48). ALJ Gonzalez found this opinion to be inconsistent with the results of the consultative physicians' clinical observations and opinions (Tr. 48).
Sixth, noting that Habif was not an acceptable medical source, see 20 C.F.R. § 404.1513, ALJ Gonzalez gave little weight to Habif's opinion that Dolan was completely disabled (Tr. 49). In addition, ALJ Gonzalez accorded little weight to Habif's opinions that Dolan could: (1) frequently lift no more than 10 pounds; (2) occasionally carry no more than 10 pounds; (3) sit for no more than two hours and stand for no more than four hours during an eight hour work day; (4) frequently "handle, finger and feel"; (5) occasionally reach overhead, bilaterally; (6) neither push nor pull with either arm; (7) occasionally operate right and left foot controls; (8) never climb ramps, stairs, ladders or scaffolds; (9) was incapable of balancing, stooping, kneeling, crouching or crawling and (10) tolerate only occasional exposure to unprotected heights, moving mechanical parts or operating a motor vehicle (Tr. 49). ALJ Gonzalez concluded that Habif's opinions were inconsistent with the clinical findings and opinions of the consultative physicians (Tr. 49).
Finally, ALJ Gonzalez gave "great weight" to Dr. Simpson's opinion that Dolan was limited to light work, but that Dolan could only occasionally climb of ramps, stairs, ladders, ropes and scaffolds, and occasionally balance, stoop, kneel, crouch and crawl (Tr. 49). In so finding, ALJ Gonzalez noted that Dr. Simpson's opinion was supported by the objective medical record.
Next, ALJ Gonzalez found that, although Dolan's medically determinable impairments could reasonably be expected to cause some of his alleged symptoms, his allegations of debilitating symptoms were not wholly credible for four reasons (Tr. 47). First, ALJ Gonzalez found it significant that Dolan's complaints of disabling limitations and symptoms were consistent with his description of his daily activities, but were not supported by any findings in the objective record (Tr. 47). Second, Dolan had received mostly conservative treatment for his allegedly debilitating pain, including Ibuprofen, the side effects of which would not be reasonably expected to diminish Dolan's occupational base (Tr. 47). Third, to the extent Dolan's treating physicians had opined that Dolan was disabled, ALJ Gonzalez found that these opinions were not well supported by other medical evidence of record (Tr. 47). Finally, Dolan displayed no evidence of debilitating symptoms at the hearing, which ALJ Gonzalez accorded "some slight weight" in reaching his conclusion regarding the credibility of Dolan's allegations and Dolan's RFC (Tr. 48).
At step four, ALJ Gonzalez found that Dolan was not capable of performing his past relevant work as a sergeant for the YPD as he himself had performed it -- at the medium exertional level -- but that Dolan was able to perform his past relevant work as a police sergeant and as a narcotics detective as they are defined in the DOT and performed in the national economy at a light exertional level (Tr. 50, citing 20 C.F.R. § .401.1565 and DOT Code 365.133.010, 375.267.014). In so finding, ALJ Gonzalez expressly stated that he was relying on, and accepting, VE Fass-Karlin's testimony that an individual with the same age, education, work experience and RFC as Dolan could return to his past work as it is described in the DOT, but not as Dolan had actually performed it (Tr. 50).
ALJ Gonzalez did not perform any analysis at step five because Dolan failed to meet his burden of showing that he could not perform his past, relevant work (Tr. 50). Accordingly, ALJ Gonzalez determined that Dolan was "not disabled" under the Act from March 7, 2013 through the date of his decision, and denied Dolan's claim for DIB pursuant to Sections 216 (i) and 223(d) of the Act (Tr. 50, citing 20 C.F.R. § 404.1520(f)).
C. Dolan's Arguments
Dolan argues that remand is required because (1) ALJ Gonzalez failed to properly weigh the evidence in determining Dolan's RFC and (2) ALJ Gonzalez improperly relied on VE Fass-Karlin's testimony in determining that Dolan could perform his past relevant work as either a police sergeant or a narcotics detective (Plaintiff's Memorandum of Law in Support of Judgment on the Pleadings, dated Apr. 24, 2018 (D.I. 12) ("Pl.'s Mem.") at 5-6). The Commissioner argues that ALJ Gonzalez's determination of Dolan's RFC is supported by substantial evidence and that ALJ Gonzalez properly relied on VE Fass-Karlin's testimony at step four in determining that Dolan was capable of performing his past relevant work (The Commissioner's Memorandum of Law in Support of her Cross-Motion for Judgment on the Pleadings, dated June 1, 2018 (D.I. 15) ("Def.'s Mem.") at 15-23).
1. ALJ's Analysis at Step 4: RFC Assessment
At step four of the sequential analysis, ALJ Gonzalez determined that Dolan had the RFC to perform the demands of light work as defined in 20 C.F.R. § 404.1567(b) subject to some additional limitations (Tr. 43-44). These additional postural limitations were that Dolan could only occasionally climb ramps, stairs, ladders, ropes or scaffolds, and stoop, kneel, crouch or crawl (Tr. 43-44).
Dolan contends that the Commissioner committed legal error in determining his RFC by considering (1) Dolan's daily activities, (2) Dolan's ability to return to work in August 2015, (3) the conservative nature of Dolan's treatment. Dolan also argues that ALJ Gonzalez's RFC determination is not supported by substantial evidence (Pl.'s Mem. at 5-6).
Citing Balsamo v. Chater, supra, 142 F.3d at 81, Dolan argues that an ALJ cannot consider a claimant's daily activities to conclude that he is not disabled unless "there is proof that [he] engaged in those activities for a substantial period of time comparable to th[at] required to hold a job" (Pl.'s Mem. at 6).
As an initial matter, based on my review of ALJ Gonzalez's determination, it does not appear that he considered Dolan's ability to perform activities of daily living in making his determination that Dolan had an RFC to perform light work (Tr. 47). ALJ Gonzalez actually found that Dolan's daily activities were "limited to the extent one would expect" them to be for an individual with severe limitations (Tr. 47). However, ALJ Gonzalez concluded, Dolan's objective medical record did not lend support to such strict limitations (Tr. 47).
Even if ALJ Gonzalez had considered Dolan's daily activities, including going to the grocery store four times per week, going to church once per week and socializing with friends twice per month, in formulating Dolan's RFC at step four, Dolan's reliance on Balsamo in support of his claim of error is misplaced. In Balsamo v. Chater, 142 F.3d at 81, the Court of Appeals for the Second Circuit held that an ALJ could not rely on a claimant's ability to perform certain daily activities at step five of the SSA's five-step framework, unless there is evidence that the "claimant engaged in [those] activities for sustained periods comparable to those required to hold . . . a job." However, ALJ Gonzalez never reached step five, where, as the authorities cited at page 36 teach, the Commissioner has the burden of establishing that a claimant is not disabled under the Act. Rather, ALJ Gonzalez found Dolan not disabled at step four, where a claimant continues to bear the burden of establishing disability, and the ALJ is permitted to consider certain factors, including daily activities, that would not otherwise form the basis of a finding of not disabled at step five. See Messina v. Astrue, 09 Civ. 2509 (SAS), 2009 WL 4930811 at *6 (S.D.N.Y. Dec. 21, 2009) (Scheindlin, D.J.) ("Contrary to Messina's assertion, it was proper for the ALJ to consider Messina's daily activities in determining credibility."), citing 20 C.F.R. § 404.1529(c)(3) ("Factors relevant to [a claimant's] symptoms, such as pain, which [an ALJ] will consider include . . . [a claimant's] daily activities . . . ."). Thus, even if ALJ Gonzalez had considered Dolan's daily activities in determining Dolan's RFC, it would not have been error for him to do so. See Huyck v. Colvin, 16 Civ. 6331P, 2017 WL 2957867 at *9 (W.D.N.Y. July 11, 2017) ("Any suggestion by Huyck that the ALJ was not permitted to consider her daily activities in formulating her RFC . . . is incorrect."); Durante v. Colvin, 2014 WL 4843684 at *2 (D. Conn. 2014) (The ALJ's weighing of claimant's ability to manage activities of daily living "for the purpose of discrediting evidence of more serious-seeming RFC restrictions in the work context is well taken").
Dolan cites no legal authority in support of his arguments that ALJ Gonzalez inappropriately considered (1) Dolan's ability to return to work as a property clerk for the City of Yonkers in August 2015 and (2) the conservative nature of Dolan's treatment for his lower back and knee pain (Pl.'s Mem. at 4-5). In determining Dolan's RFC, ALJ Gonzalez accorded little weight to Dr. Sobin's February 9, 2015 opinion that Dolan was totally disabled in part because such a finding was inconsistent with Dolan's returning to work on August 24, 2015 as a property clerk for the City of Yonkers, which was a light exertional work position (Tr. 49). Contrary to Dolan's argument, it is well established that an ALJ may consider a claimant's ability to work despite allegations of disabling limitations in determining his RFC. See 20 C.F.R. § 404.1529(c)(4) ("We will consider whether there are any inconsistencies in the evidence and the extent to which there are conflicts between your statements and the rest of the evidence . . . ."); see also Johnston v. Colvin, 13 Civ. 2710 (VEC)(FM), 2015 WL 657774 at *8 (S.D.N.Y. Feb. 13, 2015) (Maas, M.J.) ("[P]laintiff's ability to work part-time, however, remains evidence that the ALJ may consider in determining the severity of [his] impairment."), adopted at, 2015 WL 1266895 (S.D.N.Y.) Mar. 18, 2015) (Caproni, D.J.). Thus, ALJ Gonzalez's consideration of Dolan's work history, including the facts that he worked as a property clerk for the City of Yonkers for two months and that he left this position not because he was physically unable to keep up with its physical demands, but because his application for state disability benefits had been approved, was entirely appropriate.
Second, ALJ Gonzalez considered the "routine" and "conservative" nature of Dolan's treatment, as well as the lack of debilitating side effects associated with those treatments, in determining Dolan's RFC (Tr. 48). A claimant's conservative treatment regimen is a relevant factor that an ALJ may consider in making his RFC determination. See Oliphant v. Astrue, 11 -CV-2431 (KAM), 2012 WL 3541820 at *17 (E.D.N.Y. Aug. 14, 2012). Courts in this circuit routinely deem the types of treatment methods that were part of Dolan's treatment regimen -- physical therapy, heat therapy, Ibuprofen and a TENS device -- "conserva- tive" in nature. Monroe v. Astrue, 12-CV-1456 (WFK), 2014 WL 3756451 at *7 (E.D.N.Y. July 29, 2014) (deeming that treatment for back pain that consisted only of pain medication, and no ESIs, surgery or referral to a pain clinic, to be conservative). Although there is some disagreement as to whether ESIs constitute conservative treatment, courts in this circuit tend to find that ESIs are conservative where, as here, (1) the claimant has been administered a relatively small number of ESIs and (2) the ESIs are somewhat successful in relieving the claimant's pain. Roman v. Colvin, 15 Civ. 4800 (LGS)(JCF), 2016 WL 4990260 at *9 (S.D.N.Y. Aug. 2, 2016) (Francis, M.J.) (classifying treatment as "conservative" where claimant received multiple ESIs with some success); cf. Hamm v. Colvin, 16 Civ. 936 (DF), 2017 WL 1322203 at *24 (S.D.N.Y. Mar. 29, 2017) (Freeman, D.J.) (holding that the ALJ erred in describing claimant's treatment history as "conservative" where he was administered nine ESIs, none of which were successful); see Wilson v. Colvin, 6:16-CV-06509-MAT, 2017 WL 2821560 at *6 (W.D.N.Y. June 30, 2017) (describing ESIs as a "relatively conservative . . . treatment option"); Harrison v. Colvin, 14-CV-604S, 2015 WL 5567534 at *4 (S.D.N.Y. Sept. 22, 2015) (same). Moreover, it does not appear that Dolan had failed all conservative treatment options, as he reportedly experienced "great" relief from physical therapy. Thus, ALJ Gonzalez was entitled to consider Dolan's conservatxve treatment regimen in formulating his RFC.
Dolan argues that ALJ Gonzalez's conclusion that he had the RFC to perform light work is not supported by substantial evidence (Pl.'s Mem. at 5-6). Dolan appears to argue that ALJ Gonzalez's determination of his RFC was not based on any medical opinions or findings other than Dr. Simpson's, and, thus, ALJ Gonzalez's determination is highly suspect. As an initial matter, "[i]t is well-settled that a consulting physician's opinion can constitute substantial evidence supporting an ALJ's conclusions." Suarez v. Colvin, 102 F. Supp. 3d 552, 557 (S.D.N.Y. 2014) (Peck, M.J.); accord Fuentes v. Colvin, No. 13-CV-6201, 2015 WL 63169 at *8 (W.D.N.Y. Feb. 13, 2015) ("'The opinion of a consultative examiner can constitute substantial evidence supporting an ALJ's decision.'"); see also Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) ("The opinions of three [consultative] physicians, plaintiff's own testimony, and the medical tests together constitute substantial evidence adequately supporting the [Commissioner's] conclusion that plaintiff's injuries did not prevent her from resuming her job as a sewing machine operator."); Frazier v. Comm'r of Soc. Sec., 16 Civ. 4320 (AJP), 2017 WL 1422465 at *15 (S.D.N.Y. Apr. 20, 2017) (holding that ALJ's RFC determination was supported by the findings and opinions of three consultative physicians). Thus, ALJ Gonzalez was entitled to rely on Dr. Simpson's opinion that Dolan had the RFC to perform light exertional work in making his own RFC determination.
Moreover, this is not a situation in which the ALJ failed to refer to the medical opinions in the record supporting his determination of plaintiff's RFC or based such determination on minimal objective findings. See, e.g., Agapito v. Colvin, 12 Civ. 2108 (PAC)(HBP), 2014 WL 774689 at *22 (S.D.N.Y. Feb. 20, 2014) (Crotty, D.J.)) (holding that ALJ's RFC determination was "highly suspect" where ALJ made "no reference to any medical opinions and . . . instead based [his conclusion] on (1) 'minimal objective findings,' (2) 'conservative treatment' and (3) [claimant's] 'failure to seek additional treatment'"), citing Zorilla v. Chater, 915 F. Supp. 662 (S.D.N.Y. 1996) (Koeltl, D.J.) (citation omitted)). Rather, as ALJ Gonzalez explained at step four of his analysis, and as detailed below, his RFC determination is supported by the opinions and clinical findings of multiple consultative physicians from approximately May 2014 through approximately February 2015, that demonstrate that Dolan was capable of the exertional demands of light level work throughout that period of time.
First, Dr. Goccia examined Dolan on May 2, 2014; he found Dolan's physical capabilities and limitations to be unremarkable (Tr. 314). Dr. Goccia noted that Dolan had normal gait and stance, full range of motion in his cervical and lumbar spine and no abnormality in his thoracic spine (Tr. 314). In addition, Dr. Goccia performed an x-ray study of Dolan's left knee that showed completely normal results (Tr. 315). Dr. Goccia also found that Dolan could perform only a half squat and that he had some difficulty balancing during his toe and heel walk (Tr. 313). Consistent with these clinical findings, Dr. Goccia opined that Dolan had mild limitations in his ability to squat and balance (Tr. 315). ALJ Gonzalez cited Dr. Goccia's clinical findings and opinions as support for his determination that Dolan could perform the exertional demands of light work with some additional postural limitations in stooping, kneeling, crouching and crawling, as well as in climbing ramps, stairs, ladders, ropes and scaffolds (Tr. 43-44).
Second, Dr. Totero's findings and opinions from his September 10, 2014 examination of Dolan, on which ALJ Gonzalez expressly relied, provide additional substantial evidence supporting ALJ Gonzalez's determination (Tr. 43-44). Specifically, Dr. Totero found that Dolan was capable of toe and heel walking, was able to rise from the examination table by himself and without any difficulty, had symmetrical reflexes and had a relatively normal range of motion in his lumbar spine (Tr. 35). Dr. Totero opined that Dolan could perform some of the physical requirements of light exertional work, namely lifting or carrying objects up to around 20 pounds in weight (Tr. 388). ALJ Gonzalez determined Dolan's RFC based, in part, on Dr. Totero's clinical findings and, thus, his determination is supported by substantial evidence (Tr. 43-44). See Patterson v. Colvin, 24 F. Supp. 3d 356, 371 (S.D.N.Y. 2014) (Gorenstein, M.J.).
Third, Dr. Haselkorn's clinical findings and opinions from his February 4, 2015 examination of Dolan also lend support to ALJ Gonzalez's RFC determination (Tr. 331-35). Dr. Haselkorn's tests of Dolan's cervical and lumbar spine revealed a limited range of motion in both (Tr. 334). However, based on the relatively normal findings from the remainder of his examination of Dolan and his review of Dolan's earlier medical records, Dr. Haselkorn opined that Dolan could still push, pull, lift or carry objects weighing 15 to 20 pounds (Tr. 333). These limited positive findings of back injury and Dr. Haselkorn's opinions can also be interpreted as substantial evidence supporting ALJ Gonzalez's determination.
In addition to the findings and opinions of Dolan's consultative physicians, the clinical findings and diagnostic testing by Dolan's treating physicians also provide substantial evidence that Dolan was capable of performing light work. For example, although the March 2013 MRI of Dolan's lumbar spine showed an "extruded fragment" at the L2-L3 level on the left side and that Dolan had increased degenerative changes in his spine since his previous MRI in 2008, Dr. Perkins found Dolan to have full strength in his arms and legs, painless range of motion in his knees and otherwise normal physical capabilities as of April 2013 (Tr. 267-69). Shortly thereafter in May 2013, Dr. Dentico also observed that Dolan had full muscular strength and was able to heel and toe walk and get on and off the examination without any assistance, despite Dolan's claims of severe pain (Tr. 265). Dr. Dentico again found Dolan to have full strength in November 21, 2013, and to have experienced "great" relief from the epidural steroid injections (Tr. 260-61). In March 2014, Dolan's physical examination was entirely within normal limits. Although some exams found positive findings, including positive straight leg raises and chiropractic testing, ALJ Gonzalez, in his role as fact-finder, was "entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013); see McIntvre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) ("[I]f the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld."). For the reasons stated above, ALJ Gonzalez's RFC determination is supported by substantial evidence in the record.
Notably, the ESI had provided enough relief to Dolan's pain that he was able to go swimming (Tr. 261). However, this physical exercise ultimately caused re-aggravation of his lower back and knee pain (Tr. 261).
Accordingly, ALJ Gonzalez properly weighed the evidence in determining that Dolan retained the RFC to do light work with additional postural limitations, and his finding is supported by substantial evidence in the record.
2. ALJ's Analysis at Step 4: ALJ's Conclusion that Plaintiff Can Perform His Past Relevant Work
As noted above, at step four of the five step sequential analysis, ALJ Gonzalez considered whether Dolan had the RFC to perform his past relevant work (Tr. 49-50). See 20 C.F.R. § 404.1520(a)(4)(iv). This inquiry asks whether the claimant is capable of "perform[ing] the duties associated with [his] previous 'type' of work", i.e., light, medium, heavy or very heavy exertional work. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). Specifically, at this stage, Dolan bore the burden of proving (1) "an inability to perform [his] previous specific job" as a police sergeant or narcotics detective for the YPD and (2) "an inability to perform [his] past relevant work generally." Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003); accord Albano v. Colvin, 99 F. Supp. 3d 355, 367-68 (E.D.N.Y. 2015); see also Halloran v. Barnhart, supra, 362 F.3d at 33. ALJ Gonzalez concluded that Dolan's RFC precluded him from performing his work as a police sergeant and narcotics detective as he had actually performed it during his time working for YPD -- at a medium exertional level (Tr. 49-50). However, ALJ Gonzalez found that Dolan was capable of performing his past relevant work as it is generally performed in the national economy -- at a light exertional level (Tr. 49).
ALJ Gonzalez's conclusion is supported by the testimony of impartial VE Fass-Karlin, who opined that a person of Dolan's age, with Dolan's education and work history, who had an RFC to perform light work and who could (1) occasionally climb ramps, stairs, ladders, ropes and scaffolds and (2) occasionally balance, stoop, kneel, crouch and crawl, could perform Dolan's past work as a police sergeant or narcotics detective as they are generally performed in the national economy (Tr. 67-71). Specifically, VE Fass-Karlin testified that the DOT classified Dolan's past work as a police sergeant and narcotics detective as "light work", and that the individual described in the above hypothetical would not be precluded from performing the work-related activities involved in this type of occupation. ALJ Gonzalez reasonably relied on this testimony in concluding that Dolan was not disabled.
Dolan's argument that ALJ Gonzalez ultimately determined that Dolan had an RFC that was different from the RFC that he had posited to VE Fass-Karlin in his hypothetical is belied by the hearing transcript (Pl.'s Mem. at 4-5; see Tr. 67-71). ALJ Gonzalez determined that Dolan had precisely the same RFC and additional postural limitations as the hypothetical individual posited in his inquiries to VE Fass-Karlin's (Tr. 67-71). Because ALJ Gonzalez's hypothetical "capture[d] the concrete consequences" of Dolan's impairments, Dolan's challenge to the factual adequacy of the premise of the hypothetical fails. Calabrese v. Astrue, 358 F. App'x 274, 277 (2d Cir. 2009), quoting England v. Astrue, 490 F.3d 1017, 1023 (8th Cir. 2007).
ALJ Gonzalez's finding that Dolan could perform his past relevant work as a police sergeant or narcotics detective is supported by substantial evidence and, thus, is sufficient to negate a finding of disability at step four. Henny v. Comm'r of Soc. Sec., 15 Civ. 629 (RA), 2017 WL 1040486 at *18 (S.D.N.Y. Mar. 15, 2017) (Abrams, D.J.); Alfaro v. Astrue, 09 Civ. 3756, 2011 WL 6259132 at *8 (S.D.N.Y. Dec 6, 2011). VE Fass-Karlin testified, relying on her own expertise and the classifications set forth in the DOT, that Dolan's past relevant work as a police sergeant and narcotics detective are both "light" work, and that given Dolan's age, education and work experience and his RFC, Dolan was not precluded from performing such work. The DOT classifies the positions of a police sergeant and a narcotics detective as "light work". See DOT Code Nos. 375.133-010, 375.267-014. Thus, VE Fass-Karlin applied the correct DOT classifications to establish that Dolan's past relevant work as performed generally in the national economy is "light" work, and did not, as Dolan contends, conjure up a non-existent classification from thin air (see Pl.'s Mem. at 4).
"The [DOT] is used to evaluate jobs as they are generally performed [in the national economy]." Petrie v. Astrue, supra, 412 F. App'x at 409; accord Albano v. Colvin, supra, 99 F. Supp. 3d at 368; Paulino v. Colvin, 13 Civ. 3718 (AT)(AJP), 2014 WL 2120544 at *19 (S.D.N.Y. May 13, 2014) (Peck, M.J.) (Report & Recommendation).
That VE Fass-Karlin opined, and ALJ Gonzalez actually found, that Dolan could not perform his past relevant work as a police sergeant and narcotics detective as he had actually performed it at YPD does not negate ALJ Gonzalez's finding. As explained above, such a finding only satisfies Dolan's burden with respect to one of the two requirements at step four. See Jasinski v. Barnhart, supra, 341 F.3d at 185 (holding that to establish a disability, a claimant must prove that he was unable to perform both (1) the functions and duties of the specific job he once held and (2) the functions and duties of that job as it is generally performed).
Accordingly, Dolan's failure to meet his burden at the fourth step of the analysis warranted a finding by the Commissioner of "not disabled" under the Act; given this failure, neither the Commissioner nor the Court are required to advance to the fifth step. See 20 C.F.R. § 404.1520(a)(4) ("If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step.").
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that the Commissioner's cross-motion for the judgment on the pleadings be granted and that Dolan's motion be denied.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have e(14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections and responses thereto) shall be filed with the Clerk of the Court with courtesy copies delivered to the Chambers of the Honorable George B. Daniels, III, United States District Judge, 500 Pearl Street, Room 1310, New York, New York 10007 and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: July 24, 2018
New York, New York
Respectfully submitted
/s/_________
HENRY PITMAN
United States Magistrate Judge Copies transmitted to: All Counsel