Russ v. Comm'r of Soc. Sec.

582 F.Supp.3d 151

Willetha Renee RUSS, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

20-CV-6389 (RWL)

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

Signed January 31, 2022

Josephine Gottesman, Dennis Kenny Law, Newburgh, NY, for Plaintiff.

Mary Ellen Brennan, U.S. Attorney's Office, New York, NY, for Defendant.

DECISION AND ORDER: SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiff Willetha Russ, represented by counsel, commenced the instant action against Defendant Commissioner (the "Commissioner") of the Social Security Administration (the "Administration"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Russ is not disabled and therefore not entitled to Disability Insurance Benefits ("DIB") or Supplemental Security Income benefits ("SSI"). Russ moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure, seeking an order to remand the case for a further hearing and award attorney's fees under the Equal Access To Justice Act, 28 U.S.C. § 2412. The Commissioner cross-moves for judgment on the pleadings and asks the Court to affirm the Commissioner's decision. For the reasons explained below, Russ's motion is GRANTED, the Commissioner's motion is DENIED, and the case is REMANDED.

BACKGROUND¹

On May 25, 2018, Ms. Russ filed applications for disability insurance benefits and supplemental social security income for a period of disability beginning on January 31, 2018. Ms. Russ was 45 years old at the time and had been injured in a car accident in 2016. She claimed disability due to headaches, right shoulder pain, right knee pain, and back pain. On August 21, 2018, the Administration denied Ms. Russ's application. Ms. Russ then requested a hearing, which was held on August 20, 2019 before Administrative Law Judge Barry H. Best (the "ALJ"). Ms. Russ was and continues to be represented by counsel.

Ms. Russ previously worked as a homecare nursing aide and nursing assistant, which is considered medium to heavy work. At the hearing, Ms. Russ testified that after the alleged onset of her disability she returned to work for approximately five months in 2018 but stopped because of the pain. She tried light duty work as a hall monitor but could not continue even with that because of prolonged sitting and not being able to take pain medication on the job. Ms. Russ has taken several medications for pain. Percocet did not sufficiently relieve her pain, so she has been prescribed Oxycodone, which she takes every four to six hours and sometimes makes her drowsy.

The medical records are dated as early as June 15, 2016 and come from several doctors and facilities, including orthopedists and pain management specialists. Following her accident in December 2016, Ms. Russ was treated for injuries and pain to her head, lower back, right shoulder, and right knee. From then on, the records generally reflect that Ms. Russ experienced varying degrees of pain, often a 10 out of 10, that was ameliorated to some extent, and sometimes only intermittently, by conservative treatment, including medicine, injections, and physical therapy. In February 2018, Ms. Russ underwent a right shoulder rotator cuff operation but continued to experience shoulder pain. Her doctor also recommended surgery for her right knee due to lack of response to conservative treatment. Ms. Russ did not proceed, however, because her shoulder surgery "went so poorly." (R. 665.² )

Throughout 2018 and up through August 2019 (the most recent medical record), Ms. Russ continued to complain of radiating lower back pain, radiating neck pain, right knee pain, and right shoulder pain, often at a level of 10 out of 10, although ranging below that to as low as 5 out of 10. Objective assessments reflect continued tenderness in the lower back, limited range of motion in the back, an antalgic gait (i.e., limp secondary to pain), swelling and limited range of motion in the right knee, decreased range of motion in the right shoulder, and a positive Spurling's test (indicative of nerve root compression ). Pain management records throughout that period indicate that pain medication generally achieved 50 percent relief, but that neck and right shoulder pain were increased by walking, prolonged sitting, standing, or other activity.

In addition to Ms. Russ, a Vocational Expert, Kenneth Smith (the "VE") testified at the hearing. The VE testified that a person with Ms. Russ's functional capacity and characteristics would be able to perform unskilled jobs at both the light and sedentary levels. Jobs would not be available, however, if the individual were limited to only occasional use of her right upper extremity.

On September 30, 2019, the ALJ issued a decision finding Ms. Russ not disabled and capable of performing a range of both light and sedentary work, with certain environmental and postural limitations.³ The ALJ followed the required five-step sequential analysis (described below), first determining that Ms. Russ has not engaged in substantial gainful activity since January 31, 2018. At the second step, the ALJ found that Ms. Russ had several severe impairments, including degenerative disc disease, degenerative joint disease, chronic pain syndrome, and obesity. At the third step, the ALJ found that Ms. Russ's impairments did not meet or equal the severity of a "listed" impairment that would automatically warrant a disability determination.

The ALJ then determined Ms. Russ's residual functional capacity. He concluded that although Ms. Russ's impairments could be expected to cause pain and other symptoms described by Ms. Russ, the record did not support the extent of pain and symptoms reported. The ALJ found that Ms. Russ is capable of light and sedentary work, can stand/walk 6 hours in an 8-hour day and sit for 6 hours in an 8-hour workday, but cannot have any work requiring her to lift her right arm above her shoulder, and is subject to various postural limitations (e.g., occasional kneeling and crawling) and environmental limitations (e.g., no exposure to dust, smoke, or gases).

In making his determination, the ALJ considered the medical records, Ms. Russ's daily activities, and both Ms. Russ's and the VE's testimony. He also considered medical opinions from two sources, Dr. Michael Rosenberg and Dr. R. Mohanty. Neither doctor was one of Ms. Russ's treating doctors.

Dr. Rosenberg is a consulting examiner who conducted an internal examination of Ms. Russ on August 9, 2018. Dr. Rosenberg diagnosed Ms. Russ's right shoulder, right knee, and back pain as moderate, and her neck pain as mild. He opined that Ms. Russ was moderately restricted for heavy lifting, performing overhead activity, and activity requiring pulling, pushing, reaching, and repetitive use of the arm; moderately restricted for activities that require prolonged, uninterrupted squatting, kneeling, walking, and standing; moderately restricted for prolonged, uninterrupted bending and heavy lifting an and carrying; and mildly restricted for activities requiring twisting and turning of the cervical spine.

Dr. Mohanty did not examine Ms. Russ. Rather, he reviewed the medical records to form his opinion, which he rendered on August 21, 2018. Based on that paper record, he opined that Ms. Russ could occasionally lift and carry up to 20 pounds, frequently lift and carry up to 10 pounds, stand and/or walk for 6 hours in an 8-hour workday, sit (with normal breaks) for 6 hours in an 8-hour workday; that she had unlimited ability to lift and carry other than being limited in reaching overhead to her right, and that she was unlimited in several other capacities.

The ALJ found Dr. Rosenberg's opinion persuasive "as it is generally consistent with the longitudinal record." (R. 19.) He found Dr. Mohanty's opinion persuasive for the same reason, and because Dr. Mohanty had particular knowledge of the requisite disability standard. Although Dr. Mohanty rendered his opinion without the benefit of Ms. Russ's medical records from August 2018 to August 2019, the ALJ stated that that evidence did not change the persuasiveness of Dr. Mohanty's opinion and noted that Dr. Mohanty's functional assessment was consistent with Dr. Rosenberg's findings.

Twice in his decision, the ALJ mentioned the absence of a medical source opinion offered on behalf of Ms. Russ. First, in assessing whether Ms. Russ's statements about the intensity, persistence, and limiting effects of her pain and symptoms were substantiated and concluding that there is no evidence to support Ms. Russ not being able to perform light or sedentary work. The ALJ wrote: "The claimant's representative failed to provide a precise functional assessment, completed by a physician to support the claimant's subjective physical complaints or to contradict the findings of the State agency physician." (R. 18.) Then, in explaining why he found Dr. Mohanty's opinion persuasive, the ALJ commented that "[t]here is no treating opinion to corroborate the claimant's allegations or to contradict the findings of the State agency reviewing physician." (R. 19.)

Ms. Russ appealed the ALJ's decision. On June 15, 2020, the Appeals Council denied her request for review, thus making the ALJ's decision the final determination of the Commissioner. Ms. Russ filed her Complaint in this action on August 13, 2020, seeking district court review pursuant to 42 U.S.C. § 405(g). On September 2, 2021, the parties consented to the Magistrate Judge's jurisdiction for all purposes.

APPLICABLE LAW

A. Standard Of Review

A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g) ; Skrodzki v. Commissioner Of Social Security Administration , 693 F. App'x 29, 29 (2d Cir. 2017) (summary order). The inquiry is "whether the correct legal standards were applied and whether substantial evidence supports the decision."...