Opinion
3:20-CV-750
06-22-2021
SIDNEY H., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
APPEARANCES (By Telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law BY: PETER A. GORTON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel BY: SEAN SANTEN, ESQ.
APPEARANCES
(By Telephone)
For Plaintiff:
LACHMAN, GORTON LAW FIRM
Attorneys at Law
BY: PETER A. GORTON, ESQ.
For Defendant:
SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
BY: SEAN SANTEN, ESQ.
Transcript of a Decision held during a Telephone Conference on June 22, 2021, the HONORABLE CHRISTIAN F. HUMMEL, United States Magistrate Judge, Presiding.
Jodi L. Hibbard, RPR, CSR, CRR, Official United States Court Reporter
(The Court and all counsel present by telephone.)
THE COURT: The following will constitute the court's decision in this matter:
I have before me a request for judicial review of an adverse decision by the Commissioner of Social Security under 42 United States Code Section 405(g).
The background of this case is as follows: Plaintiff was born on August 13th, 1976 and is currently 45 years old. He has at least a high school education. Plaintiff has not engaged in substantial gainful activity since the alleged onset date of June 19th, 2014.
Procedurally, on October 8th of 2015, plaintiff filed a Title II application for a period of disability and Disability Insurance benefits beginning on June 19th, 2014. The claim was initially denied on March 1st of 2016. A hearing was conducted by Administrative Law Judge Perry L. Franklin on June 18th of 2018. Plaintiff and Terri Crawford, an impartial vocational expert, testified. A supplemental hearing was conducted on March 19th, of 2019. Cathy M. Hodgson, Educational Doctorate, an impartial vocational expert, testified at that hearing. Plaintiff was represented by an attorney at the hearing in his claim and throughout the appeals process. ALJ Franklin issued a decision on April 10th of 2019, finding that plaintiff was not disabled at the relevant times. Plaintiff requested Appeals Council review of the ALJ decision. On May 12th of 2020, the Appeals Council denied plaintiff's request for review. This timely District Court action followed.
ALJ Franklin applied the five-step sequential evaluation process for determining disability.
At step one, he found that plaintiff had not engaged in substantial gainful activity since June 19th, 2014, the alleged onset date.
At step two, the ALJ concluded plaintiff had the following severe impairments: History of left open femur fracture, status post intramedullary nailing; left open ankle fracture, status post open reduction and internal fixation; left foot Lisfranc injury, status post open reduction and internal fixation; history of fracture of the right ankle; fracture of the right thumb metacarpal, status post open reduction and internal fixation; coronary artery disease with a history of myocardial infarction; history of bilateral hearing loss.
At step three, the ALJ concluded that plaintiff does not have an impairment or combination of impairments that meets or is medically equal to any of the presumptively disabling conditions. After a review of the record, the ALJ determined that plaintiff has a residual functional capacity to perform less than the full range of sedentary work. The ALJ set forth several detailed postural and exertional limitations based on plaintiff's physical abilities.
At step four, the ALJ concluded plaintiff is unable to perform any past relevant work.
At step five, the ALJ applied the Medical-Vocational Guidelines as well as obtaining testimony from two vocational experts and determined that plaintiff was not disabled.
Plaintiff was involved in a motorcycle accident on June 21st of 2014. He was admitted to the Stony Brook University Hospital where he remained until discharged on July 7th of 2014. Plaintiff sustained fractures of the left ankle, leg, and foot, as well as a fracture of the right thumb. Plaintiff underwent left femur intramedullary nail, left foot ORIF, left ankle internal fixation, left ankle ORIF, ORIF of the second and third metatarsals and Lisfranc, and closed reduction of the right thumb. Plaintiff followed up with his orthopedic surgeon, Dr. Stephen Kottmeier, on July 16th, 2014, September 17th, 2014, and in November 2014.
In February 2015, plaintiff was hospitalized for a heart attack. While hospitalized, plaintiff had a cardiac catheterization with stent placement.
When plaintiff was seen in April 2015, plaintiff was completely asymptomatic and reported he could walk and engage in his daily activities without pain.
Plaintiff relocated to the Binghamton, New York area. Plaintiff saw Dr. Michael McClure, an orthopedic specialist, for the first time on March 16, 2015. Plaintiff reported some irritation from the hardware around the left knee. Plaintiff's principal complaints related to his left foot where he experienced pain and instability. Plaintiff was using a cane. Plaintiff was having no major issues with his wrist.
Plaintiff next saw Dr. McClure on April 27th of 2015. Plaintiff's major concern at that time was his right wrist. Plaintiff wanted the hardware removed from his right wrist. On examination, plaintiff walked with a limp on the left side. The left hip showed full range of motion while the left knee showed palpable hardware with no effusion. He had full extension and flexion 120 degrees with no instability. The left ankle showed 15 degrees of dorsiflexion and 25 degrees of plantar flexion. The right hand showed tenderness over the first metacarpal and some tenderness over the MP joint and over the carpal metacarpal joint. Dr. McClure concluded that the left ankle was doing fine. He recommended that the femur be allowed to continue to heal before removing the screws. Dr. McClure found a fracture of the metacarpal in the right hand to be healing. Dr. McClure found it reasonable to remove the hardware from the right hand. Plaintiff told Dr. McClure he was going to follow up with orthopedic surgeons in New York City regarding his left foot.
On October -- excuse me, on February 4th of 2016, plaintiff underwent an orthopedic consultative examination with Dr. Gilbert Jenouri. Plaintiff reported having difficulties with his left hip and left ankle since the 2014 motorcycle accident. He reported continued left hip and left ankle pain which he described as sharp and ranging in intensity from 3 out of 10 to 10 out of 10. He experienced that pain every day and it increased with activity. The pain radiates into his left foot with numbness and tingling. On examination, Dr. Jenouri found plaintiff's gait was antalgic with a limp. He was unable to walk on heels and toes without difficulty. Plaintiff used the cane when outdoors, which was prescribed by his doctor. Plaintiff's hand and finger dexterity was intact, grip strength five out of five bilaterally. Dr. Jenouri's diagnosis was left extremity injury, left hip pain, left ankle pain, hypertension, coronary artery disease, status post myocardial infarction, and history of depression. Dr. Jenouri found plaintiff had a moderate restriction walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying.
On May 7, 2018, plaintiff saw Dr. McClure for right ankle pain which had started on April 29th of 2018. Plaintiff reported he was having difficulty walking. An x-ray revealed a well-healed fracture of the right ankle. The hardware was laterally intact. Dr. McClure found plaintiff had good range of motion in the ankle with minor arthritic changes.
In September 2018, plaintiff underwent a second orthopedic examination with Dr. Jenouri. Plaintiff reported joint pains, particularly in the left knee, left hip, bilateral ankles, and both wrists. He described the pain as achy and at times sharp. The pain intensity ranged from a 3 out of 10 to an 8 out of 10. The pain occurred frequently and was brought on with activity. Plaintiff was also experiencing difficulties with his left foot. On examination, the plaintiff appeared to be in no acute distress. Plaintiff's gait was antalgic with foot drop. He could walk on heels and toes with difficulty. Plaintiff's station was normal and he did not use an assistive device. He was able to rise from the chair without difficulty. Plaintiff's hand and finger dexterity was intact and he was able to grip, button, and tie. Dr. Jenouri diagnosed left hip pain, left knee pain, left foot pain, bilateral ankle pain, bilateral wrist pain, hypertension, coronary disease, hypokalemia, and seizure activity. Dr. Jenouri found moderate restriction walking, standing long periods, bending, stair climbing, lifting, and carrying. Dr. Jenouri opined that plaintiff could sit for two hours and stand or walk for one hour without interruption. He could sit a total of four hours in a workday. He could stand for two hours and walk for two hours in an eight-hour workday. Plaintiff could never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. He could occasionally climb stairs or ramps.
The court may review the factual findings of the Commissioner only to determine whether the administrative record contains substantial evidence for such findings. The court has carefully reviewed the record and has carefully considered the arguments of counsel today on oral argument and what counsel presented in their briefs. I have applied the proper deferential standard which requires me to determine whether the proper legal principles were applied and whether the result is supported by substantial evidence. I will first turn to plaintiff's argument that the ALJ improperly substituted his lay opinion for competent medical opinion.
This dispute largely turns on the findings of Dr. Jenouri who examined the plaintiff in February of 2016 and September of 2018. As the ALJ noted in his decision, Dr. Jenouri opined that claimant has moderate restriction walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying.
At the second evaluation, Dr. Jenouri found that claimant could lift and carry 20 pounds occasionally and 10 pounds frequently, but would be limited to sitting four hours a day, standing two hours a day, and walking two hours a day, as well as his manipulative abilities would be limited to occasionally using them bilaterally.
The ALJ found Dr. Jenouri's restrictions of moderate in the case of physical activities to be of little value as it is not clear what Dr. Jenouri believed that would mean in terms of actual functional limitations. The ALJ found little in Dr. Jenouri's other records which would support such significant limitations regarding sitting and bilateral manipulative activities. The ALJ noted that plaintiff had limited conservative treatment for his impairments which is inconsistent with the more extreme limitations set forth by Dr. Jenouri. The ALJ gave Dr. Jenouri's opinion little weight.
Here, I find that the ALJ's determination regarding physical limitations are unsupported by substantial medical evidence. The ALJ has chosen to selectively highlight certain portions of the plaintiff's medical records, rather than considering the entirety of the medical record.
Following a motorcycle accident in June of 2014, plaintiff was admitted to the Stony Brook University Hospital for treatment of multiple fractures, including right thumb metacarpal fracture dislocation. Plaintiff underwent an internal fixation of the right thumb metacarpal fracture.
In spring 2015 plaintiff began treating with Dr. Michael McClure, an orthopedist. When he saw Dr. McClure on April 27th of 2015, his major concern was his right hand. Plaintiff wished to have the hardware removed. On examination, the right hand showed some tenderness with a well-healed incision over the first metacarpal. There was some tenderness over the MP joint and the carpal metacarpal joint.
The ALJ is correct that the plaintiff generally had limited conservative treatment thereafter. There is little of significance in plaintiff's medical history after his April 27, 2015 examination by Dr. McClure. The next detailed medical reports are the two reports of Dr. Jenouri, which provide a detailed analysis of plaintiff's medical condition.
When Dr. Jenouri saw plaintiff on February 4th of 2016, plaintiff reported difficulties with his left hip and ankle since the 2014 motorcycle accident. He reported continuing left hip and left ankle pain. The pain occurred every day and increased with activity. Plaintiff stated that the pain radiated into his left foot with numbness and tingling. Dr. Jenouri found plaintiff's gait antalgic with a limp. He was unable to walk on heels and toes without difficulty. Plaintiff's squat was only 50 percent. He was required to use the cane to ambulate, as prescribed by his physician. Dr. Jenouri found plaintiff's hand and finger dexterity intact. Based upon his examination, Dr. Jenouri diagnosed plaintiff with left lower limb extremity injury, left hip pain, hypertension, coronary artery disease, status post myocardial infarction, and history of depression. Dr. Jenouri opined that plaintiff has a moderate restriction walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying.
Dr. Jenouri conducted a second consultative examination of plaintiff on September 28th of 2018. Dr. Jenouri diagnosed plaintiff with left hip pain, left knee pain, left foot pain, bilateral ankle pain, bilateral wrist pain, hypertension, coronary artery disease, hypokalemia, and seizure activity. Dr. Jenouri found plaintiff has moderate restriction walking, standing long periods, bending, stair climbing, lifting, and carrying. He further opined that plaintiff could sit for four hours in an eight-hour day and stand for two hours and walk for two hours in an eight-hour day.
The ALJ afforded Dr. Jenouri's opinion little weight. The ALJ opined that Dr. Jenouri's restriction to moderate activities was of little value as it was not clear what Dr. Jenouri believed that would be in terms of actual limitations. The court disagrees. During each evaluation, Dr. Jenouri made detailed findings regarding plaintiff's physical limitations.
In his first examination Dr. Jenouri found plaintiff's gait was antalgic with a limp. Plaintiff was unable to walk on heels and toes without difficulty. He required a cane to walk when outdoors, which was prescribed by his physician. Based upon his examination, Dr. Jenouri found plaintiff has a moderate restriction for walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying. Dr. Jenouri did not define what he meant by moderate.
Dr. Jenouri performed a second examination of plaintiff. He noted, among other things, that plaintiff's gait was antalgic with foot drop. Plaintiff could walk on heels and toes with difficulty. Plaintiff could squat 75 percent. Dr. Jenouri found plaintiff with moderate restriction walking, standing long periods, bending, stair climbing, lifting, and carrying. Dr. Jenouri explained what he meant as moderate. Plaintiff can frequently lift up to 10 pounds while he can occasionally lift 11 to 20 pounds. He can never lift 21 to 50 pounds or 51 to 100 pounds. Plaintiff can sit for two hours at one time without interruption. He can stand or walk for one hour without interruption. Dr. Jenouri further opined that plaintiff can sit for four hours in an eight-hour day. He can stand for two hours in an eight-hour day and walk for two hours in an eight-hour day. Dr. Jenouri's report provides details for the limitations which he attributed to plaintiff. The court would note that there is no contrary medical evidence in the record.
The court is unable to conclude that the reason provided for rejecting portions of plaintiff's exertional limitations was sufficiently compelling to overcome the fact that Dr. Jenouri's medical opinions are the only opinions in the record regarding plaintiff's limitations. There is nothing in the record which supports the ALJ's decision to give little weight to Dr. Jenouri's opinion. As such, the court finds there is no substantial evidence to support the ALJ's evaluation of the medical opinion evidence.
Plaintiff further contends that the ALJ's RFC finding is not based on substantial evidence. For the reasons set forth above, the court agrees. An individual's RFC is a person's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. In making an RFC assessment, the ALJ should consider a claimant's physical activities, including pain and other limitations, which would interfere with the person's work activities on a regular continuing basis.
Here, the ALJ gave the findings of Dr. Jenouri, based upon his two consultative examinations, little weight. Given that decision by the ALJ and the otherwise limited medical evidence in the record, the ALJ's RFC determination is not supported by substantial evidence.
For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied, and H.'s motion for judgment on the pleadings is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner for further administrative proceedings consistent with this decision.
The court will do an order reflecting its decision in this matter.
CERTIFICATE OF OFFICIAL REPORTER
I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcrip