Hoi Lung Ting v. Comm'r of Soc. Sec.

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HOI LUNG TING, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 23-CV-1241 (PKC)

United States District Court, E.D. New York

January 23, 2024

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Hoi Lung Ting (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the decision of the Social Security Administration (“SSA”) denying his claim for Disability Insurance Benefits (“DIB”). Before the Court are the parties' cross-motions for judgment on the pleadings. (See Pl.'s Mot. for J. on the Pleadings, Dkt. 7 (hereinafter “Dkt. 7”); see also Def.'s Mot. for J. on the Pleadings, Dkt. 9 (hereinafter “Dkt. 9”).) Plaintiff seeks an order remanding this matter for further administrative proceedings, while the Commissioner of Social Security (“Commissioner”) asks the Court to affirm the denial of Plaintiff's claim. For the reasons that follow, the Court grants Plaintiff's motion on the pleadings and denies the Commissioner's cross-motion. This case is remanded for further proceedings consistent with this Memorandum and Order.

BACKGROUND^[1]

I. Procedural History

On April 29, 2021, Plaintiff filed an application for DIB alleging disability beginning on December 1, 2019. (Administrative Transcript (“Tr.”),^[2] at 21.) On December 2, 2021, Plaintiff's application was initially denied (Tr. 114-16), and on February 7, 2022, Plaintiff's application was denied on reconsideration (Tr. 127-29). At Plaintiff's request, on November 29, 2022, Administrative Law Judge (“ALJ”) Andrew Weiss held a hearing at which Plaintiff, his counsel, and a Vocational Expert (“VE”) appeared. (Tr. 63, 134.) On December 12 2022, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). (Tr. 29.) On February 2, 2023, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. 5.) Plaintiff timely filed this action for judgment on the pleadings challenging Defendant's denial of Plaintiff's DIB application on February 16, 2023. (See Dkts. 1, 7.)^[3]

II. Plaintiff's Work and Medical History

Plaintiff was born in 1964 and is a high school graduate. (Tr. 65-66.) Plaintiff worked as a train operator for the New York City Transit Authority (“NYCTA”) for 25 years until December 1, 2019, when he became unable to work due to chronic pain in his back. (Tr. 66-70.) Prior to his departure from his job with NYCTA, Plaintiff sought chiropractic treatment for the pain he was experiencing. (Tr. 70.) This treatment helped a little, but the pain continued to progress and eventually became “pretty constant.” (Id.) In 2021, Plaintiff also attempted to work as an office furniture installer, but had to resign after three weeks because he could not tolerate the pain.^[4] (Tr. 68-69, 73-74.)

After his failed attempt at working as a furniture installer, Plaintiff continued seeking treatment for his back pain, including physical therapy, and underwent a series of MRIs that revealed a “stenosis condition” and a fracture in his lower back. (Tr. 71.) These MRIs included the following: (1) an MRI of Plaintiff's cervical spine, performed on November 8, 2021, that “revealed herniation at ¶ 6-C7, and bulging at ¶ 3-C4, C4-C5 and C5-C6” (Tr. 25, 308); (2) an MRI of Plaintiff's lumbar spine, performed on November 9, 2021, that revealed “bulging at ¶ 1-L2, L2-L3, L3-L4, L4-L5, and L5-S1[,]” as well as “a left foraminal annular fissure, facet arthropathy with rostro caudal facet subluxation resulting in lateral recess, and foraminal stenosis bilaterally” at ¶ 4-L5, and “a central annular fissure, facet arthropathy with left greater than right lateral recess, and foraminal stenosis” at ¶ 5-S1 (Tr. 25, 306); (3) an MRI of Plaintiff's thoracic spine, performed on May 3, 2022,^[5] that revealed “multilevel discogenic spondylosis and bulging at ¶ 7-T8” (Tr. 26, 346-47); and (4) an MRI of Plaintiff's lumbar spine, performed on May 20, 2022, that revealed “an acute mild superior endplate compression fracture of the L2 vertebral body with adjacent marrow edema and enhancement; Grade I anterior spondylolisthesis of L4 on L5; bulging with left foraminal annular fissure at ¶ 4-L5; and bulging at Ll-L2, L2-L3, L3-L4 and L5-S1” (Tr. 25-26, 327-28). Upon receiving the MRI results, Plaintiff was instructed by his doctor to stop physical therapy and see an orthopedic surgeon. (Tr. 71.)

In June 2022, Plaintiff saw orthopedic surgeon Dr. Alfred Faust, who told Plaintiff to cease any activity for a few months. (Tr. 71, 319.) Dr. Faust's notes from that visit indicate that he was surprised by the “acute fracture” in Plaintiff's spine, as the MRI results facially “did NOT look at all pathologic.” (Tr. 321.) Although Plaintiff considered surgery, it was not recommended due to the fracture in his back. (Tr. 71.)

Plaintiff saw Dr. Faust again on September 13, 2022. (Tr. 323.) Dr. Faust noted that Plaintiff was experiencing “lower back pain radiating down the lower extremities to the knee” (Tr. 26, 323-26), that the pain was “constant” and worsened with activity (Tr. 323), and that nothing assisted in relieving the pain (id.). Dr. Faust also noted that while he expected the fracture in Plaintiff's lower back to heal and thereby relieve some pain, if the pain persisted, Plaintiff would need to repeat his MRIs. (Tr. 325.) An MRI of Plaintiff's right hip performed on September 27, 2022 revealed “mild degenerative changes bilateral hips, including chondral thinning and osteophytosis[,]” as well as “a sub centimeter subcortical cystic foci bilateral anterior femoral neck regions, possibly degenerative in nature as well; and bilateral hamstring origin tendinopathy.” (Tr. 26, 329).

On November 10, 2022, Dr. Faust completed a Medical Source Statement, in which he opined that Plaintiff's conditions permitted occasional lifting of less than 10 pounds for a maximum of 1/3 of an eight-hour work day; sitting, walking, and standing for less than 30 minutes; occasional use of hands for fine and gross motor activities; and less than occasional reaching in all directions. (Tr. 361-62)^[6]

III. November 29, 2022 ALJ Hearing

On November 29, 2022, Plaintiff appeared at a telephonic hearing with his counsel, Charles Weiser, before ALJ Weiss. (Tr. 63.) ALJ Weiss heard testimony from Plaintiff and VE Michael Boland. (Id.)

A. Plaintiff's Testimony

Plaintiff testified that he could walk “maybe 10, 15 minutes” before needing to stop because of back stiffness and the need to rest. (Tr. 71-72.) Plaintiff further testified that walking “onset[] the other pain in [his] back or the sciatica in [his] back. [The pain] goes down [his] leg and everything else.” (Tr. 72.) When asked by the ALJ if he could lift 20 pounds “once in a while,” Plaintiff said no. (Id.) Plaintiff reported that he could occasionally lift around 10 pounds, but had pain in his shoulder from lifting and could “do nothing” due to his back pain. (Id.) Plaintiff's counsel noted that the medical records demonstrate that Plaintiff “has a disc protrusion at ¶ 3-C4 followed by S4-S5, S5-S6, disc herniation at ¶ 6-C7 and multi-level stenosis throughout the cervical spine[,]” and that an “MRI of the lumbar spine . . . shows disc bulges at ¶ 1-L2, L2-L3, L3-L4, L4-L5, L5-S1.” (Tr. 81-82.)

B. Testimony of Vocational Expert

The VE testified that Plaintiff's past occupation with the NYCTA is classified as a Motor Operator in the Dictionary of Occupational Titles (“DOT”). (Tr. 74.) The VE explained that this is a “light”^[7] occupation as generally performed, but a “medium” occupation as actually performed by Plaintiff. (Tr. 74-75.) In other words, because Plaintiff reported occasionally needing to lift up to 50 pounds^[8] in the course of carrying out his work, his actual performance of the job would not be classified as light, but as medium. (Tr. 75.)

Plaintiff's counsel asked the VE a series of questions regarding when the DOT last updated the Motor Operator title. (Tr. 77-78.) The VE confirmed that the DOT classification of a Motor Operator's work as light had been determined in the 1980s, and explained that he could not comment on how much weight a Motor Operator today actually has to lift. (Id.) Nonetheless, it was still the VE's opinion that a Motor Operator's work, as generally performed, is light work, based solely on the data from the DOT, and “not based on any of [his] education or experience as [he had] not seen that specific occupation performed and where [Plaintiff] worked.” (Tr. 78.)

The ALJ asked the VE whether the job of a Motor Operator would be transferable to any other job performed at a light or sedentary level. (Tr. 79.) The VE responded that there was only one other occupation listed in the DOT within the same industry that is performed at the light exertional level, titled Streetcar Operator, with an estimated full-time employment number of 3,745. (Tr. 79-80.) The VE further explained that a Streetcar Operator's work is similar to that of a Motor Operator except that the trains most likely operate above ground. (Tr. 81.) When pressed by Plaintiff's attorney, the VE admitted that he had only seen the job of Streetcar Operator being performed on the West Coast, specifically in San Francisco, and could not attest to whether the job existed on the East Coast. (Id.)

The ALJ asked the VE to consider the following hypothetical:

Assume a hypothetical individual the same age, same education as the claimant could perform the full range of light work. Could sit, stand and walk for 6 hours in an eight-hour day and lift 20 pounds occasionally, 10 pounds frequently. Could he perform his prior work? Could he perform the claimant's prior work?

(Tr. 82.) The VE responded that the hypothetical person would not...