Rivero-Rosado v. Comm'r of Soc. Sec.

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SHANEL MONET RIVERO-ROSADO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 22-CV-4319 (OTW)

United States District Court, S.D. New York

March 15, 2024

OPINION & ORDER

ONA T WANG, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On December 10, 2019, Plaintiff Shanel Monet Rivero-Rosado filed a Title II application for disability and disability insurance benefits (“DDI”) and a Title XVI application for supplemental security income benefits (“SSI”). (ECF 10 at 13). In both applications, Plaintiff stated that her disability began on November 5, 2017. (ECF 10 at 13). The claims were denied on March 13, 2020, and upon reconsideration on July 22, 2020. (ECF 10 at 13). Plaintiff then filed a written request for a hearing which was received on September 18, 2020. A telephone hearing was held remotely due to the COVID-19 pandemic on December 16, 2020. (ECF 10 at 13). Plaintiff testified before ALJ John Carlton, and was represented by her attorney, Christopher D. Latham. (ECF 10-13). An impartial vocational expert (“VE”), Esperanza Distefano, also appeared at the hearing.

On May 4, 2021, ALJ Carlton issued a decision finding that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act and therefore not entitled to DDI benefits; and that Plaintiff was not disabled under section 1614(a)(3)(A) of the Social Security Act and therefore not entitled to SSI benefits. (ECF 10 at 23). Plaintiff appealed the decision, and the Appeals Council denied review on March 22, 2022. (ECF 10 at 1). On March 25, 2022, pursuant to 42 U.S.C. § 405(g), Plaintiff filed the Complaint commencing this action pro se challenging the final decision. (ECF 2). On November 28, 2022, Amy Y. Chen, Esq. filed a notice of appearance of pro bono counsel on behalf of Plaintiff. (ECF 21). The parties consented to my jurisdiction on May 9, 2023. (ECF 37).

For the reasons set forth below, Plaintiff's Motion for Judgment on the Pleadings is GRANTED, the Commissioner's Cross Motion for Judgment on the Pleadings is DENIED, and the case is remanded for further proceedings pursuant to 42 U.S.C. § 405(g).

II. BACKGROUND^[1]

A. Plaintiff's Medical History

Plaintiff was born on January 17, 1973. (ECF 10 at 22). Her highest level of education is attainment of a high school diploma. (ECF 10 at 22). At the onset of her alleged disability, November 5, 2017, Plaintiff was 44 years old, defined as a “younger individual” under SSA regulations. 20 CFR § 404.1563 and § 416.963. (ECF 10 at 22). Prior to her disability, Plaintiff had been working as a customer service representative at Verizon, where she answered back-to-back calls, typed customer information and orders, and typed and sent emails. (ECF 10 at 3536). The frequent typing and prolonged sitting required by her job were considered by her doctor to have been a significant cause of her injuries. (ECF 10 at 282). Plaintiff testified that she cannot work because of back and neck pain, back spasms, and severe headaches that are exacerbated by prolonged periods of sitting. (ECF 10 at 38).

1. Treatment from Dr. Sanjiv Bansal

Dr. Bansal, an orthopedic surgeon, had been treating Plaintiff since 2013. (ECF 10 at 358). Dr. Bansal began treatment of Plaintiff's hurt elbow, a key issue in the Plaintiff's claim, in October, 2017. (ECF 10 at 280). In a follow-up appointment on December 8, 2017, Dr. Bansal reported swelling in Plaintiff's left elbow. (ECF 10 at 282). He diagnosed Plaintiff with “severe lateral epicondylitis secondary to the type of job that she does.” (ECF 10 at 282). Dr. Bansal did not see Plaintiff again for this issue until January 3, 2019, as Plaintiff was undergoing physical therapy and rehabilitation. (ECF 10 at 287). Dr. Bansal reported Plaintiff had lost some mobility in her left arm and elbow and that she had “a Schedule loss of use of 32.5% based on the mild defect in extension, 25%, and a mild defect in flexion, 7.5%.” (ECF 10 at 287).

On October 28, 2020, Dr. Bansal conducted a physical capacity evaluation to assess Plaintiff's condition after physical therapy. (ECF 10 at 367). Dr. Bansal reported that Plaintiff's “cervical spine affects her upper extremities that is causing her pain and discomfort that is going down all the way to the hand area.” (ECF 10 at 367). When Plaintiff returned to Dr. Bansal on November 25, 2020, Dr. Bansal ordered an MRI and an EMG. (ECF 10 at 369).

2. Physical Therapy

The record only contains documentation of Plaintiff's physical therapy from October 6, 2020, through October 26, 2020. (ECF 10 at 339-357). By October 26, Plaintiff reported slight improvement in pain and milder back spasms. (ECF 10 at 339). Plaintiff's physical therapist reported that Plaintiff “presents with pain, [loss of movement], [and] weakness in affected musculature which are interfering with pain-free function and overall quality of life.” (ECF 10 at 351).

3. Diagnostic Testing Results

On March 5, 2020, Dr. Robert Obedian, a certified radiologist, interpreted Plaintiff's lumbosacral spinal x-ray. (ECF 10 at 335). He found that Plaintiff had “moderate intervertebral disc space narrowing and small endplate osteophyte formation” and “moderate degenerative change” at her L5-S1 vertebrae. (ECF 10 at 335).

Plaintiff saw Dr. Ravi Sutaria, a rheumatologist, on December 4, 2020. In Plaintiff's physical examination, he noted a normal range of motion of the lumbar spine, neck, and hips; no tenderness to palpation of the back; swelling and tenderness at the finger and wrist joints; normal extension of the elbows; tender ankles; and no swelling or tenderness of her knees. (ECF 10 at 362). Dr. Sutaria ordered labs, which indicated seronegative rheumatoid arthritis. (ECF 10 at 363).

Plaintiff saw Dr. Indu Garg for an MRI and EMG in early January 2021. (ECF 10 at 37071). The MRI indicated a “mild diffuse disc bulge with a small broad based superimposed left central protrusion . . . causing moderate compression of the left S1 nerve roots within the left lateral recess, mild bilateral facet hypertrophy, and moderate left and right foraminal narrowing, which had worsened since the previous imaging. (ECF 10 at 370). The EMG showed “evidence of mild S1 radiculopathy on the left.” (ECF 10 at 372). Dr. Garg reported negative Spurling and Hoffman tests. (ECF 377). Dr. Garg conducted another EMG in February 2021 which revealed signs of electrical instability, moderate C6 radiculopathy on the left, and mild C6 radiculopathy on the right. (ECF 10 at 379). Dr. Garg also ordered another MRI in February 2021 which showed mild diffuse disc bulges with small broad based superimposed right neural foraminal disc protrusion causing mild to moderate right foramina narrowing at vertebrae C3-C4 and C4-C5, which had worsened slightly from the previous examination. (ECF 10 at 382).

4. Consultative Examinations

Plaintiff saw Dr. Gregory Galano for an examination related to her workers compensation claim on February 28, 2019. (ECF 10 at 289). Dr. Galano noted that from what Plaintiff described of her past medical history, it was “significant for arthritis.” (ECF 10 at 289). He also reiterated that typing and holding items for extended time makes the pain worse. (ECF 10 at 290). Dr. Galano diagnosed Plaintiff with “left elbow strain/lateral epicondylitis” which caused a 10% scheduled loss of use. (ECF 10 at 291).

On March 4, 2020, Plaintiff saw Dr. Eric Rosenbaum for a consultation for her Social Security Benefits application. (ECF 10 at 331). Plaintiff reported neck pain that has been ongoing for at least 11 years, which was slightly alleviated with a breast reduction in 2010, and which ranges from a pain level of 0/10 to a pain level of 10/10. (ECF 10 at 331). Dr. Rosenbaum diagnosed Plaintiff with Cervicalgia and lower back pain and noted limitations in prolonged sitting for longer than one hour. (ECF 10 at 334).

B. Plaintiff's Nonmedical Records

1. Plaintiff's Adult Function Report

In Plaintiff's Adult Function Report, she answered that since the onset of her injuries, she was no longer able to “stand or sit for long periods of time, walk long distances, climb stairs pain-free, do laundry alone, cook every night, or clean thoroughly.” (ECF 10 at 238). Additionally, Plaintiff was unable to sleep well due to pain, numbness, and/or headache. (ECF 10 at 238). Plaintiff could not wash her own hair, so she had to go to the hairdresser. (ECF 10 at 238).

She used to knit, however she was no longer able to do so because of lack of hand strength. (ECF 10 at 241). She could only walk about three-to-four blocks, could only sit for about 30-40 minutes, and could not stand for long periods of time. (ECF 10 at 242). Plaintiff further explained that she could only shop and do laundry when someone could help her. (ECF 10 at 237). She reported that she went to church weekly. (ECF 10 at 241).

2. Plaintiff's Testimony at the Administrative Hearing

At the hearing before ALJ John Carlton, Plaintiff testified that she had been unable to work due to her back issues, which prevented her from sitting for long periods of time. (ECF 10 at 38). These back pains caused severe headaches, back spasms, shooting pain into her hands and legs, and cramping in her fingers, which made it difficult to type or hold objects. (ECF 10 at 39-40).

In terms of physical capabilities, Plaintiff testified that she could only walk on level ground for between ten and thirty minutes before needing to rest, and that she could not make it up her third-floor walkup without taking a break. (ECF 10 at 40). Plaintiff reported that when she had days in which she was required to leave the house for more than half the day or if she had to go to multiple locations, her back would seize up and she would be “out of commission” the next day....