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Figgins v. Berryhill

United States District Court, W.D. New York

March 29, 2002

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          DECISION & ORDER

          JONATHAN W. FELDMAN United States Magistrate Judge

         Preliminary Statement

         Plaintiff Travel Lamont Figgins ("plaintiff" or "Figgins") brings this action pursuant to Title II and Title XVI of the Social Security Act seeking review of the final decision of the Commissioner of Social. Security (the "Commissioner") denying his application for disability insurance benefits. See Complaint (Docket # 1) . Presently before the Court are competing motions for judgment on the pleadings. See Docket ## 11, 17.

         Background and Procedural History

         Oh April 5, 2013, plaintiff applied for disability insurance benefits and supplemental security income. Administrative Record ("AR") at 179-86. The Social Security Administration made a determination that plaintiff was not disabled on July 9, 2013. AR at 72-89, 106. Plaintiff then timely filed a request for a hearing before an Administrative Law Judge. AR at 114. On November 21, 2014, Administrative Law Judge Gregory M. Hamel (the "ALJ") conducted a hearing on plaintiff's claim. AR at 139-43. On February 12, 2015, the ALJ issued a decision, therein determining that plaintiff was not disabled under sections 216(i), 223(d), arid 1614(a)(3)(A) of the Social Security Act. AR at 13-29. Plaintiff timely filed a request for review of the ALJ's decision by the Appeals Council. AR at 9. On October 21, 2015, the Appeals Council declined to review the ALJ's decision, rendering it the final decision of the Commissioner. AR at 1-5. Plaintiff commenced this federal action on December 14, 2015 (see Docket # 1), and the parties filed competing motions for judgment on the pleadings (see Docket ## 12, 17). I heard oral argument on January 12, 2017 (see Docket # 21).

         Medical History

         In his application for disability benefits, plaintiff claimed that his ability to work was limited by: (1) knee problems, (2) asthma, (3} a wrist injury, (4) back pain, and (5) depression. AR at 200.

         Plaintiff presented to the emergency department at Strong Memorial Hospital on January 26, 2012, with shortness of breath, wheezing, and a non-productive dry cough. AR at 323. He noted that he ran out of his asthma inhaler a couple of weeks before and that once he gets an inhaler he would be "good." AR at 323. Plaintiff also admitted that he smokes a half a pack of cigarettes a day and admitted to smoking marijuana prior to coming in that day. AR at 323. The nurse practitioner advised that plaintiff cease smoking. AR at 323-24.

         On July 19, 2012, plaintiff reported to the medical department at the Monroe County Jail, complaining of wheezing and shortness of breath. He indicated that the cold air affected his ability to breathe. AR at 317. Plaintiff presented again on August 20, 2012, with right lower back pain that was not alleviated with ibuprofen. AR at 326. The provider prescribed Vicodin and Flexeril and directed plaintiff to limit activity. AR at 327.

         On October 1, 2012, plaintiff was booked at the Monroe County Jail. There, he reported suffering from asthma, as well as joint and muscle problems. AR at 294-95. He denied using drugs at the time but acknowledged previously being treated for substance abuse. AR at 296. A screener commented that plaintiff's affect and mood were appropriate, and he appeared clean. The screener noted that plaintiff did not appear to be a risk for suicide. AR at 298-99.

         Plaintiff presented to the medical staff at the Monroe County Jail again on October 11, 2012, complaining of shortness of breath due to asthma. AR at 302. Oh October 20, 2012, the medical staff at the Monroe County Jail indicated that plaintiff had not been showing up to receive medication. AR at 307.

         He presented again on November 13, 2012, this time complaining of "clicking" in his right shoulder, but denying limitation in movement. AR at 318. Plaintiff returned on December 8, 2012, complaining of painful . breathing. AR at 311. A series of x-rays revealed a "trace of atelectasis in the right lower lung." AR at 312. Several days later, on December 11, 2012, plaintiff reported that his lungs hurt and he believed he had pneumonia. AR at 318. On January 17, 2013, plaintiff reported that the pain in his right lung had returned despite his attempts to treat it with throat lozenges. AR at 319.

         On February 4, 2013, plaintiff reported that the right lung pain had again returned after his dose of prednisone ended. He denied shortness of breath with physical activity, but had intermittent shortness of breath throughout the day. AR at 32 0. The following day, plaintiff stated that he responded well to asthma medications but his recurrent pain around his right shoulder blade continued when he "work[s] out hard." AR at 320. His lungs were clear on February 13, 2013. AR at 316.

         Two weeks after being released from prison, plaintiff reported to the emergency department again reporting right side lung pain. AR at 328. He was diagnosed with pleurisy. AR at 330. During this visit, plaintiff also reported back pain as well as feeling anxious and nervous. AR at 331.

         On April 30, 2013, plaintiff presented to Harbinder Toor, M.D., for a consultative physical examination. Plaintiff reported constant, sharp pain in his ankles, knees, and lower back. AR at 33 9. As a result, plaintiff had a hard time standing, walking, squatting, sitting, bending, and lifting. Dr. Toor noted that plaintiff still had dull pain in his left elbow from a fall a few years ago. AR at 339. Despite the medical records to the contrary, Dr. Toor rioted that plaintiff "has never been hospitalized or had ER visits for recent or frequent asthma attacks." AR at 3 39. Plaintiff also reported to Dr. Toor that he had a mild heart attack three years ago. AR at 339. There is no reference to this heart attack elsewhere in the record. AR at 339. Plaintiff reported to Dr. Toor that he previously used marijuana, but "quit a few years ago." AR at 34 0. Dr. Toor noted that plaintiff does cooking, cleaning, and laundry, and "showers once a week" and "dresses once a week." AR at 340.

         Dr. Toor observed that plaintiff had a difficult time changing for the examination and trying to get out of the chair. He declined to lay down for the exam. AR at 340. X-rays revealed a straightening of the spine. AR at 345. Ultimately, Dr. Toor opined that plaintiff would have moderate to severe limitations in standing, walking, squatting, bending, and lifting. According to Dr. Toor, plaintiff would have moderate limitations for sitting for a long time, and mild to moderate limitations for pushing and pulling with his left arm. AR at 342. Dr. Toor recommended that plaintiff avoid irritants that would precipitate or exacerbate his asthma. AR at 342.

         The same day, plaintiff presented to Yu-Ying Lin, Ph.D., for a psychiatric consultative evaluation. During the evaluation, plaintiff reported having an increased appetite and difficulty falling asleep. AR at 347. He reported that his depression and anxiety had worsened over the past several years. AR at 34 7. These problems resulted in irritability, fatigue, diminished self-esteem, social withdrawal, and diminished sense of pleasure. AR at 357. He also experienced restlessness and difficulty concentrating. AR at 347. Although plaintiff denied current suicidal or homicidal thoughts, he indicated that his last suicidal ideation was about four months ago. AR at 347. He also noted that he continues to have anxiety attacks and outbursts of anger, sometimes resulting in him blacking out. AR at 348.

         Dr. Lin observed plaintiff's demeanor as cooperative, his appearance as appropriate, his speech as fluent, but his manner of relating as fair to poor. AR at 348. According to Dr. Lin, he appeared to be coherent and goal-oriented. AR at 349. His mood was neutral and his affect was dysphoric. Plaintiff appeared to have moderate difficulty with attention and concentration, moderate impairment with memory, and seemed to be have below average to borderline cognitive functioning. AR at 349. "He was not able to articulate what his coping strategies are." AR at 349. However, plaintiff reported that he is able to do the cooking, cleaning, and shopping himself.

         Dr. Lin concluded that plaintiff can follow and understand simple directions and instructions and can perform simple tasks independently. However, Dr. Lin believed plaintiff would have moderate limitations in maintaining attention and concentration, maintaining a regular schedule, learning new tasks, performing complex tasks independently, making appropriate decisions, and ' relating adequately to others. Dr. Lin noted that plaintiff would be moderately to markedly limited in appropriately dealing with stress. AR at 35 0. Dr. Lin diagnosed plaintiff with depressive disorder, generalized anxiety disorder, intermittent explosive disorder, psychotic disorder, and substance abuse in early remission. AR at 350. But, Dr. Lin put plaintiff's diagnosis at "guarded to fair." AR at 351.

         On May 18, 2013, plaintiff presented to Rochester General Hospital with complaints of lower back pain brought on by lifting a heavy box. AR at 352. The medical notes indicate that this pain was new and that it was associated with the lifting of heavy objects. AR at 352. A spinal x-ray was normal. AR at 356. The notes indicate that plaintiff was able to ambulate slowly. AR at 354. He was prescribed pain medication. AR at 358. The notes also indicate that plaintiff's condition began to improve. AR at 3 54.

         Plaintiff then presented to Highland Family Medicine for a follow up on his back pain. Upon examination, Luis Berrios, N.P., noted that plaintiff rated the pain as a. 7 out of 10, but that plaintiff was ambulating well. Nurse Berrios also indicated that plaintiff's asthma was "improving" and recommended that plaintiff continue with his current regimen. AR at 359. Nurse Berrios also indicated that plaintiff's lumbago was "hot controlled at this time" and that plaintiff would begin physical therapy. AR at 359.

         In a self-reported function report on May 20, 2013, plaintiff noted that he was able to dress, bathe, feed, and use the toilet himself. AR at 211-12. He also noted that he prepares meals for himself daily. AR at 212. Plaintiff goes outside four times a day, but his illnesses prevent him from doing yard work. AR at 213. Although plaintiff testified at the hearing that a neighbor takes him around, he reported on the function report that he takes public transportation by himself. AR at 213. He further reported that he is able to pay his own bills and handle his own finances. AR at 214. Plaintiff noted that he goes out to a friend's house approximately two times per week. AR at 215. And, although plaintiff can sit, climb stairs, reach, and use his hands, he is unable to walk or stand for too long (approximately 10 minutes) and cannot lift, kneel, or squat. AR at 216-17. As for pain, plaintiff reported stabbing pain in his back and legs, which can last for 30 minutes. AR at 218-19. As for his asthma, plaintiff reported that he had several asthma attacks per day. AR at 221.

         In- a medical treatment report dated June 18, 2014, plaintiff reported that he takes an albuterol inhaler every six hours, ibuprofen three times daily, lidocaine three times daily, metaxalone three times daily, montelukast nightly, morphine every twelve hours, sertraline daily, and tiotropium daily. AR at 23 6.

         On June 19, 2013, Nurse Berrios indicated that plaintiff's pain in his lower back had improved somewhat. During the visit, plaintiff also complained of an aching pain in his knees, which he says had been present for years. AR at 351. And, plaintiff reiterated his history of anxiety and depression. AR at 361. Importantly, during this visit, Nurse Berrios evaluated plaintiff's respiratory system and remarked "[g]ood respiratory effort. Clear to auscultation. Clear to percussion." AR at 362. Ultimately, Nurse Berrios referred plaintiff to physical/occupational therapy for his ankle, knee, and lower back pain, and recommended that plaintiff consider surgery. AR at 362. As for plaintiff's anxiety, Nurse Berrios referred plaintiff to Behavioral Health. AR at 362. And, for plaintiff's asthma, Nurse Berrios prescribed Symbicort. AR at 362.

         After evaluating plaintiff, Nurse Berrios completed a medical source statement regarding plaintiff. AR at 367. Nurse Berrios listed plaintiff's prognosis as "good" and indicated that plaintiff was responding well to physical therapy and was expected to recover in four to six months. AR at 366. Nurse Berrios opined that plaintiff could occasionally lift and carry a maximum of 2 0 pounds, and could stand, walk, sit, push, and pull without limitation. AR at 368.

         In a medical source statement dated September 22, 2014, Vivian Jiang, M.D., indicated that plaintiff could lift no more than ten pounds, and could only stand, walk, or sit for less .than two hours, having to change positions every half hour. AR at 371. During the physical examination, plaintiff was unable to stay in one position for more than a half hour, could not squat, lacked shoulder range of motion, and grimaced while going up stairs. AR at 371-72. This led Dr. Jiang to conclude that plaintiff would never be able to bend, crouch, or climb ladders, but could occasionally twist or climb stairs. AR at 371. In her opinion, plaintiff would have limits on kneeling and crawling. AR at 372. These limitations would, according to Dr. Jiang, require plaintiff to be out of work more than four days per month. AR at 3 72. In the medical notes, Dr. Jiang noted that she thought "a lot of his respiratory symptoms are anxiety driven and not asthma related." AR at 394. She also noted that these limitations could be expected to last longer than 12 months. AR at 372.

         On July 28, 2014, plaintiff presented to Strong Behavioral Health, with the primary complaint t "I can be happy and then be angry." AR at 373. He reported to Therapist Peter Wilder, LMSW, that he had previously taken Zoloft but recently switched to Prozac, which plaintiff did not believe was helping him. AR at 373. He again reported use of marijuana. AR at 374. Therapist Wilder found plaintiff to be well-groomed and cooperative, with a full affect and normal thought process. He was alert and oriented, with average intelligence and judgment, but poor impulse control. AR at 376. He remained hopeful that things would improve in his life. AR at 376. Therapist Wilder put plaintiff's risk of suicide at "low/moderate." AR at 3 76. However, Therapist Wilder indicated that plaintiff's prognosis was "elevated" for violence due to past conduct. AR at 377. Therapist Wilder noted that if plaintiff engaged in therapy arid addressed his possible substance abuse and mental health issues, the "risks will be significantly mitigated." AR at 377. Therapist Wilder diagnosed plaintiff with depressive disorder. AR at 3 77.

         At a subsequent session on August, 12, 2014, plaintiff reported that he was feeling "stable." AR at 382. On August 25, 2014, plaintiff again attended a therapy session. He' presented as a guarded and angry, but engaged, and reported having bouts of overwhelming anger. AR at 384. Therapist Wilder provided a great deal ...

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