Bonilla-Bukhari v. Berryhill, 18 Civ. 263 (GWG)

357 F.Supp.3d 341

Maribel BONILLA-BUKHARI, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

18 Civ. 263 (GWG)

United States District Court, S.D. New York.

Signed March 4, 2019

Nathalie Bernadette Martelly, Disability Justice, New York, NY, for Plaintiff.

Amanda Frances Parsels, Office of the United States Attorney, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Maribel Bonilla-Bukhari ("Bonilla-Bukhari") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for Supplemental Security Income and Disability Insurance Benefits under the Social Security Act (the "Act"). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, Bonilla-Bukhari's motion for remand is denied and the Commissioner's motion is granted.

I. BACKGROUND

A. Procedural History

Bonilla-Bukhari applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on May 20, 2014. See Certified Administrative Record, filed May 10, 2018 (Docket ## 11, 11-1, 11-2, & 11-3) ("R."), 20, 92, 100. She alleged that her disability began on December 30, 2013, when she was 50 years old. R. 92-93, 100-01.

The Social Security Administration ("SSA") denied the applications, R. 98, 107, 115-21, and Bonilla-Bukhari sought review by an Administrative Law Judge ("ALJ"), R. 131-37. An initial hearing was held on April 19, 2016, before an ALJ. R. 45-69. The ALJ scheduled a supplemental hearing in order to consider information contained in Bonilla-Bukhari's Worker's Compensation records, R. 64-65, 68, 72, which was held on August 2, 2016, before the same ALJ, R. 70-91. In a written decision dated September 14, 2016, the ALJ found Bonilla-Bukhari not disabled within the meaning of the Act. R. 20-28. On November 9, 2017, the Appeals Council denied Bonilla-Bukhari's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. R. 1-6. This action followed.

B. The Hearing Before the ALJ

Bonilla-Bukhari was represented by attorney Connor Devereaux at her hearings. R. 48, 70, 72. During the first hearing, Bonilla-Bukhari testified that she lived on Staten Island on the second floor of a house with her husband. R. 50. There were approximately nine stairs leading to her apartment. R. 51. She had four grown daughters and two grandchildren. R. 51. She did not have a driver's license, traveled to the hearing by taxi, rarely took public transportation, and when she did take public transportation, had to travel with someone else. R. 50-51. When she would take the train, she needed to use the elevator. R. 52. Her husband was supporting her, R. 52; he did most of the housework and laundry, R. 63; and her brother and sister would cook for her and assist her during the day while her husband was at work, R. 64. In a typical day, Bonilla-Bukhari would stay in bed and watch TV, and one of her siblings would stay home with her during the day to prepare food for her and help her use the bathroom. R. 64.

Bonilla-Bukhari explained the incident that caused the onset of her alleged disability. R. 55. While working as a Certified Nurse's Assistant ("CNA") at Staten Island Care Center in June 2012, see R. 53, Bonilla-Bukhari slipped on water and toothpaste that was on the floor of the hospital's psychiatric unit while she was walking over to render care to one of the residents of that unit. R. 53, 55. When she slipped, her "whole body was flipped on the floor," and she injured her left leg, left arm, her lower back, and buttocks, which all hit the floor. R. 55. She also injured her right hand while trying to prevent the fall. R. 55. Six months after her fall, on December 31, 2012, Bonilla-Bukhari attempted to return to work at Staten Island Care Center, but quit after three hours because she could not perform the physical demands of the job. See R. 53-54. In 2014, she made some income from selling food that she prepared at home. R. 54, 56. In January 2015, Bonilla-Bukhari attempted to return to work as a CNA at a different hospital, but had to leave during orientation because of pain in her leg. R. 53, 56.

Bonilla-Bukhara also testified about her impairments. In addition to pain in her left knee and left leg, she experienced severe issues with muscle spasms in her back. R. 57. She testified that she could not receive cortisone injections for her back pain because the shots "lock[ her] leg." R. 57. Since having an arthroscopy and a meniscectomy on her knee in 2015, her knee has gotten worse. R. 57. She testified that she uses a cane to walk all the time, including in her house, because her left leg trembles and can cause her to fall. R. 57-58. She can stand for about 20 minutes before having to sit down because of pain in her leg. R 58-59. She also experiences swelling in her legs, which she addresses by elevating her legs while in bed, sometimes using a pillow for assistance. R. 59. In addition, she has edema in her shoulder, which causes pain, R. 60, and she has herniated discs in her neck from a prior accident, which occurred in 2003. R. 55-56. She has been taking Percocet for pain management since 2012. R. 62-63.

Bonilla-Bukhara also testified that she experiences problems with "digestion and bowel movement[s]," including constipation, and that the medication she takes for this causes symptoms including "[v]omiting ... nausea, dizz[iness], [and] headaches." R. 60. She has a history of breast cancer, and experiences symptoms including numbness and "pain in [her] nipple to [her] armpit," and having her arm "lock[ ]," which makes it difficult to comb her hair, dress herself, and tie her shoes. R. 61. Bonilla-Bukhara testified about her asthma and breathing difficulties, explaining that she takes Advair 150, Azmacort, and albuterol, and becomes winded after walking approximately half a block. R. 61-62.

Bonilla-Bukhari's attorney asked her several questions about treatment of her left knee injuries. R. 73-77. Bonilla-Bukhari testified about her conversations with doctors about her need for future knee surgery. R. 73. She stated that she has gotten three or four opinions, and has been advised that she may need a partial or full knee replacement, and that continuing to drain the cyst behind her knee may not be fruitful as it will keep coming back. R. 73. In response to questioning by the ALJ, she testified that in 2015, Dr. Michael Kang performed surgery to repair a torn meniscus. R. 73-74. Following the surgery, she attended physical therapy, though there was some delay in beginning physical therapy, apparently due to a misunderstanding between Bonilla-Bukhari and her doctor. R. 74. She attended physical therapy approximately three or four times after her surgery, but stopped because the physical therapy began to cause muscle spasms and pain in her leg and back. R. 75.

During the second hearing, Bonilla-Bukhari again testified about her use of her cane, explaining that she uses it "[b]ecause there's times when [her] leg really, really gets swollen," and because her leg "gets so numbed up [she] cannot move [it]." R. 76. She explained that she used her cane outside, and in her house sometimes, though she can also use the walls for support in her house. R. 76.

Bonilla-Bukhari also testified about why she can no longer perform her work as a CNA. She explained that because of pain and issues with her leg and left side, she would not be able to move patients, and is not able to stand up for very long. R. 76-77.

The ALJ then heard testimony from a vocational expert ("VE"), Frank Linder. R. 77-91. The VE identified Bonilla-Bukhari's past jobs as "nursing assistant" and "direct care aid," which both have an exertional level of "medium." R. 83. However, the VE found that Bonilla-Bukhari performed both these jobs at the "heavy" level. R. 83-84. The ALJ then posed several hypothetical questions to the VE. First, the ALJ asked the VE to "assume a hypothetical individual of the claimant's age and education with the past jobs" the VE had identified, restricted to light work, with additional limitations, including that the particular person "could stand or walk for a total of four hours in an eight-hour workday," and could "reach frequently [w]ith their upper left extremity, ... can handle frequently, finger frequently and feel frequently," assuming the person is right-hand dominant. R. 84. The ALJ further instructed the VE to assume that the hypothetical person could "occasionally climb ramps and stairs, never climb ladders, ropes or scaffolds, occasionally balance and occasionally stoop, but never kneel, crouch or crawl," and that the individual "should never be expos[ed] to unprotected heights," should never operate a motor vehicle, and "should have no concentrated exposure to dusts, odors, fumes or pulmonary irritants." R. 84. In addition, the ALJ instructed the VE to assume that this person "should be allowed to sit or stand alternatively at will providing this person is not off task more than five percent of the work period." R. 84. In addition, the VE was to assume that "this individual could occasionally push or pull." R. 84

The VE confirmed that such a hypothetical individual could not perform any of the prior jobs Bonilla-Bukhari performed, either as she actually performed them or as they are generally performed in the national economy. R. 85. However, the VE testified that the hypothetical individual could perform the positions of recreation aide, routing clerk, and information clerk. R. 85. The ALJ next asked the VE to assume an additional limitation, which was that the hypothetical individual "would be limited to jobs that can be performed by using a hand-held assistive device only for uneven terrain or prolonged ambulation." R. 85. The VE testified that such...