United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE
PLEADINGS AND ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
Glazer Margolis United States Magistrate Judge
action, filed under ' 205(g) of the Social Security Act,
42 U.S.C. §§ 405(g) and 1383(c)(3), as amended,
seeks review of a final decision by the Commissioner of
Social Security [“SSA”] denying plaintiff
Disability Insurance Benefits [“DIB”].
January 27, 2012, plaintiff applied for DIB benefits claiming
that he has been disabled since August 14, 2011 due to
anxiety, severe pain in his back and legs, depression, and
diabetes. (Certified Transcript of Administrative
Proceedings, dated March 31, 2017 [“Tr.”] 70-71,
86-87; see Tr. 90, 183-85, 203). The Commissioner
denied plaintiff's application initially, and upon
reconsideration. (Tr. 100-06). On or about December 3, 2013,
plaintiff requested a hearing before an Administrative Law
Judge [“ALJ”](see Tr. 108-09; see
also Tr. 107, 110-11), and on February 10, 2015,
plaintiff and Joseph Goodman, a vocational expert, testified
at a hearing before ALJ Matthew Kuperstein. (Tr. 33-68;
see Tr. 112-48).Plaintiff proceeded without counsel.
(See Tr. 36-40; see also Tr. 149). In a
decision dated August 6, 2015, ALJ Kuperstein denied
plaintiff's request for benefits. (Tr. 11-26). On October
1, 2015, plaintiff filed a request for review of the
ALJ's decision (Tr. 7-8; see Tr. 9-10), and on
July 29, 2016, an attorney from the Herman Law Group
submitted a memorandum in support of plaintiff's appeal.
(Tr. 301-05). On December 23, 2016, the Appeals Council filed
its notice denying plaintiff's request for review,
thereby rendering the ALJ's decision the final decision
of the Commissioner. (Tr. 1-3; see Tr. 4-6).
February 17, 2017, plaintiff commenced this current action
(Dkt. #1), and on March 30, 2017, the parties consented to
this Magistrate Judge's jurisdiction and the case was
transferred accordingly. (Dkt. #14). Thereafter, on April 26,
2017, defendant filed her answer and copy of the Certified
Administrative Transcript, dated March 31, 2017. (Dkt.
#18). On June 15, 2017, plaintiff filed his
Motion for Judgment on the Pleadings, and brief in support.
(Dkts. ##24-25; see also Dkts. ##22-23). On October
25, 2017, defendant filed her Motion for Judgment on the
Pleadings (Dkt. #33), and four days later, on October 29,
2017, plaintiff filed his reply brief. (Dkt. #34).
reasons stated below, plaintiff's Motion for Judgment on
the Pleadings (Dkt. #24) is granted in part and denied in
part, and defendant's Motion to for Judgment on the
Pleadings (Dkt. #33) is denied in part and granted in
PLAINTIFF'S ACTIVITIES OF DAILY LIVING
is forty-seven years old (Tr. 70), and lives alone in an
apartment. (Tr. 48, 189). He completed high school, and at
the time of his hearing, he was serving bread, changing light
bulbs, vacuuming, and dusting as a volunteer at the Salvation
Army about once a week; plaintiff has served as a volunteer
at the Salvation Army since August 2011. (Tr. 49-50, 203-04).
According to plaintiff, he volunteers there “maybe 20,
25 hours a month.” (Tr. 50).
average day, plaintiff watches television, goes shopping, and
cares for his pet parakeet. (Tr. 189; see Tr. 57,
193). He prepares his own meals, performs household chores,
and goes outside every day. (Tr. 191-92). According to
plaintiff, his impairments affect his ability to walk, sit,
and stand for long periods of time. (Tr. 190). When he walks,
he needs to “stop and rest a bit because of [his] back
and right [ankle].” (Tr. 193; see also Tr.
194). Plaintiff testified that if he is “lucky, [he]
could sit for maybe [twenty] minutes to a half . . . hour,
[and] stand maybe [fifteen] minutes, [twenty] minutes.”
(Tr. 54). Additionally, he suffers from migraine headaches
two to three times a month which affect his speech and
vision. (Tr. 57-58, 60). Plaintiff has been prescribed
Imitrex which reduces the intensity of his migraine pain.
(Tr. 59). Plaintiff also suffers from depression. (Tr. 60).
takes or has taken Metformin, Glyburide, Lisinopril,
Propranolol, Clonazapam, Ibuprofen, Lantus Solostar,
Klonopin, and Flexeril (Tr. 191, 206, 261, 270, 275, 279-80,
282; see Tr. 640), and he receives five or six
cortisone injections each year. (Tr. 279).
worked in the shipping and receiving department of Goldenrod
Corporation from 1994-2000 (Tr. 276), and then as a custodian
for Col-Linx from 2002-2003 (Tr. 53-54; see Tr.
164-65, 168, 178-79, 198, 276 (2001-2003)), and for
Bozzuto's in 2004-2005 (Tr. 53; see Tr. 164,
168, 177-78, 199). From 2006 to 2012, plaintiff worked as a
custodian at the Salvation Army; he also drove a vehicle to
pick up and drop off donations, as well as pick people up for
Sunday services. (Tr. 51-52; see Tr. 153-54, 162-63,
168, 175-76, 200, 205, 212-13, 215, 276 (2008-2012), 277
(2007-2012), 283 (2007-2012)).
testified that he is disabled due to an injury to his back on
August 14, 2011; he continued to work after he was injured
but he stopped working in February 2012 due to back pain.
(Tr. 46-47, 52). In 2013, 2014 and 2015, plaintiff
volunteered with the “kettle work” for the
Salvation Army. (Tr. 52; see Tr. 175, 283).
vocational expert, appearing telephonically, testified at
plaintiff's hearing that plaintiff's past work is
classified as medium unskilled and medium semi-skilled work.
(Tr. 61-62). In response to a hypothetical posed by the ALJ,
the vocational expert opined that an individual limited to
light exertional work, without strict time or production
requirements, without collaboration of coworkers, and with no
more than minor changes in the work environment could perform
the work of a “cleaner custodian[.]” (Tr. 62-63).
However, such an individual could not perform the work of a
“cleaner custodian” if limited to work that did
not involve constant standing and/or walking, and if such an
individual was limited to sedentary work, such an individual
could work as a document preparer, screener, and ticket
checker. (Tr. 63-64). Additionally, such a hypothetical
individual could perform the foregoing three jobs even with
the additional limitations of occasional climbing, balancing,
stooping, kneeling, crouching or crawling, and having to
avoid concentrated exposure to hazards such as the operation
of motor vehicles or heights or moving machinery. (Tr. 64).
However, according to the vocational expert, if the
individual was further limited to only frequent handling,
fingering, or feeling, the ticket checker position would be
eliminated, but such an individual could perform the work of
a polisher. (Tr. 64-65). A limitation of occasional handling,
fingering, or feeling with the above-referenced combination
of limitations would preclude all work. (Tr. 65). The
vocational expert also testified that if the individual was
off-task for more than ten percent of the workday, in
addition to regularly scheduled work breaks on a regular
basis, that individual could not perform any work. (Tr. 66).
However, according to the vocational expert, a hypothetical
person limited to sitting for thirty minutes and standing for
twenty minutes at a time, could perform any of the identified
occupations. (Tr. 66-67).
alleges that he has been disabled since August 14, 2011. (Tr.
70-71). Accordingly, although the Court has reviewed the
entire administrative record, the Court limits its discussion
of plaintiff's medical history to the relevant time
period as addressed below.
SHOULDER AND BACK AILMENTS
was seen by Dr. Gabriella Gellrich at the Community Health
Center [“CHC”] on May 16, 2011 for
“recurrent sciatica” and complaints of a
headache. (Tr. 328-29, 567-68). Plaintiff returned to Dr.
Gellrich on November 7, 2011 for lower back pain and right
ankle pain; his medical record notes that he is overweight;
he “[d]oes not follow [a] low fat diet”; and
his back pain was “now interfering with his job.”
(Tr. 324-25, 563-64). On January 18, 2012, plaintiff was seen
by APRN Debra Dresden at CHC for pain management for his
back. (Tr. 321-23, 560-62). Plaintiff had “poor
hygiene[, ]” and “spasm of [the] lumbar
paraspinals, negative SLR test, [and] no spinal
tenderness[.]” (Id.). On February 28, 2012,
plaintiff was seen by Dr. Gellrich for back and right ankle
pain; he was diagnosed with herniated disc syndrome. (Tr.
319-20, 558-59). Three weeks later, on March 19, 2002,
plaintiff was seen by Dr. Gellrich for migraines. (Tr.
317-18, 556-57). Two days later, plaintiff returned to Dr.
Gellrich complaining of “severe back pain”
after cleaning his apartment; he also presented with DSS
paperwork for Dr. Gellrich to complete. (Tr. 315-16, 554-55).
April 18, 2012, Dr. Gellrich noted that plaintiff continued
to gain weight after he stopped working, but that his back
pain “somewhat improved.” (Tr. 353-54, 552-53).
Plaintiff underwent an MRI of his lumbar spine on April 26,
2012, which revealed “[g]rade 1 anterolisthesis L5-S1
due to bilateral spondylolysis of L5 and facet arthrosis[;]
[d]iffuse spondylotic disk bulging asymmetric to the left[;]
[s]evere left foramen stenosis with impingement upon existing
left L5 root[;] [and] [m]oderate right foramen
stenosis.” (Tr. 586). On May 2, 2012, Dr. Gellrich
noted that plaintiff's MRI was “significant for
nerve impingement at ¶ 5.” (Tr. 349-50, 548-49).
Plaintiff returned with DSS paperwork on July 10, 2012; he
continued to gain weight and did not have “much
improvement in [his] functional status after completing
physical therapy.” (Tr. 343-44, 542-43; see
generally Tr. 605 (May 2012 physical therapy record)).
February 11, 2013, plaintiff was seen by Dr. Gellrich for
right shoulder pain that began a month earlier. (Tr. 534-55).
Plaintiff was unable to extend his arm into the air; he was
referred for an MRI. (Tr. 534). Plaintiff returned to Dr.
Gellrich on March 27, 2013 for medication refills and right
shoulder pain, for which he underwent an MRI on February 23,
2013. (Tr. 530-31; see Tr. 532-34, 583-84).
Plaintiff had limited range of motion, and right rotator cuff
tendinopathy with partial thickness tearing of his right
subscapularis tendon. (Tr. 530; see Tr. 583-84).
Plaintiff was referred for physical therapy. (Tr. 530;
see generally Tr. 604, 606 (April-May 2013 physical
was seen for back pain and right shoulder pain on June 18,
2013. (Tr. 528-29). Upon examination, he had spasm of lumbar
paraspinals, and it was noted that he had steroid injections
in his back; he was referred for physical therapy.
was seen at the CHC by APRN Wagner for complaints of back
pain on July 2, 2013, and again on August 12, 2013. (Tr.
503-04, 518-20). On July 2, 2013, plaintiff rated his pain as
a seven on a scale to ten. (Tr. 518). At his August
appointment, he had mild pain with full back flexion and
negative straight leg testing. (Tr. 503-05). He was also
referred for a brain MRI to rule out a TIA two days prior.
(Tr. 504). In September 2013, plaintiff underwent an MRI for
a “sudden onset severe headache, ” the results of
which were normal. (Tr. 490-91; see Tr. 581-82).
October 2, 2013, plaintiff was seen at Physical Medicine and
Rehabilitation [“PMR”] by Dr. Beth Aaronson for
his low back pain that occasionally radiated to his left
knee. (Tr. 637-39). On October 7, 2013, plaintiff was seen
for his right shoulder pain which was “not too severe
at [that] point[.]” (Tr. 595). Plaintiff was seen on
October 29 and November 12, 2013 by Dr. Aaronson for his low
back pain; he reported side effects from pain medications,
and complained of increased pain when walking. (Tr. 633-36).
On December 3, 2013, plaintiff returned to Dr. Aaronson for
his low back and leg pain. (Tr. 592-94, 631-32). Plaintiff
had bilateral muscle spasms; he was assessed with lumbar
radiculopathy. (Tr. 593, 632).
January 9, 2014, plaintiff was seen at the Western
Connecticut Health Network Orthopedic Clinic [“Western
Orthopedic Clinic”] for a followup evaluation of his
right shoulder pain. (Tr. 591). On examination, plaintiff had
full range of motion and some “minimal tenderness to
palpation.” (Id.). Plaintiff returned to PMR
on February 18, 2014 for back and left leg pain; he reported
the most pain during and after walking, and increased pain
when sitting. (Tr. 628-30). On February 27, 2014, plaintiff
underwent an MRI of his lumbar spine, the results of which
revealed “[s]table grade 1 anterolisthesis L5-S1
secondary to L5 spondyloysis and facet arthropathy[, ]”
as well as “[s]table diffuse posterior disc osteophyte
complex extending to the left resulting in severe left neural
foraminal stenosis with probable impingement upon the exiting
left L5 nerve root, unchanged[;] [and] [s]table moderate
right neural foraminal stenosis.” (Tr. 579).
March 25, 2014, plaintiff reported to PMR that his pain level
was seven on a scale of ten and it increased when walking.
(Tr. 625-27). On May 6, 2014, plaintiff reported that
steroids did not help his back pain and he refused to try
pain medications, but he reported that he was still walking
two to three miles a day. (Tr. 622-24). On June 10, 2014,
plaintiff reported some improvement for his back pain with
physical therapy. (Tr. 618-21). On October 7, 2014, plaintiff
returned to PMR to report that his back pain had
“gotten worse” and that his injections only