Romero v. Comm'r of Soc. Sec.

ANNETTE SANABRIA ROMERO, Plaintiff, v. COMMISIONER OF SOCIAL SECURITY, Defendant.

18-cv-10248 (KHP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 22, 2020

OPINION & ORDER

Plaintiff Annette Sanabria Romero, represented by counsel, commenced this action against Defendant Commissioner of the Social Security Administration (the "Commissioner"), pursuant to Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the Commissioner's decision finding that she was not disabled under Sections 216(i) and 223(d) of the Act from December 23, 2014—Plaintiff's amended alleged disability onset date ("AOD")¹—through August 22, 2017, the date of the Commissioner's decision.

The parties submitted a joint stipulation in lieu of cross-motions for judgment on the pleadings pursuant to this Court's order. (See Joint Stipulation at 36, ECF No. 20 (hereinafter, the "JS").) Plaintiff appeals the administrative law judge's ("ALJ") decision concerning: (1) whether the ALJ fully developed the record; (2) whether Plaintiff's impairments met or equaled the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"), specifically Listing 1.04 (Disorders of the spine); (3) whether the ALJ's residual functionalcapacity assessment was supported by substantial evidence; (4) whether the ALJ properly evaluated Plaintiff's subjective complaints; and (5) whether Plaintiff was capable of performing past relevant work. For the reasons set forth below, the Commissioner's motion is DENIED, and Plaintiff's motion is GRANTED.

I. Procedural History

Plaintiff filed her initial claim for disability insurance benefits on December 23, 2014. She asserted conditions involving diabetes, her back, right shoulder, right elbow, and bilateral carpal tunnel syndrome as disabling. She initially claimed an alleged onset date of disability of August 10, 2014 but later amended it to December 2014. The Commissioner denied Plaintiff's initial application on June 26, 2015. Plaintiff contested the denial and filed a request for hearing, which was granted. On June 15, 2017, the Commissioner held a video hearing on Plaintiff's claim. Plaintiff appeared before ALJ Dennis G. Katz.

Based on the medical records and on Plaintiff's testimony, the ALJ determined Plaintiff's residual functional capacity ("RFC")-the maximum work Plaintiff could do despite her limitations. Frank Lindner, a vocational expert ("VE") reviewed Plaintiff's past work and testified that she had worked as a residence supervisor, a developmental aid, and a clerk typist. The VE further testified about the classifications and requirements of the jobs. The ALJ found Plaintiff was not disabled for the purposes of Social Security and denied her application for benefits on August 22, 2017. Plaintiff appealed to the Appeals Council. The Appeals Council denied her appeal on September 7, 2018. The instant case followed.

II. Relevant Background

Plaintiff was born on March 27, 1964 and currently is 56 years old. She finished high school and has some college education. She worked as a residence supervisor in a group home until she stopped working in and around August 2014. Prior to her work as a residence supervisor, she worked in a clerical capacity at a law firm. Plaintiff had carpal tunnel surgery on her right hand in 2004, a gastric bypass in 2006, right knee surgery in 2012, a right knee replacement in June 2015, and a revision on the carpal tunnel surgery in December 2016. (See Social Security Administrative Record at 268-69, 648, ECF No. 19 (hereinafter, "Tr.").) As of June 2015, she lived with her husband, three adult children, and two grandchildren.

Plaintiff injured her hand on the job on May 8, 2009. (Tr. 473.)² On September 24, 2010,³ she again was injured when she fell at work. (Tr. 563.) Two days after the fall, Plaintiff went to St. Luke's Cornwall Hospital and received X-rays on her right shoulder, pelvis, and hips, which, while not revealing any evidence of fractures, showed some degenerative changes of her hips. (Tr. 628.) September 28, 2010, Plaintiff went to Dr. Barry Hyman at Orthopedics & Sports Medicine, P.C. ("OSMPC") for an examination, and was diagnosed with a right shoulder contusion and impingement syndrome, and a bilateral hip contusion. (See Tr. 495 (Dr. Martin's December 15, 2014 report noting Dr. Hyman's initial treatment), 628 (Dr. Moga's independent medical examination report detailing Plaintiff's treatment history).) From this visit through March 2017, Plaintiff saw multiple doctors at OSMPC for her various impairments, including: Dr. Enrique Sanz, a specialist in physical medicine, rehabilitation, and pain management; Dr.Gina Del Savio, an orthopedic hand surgery; Dr. Esteban Cuartas, an orthopedic spine surgeon; and Dr. Wasik Ashraf, an orthopedic surgeon. Plaintiff also saw the following doctors during the course of her treatment who were not affiliated with OSMPC: Dr. Rita Figueroa, the consultative examiner in this case; Dr. John A. McClaughlin, a surgeon with Orthopedic Associates of Dutchess County, who performed a full right knee replacement on Plaintiff; and Dr. Jerome Moga, another orthopedic specialist who conducted an independent medical examiner evaluation for workers' compensation purposes. Because many of these doctors who treated Plaintiff—particularly those at OSMPC—could be treating physicians, the Court will review the examinations and treatments of these doctors in detail, on a doctor by doctor basis.

Dr. Enrique Sanz

Plaintiff saw Dr. Sanz, a pain management specialist, from January 30, 2012 through March 31, 2017, on at least twelve separate occasions. During these visits, Dr. Sanz consistently found that Plaintiff's chief complaints—all of which stemmed from incidents at work and which varied from visit to visit, but always centered on her lumbar spine and right side—were well founded and recommended treatments ranging from pain medication to caudal epidural injections.

On January 30, 2012, Dr. Sanz examined and treated Plaintiff, noting that Plaintiff's symptoms worsened despite seemingly having received a lumbar (caudal) epidural steroid injection, but that Plaintiff agreed to try a second such injection. (Tr. 530.)⁴ Dr. Sanz also recommended Plaintiff alter her activities, as she could tolerate them, to avoid injury and pain.(Tr. 530.) Dr. Sanz then opined that Plaintiff had 25% temporary impairment, also noting she was working full time. (Tr. 530.)

On September 21, 2012, Dr. Sanz repeated his observations from January regarding Plaintiff's worsening condition. (Tr. 423). Dr. Sanz additionally prescribed Voltaren Gel, an anti-inflammatory cream, which was to be applied to Plaintiff's affected area. (Tr. 423.) Dr. Sanz also recommended use of a lumbar brace. (Tr. 423.) Dr. Sanz noted a 25% temporary impairment and that Plaintiff was working full time. (Tr. 423.)

On April 4, 2013, Dr. Sanz examined and treated Plaintiff, noting the condition had been unchanged since the previous visit, despite receiving the second injection, and that Plaintiff still reported "radicular pain into her LE." (Tr. 291.) Dr. Sanz recommended, and Plaintiff agreed to, a third injection,⁵ while also continuing to recommend Plaintiff adjust her activities to avoid injury and pain. (Tr. 291.) Dr. Sanz's diagnoses during this visit were herniated disc-lumbar, low back pain, and lumbar radiculitis, leading Dr. Sanz to opine Plaintiff had a 25% temporary disability. (Tr. 291-92.) This examination of Plaintiff was then used by Dr. Sanz to fill out a Doctor's Narrative Report for Plaintiff's workers' compensation claims. (Tr. 287-88.)

Plaintiff again visited Dr. Sanz on October 30, 2013. (Tr. 282-85.) Despite having recommended an additional injection, and being approved for it shortly after the April visit, Plaintiff informed Dr. Sanz that on "the day of the appointment she was not called in." (Tr. 284.) Dr. Sanz noted that he would follow up with workers' compensation and additionallyprescribed Plaintiff Tramadol. (Tr. 284.) Dr. Sanz also noted that Plaintiff ambulated normally, had full strength in her muscles, but was still 25% temporarily impaired. (Tr. 282-84.)

On August 4, 2014, Dr. Sanz again examined and treated Plaintiff. Dr. Sanz noted that Plaintiff's condition had worsened because "she hasn't been taking her medication (Tramadol and Voltaren Gel)" and that despite receiving another injection, Plaintiff "only obtained less than 2 weeks [of] pain relief [and] reported radicular symptoms." (Tr. 544.) In addition to the three diagnoses from the August 2013 report, Dr. Sanz added a diagnosis for lumbar spinal stenosis, also observing that Plaintiff had both a normal and antalgic gait. (Tr. 543-44.) In the discussion section of his report, Dr. Sanz noted that Plaintiff informed him it was becoming increasing difficult to continue working. (Tr. 544.) Dr. Sanz further noted that workers' compensation "has yet to give her the prescriptions for the Volt[a]ren Gel and Tramadol," that he would write new ones for her, and that she now was using a cane for her lumbar issues. (Tr. 544.) Again, Dr. Sanz opined that Plaintiff had 25% temporary impairment and noted that Plaintiff was working full time, full duty. (Tr. 544.) Dr. Sanz also observed that Plaintiff had full muscle strength, negative straight-leg raise tests, and that her thoracolumbar/sacral spine "[r]ange of motion is normal with pain upon flexion and extension," particularly on the right side. (Tr. 544.)

At Plaintiff's September 5, 2014 follow-up visit, Dr. Sanz noted that despite his prior observation that Plaintiff's condition was worsening as a result of her failure to take the prescribed medications, her pain remained during this examination even with Plaintiff taking her prescribed medicine. (Tr. 280.) Dr. Sanz again noted both antalgic and normal gaits. (Tr. 279.) Further, Dr. Sanz noted that Plaintiff had begun her physical...