HENRY PITMAN, Magistrate Judge.
Plaintiff, Bradley Patrick Gaiser, Sr., brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB"). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 14 & 17). The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c) (Docket Item 10).
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted, and plaintiff's cross-motion is denied.
Plaintiff filed an application for DIB on May 26, 2011 alleging that he had been disabled since January 1, 2011 (Tr.
After the Commissioner denied plaintiff's claim on July 19, 2011, plaintiff requested and was granted a hearing before an Administrative Law Judge ("ALJ"); the hearing was held on May 24, 2012 (Tr. 11, 52-58, 74). In a decision dated August 30, 2012, the ALJ, Roberto Lebron, determined that plaintiff was not disabled under the Act from January 1, 2011 through the date of the decision (Tr. 17). The ALJ's decision became the Commissioner's final decision on October 22, 2013 when the Appeals Council denied plaintiff's request for review (Tr. 1-4).
Plaintiff commenced this action on November 15, 2013 (Docket Item 1). The Commissioner and plaintiff filed their cross-motions for judgment on the pleadings on July 16, 2014 and August 18, 2014 respectively (Docket Items 14 & 17).
Plaintiff was born on October 5, 1961 (Tr. 104). He graduated from high school and attended college for two years (Tr. 123). Plaintiff began working as a firefighter with the Scarsdale Fire Department in August 1983 (Tr. 27-29, 123). Other than the in-house training he received at his job, plaintiff has no specialized or vocational training (Tr. 27-28, 43, 123).
Plaintiff reported that he typically worked four twelve-hour shifts per week at the firehouse (Tr. 123). He stated that his work as a firefighter involved training, driving, operating equipment, search and rescue, extinguishing fires, crawling and lifting and carrying hoses, ladders and people (Tr. 124). He reported that at work he typically walked, stood, sat, climbed, knelt, crouched and reached for three hours per day; stooped, wrote, typed and handled large and small objects for two hours per day and crawled two and one half hours per day (Tr. 124). Plaintiff claimed that he frequently lifted fifty pounds as a firefighter (Tr. 124).
Plaintiff reported that beginning on January 1, 2011, the date of the alleged onset of disability, he worked "light duty" with the fire department, answering phones until February 23, 2011 (Tr. 32, 122). After his first knee surgery on February 24, 2011, plaintiff alleges he was not allowed to return to performing light duty work at the firehouse because "[t]he Village of Scarsdale does not have a light duty position" (Tr. 32, 122). Plaintiff reported that he applied for retirement on December 19, 2011 (Tr. 28, 32).
Plaintiff stated that he lives with his second wife, their three children
In the June 18, 2011 Function Report, plaintiff wrote that he first experienced non-radiating, "dull ach[ing] to stabbing" pain in his right knee, which affected his daily activities, on January 2, 2011, the day after he injured his knee at work (Tr. 137-38). He reported that he could no longer kneel or squat because he had pain in his right knee "all of the time" (Tr. 130, 134-35, 138, 146). In addition, he stated he was unable to walk as far as he could before his injury, that he had difficulty sleeping because of knee pain, that his knee hurt "after prolonged standing" and that he walked with a "limp" (Tr. 130, 134-35, 139). He wrote that he originally was prescribed hydrocodone
Plaintiff's medical records largely consist of the progress notes of his treating physician, Dr. Anthony Maddalo, an orthopaedic surgeon at Hudson Valley Bone & Joint Surgery, and the notes of his physical therapist at Summit Physical Therapy, Derrick May, to whom he was referred by Dr. Maddalo.
On January 5, 2011, Dr. Maddalo began treating plaintiff, for an injury he reportedly sustained when he slipped at work, twisting his right knee (Tr. 215). While Dr. Maddalo noted some tenderness in plaintiff's knee, an x-ray showed no "evidence of acute injury" (Tr. 215). Dr. Maddalo tentatively diagnosed plaintiff with "a medial collateral ligament ["MCL"] injury
On January 10, 2011, plaintiff began attending PT three times per week (Tr. 167). Plaintiff reported that his knee was "still giving out" and that he was wearing a knee brace and performing "light duty" work (Tr. 167). The physical therapist ordered therapeutic exercises and ultrasound therapy and directed plaintiff to ice his knee (Tr. 167). During the first week of PT, plaintiff reported increased stability and balance but continued to report knee pain (Tr. 168-71, 173). On January 24, 2011, plaintiff stated that his right knee was "stronger and not really painful while wearing [the] brace," but his left knee was buckling and "bothering" him (Tr. 172). Plaintiff continued to report pain in both knees and buckling of the left knee (Tr. 174-78).
On February 8, 2011, Dr. Maddalo examined plaintiff, noting "some atrophy" in his right leg, as well as pain from the patellofemoral joint
On February 14, 2011, an MRI of plaintiff's right knee revealed (1) a "[s]mall suprapatellar joint effusion,"
On February 24, 2011, plaintiff underwent arthroscopic surgery performed by Dr. Maddalo (Tr. 231, 250-53). Dr. Maddalo performed a meniscectomy, removing "a flap tear in [the medial meniscus] midportion" of the right knee (Tr. 231). Dr. Maddalo diagnosed plaintiff with (1) a "torn right medial meniscus" and (2) an "osteochondral injury"
Plaintiff was evaluated the following day at PT (Tr. 166, 184, 193). The physical therapist noted "great results" from the surgery with "significantly less pain" in plaintiff's knee (Tr. 166). Plaintiff's gait was reportedly "less antalgic"
On March 8, 2011, Dr. Maddalo removed plaintiff's sutures and "warned against overexertion . . . since he did have some chondral injury
At an April 5, 2011 appointment with Dr. Maddalo, plaintiff reported some intermittent pain and an inability to kneel directly on his right knee, which Dr. Maddalo attributed to a "trochlear lesion," a lesion of bone or cartilage on the back of his knee (Tr. 218, 229). Dr. Maddalo wrote that "[s]ince [plaintiff] is a fireman and must kneel and crouch for certain activities[,] I do not think he should go back to full duty just yet" (Tr. 218). At subsequent PT sessions, plaintiff continued to report intermittent knee pain and difficulty from the osteochondral lesion, including "catching and locking," falling, inability to kneel, thigh spasms and his knee "giving out" (Tr. 198-99, 202-05, 207-08, 210, 241-42).
On May 17, 2011, Dr. Maddalo attributed plaintiff's symptoms to the chondral injury, noting "grade 3 to 4" changes in his knee joint (Tr. 165, 219, 228). While Dr. Maddalo injected plaintiff's right knee with a corticosteroid
Dr. Maddalo administered Orthovisc
On May 17, 2011, Dr. Lawrence Schulman, a New York State licensed and Board Certified orthopaedic surgeon, conducted an independent consultative examination of plaintiff for the Workers' Compensation Board (Tr. 233-37).
Plaintiff reported that while working as a firefighter he "slipped and fell on construction debris that was covered by snow, sustaining a twisting injury to his right knee" (Tr. 233). At the time of the examination, plaintiff was taking 10 mg of hydrocodone as needed to manage his pain (Tr. 234). Plaintiff stated that he had right knee "discomfort" when using stairs, that he was unable to kneel, squat or run, that his right knee had previously buckled and that he had "occasional night pain" (Tr. 234).
Upon examination, Dr. Schulman wrote that plaintiff's
(Tr. 234-35). Dr. Schulman diagnosed plaintiff with "[t]raumatic internal derangement right knee with torn medial meniscus and traumatic chondromalacia lesions
On July 19, 2011, H. Barrett, an examiner for the SSA,
Plaintiff submitted additional treatment records to the Appeals Council (Tr. 261-67), as well as a letter challenging the ALJ's decision (Tr. 162-64).
Dr. Schulman re-examined plaintiff on April 2, 2013, after the ALJ's decision (Tr. 262). At the time, plaintiff was wearing a hinged knee brace for support and reported that the corticosteroid and Orthovisc injections administered by Dr. Maddalo had been unsuccessful (Tr. 262). Plaintiff stated that Dr. Maddalo recommended surgery — "a lateral release and arthroscopic debridement"
Dr. Schulman noted that plaintiff's "gait was good," that he could not squat or kneel, that there was swelling and tenderness in the right knee and that plaintiff had a "small osteophyte
(Tr. 264).
On August 21, 2013, Dr. Corey Burak, an orthopaedic surgeon, assisted by Dr. Maddalo, performed a "right knee medial compartment arthroplasty"
Plaintiff was represented by Attorney Michael S. Weiss, Esq. at the May 24, 2012 hearing (Tr. 21-45). On May 15, 2012, Attorney Weiss submitted a Pre-Hearing Memorandum to the ALJ, arguing that plaintiff should "grid out" because, at fifty, he was "an individual closely approaching advanced age who, although a high school graduate, has been a firefighter whose skills do not transfer" (Tr. 160-61).
At the hearing, the ALJ asked plaintiff what prevented him from working (Tr. 29). Plaintiff responded that he still could not kneel or squat, that he has constant "sharp" pain in his right knee and that he needed surgery to relieve that pain (Tr. 29, 31). He testified that Aleve dulled the pain but it never went away (Tr. 31).
Plaintiff reported that he could walk at least fifteen minutes without rest and that he could sit or stand for twenty minutes at a time (Tr. 36, 38). He testified that he could bend from the waist and lift twenty-two pounds but that it hurt to bend his knees to lift and he could not squat (Tr. 36-37). He also reported "tossing and turning" at night, averaging four hours of sleep at a time (Tr. 40).
Plaintiff testified that only Dr. Maddalo had treated him for his injury (Tr. 34). In response to Attorney Weiss' questions, plaintiff reported that Dr. Maddalo recommended a second surgery as soon as possible, which would prevent him from bearing any weight on his right leg for two months (Tr. 43). Plaintiff also testified that he was currently receiving a pension, but had he not been injured, his pension would have increased after his twenty-ninth year of employment
In closing, Attorney Weiss argued that while plaintiff was forty-nine at the time of his injury, (1) he was rendered totally disabled for a period of time after the February 24, 2011 surgery, at least through October 2011, and (2) plaintiff "grid-[ded] out" when he turned fifty on October 5, 2011, because plaintiff was unable to return to work as a fireman and he was closely approaching advanced age with a high school education and non-transferable skills (Tr. 43-44). Thus, Attorney Weiss argued, plaintiff was disabled as of February 24, 2011 (Tr. 44).
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g);
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"`Substantial evidence' is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is entitled to DIB if he can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A);
In making the disability determination, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience."
The Commissioner must follow the five-step process required by the regulations. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The first step is a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If he is not, the second step requires determining whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. § 404.1520(a)(4)(ii). If he does, the inquiry at the third step is whether any of these impairments meet one of the listings in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the answer to this inquiry is affirmative, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. § 404.1520(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
The claimant bears the initial burden of proving disability with respect to the first four steps.
In some cases, the Commissioner can rely exclusively on the medical-vocational guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work."
The ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2015 (Tr. 13). At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since January 1, 2011 (Tr. 13). At step two, the ALJ found that plaintiff had severe impairments, including "status post right knee arthroscopic medial meniscectomy and degenerative disease at the medial femoral condyle" (Tr. 13). At step three, the ALJ found that plaintiff did not meet any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13).
The ALJ then determined that plaintiff had the RFC to perform a range of light work
In making this determination, the ALJ considered plaintiff's allegations and the medical record (Tr. 14). With respect to plaintiff's credibility, the ALJ found that
(Tr. 15). Moreover, the ALJ found that "[d]espite complaints of chronic right knee pain with numbness, diagnostic testing has yielded little in the way of objective findings which correlate with [plaintiff's] complaints to the degree alleged" (Tr. 14).
The ALJ gave "some weight" to Dr. Schulman's opinion that plaintiff "could perform light duty work that did not require any crawling, kneeling, squatting, climbing, or jumping" because it was consistent with his own examination of plaintiff, as well as Dr. Maddalo's progress notes "which fail to demonstrate any significant pain, or weakness and which show some continued buckling, but generally only with squatting, kneeling and climbing stairs" (Tr. 15).
The ALJ also reviewed and considered Dr. Maddalo's opinion that plaintiff could not return to work as a firefighter because he could not kneel, noting that Dr. Maddalo did not indicate that plaintiff could not work altogether; rather, Dr. Maddalo merely recommended that plaintiff consider changing job duties (Tr. 15). The ALJ wrote that Dr. Maddalo consistently reported that plaintiff's intermittent knee pain prevented him from kneeling or squatting, but that Dr. Maddalo placed no other limitations on plaintiff's activities (Tr. 15). The ALJ noted that both Dr. Maddalo's notes, as well as plaintiff's PT records, indicated some improvement as a result of his first surgery, the corticosteroid and Orthovisc injections and PT (Tr. 14-15).
With regard to plaintiff's pain, the ALJ stated that the progress notes indicated that plaintiff's pain was "mild and intermittent," that plaintiff often acknowledged improvement and that plaintiff only needed an over-the-counter pain reliever to manage it (Tr. 16). Finally, the ALJ noted that the progress notes stated that plaintiff "walked with a normal gait and had no residual joint instability while walking or standing" and that "physicians placed no restriction on [plaintiff's] ability to walk, sit, stand, lift or carry, but advised only against kneeling and squatting" (Tr. 16).
At step four, the ALJ concluded that plaintiff was unable to perform past relevant work as a firefighter (Tr. 16).
At step five, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given his RFC, age, education and work experience (Tr. 16). He found that at the alleged onset of disability, plaintiff was a "younger individual" but that when he turned fifty he became an individual "closely approaching advanced age" (Tr. 16). The ALJ determined that plaintiff had at least a high school education and could communicate in English (Tr. 16). The ALJ next found that it was immaterial whether plaintiff's job skills were transferrable to other employment (Tr. 16,
Plaintiff challenges only the ALJ's reliance on the
Grids at step five of his analysis. Specifically, plaintiff contends that the ALJ "neglect[ed] to provide any proof" to support his conclusion that "`there are jobs that exist in significant numbers in the national economy that the claimant can perform' . . ., even failing to produce a vocational expert, thereby failing to meet the Commissioner's burden of proof" (Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated August 18, 2014 (Docket Item 19) at 3,
Where, as here, a claimant has nonexertional limitations, the ALJ must determine whether the impact of his nonexertional limitations on the range of work he could perform is negligible.
The ALJ determined that plaintiff was able to perform light work so long as he avoided "squatting, climbing stairs, kneeling, and crawling" (Tr. 14). The ALJ next determined that "the additional limitations have little or no effect on the occupational base of unskilled light work" (Tr. 17). Because the ALJ determined that plaintiff's nonexertional limitations did not significantly diminish the range of light work available, if that determination is correct, the ALJ did not commit legal error by not seeking a vocational expert's opinion and using the Grids exclusively to determine plaintiff's disability status.
In making his determination, the ALJ cited SSR 85-15, which states, in part, that "[l]imitations in climbing . . . can have varying effects on the occupational base, . . . [and w]here the effects of a person's actual limitations of climbing . . . on the occupational base are difficult to determine, the services of a [vocational expert] may be necessary." SSR 85-15, 1985 WL 56857 at *6 (January 1, 1985). Thus, whether testimony of a vocational expert is needed to determine the effect of climbing limitations on a claimant's occupational base should be decided on a case-by-case basis. SSR 85-15, 1985 WL 56857 at *6;
Finally, the ALJ's determination that plaintiff's nonexertional limitations did not significantly diminish the occupational base available to him is amply supported by substantial evidence, including Dr. Maddalo's progress notes, plaintiff's PT treatment records and Dr. Schulman's consultative examination. The record reflects that plaintiff had intermittent right knee pain (Tr. 165, 168-73, 177-78, 186-96, 210, 213, 216, 218, 225-27, 234, 241), had some right knee "discomfort" using stairs (Tr. 193, 234) and was unable to squat or kneel on his right knee (Tr. 29, 31, 130, 138, 146, 165, 195, 213, 218, 234). Dr. Maddalo also noted some atrophy in plaintiff's right leg prior to his first surgery (Tr. 216).
However, plaintiff's testimony that he suffered constant "sharp" pain in his right knee and that he could neither sit nor stand longer than twenty minutes is inconsistent with the record (
During plaintiff's arthroscopic surgery, Dr. Maddalo diagnosed plaintiff with a chondral injury and plaintiff developed a lesion on the back of his right knee (Tr. 218, 231). Plaintiff reported increased problems related to the lesion, including his knee "catching and locking" and some pain (Tr. 198, 202-04, 210). Although Dr. Maddalo noted grade 3 to 4 changes in plaintiff's right knee, he also reported that plaintiff had a good range of motion (Tr. 165, 225). Dr. Maddalo concluded that only plaintiff's ability to kneel and squat were restricted and recommended that plaintiff seek alternate employment (Tr. 165).
Dr. Schulman's assessment was consistent with plaintiff's treatment notes. He agreed that plaintiff should not kneel or squat and further recommended that plaintiff avoid crawling, climbing or jumping (Tr. 236). Dr. Schulman noted that plaintiff had a good gait, full extension and flexion in the right knee, no crepitus and slight tenderness in his right knee (Tr. 234-35). In light of the medical evidence and plaintiff's subjective reports and testimony, the record contains sufficient evidence to support the ALJ's determination that plaintiff's nonexertional limitations would not significantly diminish the light duty jobs available to plaintiff.
Accordingly, the ALJ did not commit legal error in relying exclusively on the Grids, and his determination that plaintiff was not disabled was supported by substantial evidence.
For all the foregoing reasons, the Commissioner's motion is granted, and plaintiff's motion is denied.
SO ORDERED.
