Rosado v. Saul

ZAIDA I. ROSADO, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration Respondent.

19 Civ. 8073 (PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 4, 2021

DECISION AND ORDER

PAUL E. DAVISON, U.S.M.J.:

I. INTRODUCTION

Plaintiff Zaida I. Rosada, pro se, brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security ("Commissioner" or "agency") denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). [Dkt. 2.] The matter is before me for all purposes pursuant to a Notice, Consent and Reference of a Civil Action to a Magistrate Judge entered on December 10, 2019. [Dkt. 19.] The Commissioner filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the grounds that the Administrative Law Judge's ("ALJ") determination that Plaintiff was not disabled and, therefore, not entitled to DIB or eligible for SSI, was supported by substantial evidence and based on a proper application of the relevant legal standards. [Dkt. 20, 21.] Plaintiff filed a letter opposing the Commissioner's motion. [Dkt. 25, 26-1.]¹ For the reasons that follow, the Commissioner's motion is DENIED, and the matter is remanded to the agency for further administrative proceedings.

II. BACKGROUND

Plaintiff is a 56-year-old woman who alleges that she has been disabled from work since August 11, 2009. [R. 264.]² Plaintiff worked as a hairdresser and a stocker at Wal-Mart. [R. 279.] Beginning in 2001 she worked as a nutritional program educator and a farm workers advocate. [R. 62-63, 279.] She was involved in a motor vehicle accident in 2004 injuring her back and neck. [R. 322.] An injury on August 11, 2009 exacerbated her condition. [R. 458-59.]

Plaintiff alleges that she can no longer work due to back and neck injuries, which resulted in herniated discs and pinched nerves. [R. 271, 275.] She also reported asthma, depression, and anxiety. [R. 286, 317.] Plaintiff filed prior applications for DIB and SSI, which were denied in a separate ALJ hearing on June 24, 2011. [R. 78-85.] Therefore, the relevant period for the instant application commenced on June 25, 2011. See, e.g., Pataro v. Berryhill, No. 17 Civ. 6165 (JGK)(BCM), 2019 WL 1244664, at *11 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, 2019 WL 1244325 (S.D.N.Y. Mar. 18, 2019) ("An ALJ may find that res judicata applies where the Social Security Administration has 'made a previous determination or decision' about a claimant's rights 'on the same facts and on the same issues or issues, and this previous determination or decision has become final by either administrative or judicial action.'") (internal citations omitted).³

A. Procedural History

Plaintiff protectively filed applications for DIB and SSI on November 19, 2014, alleging a disability beginning August 11, 2009. [R. 236-49.] Plaintiff's applications were denied, andshe requested a hearing before an ALJ. [R. 112-21.] Plaintiff appeared at a hearing before an ALJ on January 9, 2018 represented by counsel. [R. 37-71.] The ALJ denied Plaintiff's applications for the period of June 25, 2011 through February 15, 2018, the date of the decision. [R. 7-24.] Plaintiff filed a request with the Appeals Council to review the ALJ's decision, which was denied on July 12, 2019. [R. 1-6.] Plaintiff timely commenced the instant action on August 28, 2019. [Dkt. 2.]

B. Factual Background and Medical Evidence

1. Medical Evidence Prior to the Application Period

Dr. David Tucker conducted an independent medical examination on April 18, 2008 in connection with Plaintiff's application for Workers' Compensation. [R. 642-48.] He observed limitations in Plaintiff's neck range of motion, as well as tightness, tenderness, spasms, and pain in her shoulders and back. [R. 646.] He did not opine as to her ability to work and instead recommended that she continue treatment and obtain a neurological consultation. [R. 647.]

Plaintiff attended regular visits with her primary care physician, Dr. Alexander Gapay. She saw him on November 6, 2008, and Dr. Gapay referred to Plaintiff's injuries as dating back to her motor vehicle accident 2004. [R. 489.] Dr. Gapay assessed low back pain, herniated discs at L4-L5 and L5-S1, and a cervical spine sprain at C5-C6 with mild spinal stenosis, post-traumatic headaches, and obesity. [R. 489-90.] She next saw Dr. Gapay on January 10, 2009 for cold related symptoms. [R. 487-88.] On May 27, 2009, Plaintiff reported that she had tried to return to work recently but complained of worsening pain in her neck, back, and shoulders. [R. 485.] A physical examination revealed tenderness in Plaintiff's cervical spine and right shoulder and pain with movement. Dr. Gapay assessed disc herniations at L4-L5, L5-S1, C5-C6 and impingement of the right shoulder. [R. 486.]

Plaintiff injured herself at work on or around August 8, 2009 while trying to set up a tent when it broke. [R. 450.] She saw Dr. Gapay on August 13, 2009 and reported increasing pain in her back, neck, shoulders, and legs, numbness and tingling in her arms and legs, and difficulty walking. [R. 483.] A physical examination revealed tenderness in her cervical spine and diminished neck range of motion by 50 percent. [R. 484.] Plaintiff could flex her hip less than 25 percent of normal motion. She had marked pain and stiffness in her back with spasms radiating to her legs. Dr. Gapay referred Plaintiff to pain management. [R. 484.] Dr. Gapay's physical examination findings remained largely unchanged on August 20, 2009. [R. 481-82.] Dr. Gapay assessed worsening pain of the neck, upper back, and lower back with herniated discs at C5-C6, L4-L5, and L5-S1 and radiculopathy of the upper left and both of the lower extremities. Plaintiff also reported poor sleep and fatigue due to pain. Dr. Gapay opined that Plaintiff had a moderate to marked partial disability. [R. 482.]

Dr. Gapay referred Plaintiff to New York Spine Surgery & Rehabilitation where she attended an initial consultation with Dr. Kenneth Hansraj on August 24, 2009. [R. 316-24.] She reported increasing neck pain radiating to her left arm and back pain radiating to her legs, which was worse on the left side. [R. 316.] She also reported that she could walk between two to ten blocks with pain. [R. 317.] Dr. Hansraj noted prior diagnoses of anxiety and asthma. [R. 317.] He reviewed a February 4, 2008 cervical MRI showing a disc herniation as C5-C6 indenting the cervical cord with mild spinal stenosis. [R. 318.] A lumbar MRI taken the same day showed disc herniations at L4-L5 and L5-S1 causing impressions on the L4 and S1 nerves and impinging the L5 spinal nerve. [R. 391.] Dr. Hansraj recommended that Plaintiff use a back brace and sequential stimulation, that she avoid bending, lifting, twisting, and reaching, and that she try to walk as much as tolerable. [R. 324.] He also referred Plaintiff to obtain updated MRIs. [R.324.] Dr. Hansraj saw Plaintiff at a follow-up visit on October 7, 2009. [R. 326-32.] A physical examination revealed diminished reflexes throughout Plaintiff's arms and legs and diminished motor power in her neck and lower back with pain. [R. 326-27.] Dr. Hansraj diagnosed cervical and lumbar spondylosis. [R. 330.]

Plaintiff returned to Dr. Gapay on November 11, 2009. [R. 479-80.] A physical examination showed pain and tenderness along the cervical, mid thoracic, and lumbosacral spine. Plaintiff also had positive straight leg raising ("SLR") tests on both sides.⁴ Her hip flexion was reduced by 50 percent. Dr. Gapay assessed a herniated disc at C5-C6 and disc disease at L4-L5 and L5-S1. He opined that Plaintiff was 100 percent disabled. [R. 480.]

Plaintiff followed with Dr. Hansraj on December 14, 2009. [R. 333-42.] X-rays taken November 25, 2009 of the spine and neck showed a small left paracentral herniated nucleus pulposus ("HNP") at C5-C6. [R. 338-41.] Dr. Hansraj opined that Plaintiff was "partially, markedly disabled" and referred her for EMG studies. [R. 341.] On February 24, 2010, Dr. Hansraj reviewed Plaintiff's January 8, 2010 EMG nerve conduction study, which revealed left radiculopathy at C5-C6 and L5-S1, but no evidence of cervical neuropathy. [R. 351-54.] On March 14, 2010, Dr. Hansraj assessed lumbar degenerative disc disease. [R. 356-73.]

Dr. Gapay next saw Plaintiff on March 22, 2010. [R. 468-70.] He noted reduced motion in Plaintiff's neck and shoulders, and Plaintiff reported pain, numbness, and tingling in her lefthand, leg, and foot. Plaintiff had difficulty walking due to pain and needed assistance getting on and off of the examination table. She also had reduced range of motion in her hips. [R. 470.] These results were consistent with Plaintiff's next physical examinations on May 20, 2010 and July 15, 2010, and Dr. Gapay opined that Plaintiff was 100 percent disabled from her work as a nutrition educator and 75 percent disabled overall. [R. 461-67.]

Plaintiff attended a second independent medical examination in connection with her Workers' Compensation application, which was performed by Dr. Jerome Moga on August 9, 2010. [R. 638-40.] Dr. Moga observed diffuse low posterior cervical spine and left trapezius tenderness. Plaintiff could rotate her head 30 degrees to right and left. She was numb to pinprick testing in her upper and lower extremities. Plaintiff's grip strength was three pounds in her right hand and zero pounds in her left. Deep tendon reflexes were hypoactive in upper and lower extremities but equal bilaterally. She had positive SLR tests at 70 degrees on both sides, more on the left. Plaintiff had discomfort while forward bending at 10 degrees. Dr. Moga assessed cervical and lumbar spine herniated disc syndrome. He opined that Plaintiff had a moderate partial degree of disability. [R. 640.]

On December 10, 2010, Dr. Gapay observed that Plaintiff had difficulty walking, and he recommended physical therapy. [R....