Opinion
20-cv-07912 (MKV) (SDA)
12-14-2021
Jacqueline Lopez, Plaintiff, v. Kilolo Kijakazi, [1] Defendant.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE:
Plaintiff Jacqueline Lopez (“Lopez” or “Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied her application for Disability Insurance Benefits (“DIB”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 13; Comm'r Not. of Mot., ECF No. 19.)
For the reasons set forth below, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be GRANTED, the Commissioner's cross-motion be DENIED and that this action be remanded for further administrative proceedings.
BACKGROUND
I. Procedural Background
In November 2017, Lopez filed an application for DIB, with an alleged disability onset date of June 30, 2016. (Administrative R., ECF No. 12 (“R.”), 15, 144.) The Social Security Administration (“SSA”) denied her application on February 7, 2018. (R. 66-77.) On February 14, 2018, Lopez made a timely request for a hearing. (R. 78-79.) A video hearing was held on May 21, 2019 before Administrative Law Judge (“ALJ”) Mary Ann Poulose. (R. 15.) In a decision dated June 28, 2019, ALJ Poulose found Lopez not disabled. (R. 12-28.) Lopez timely requested a review of the ALJ's decision on July 18, 2019. (R. 139-41, 237-52.) The Appeals Council denied Plaintiff's request for review on July 22, 2020 (R. 1-6), making the ALJ's decision the Commissioner's final decision. This action followed. Thereafter, Plaintiff filed a second application for disability benefits and was found disabled as of June 29, 2019. (See Pl.'s 12/9/2021 Letter, ECF No. 24.)
II. Non-Medical Evidence
Lopez was born in 1969 and was 46 years old on the alleged onset date. (R. 144.) She is a resident of Bronx, New York. (R. 35.) Lopez completed high school and attended some college. (Id.) Lopez worked as a police officer for the New York City Police Department (“NYPD”) from July 1999 until June 2016. (R. 61, 193.) In 2011, she was injured in the line of duty in a motor vehicle accident, but continued to work on desk duty for the NYPD until June 2016. (R. 35-36, 49, 314-17.) As discussed further below, on January 27, 2016, the Medical Board for the Police Pension Fund found Lopez permanently disabled and approved her application for disability retirement. (R. 316.)
III. Medical Evidence Before the ALJ
A. Medical Evidence Prior To June 30, 2016 Onset Date
After her motor vehicle accident, which occurred on September 21, 2011, Lopez reported that she injured her neck and back. (R. 269, 287, 313.) A cervical CT scan taken on the day of her accident showed no herniated discs and minimal disc disease at the C5-C6 level without any fractures or dislocation. (R. 313.)
“A normal human vertebral column consists of thirty-three vertebrae labeled according to their position and region (in descending order, cervical (‘C1' through ‘C7'), thoracic (‘T1' through ‘T12'), lumbar (‘L1' through ‘L5'), sacral (‘S1' through ‘S5') and coccygeal (‘Co1' through ‘Co4')). The fifth lumbar vertebra, for example, is labeled ‘L5.' The space between the fifth lumbar and first sacral vertebrae, for example, is labeled ‘L5-S1.'” Laureano v. Comm'r of Soc. Sec., No. 17-CV-01347 (SDA), 2018 WL 4629125, at *2 n.3 (S.D.N.Y. Sept. 26, 2018) (citing Dorland's Illustrated Medical Dictionary 2079 (31st ed. 2007)).
In February 2012, Lopez reported that she injured her neck while weight training at home. (R. 316.) An electromyography (“EMG”) study in February 2012 showed mild to moderate C6 cervical radiculopathy on the right and “less so” on the left. (R. 295-97.) Cervical MRIs in 2012 and 2013 showed C2-C3 through C4-C5 and C6-C7 disc bulges impinging on the thecal sac, a C5-C6 disc bulge impinging on the spinal cord, mild C5-C6 spinal stenosis, degenerative disease and straightening of the cervical spine probably secondary to muscular spasm or strain. (R. 300-03, 316.) Another cervical MRI in March 2014 showed C2-C3 through C4-C5 disc bulges impinging on the thecal sac, a C5-C6 disc herniation impinging on the spinal cord, mild C5-C6 spinal stenosis, a C6-C7 disc bulge causing a small ventral impression on the thecal sac, degenerative disease and straightening of the cervical spine. (R. 298-99.)
“Cervical radiculopathy is a disease of the nerve roots in the cervical spine often caused by compression of nerve roots and often accompanied by neck or shoulder pain.” Monroe v. Berryhill, No. 17-CV-03373 (ER) (HBP), 2018 WL 3912255, at *3 (S.D.N.Y. July 24, 2018) (citation omitted), report and recommendation adopted, 2018 WL 3910824 (S.D.N.Y. Aug. 15, 2018).
“The thecal sac is a membrane that surrounds the spinal cord and spinal nerves. It is filled with cerebral spinal fluid and acts as a protective barrier for sensitive nerve tissue.” Addonisio v. Saul, No. 17-CV-01013 (KAM), 2020 WL 730555, at *6 (E.D.N.Y. Feb. 13, 2020) (citation omitted).
“Spinal stenosis is a ‘narrowing of the vertebral canal, nerve root canals, or intervertebral foramina of the lumbar spine caused by encroachment of bone upon the space; symptoms are caused by compression of the cauda equina and include pain, paresthesias, and neurogenic claudication. The condition may be either congenital or due to spinal degeneration.'” Higgins v. Berryhill, No. 17-CV-05747 (OTW), 2018 WL 6191042, at *2 (S.D.N.Y. Nov. 28, 2018) (citation omitted).
In January 2015, Lopez underwent spinal surgery at the C5-C6 level. (R. 304, 307-12.) The preoperative diagnosis was C5-C6 herniated disc and stenosis. (R. 315.) The following month, she continued to have weakness and numbness in both upper extremities. (Id.)
On January 27, 2016, the Police Pension Fund Article II Medical Board (the “Medical Board”) issued a report on Lopez's disability retirement application. (R. 314-17.) In an interview conducted the day the report was issued, Lopez stated that she continued to have pain in the right side of her upper extremity, had been told she had a frozen shoulder, had difficulty moving the cervical spine, and had mild numbness in her right palm, but denied weakness or numbness in either upper extremity. (R. 315.) An examination conducted the same day showed limited cervical, shoulder and neck motion and cervical tenderness, but no paraspinal spasm, no signs of shoulder impingement, normal motor and sensory findings in the upper extremities and normal strength in the upper extremities. (R. 315-16.) The medical board assessed that Lopez was permanently disabled from performing full police officer duties. (R. 316.) The final diagnosis was “Cervical Disc Disease with Multiple Disc Herniations Status Post Cervical Spine Fusion at ¶ 5-6.” (Id.)
The Medical Board in 2014 had recommended disapproval of Lopez's applications for Ordinary Disability Retirement and Accident Disability Retirement. (R. 314.) However, in its January 27, 2016 report, based upon new evidence, the Medical Board rescinded its prior decision and recommended approval of her application for Ordinary Disability Retirement, but not her application for Accident Disability Retirement. (R. 316.)
B. Medical Evidence After June 2016
1. Physicians Medical Rehabilitation Associates, PLLC
On October 31, 2016, Lopez was seen by Dr. Stephen Huish at Physicians Medical Rehabilitation Associates, PLLC. (R. 269-71.) She reported severe neck pain radiating to her upper extremities, shoulders and upper back. (R. 269.) On examination, Lopez appeared to be in moderate distress secondary to pain. (Id.) She had tenderness with marked paravertebral spasm and straightening and range of motion limitations in her cervical spine; trigger points in several areas and some thoracic spasm; tenderness, range of motion restrictions and weakness in her shoulders; sensory loss in a predominantly C6 distribution; diminished grip strength; and a positive Tinel's sign on the right. (R. 269-70.) In her lower extremities, Lopez had normal range of motion, motor power and sensation, and was able to heel and toe walk with assistance. (R. 270.) Dr. Huish recommended continuing Motrin, prescribed Flexeril, and suggested a course of physical therapy and possible injections. (R. 270.) He indicated that Lopez was temporarily totally disabled. (Id.)
“A positive Tinel's sign ‘indicates a partial lesion or the beginning regeneration of the nerve.'” Nunez v. Berryhill, No. 16-CV-05078 (HBP), 2017 WL 3495213, at *5 (S.D.N.Y. Aug. 11, 2017) (citation omitted).
Lopez saw Dr. Huish again on December 12, 2016. (R. 267-68.) She complained of headaches; marked neck pain; shoulder pain; difficulty lifting, carrying, pushing and pulling; worsening radiating pain, numbness, tingling in the upper and lower extremities; and difficulty with most activities of daily living. (R. 267.) On examination, the range of motion in Lopez's neck, shoulders and low back was restricted, and she had sensory deficits in a C6 distribution, a positive Tinel's sign on the right, diminished grip strength, a positive straight leg raising maneuver with subjective sensory loss in a mixed distribution and 1-2/4 symmetric reflexes. (Id.) Dr. Huish referred Lopez to Dr. John Vlattas, also at Physicians Medical Rehabilitation Associates, PLLC, for a pain management consultation and possible injections. (R. 268.) Dr. Huish indicated that Plaintiff remained disabled. (Id.)
On January 11, 2017, Lopez saw Dr. Vlattas for the first time. (R. 265-66.) Lopez reported neck pain radiating to the shoulders and other upper back areas, mid and lower back pain radiating to the lower limbs and stiffness with raising her arm, pushing, pulling and lifting, which she treated with Motrin, Tylenol and Flexeril, as needed. (R. 265.) On examination, Dr. Vlattas noted tenderness in the cervical, thoracic and lumbar spine, moderately to markedly restricted range of cervical motion, moderately restricted range of lumbar motion, positive straight leg raising, moderately restricted range of shoulder motion and positive Neer and Hawkins impingement signs. (Id.) He prescribed Flector patches and discussed cervical branch blocks, but stated that Lopez was “going to try to avoid interventional treatments at this time.” (R. 265-66.) Dr. Vlattas indicated that Lopez was totally disabled. (R. 266)
“A Flector Patch is a prescription NSAID patch for acute pain.” Stellmaszyk v. Berryhill, No. 16-CV-09609 (DF), 2018 WL 4997515, at *7 (S.D.N.Y. Sept. 28, 2018) (citation omitted).
On March 27, 2017, Lopez returned to Dr. Huish and complained of considerable neck and back pain with spasm and shoulder pain with difficulty lifting, carrying, pushing and pulling. (R. 263.) On examination, Dr. Huish noted cervical dorsal tenderness with paravertebral spasm in the mid-to-lower cervical spine. (Id.) He also noted straightening of the lumbar spine with dorsal tenderness and paravertebral spasm, a focal trigger point on the left at ¶ 4-5 and L5-S1, tenderness with spasm in the left piriformis, spasm and a trigger point in the left quadratus lumborum, as well as bilateral shoulder focal tenderness, decreased range of motion, bilateral weakness of the supraspinatus and positive Neer and Hawkins signs. (Id.)
“The piriformis muscle is in the lower back.” Charlebois v. Comm'r, Soc. Sec. Admin., No. 02-CV-00686 (LEK) (GJD), 2003 WL 22161591, at *9 (N.D.N.Y. Sept. 12, 2003) (citation omitted).
“The quadratus lumborum muscle (musculus quadratus lumborum) is a lower back muscle that flexes the lumbar vertebrae laterally.” Lindo v. Saul, No. 18-CV-01070 (SDA), 2019 WL 4784921, at *4 (S.D.N.Y. Sept. 30, 2019) (citation omitted).
“The supraspinatus is a muscle in the rotator cuff that keeps the upper arm stable and helps lift the arm.” Franco v. Saul, No. 16-CV-05695 (LMS), 2020 WL 4284157, at *1 (S.D.N.Y. July 27, 2020) (citation omitted).
“The Neer's impingement test is also commonly used to test rotator cuff shoulder impingement. The examiner stabilizes the patient's scapula with one hand, while internally rotating and passively flexing the arm. If the patient reports pain in this position, then the test is considered to be positive.” Albino v. Berryhill, No. 18-CV-06514 (LGS) (HBP), 2019 WL 2477957, at *7 (S.D.N.Y. May 29, 2019), report and recommendation adopted, 2019 WL 2465139 (S.D.N.Y. June 13, 2019) (citation omitted).
“The Hawkin's impingement test is commonly used to test rotator cuff shoulder impingement. The examiner places the patient's arm shoulder in 90 degrees of shoulder flexion with the elbow flexed to 90 degrees and then internally rotates the arm. The test is considered to be positive if the patient experiences pain with internal rotation.” Albino, 2019 WL 2477957, at *7 (citation omitted).
On May 10, 2017, Lopez saw Dr. Vlattas. (R. 262.) She reported worsening neck pain, headaches, shoulder pain, numbness and tingling in the arms, mid and low back pain radiating to left lower limb and bilateral shoulder stiffness and soreness. (Id.) Lopez told Dr. Vlattas that she stopped chiropractic treatments because they hurt her neck, that she had not yet restarted physical therapy and that Flector patches were not particularly helpful. (Id.) On examination, Dr. Vlattas noted tenderness of the upper cervical facet regions; trigger points in the upper trapezii and levator scapulae insertions; tenderness of the cervicothoracic junction; moderately restricted range of motion of the cervical spine; tenderness in the thoracic spine; mild spasm, moderate tenderness and moderately restricted range of motion in the lumbar spine; tenderness, moderately restricted range of motion and weakness in both shoulders; and positive straight leg raise bilaterally. (Id.) Dr. Vlattas recommended restarting physical therapy and chiropractic treatment, moist heat and stretching at home and considering trigger point injections. (Id.)
“The trapezius is one of the shoulder muscles.” Kellner v. Colvin, No. 14-CV-01340 (JPR), 2015 WL 6681176, at *8 (C.D. Cal. Nov. 2, 2015) (citation omitted). “The levator scapulae is one of the muscles of the shoulder.” Id.
“Cervicothoracic” means “pertaining to the neck and thorax.” Dorland's Illustrated Medical Dictionary (hereinafter, “Dorland's”) 329 (33rd ed. 2020). The “thorax” is “the part of the body between the neck and the thoracic respiratory diaphragm, encased by the ribs.” Id. at 1891.
During a visit with Dr. Huish on May 15, 2017, Lopez stated that she had difficulty sitting, standing, bending, carrying and lifting. (R. 260.) On examination, Dr. Huish noted decreased range of motion in the neck and back, straightening of the cervical and lumbar lordosis, dorsal tenderness with paravertebral spasm, decreased range of motion of the bilateral shoulders and pain on cross-body adduction. (Id.)
“Lordosis is an ‘anteriorly convex curvature of the vertebral column; the normal lordosis of the cervical and lumbar regions are secondary curvatures of the vertebral column, acquired postnatally.'” Rivera v. Berryhill, No. 16-CV-05021 (PKC), 2018 WL 388942, at *3 (E.D.N.Y. Jan. 12, 2018) (citation omitted).
“Adduction refers to joint movement toward the body along the horizontal plane.” Henry v. Astrue, No. 07-CV-02769 (JG), 2008 WL 2697317, at *3 (E.D.N.Y. July 3, 2008) (citation omitted).
On October 9, 2017, Lopez again saw Dr. Huish. (R. 258-59.) She reported having ongoing and at times severe neck pain, midback pain and left-sided low back pain, as well as pain and stiffness in the shoulders bilaterally. (R. 258.) On examination, Dr. Huish noted restricted range of motion with lower cervical dorsal spasm, spasm in the midback with marked trigger points bilaterally at ¶ 5-6, lumbar dorsal spasm, decreased range of motion of the lumbar spine, ongoing restricted range of motion of the bilateral shoulders with some weakness of the rotator cuff. (Id.) Dr. Huish administered trigger point injections. (Id.)
On November 8, 2017, Lopez saw Dr. Vlattas. (R. 256-57.) She reported neck pain with difficulty standing, low back pain, soreness, stiffness, intermittent numbness and tingling of the legs, as well as shoulder pain. (R. 256.) Lopez stated that she had not received therapy or chiropractic treatments because she could not afford them on a limited budget. (Id.) Dr. Vlattas discussed further injections, but Lopez was “going to hold on this.” (Id.) On examination, Dr. Vlattas noted protracted shoulders; trigger points in the upper trapezii and levator scapulae insertions, mid thoracic region and lumbar paraspinals; decreased range of motion of the cervical and lumbar spine; straight leg raising that caused pulling in the low back, buttocks and posterior thighs; pain in the prone position; shoulder tenderness; decreased range of motion of the shoulder; and bilateral shoulder weakness, right greater than left. (Id.)
On January 8, 2018, Lopez returned to Dr. Huish and reported worsening headaches and ongoing neck, shoulder and low back pain. (R. 340-41.) On examination, Dr. Huish noted mild distress secondary to pain, difficulty moving her neck, cervical and lumbar spine tenderness with spasm, limited range of motion of the cervical and lumbar spine, mild low back straightening, decreased range of motion of the bilateral shoulders, rotator cuff weakness and unchanged neurovascular examination. (R. 340.) Dr. Huish recommended continuing stretching and a trial of acupuncture and refilled her Ibuprofen and Flexeril medications. (R. 340-41.)
Lopez next saw Dr. Huish on May 7, 2018. (R. 339.) Lopez reported bilateral shoulder pain, neck pain and back pain with radiating pain to the left leg. (Id.) On examination, Dr. Huish noted considerable tenderness with spasm in the neck and back, multiple trigger points, worsening interscapular trigger points with marked trigger points bilaterally in the rhomboid, limited range of motion of the bilateral shoulders, positive impingement sign with rotator cuff weakness bilaterally and an unchanged neurovascular examination. (Id.) Lopez saw Dr. Vlattas on May 9, 2018 with ongoing symptoms but again was “going to hold” on interventional treatments. (R. 347-48.)
On September 18, 2018, Lopez visited Dr. Huish and reported worsening pain in her bilateral shoulders with ongoing neck and back pain. (R. 338.) Dr. Huish indicated Lopez's chiropractic treatment “did not seem to help much.” (Id.) On examination, Dr. Huish noted restricted range of motion of the neck and back, increased tenderness of bilateral shoulders, a positive impingement sign, weakness and an unchanged neurovascular examination. (Id.) He administered a right shoulder cortisone injection. (Id.) Dr. Huish stated that Plaintiff “remains disabled.” (Id.)
On October 31, 2018, Lopez visited Dr. Vlattas. (R. 345-46.) She told Dr. Vlattas that the shoulder injection helped for about a week, but reported ongoing symptoms including in the shoulder with difficulty raising the arm and constant pain that interfered with her day. (R. 345.) On examination, Dr. Vlattas noted trigger points; decreased range of motion; a positive Spurling's maneuver to the right; tenderness, mild spasm, positive straight leg raise on the left; decreased sensation in the left L5 dermatomes; weakness; and increased pain in the prone position. (Id.)
“[A] Spurling's maneuver is a test for cervical radiculopathy performed by placing downwards pressure on the patient's head. The maneuver is positive if it causes pain.” Boryk ex rel. Boryk v. Barnhart, Nol. 02-CV-02465 (JG), 2003 WL 22170596 at 2 n.4 (E.D.N.Y. Sept. 17, 2003).
On December 3, 2018, Lopez again visited Dr. Huish. (R. 336-37.) He indicated that Lopez's prior right shoulder injection did not provide “much in the way of relief.” (Id.) Lopez reported ongoing neck and back pain, bilateral shoulder pain and some right anterior knee pain. (Id.) Upon examination, Dr. Huish noted that her gait was mildly antalgic, restricted range of motion in her neck and back with dorsal tenderness and paravertebral spasm, restricted range of motion in both shoulders, rotator cuff weakness and some tenderness over the patellofemoral joint. (Id.) Dr. Huish recommended physical therapy for the right shoulder and right knee, and a right knee MRI if symptoms were refractory. (Id.)
“Patellofemoral” means “pertaining to the patella and the femur.” Dorland's at 1374.
On March 25, 2019, returned to Dr. Huish and reported a marked worsening of right shoulder pain with difficulty lifting, carrying, pushing and pulling, as well as neck and back pain with radiating pain to the left leg. (R. 334-35.) She also reported intermittent pain in the anterior aspect of the knee, residual pain in the left shoulder and difficulty sitting, standing, bending, carrying, lifting, and sleeping. (R. 334) On examination, Dr. Huish noted decreased range of motion of the cervical and lumbar spine, positive Spurling maneuver, tenderness with paravertebral spasm, pain, restricted range of motion of the shoulders, weakness with a positive right-sided impingement sign, right knee tenderness and an unchanged neurovascular examination. (Id.) Dr. Huish administered a cortisone injection for Lopez's right shoulder. (Id.)
On April 29, 2019, Dr. Huish completed a functional assessment form for Lopez's disability claim and checked off that that she could stand and/or walk less than 2 hours; sit less than 4 hours; lift and/or carry more than 5 pounds, but less than 10 pounds for a third of a workday and less than 5 pounds for two thirds of a workday, never reach overhead and only occasionally use her upper extremities for any activities; and had all other work restrictions listed in the form, except environmental restrictions. (R. 326-27.) In support of his responses, Dr. Huish referred to Lopez's “medical records” and Dr. Huish's medical narrative report, which accompanied the functional assessment form. (R. 327-32.) In the narrative, Dr. Huish described Lopez's history, examination findings and treatment, and stated that in his opinion she was totally disabled. (R. 328-32.)
On May 1, 2019, Lopez visited Dr. Vlattas. (R. 344.) She reported worsening low back pain radiating to the left lower limb with numbness and tingling and neck pain into the shoulders. (R. 344.) Upon examination, Dr. Vlattas noted mild spasm and tenderness of the cervical spine, positive Spurling's maneuver bilaterally, decreased range of motion of the bilateral shoulders, weakness in both shoulders, impingement positive bilaterally, marked spasm and tenderness of the lumbar spine, marked limited range of motion of the lumbar spine, positive straight leg raise bilaterally, paresthesia in the L5 dermatomes bilaterally, diminished reflexes, mild effusion and tenderness in the right knee, positive patellar grind and compression, decreased range of motion of the right knee, weakness in right knee extension and flexion. (Id.) On May 1, 2019, Dr. Vlattas also completed a functional assessment form, and provided responses similar to those provided by his colleague, Dr. Huish. (Compare R. 342-43 with R. 326-27.)
“Paresthesia” is “an abnormal touch sensation, such as burning, prickling, or formication.” Dorland's at 1362.
A “dermatome” is “the area of skin supplied with afferent nerve fibers by a single spinal nerve.” Dorland's at 491.
2. Coop City Chiropractic, PC
On October 31, 2016 (the same day as her first appointment with Dr. Huish discussed above), Lopez saw a chiropractor at Coop City Chiropractic, PC with complaints of shoulder and cervical radiating pain. (R. 318-21.) Henry Hall, D.C., noted that Lopez's shoulder pain was described as pressure, sharp, shooting, spasms, stabbing and tingling, with headache, neck pain and neck stiffness. (R. 318.) Dr. Hall noted that her cervical radiating pain was described as achy, burning, dull, numbing, pressure and sharp. (Id.)
On examination, Dr. Hall noted that Lopez had decreased range of motion of the cervical spine and weak hand grip strength, but that she could “Back Lift” five pounds, squat, kneel, walk on her toes and heels and lift her arms with pain. (R. 319.) Muscle testing showed 3/5 strength in the left and right deltoids, 4/5 strength in the biceps and triceps and otherwise 5/5 strength in the upper and lower extremities. (R. 320.) Lopez had sluggish or level 1 reflexes bilaterally associated with the C5 and C6 levels and otherwise active or level 2 reflexes. (Id.) She had various positive orthopedic tests, including tests that were indicative of nerve root involvement in the cervical spine. (R. 321.) Dr. Hall assessed a 100% disability status. (Id.)
3. Consultative Examiner Ann Marie Finegan, M.D.
On December 29, 2017, Lopez attended a consultative examination with Dr. Ann Marie Finegan, and complained of neck pain, back pain, shoulder pain, headaches and asthma since age 10. (R. 287-291.) Plaintiff reported that she lived alone and cooked, cleaned, did laundry, shopped, and could perform many activities of daily living, but was very slow in activities such as grocery shopping or lifting. (R. 287.) On examination, Dr. Finegan noted that Lopez appeared in no acute distress, had a normal gait, could walk on her heels and toes without difficulty, needed no help changing or getting on and off the examination table, and was able to rise from a chair without difficulty. (R. 289.) A chest and lungs examination showed normal findings. (R. 289.) Lopez had limited and painful cervical range of motion; palpable spasm in the trapezius muscles; painful but full shoulder motion; normal lumbar spine; negative straight leg raising; full strength and range of motion in her upper and lower extremities; physiologic and equal reflexes; no sensory deficits; intact hand and finger dexterity; and full grip strength. (R. 290.) X-rays of the spine showed disc space narrowing in the lumbar spine and post-surgical changes in the cervical spine. (R. 290-93.) Dr. Finegan recommended avoiding temperature extremes, dust and fumes due to asthma and assessed moderate limitations in lifting, reaching overhead, climbing ladders and activities requiring twisting or turning of the neck due to possible cervical radiculopathy. (R. 291.)
4. State Agency Medical Consultant Dr. A. Saeed
On February 6, 2018, after reviewing certain medical evidence, State agency medical consultant Dr. A Saeed assessed that Lopez had no manipulative limitations, could lift up to 20 pounds occasionally and 10 pounds frequently, could engage in occasional postural activities and needed to avoid concentrated exposure to respiratory irritants. (R. 58-59.) Dr. Saeed noted that Lopez was attending pain management treatment and reported range of motion restrictions in the cervical and lumbosacral spine and the shoulders, but explained that the consultative examination had findings including normal gait, negative straight leg raising, full strength in both the upper and lower extremities and full grip strength. (R. 56, 60.)
IV. The May 21, 2019 Administrative Hearing
Plaintiff appeared with counsel for an administrative hearing before ALJ Poulose on May 21, 2019. (R. 29-52.)
A. Plaintiff's Testimony
Lopez testified that she tried not to drive too often because she sometimes had difficulty looking to her right and if she drove far, her arm started bothering her. (R. 38.) She spent her days at home listening to the Bible. (Id.) She had difficulty washing her hair, shopping, cooking and doing housework. (R. 39-40.) The side effects from her medications included drowsiness and sleepiness. (R. 44.)
B. Vocational Expert Testimony
Vocational Expert (“VE”) Michelle Peters Pagella also testified at the hearing. (R. 48-51.) ALJ Poulose asked VE Pagella a hypothetical about the type of job an employee with Lopez's limitations could perform. (R. 49-50.) VE Pagella testified that Lopez could perform a job as a desk clerk. (R. 49.) She also testified that an individual in such a position would be expected to work a minimum of 85 percent of a workday. (R. 50 (“no more than 15 percent time off task”).)
V. ALJ Poulose's Decision And Appeals Council Review
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since June 30, 2016, the alleged onset date. (R. 17.) At step two, the ALJ determined that the following impairments were severe: “cervical spine herniation status-post discectomy, lumbosacral derangement with left radiculopathy, and bilateral shoulder impingement syndrome.” (Id.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18.) The ALJ specifically considered Listings 1.02 (Major Dysfunction of a Joint) and 1.04 (Disorders of the Spine). (Id.) First, the ALJ found that “[t]he claimant's bilateral shoulder impingement syndrome does not meet Listing 1.02B, as she does not have appropriate medical imaging of a gross anatomical deformity with chronic joint pain and limitation of motion involving one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.” (Id.) Second, the ALJ found that Lopez's cervical spine herniation status-post discectomy and lumbosacral derangement with left radiculopathy fails to meet Listing 1.04 because the record did not demonstrate compromise of a nerve root (including the cauda equina) or the spinal cord with additional findings of: evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and positive straight-leg raising or; spinal arachnoiditis or; lumbar spinal stenosis resulting in pseudoclaudication. (Id.)
“Pseudoclaudication is defined as pain, tension and weakness in the back and lower limbs, generally caused by spinal stenosis” Lehman v. Astrue, 931 F.Supp.2d 682, 690 (D. Md. 2013) (citation omitted).
The ALJ then assessed Plaintiff's RFC, determining that she was able “to perform light work as defined in 20 CFR § 404.1567(b) except with only occasional stairs, crouching, crawling, stooping, and kneeling, and frequent handling and fingering bilaterally, and no ladders, ropes, or scaffolds, or overhead reaching, or exposure to hazards such as unprotected heights, operation of heavy machinery, or commercial driving.” (R. 18.) The ALJ noted that, while she found that “[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” she also found “[Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [] not entirely consistent with the medical evidence and other evidence in the record . . ..” (R. 20.) The ALJ also noted that she found unpersuasive the medical opinions of the treating sources, i.e., Dr. Huish and Dr. Vlattas. (See R. 23.)
Moving on to step four, the ALJ found that Lopez was “capable of performing [her] past relevant work as a desk clerk.” (R. 23.) Accordingly, the ALJ found that Plaintiff was not disabled during the relevant period and denied her claim for benefits. (R. 24)
Following the ALJ's decision, Plaintiff sought review from the Appeals Council, which denied her request on July 22, 2020. (R. 1-3.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citing Fed.R.Civ.P. 12(c)). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“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.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (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[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion, ” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).
[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, 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 determining whether an individual is disabled, the Commissioner must consider: “(1) the objective medical facts; (2) 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.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement . . . [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 [(the “Listings”)] . . . and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 404.1520(a)(4) (internal citations omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4).
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. § 404.1520(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
The claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 51-52.
DISCUSSION
Plaintiff argues that this action should be remanded because (1) the “ALJ erred in finding that . . . Plaintiff's asthma, right knee derangement, and headaches were not severe impairments” (Pl.'s Mem., ECF No. 14, at 14); (2) the ALJ erred in rejecting the opinions of Plaintiff's treating physicians, Dr. Huish and Dr. Vlattas (id. at 15-19); (3) the ALJ erred in finding that Plaintiff did not satisfy Listing 1.04 (id. at 20); (4) the ALJ erred in her credibility assessment of Plaintiff (id. at 21-24); and (5) the ALJ's analysis of the VE's testimony was flawed. (Pl.'s Mem. at 24-25.) For the reasons set forth below, I find that the ALJ did not adequately address the Listing criteria at step three and, in any event, remand is required for the ALJ to consider the subsequent decision finding Plaintiff disabled as of June 29, 2019, the day after the ALJ's decision at issue here.
I. The ALJ's Step Three Determination
A claimant bears the burden at step three to prove she meets the requirements necessary to meet or equal a Listing. Melville, 198 F.3d at 51. Nonetheless, “‘[w]here the claimant's symptoms as described by the medical evidence appear to match those described in the Listings[, ]'” an ALJ must “‘provide an explanation as to why the claimant failed to meet or equal the Listings[.]'” Colon v. Saul, No. 20-CV-02113 (KAM), 2021 WL 2827359, at *5 (E.D.N.Y. July 7, 2021) (quoting Rockwood v. Astrue, 614 F.Supp.2d 252, 273 (N.D.N.Y. 2009)); see also Woods v. Saul, No. 19-CV-03368 (SN), 2021 WL 848722, at *15 (S.D.N.Y. Mar. 5, 2021); Prieto v. Comm'r of Soc. Sec., No. 20-CV-03941 (RWL), 2021 WL 3475625, at *16 (S.D.N.Y. Aug. 6, 2021). “While the ALJ may ultimately find that [a considered listing] do[es] not apply to Plaintiff, [s/he] must still provide some analysis of Plaintiff's symptoms and medical evidence in the context of the Listing criteria.” Colon, 2021 WL 2827359, at *5 (quoting Critoph v. Berryhill, No. 16-CV-00417 (MAT), 2017 WL 4324688, at *3 (W.D.N.Y. Sept. 28, 2017)). “In other words, the ALJ must “build an accurate and logical bridge from the evidence to [his or her] conclusion to enable a meaningful review.” Id. (citing Hamedallah ex rel. E.B. v. Astrue, 876 F.Supp.2d 133, 142 (N.D.N.Y. 2012)). However, “an ALJ's unexplained conclusion at step three of the analysis may be upheld where other portions of the decision and other ‘clearly credible evidence' demonstrate that the conclusion is supported by substantial evidence.” Ortiz v. Saul, No. 19-CV-02316 (KAM), 2020 WL 7699304, at *7-9 (E.D.N.Y. Dec. 28, 2020) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).
For a disorder of the spine to meet Listing 1.04, it must result in compromise of a nerve root or the spinal cord with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (2019). The Court agrees with Plaintiff that there is at least colorable evidence that she met the criteria in Listing 1.04, such that the ALJ was required to provide further explanation for her contrary finding. (See Pl.'s Mem. at 20; Pl.'s Reply Mem., ECF No. 23, at 7.)
Available at https://secure.ssa.gov/poms.nsf/lnx/0434121013.
First, the record contains ample evidence of compromise of a nerve root or the spinal cord with evidence of nerve root compression. (See, e.g., R. 321 (October 2016 positive Formainal compression indicating nerve root involvement cervical spine), 276 (January 2017 EMG and NCV positive for bilateral cervical radiculitis/radiculopathy), 263, 272 (February 2017 EMG and NCV positive for left L5-S1 radiculopathy); 256 (November 2017 cervical compression positive); 347 (May 2018 compression, positive Spurling test); 345 (October 2018 positive Spurling test); 332, 344 (May 2019 positive Spurling test).
Second, the record contains frequent references to neuro-anatomic distribution of pain and limited range of motion of the spine. (See, e.g., R. 318-19 (October 2016 cervical radiating pain, reduced range of motion); 267 (December 2016 restricted range motion, tenderness with trigger points); 265 (January 2017 neck pain radiating to shoulders, low back pain radiating lower limbs, moderately to markedly restricted range motion cervical spine); 260-62 (May 2017 restricted range motion cervical and lumbar spine); 258 (October 2017 restricted range motion cervical and lumbar spine); 340 (January 2018 restricted range motion cervical spine), 347 (May 2018 restricted range motion cervical spine); 345 (October 2018 restricted range motion cervical spine); 337 (December 2018 restricted range motion cervical spine); 331 (May 2019 restricted range motion); 344 (May 2019 marked limited range of motion lumbar spine).)
Third, the record contains evidence of motor loss and muscle weakness. (See, e.g., R. 270, 319-20 (October 2016 reduced strength shoulder, reduced grip strength, weak hand grip/strength, deltoid weakness); 267 (December 2016 reduced grip strength, rotator cuff weakness); 256, 258, 262-63, 267, 334, 336, 338-40, 344-45 (March 2017 through May 2019 shoulder weakness).) Finally, the record demonstrates sensory or reflex loss and positive straight leg raising. (See, e.g., R. 270 (October 2016 diminished sensation); 267 (December 2016 sensory deficits bilaterally, positive straight leg raising); 265 (January 2017 positive straight leg raising); 262 (May 2017 positive straight leg raising); 345 (October 2018 positive straight leg raising); 344-45 (May 2019 decreased sensation L-5 and positive straight leg raising).)
The Commissioner argues that the ALJ referenced specific findings and properly weighed evidence that Plaintiff met a Listing against evidence from treatment notes and the consultative examiner. (Comm'r Mem. at 13-14.) In formulating her RFC determination, the ALJ noted that certain treatment notes lacked any reference to reduced strength or diminished sensation in the lower extremities and that two treatment notes indicated that Lopez had a full range of motion of the bilateral lower extremities with normal, motor, power and sensation. (R. 21.) However, given the colorable evidence to support a contrary determination, the Court finds that the ALJ's explanation in the context of the RFC determination was insufficient. See Ortiz, 2020 WL 7699304, at *9 (discussion of plaintiff's back pain in context of RFC determination insufficient to “provide rationale as to how the findings connect to specific criteria in Listing 1.04(A) under step three of the analysis”) (citing Lamar v. Berryhill, No. 17-CV-01019 (MPS), 2018 WL 3642656, at *8 (D. Conn. Aug. 1, 2018) (remanding case where court was “largely left to speculate how the evidence discussed in the ALJ's RFC rationale applies in the Listings context, as the ALJ did not make the necessary findings on issues pertinent to his determinations at step three of the disability analysis”)).
In actuality, the April 29, 2019 treatment note referenced by the ALJ is part of Dr. Huish's report, in which he is restating his findings from his initial examination of Plaintiff on October 31, 2016. (R. 329.) Dr. Huish goes on to say that, during her treatment course, Lopez developed significantly worsening back pain radiating to the lower extremities. (R. 330.)
Moreover, as Plaintiff points out (see Pl.'s Reply Mem. at 7), it is unclear how the lack of findings regarding Plaintiff's lower extremities is dispositive of whether she meets Listing 1.04, particularly with respect to the cervical spine. See, e.g., Horton v. Colvin, No. 15-CV-06937 (JCF), 2016 WL 4411418, at *1 (S.D.N.Y. Aug. 17, 2016) (noting that cervical radiculopathy causes pain that radiates into shoulder, as well as muscle weakness and numbness that travels down arm and into hand). Further, although the ALJ does cite to the consultative examiner's report, she does not explain how she considered the report with respect to the Listing criteria. (R. 18.) Notably, the consultative examiner noted “severely reduced range of motion of the cervical spine” and that further assessment was required to rule out cervical radiculopathy. (R. 23.)
Even if the ALJ ultimately would have decided that the Plaintiff's impairments did not meet or equal Listing 1.04's criteria, Plaintiff should be provided with reasons why these criteria have not been met. See Ortiz, 2020 WL 7699304, at * 9; see also Nashir v. Berryhill, No. 18-CV-00767 (HKS), 2020 WL 1445069, at *5 (W.D.N.Y. Mar. 25, 2020) (remanding for ALJ to “address all conflicting evidence” regarding step three determination and to “provide reasons for discounting that evidence which he rejects”). Because I find that the ALJ did not build a “logical bridge” to “enable meaningful review” of her step three finding I recommend that the case be remanded for further proceedings. Accord Prieto, 2021 WL 3475625, at *16 (citing Horton v. Saul, No. 19-CV-08944 (SN), 2021 WL 1199874, at *13 (S.D.N.Y. Mar. 30, 2021)); see also Woods v. Saul, No. 1:19-CV-03368 (SN), 2021 WL 848722, at *15 (S.D.N.Y. Mar. 5, 2021) (remanding for ALJ to provide “a clearer explanation” for determination that plaintiff did not meet Listing 1.04).
Because I recommend that this case be remanded based on other grounds, the Court need not address Plaintiff's remaining arguments. See, e.g., Ortiz, 2020 WL 7699304, at *9 (recommending remand based on step three and declining to address arguments relating to other steps in sequential analysis since ALJ would need to perform new sequential evaluation on remand) (citing cases).
II. The Case Should Be Remanded For Consideration Of The Subsequent Favorable ALJ Decision
On December 9, 2021, Plaintiff filed a letter informing the Court that, on October 8, 2021, Plaintiff was awarded disability benefits under her second protective application for the period beginning June 29, 2019, the day after the ALJ's decision that is the subject to this action. (See Pl.'s 12/9/2021 Letter (attaching decision).) There, the ALJ considered much of the same evidence that is at issue here, as well as subsequent medical evidence, and found, at step five, that Plaintiff was disabled. The Court finds that this decision constitutes new evidence that should be considered by the ALJ on remand. See Mikol v. Barnhart, 554 F.Supp.2d 498, 504 (S.D.N.Y. 2008) (citing 42 U.S.C. § 405(g)). Here, as in Mikol, the subsequent decision addresses conditions that were present and addressed by the first ALJ and sheds light on the seriousness of Plaintiff's condition at the time of the first ALJ's decision. See Id. Accordingly, “[i]t is reasonable to assume that the second decision will impact the decision of the first ALJ because it suggests the impairment was more severe than the first ALJ determined.” Id. Under the circumstances, I recommend that the case be remanded to the Commissioner for a determination whether, in light of the new evidence, Plaintiff was disabled from June 30, 2016 to June 28, 2019.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED and this case be remanded for further proceedings.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).