United States District Court, W.D. New York
DECISION & ORDER
JONATHAN W. FELDMAN United States Magistrate Judge
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.
and Procedural History
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).
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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 ...