Rivera v. Comm'r of Soc. Sec.

394 F.Supp.3d 486

Lissette RIVERA, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

18 Civ. 1935 (GWG)

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

Signed September 10, 2019

Lissette Rivera, Bronx, NY, pro se.

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

OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

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

I. BACKGROUND

A. Procedural History

Rivera filed applications for a period of disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") in January and February 2015 alleging a disability onset date of January 17, 2014. See Certified Administrative Record, filed July 27, 2018 (Docket # 14) ("R."), at 228, 237. The Social Security Administration ("SSA") denied Rivera's applications on May 4, 2015. R. 123-28. Rivera then requested a hearing before an administrative law judge ("ALJ") to review the denial. R. 140-42. Rivera was represented by her then-attorney at a hearing before an ALJ, which occurred on April 26, 2017. R. 73-100. In a written decision dated May 12, 2017, the ALJ found that Rivera was not disabled within the meaning of the Act. R. 47-64. Rivera requested that the Appeals Council review the ALJ's decision, R. 37-38, and on January 16, 2018, the Appeals Council denied Rivera's request for review of the ALJ's decision, R. 1-5. Rivera then timely filed her complaint in this matter. Complaint, filed Mar. 1, 2018 (Docket # 2).

B. The Hearing Before the ALJ

Rivera's hearing before ALJ, which was conducted by video, occurred on April 26, 2017. R. 73, 75. At the hearing, Rivera gave testimony through a Spanish-language interpreter and was represented by her attorney, Ellen Ragin. R. 75, 79. Also present and testifying was a vocational expert ("VE"), Estelle Hutchinson. R. 75, 95-99, 338-40.

At the time of the hearing, Rivera was 46 years old and lived with two of her three children, one of whom suffers from attention-deficit/hyperactivity disorder. R. 79-80. Rivera was born in Puerto Rico and never received any formal education in the United States. R. 80. She speaks only "some English." R. 80.

Rivera testified first to her employment history. She last worked as a kitchen aide at a cafeteria in New York City. R. 81. She worked four to five hours a day for five days a week. R. 88-89. Her duties included preparing breakfast, cleaning tables, serving food, and washing dishes. R. 88. The duties required lifting and carrying large trays of food, sometimes weighing around 25 pounds. R. 89. She would sometimes use a serving cart or wagon to deliver the food upstairs. R. 89. She became injured in January 2014 while cleaning tables one day when she "heard a click" and noticed something had happened to her right lower back. R. 89. Previously, she had worked for the City of New York as a park cleaner in the early 2000s, where her duties required her to stand sometimes and sit most of the time because "there wasn't that much to do" in the winter months. R. 81. Those duties consisted mainly of "picking up garbage, and also taking garbage out of the canisters." R. 82. From about 2003 to 2010, Rivera worked at Rain Senior Option as a food delivery driver bringing food to seniors. R. 82. As delivery driver, Rivera would have to walk up and down sometimes five flights of stairs with "heavy" bags in her hands, which usually weighed at least 15 pounds in total. R. 90. Sometimes Rivera would walk more than five flights of stairs if she felt sorry for the person to whom she was delivering food. R. 90. Rivera did not believe she would currently be able to perform the cafeteria worker job, the park cleaner job, and the delivery driver position due to pain, which she experiences just from sitting down. R. 83. Rivera has not worked at all since her January 2014 injury. R. 80-81.

Rivera testified regarding her pain. She experiences pain in her right foot, which has bothered her for "[a]bout a year." R. 86-87. Rivera has been prescribed medication for her right foot pain, which helps "[s]omewhat." R. 87. As to her back pain, Rivera stated that the pain is worse when standing upright. R. 83-84. She also experiences stiffness, and it is difficult for her to bend or twist. R. 84. She has never had surgery on her back. R. 85. Although her doctors have offered the possibility of injections for the back pain, she has refused them because she is afraid. R. 85. Rivera has a back brace, and although she used to "us[e] it all the time," she no longer does so because "it's very uncomfortable." R. 85. She also participates in physical therapy, which helps. R. 85-86. From physical therapy, Rivera has learned exercises that can be done at home. R. 86. While she used to perform the home exercises, she has since stopped. R. 86.

Rivera also takes medication for the pain, and stated that it "helps a little." R. 84-85. The only side effect from her pain medication is drowsiness. R. 95. Rivera testified to other areas of pain. She has neck pain, which radiates from the middle of her neck down to her mid-back area. R. 91. She described the neck pain as giving her a "stiffness," as opposed to a "sharp," or "throbbing" pain. R. 91. She also has pain in her right hand, her dominant hand, stemming from a "second degree burn" and "a daily accident." R. 91. As a result of the hand pain, Rivera can no longer "lift heavy things" with her right hand. R. 92. Rivera also recently had received treatment for right leg pain. R. 92-93. She now walks with a limp, and can only walk "a block or two" before the "pain increases." R. 93. Rivera testified that since she stopped working, she has not gone an entire day without experiencing pain. R. 86. She cannot even "grab a gallon of milk" for more than "a little while" before she starts to feel pain. R. 84. There is no position Rivera can maintain without feeling pain. She stated: "In all positions I feel pain." R. 84. Sitting for an extended period of time only exacerbates her lower back pain. R. 92. Even sleeping is difficult, because "[e]very time [she] move[s] [she] wake[s] up." R. 95.

As to daily activities, Rivera testified that, due to neck pain, she has trouble lifting her arms over her head to pull on a shirt or put her arms through a coat. R. 93. She needs to sit down to tie her shoes. R. 93-94. She has needed help getting dressed "[o]nce or twice." R. 94. She can bathe herself, though "it does bother [her] a little bit just to get into the bath." R. 94. Rivera testifies that she has difficulty doing chores around the house. R. 87. Rivera can still cook. R. 94. She explained that prior to her injury, she "was able to clean and move furniture," and clean the bathtub or ceiling tiles, but can no longer manage these tasks on her own due to her pain. R. 87-88, 94. She is still able to engage in some chores, but only with the help of her husband or son. R. 88. For instance, while she used to go food shopping alone, now her husband or son has to go with her to help carry the grocery bags. R. 94. Rivera stated that she has no hobbies, and that she is "always in the house." R. 88. Although she does not take vacations, Rivera visited her mother in Puerto Rico for around two weeks. R. 87. The air travel to Puerto Rico "was not easy" because of the constant sitting. R. 87.

The ALJ asked whether Rivera was treating with a specialist for depression or anxiety, and Rivera responded that she was not. R. 88.

The ALJ then elicited testimony from the VE. The VE began by characterizing Rivera's past relevant work as "kitchen aide or kitchen helper" and "delivery driver," occupations requiring medium exertion, and "street cleaner," which involved light exertion. R. 96. The ALJ then posed a series of hypothetical questions to the VE. First, the ALJ asked the VE to

[a]ssume a hypothetical Claimant with this Claimant's age, education and work experience. The hypothetical [claimant] would be limited to light exertion as that term is defined in the DOT and Social Security Regulations. Standing/walking could be six hours in an eight hour workday, and sitting could be eights hours in an eight hour work day. Could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, and occasionally balance, stoop, kneel, crouch and crawl.

R. 96-97. Considering those restrictions, the VE stated that such a hypothetical individual would be able to perform the job of park cleaner / street cleaner, but would not be able to perform the job of kitchen aide or delivery driver. R. 96-97. The VE also confirmed the existence of "other representative occupations in the national economy that could be performed within those restrictions," assuming a limitation of unskilled, light work exertion. R. 97. Those jobs were "officer cleaner," and "hand packager." R. 97. Second, the ALJ asked the VE: "So if a hypothetical Claimant, everything else being the same, but instead of being limited to light exertion is limited to sedentary, that would rule out the past relevant work, is that correct?" R. 97. The VE confirmed that a limitation of sedentary exertion would rule out past relevant work. R. 97.

C. The Medical Evidence

The medical evidence in the record is described accurately in the Commissioner's brief. See Def. Mem. at 4-22. We discuss the medical evidence pertinent to the adjudication of this case in Section III below.

D. The ALJ's Decision

The ALJ denied Rivera's applications on May 12, 2017. R. 64. First, the ALJ found that...