Latifu v. Comm'r of Soc. Sec.

1

ASSANA LATIFU, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 21 Civ. 884 (KMK) (JCM)

United States District Court, S.D. New York

May 4, 2022

The Honorable Kenneth M. Karas, United States District Judge

REPORT AND RECOMMENDATION

JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE

Plaintiff Assana Latifu (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) which denied Plaintiff's application for disability insurance benefits. (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 14), and (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 16). For the reasons set forth herein the Court respectfully recommends granting Plaintiff's motion, denying the Commissioner's cross-motion, and remanding this case for further proceedings.

I. BACKGROUND

Plaintiff was born in Ghana on March 7, 1970 and emigrated to the United States in 1996. (R. 56). Plaintiff filed an application for disability insurance benefits on August 13 2018, alleging a disability onset date (“AOD”) of September 28, 2017. (R.^[1] 99,^[2] 174). Plaintiff's application was initially denied on September 28, 2018, (R. 100), after which Plaintiff requested a hearing, (R. 106-07), which was held on January 7, 2020, (R. 43). Administrative Law Judge (“ALJ”) Dina R. Loewy (“ALJ Loewy”) issued a decision on March 26, 2020, denying Plaintiff's claim. (R. 15-24). Plaintiff requested review by the Appeals Council, which denied the request on May 12, 2020, (R. 1-3), making the ALJ's decision ripe for review.

A. Non-Medical Evidence

1. Plaintiff's Work History

From 2003 to September 2017,^[3] Plaintiff worked as a home health aide eight hours per day, five days per week, for various employers, including National Home Care, Inc., Special Touch Home Care Services, JK Staffing, Ltd., Harbor Care, LLC, MJ-MC Home Health Care Agency, Inc., Hudson Valley Elder Care, Inc., Regency Healthcare, Inc., and Post Morris Home Care Agency, LLC. (R. 59, 191-94, 199, 202). Plaintiff completed a certification as a home health aide around 2006. (R. 53). She also worked from 2001 to 2009 as a customer service representative at the Dollar Train, Inc., Easy Pickins, Inc., and Dr. Jays, Inc., “working the floor” and “fixing . . . clothes,” for eight hours a day, five days per week. (R. 59, 81-82, 191-94, 199, 201). In 2004 and 2013, Plaintiff was also self-employed as a babysitter, working five hours per day, three days per week. (R. 60, 191, 193, 199, 200). She stopped working on September 28, 2017 due to her medical conditions. (R. 174).

2. Plaintiff's Disability Application

Plaintiff's claim for disability was based on the following alleged impairments: back injury, right shoulder surgery, abdominal pain, ear pain, arthritis, and left knee pain. (R. 94, 209). Plaintiff never submitted a function report. (R. 56). The ALJ, therefore, sought testimony from Plaintiff at the hearing regarding her daily activities and functional limitations. (R. 56-57, 62-63). See infra Section I.D.1. Plaintiff is seeking disability benefits from her AOD of September 28, 2017 to June 30, 2018 (“Eligibility Period”), the date the ALJ determined she was last insured (“DLI”). (R. 18).

B. Medical Evidence

The Record contains hospital and treatment records from December 26, 2000 through October 14, 2019. The relevant portion of the Record is summarized below in chronological order.

1. Before September 29, 2017

On August 28, 2013, Plaintiff underwent a magnetic resonance imaging test (“MRI”) of the lumbar spine (the “2013 Lumbar Spine MRI”) after experiencing bilateral radicular symptoms and foot pain. (R. 407). The 2013 Lumbar Spine MRI showed “significant degenerative changes” at L4-L5 and at L5-S1, both with “significant diffuse disk bulging, ligamentum and facet hypertrophy, and severe bilateral neural foraminal narrowing.” (R. 407-08). At L4-L5, the 2013 Lumbar Spine MRI also found “moderate focal canal stenosis.” (R. 407).

In summer 2014, Plaintiff obtained a doctor's note from Dr. George E. Owusu, M.D. at Gevans Medical Practice, L.C. (“Gevans”), stating that she could not “return to work/school” because of her right shoulder strain and because of her “PT schedule for physical therapy,” which she attended at least twice per week. (R. 429).

On April 28, 2016, Dr. Owusu issued another doctor's note, which stated that she had “medical clearance” to return to work with “no restrictions” and “no limitations.” (R. 427).

On June 13, 2016, Plaintiff underwent another MRI of her lumbar spine (“2016 Lumbar Spine MRI”), as well as an MRI of her right shoulder (“2016 Right Shoulder MRI”). (R. 420-24).

The 2016 Lumbar Spine MRI showed findings consistent with the 2013 Lumbar Spine MRI: “degenerative disc disease at L4-L5 and L5-S1” and “board [sic] central disc herniation at L4-L5 and L5-S1, [with] foraminal encroachment of both sides bilaterally.” (R. 421). There was also new evidence of “mild uniform disc bulge at the L3-L4.” (Id.). The 2016 Right Shoulder MRI showed “extensive partial thickness tears of the supraspinatus and infraspinatus tendons,” “advanced osteoarthritis of the glenohumeral joint and to a lesser degree the acromioclavicular joint,” “large joint effusion with multiple loose bodies” in the shoulder, “diffuse tear of the posterior labrum,” and “severe attenuation of the inferior glenohumeral ligament” that suggests a previous partial tear. (R. 423).

On August 3, 2016, Plaintiff went to North Central Bronx Hospital for an unscheduled visit with the Orthopedics Clinic for follow-up pain management. (R. 383-84). Plaintiff's history included X-ray findings of degenerative changes and an MRI finding of degenerative disc disease, (R. 384), but at the time, she was “not experiencing pain” and was ambulating without difficulty, (R. 383), so Plaintiff was instructed to return for a follow-up visit in three months or as needed, (R. 384). The evaluating physician noted her BMI was “above normal,” and provided “exercise counseling.” (R. 383).

On August 10, 2016, Plaintiff returned to North Central Bronx Hospital for an unscheduled visit with Dr. Steven Lager, D.O. at the Rehabilitation Clinic for pain in her right shoulder, left and right knees, and “burning in both feet.” (R. 385). The pain in her right shoulder had been an 8 out of 10, but diminished to a 4 out of 10 after receiving a steroid injection. (Id.). Plaintiff rated the pain in her left knee as an 8 out of 10, and the pain in her right knee as at a 4 out of 10. (Id.). The burning in her feet started “several years ago” and had been limited to the toes, but now “the entire bottom of the foot” burned. (Id.). It was exacerbated after walking for fifteen minutes, and did not subside upon sitting. (Id.). Plaintiff also experienced pain down the legs “within 20 minutes of walking.” (Id.). An examination revealed that Plaintiff “[came] to standing very slowly,” and exhibited “back pain with trunk flexion” that “worse[ned] when she c[a]me upright.” (R. 386). Dr. Lager determined that, consistent with her history, Plaintiff had tenderness in the “L4-S1 regions” and had “abnormal lumbosacral rhythm with back hyperextension without pelvic derotation so she stands with increased lordosis and flexed hips.” (Id.). The range of motion in her hips was “good,” but there was pain from flexing and from immediate and extended releases. (Id.). Plaintiff had a negative straight leg raise test, grades 2 and 3 on the deep tendon reflexes test for her knees and ankles, and “slightly decreased” rate in a vibration test of her hallux. (Id.). Dr. Lager diagnosed Plaintiff with degenerative osteoarthritis in her right shoulder and knees, “lumbar stenosis with symptoms of claudication with walking,” and possible tarsal tunnel or neuropathy. (R. 386-87). He created a treatment plan which included X-raying Plaintiff's knees, increasing the dosage of her gabapentin prescription, taking Aleve, and participating in physical therapy for “knee strengthening, [s]houlder [range of motion] and strength, [and] lumbar stretches.” (R. 387). Plaintiff was instructed to return in two months. (Id.).

On August 23, 2016, Plaintiff returned to North Central Bronx Hospital for an unscheduled walk-in visit to their Medical Clinic, complaining of shoulder and back pain. (R. 380). Plaintiff reported that the gabapentin was not improving her symptoms, but taking Aleve twice a week “help[ed] somewhat.” (Id.). She experienced “mild low back tenderness, limited lumbar flexion,” but no swelling, erythema, or warmth. (R. 381). She also experienced tenderness of the anterior and lateral shoulder, “limited abduction and internal rotation,” but again no swelling, erythema, or warmth. (Id.). Plaintiff's central nervous system “motor” was “5/5;” she was “able to heel/toe walk;” she had symmetric deep tendon reflexes; and her sensory system was “grossly intact.” (Id.). She had a positive straight leg raise test. (Id.). The doctor indicated in the records that Plaintiff had severe degenerative joint disease of the right shoulder and lumbar spine. (Id.). She was prescribed acetaminophen and increased doses of gabapentin, was educated about weight loss, and was told to return in three months. (R. 381-82). Before the next visit, she was ordered to complete blood work. (R. 382). She was also referred to a nutritionist, rehabilitation resource, and orthopedist. (Id.).

On October 18, 2016, Plaintiff returned to the Rehabilitation Clinic at North Central Bronx Hospital complaining of right shoulder and left knee pain. (R. 391)....