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Canns v. Astrue

July 9, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Gary S. Canns brings this action pursuant to 42 U.S.C § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying his application for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits. Both Canns and the Commissioner have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, Canns's motion is DENIED, and the Commissioner's motion is GRANTED.


On September 11, 2003, Canns filed an application for SSD and SSI benefits, alleging an inability to work as of December 1, 2002. (R. 86-88) On February 10, 2004, the Social Security Administration denied his application. (R. 39-42) Canns then requested a hearing before an Administrative Law Judge. (R. 44) A hearing was held on April 6, 2007, before Administrative Law Judge Owen Katzman (the "ALJ"). (R. 692) Canns was represented by counsel at the hearing. (R. 692-95)

On April 16, 2007, the ALJ issued a decision finding that Canns is not disabled under Sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act and denying his application for SSD and SSI benefits. (R. 19-28) Canns sought relief from the Appeals Council, but the Council denied his request for review on December 15, 2008. (R. 6-8)

Canns filed this action pursuant to 42 U.S.C § 405(g) on February 13, 2009. (Dkt. No. 1) Canns claims that he has been entitled to receive SSD and SSI benefits since December 1, 2002, because of disability and inability to work caused by renal cancer, emphysema, right ankle fracture, and arthritic pain and fatigue. (Cmplt. ¶¶ 4, 6)


Canns was born on March 4, 1951. (R. 86) He earned a GED and completed two years of college. (R. 104, 696) At the time of the hearing before the ALJ, Canns reported that he lived alone, although he had earlier indicated he lived in a shelter. (R. 115, 701) Canns is able to tend to his personal needs, to engage in household tasks such as cleaning and doing laundry, to use public transportation, and to go shopping for groceries and other items on his own. (R. 117-119, 701-02) Canns also handles his own finances and engages in daily social activities. (R. 119) He enjoys reading and does so on a daily basis. (Id.)

Canns worked as a computer programmer from January 1986 to March 1996. (R. 99, 107) Between March and December 1996, Canns reports being employed as a Staff Officer for the United States Army. (R. 99, 107) For one year beginning in July 1998, Canns worked as a computer instructor for CompUSA. (R. 99, 107, 109) After leaving CompUSA, Canns worked as an administrative assistant, receiving placements through a temp agency until December of 2001. (R. 99, 107-08) Canns was unemployed for a period of time before the onset of his alleged disability. (R. 703) During this time, he looked for employment and took advantage of a computer training program. (Id.)


A. Physical Condition

On June 26, 2002, Canns was contacted by the Veterans Administration. (R. 468) He agreed to accept medical treatment at the New York Veterans Affairs Medical Center (the "VAMC"). (Id.)

On July 8, 2002, Canns received a physical examination at the VAMC. (R. 465) The notes from that examination indicate that Canns complained of rectal bleeding. (Id.) Canns had been previously treated for hemorrhoids and had fractured his right foot in 1993 while in the Army Reserves. (Id.) On the advice of a gastroenterologist, Canns underwent a colonoscopy on October 2, 2002. (R. 458, 460)

On October 15, 2002, Canns returned to the VAMC and saw Dr. Ruth Ellen Pearlman. Dr. Pearlman noted that a CT scan revealed a renal mass and ordered an additional scan. (R. 451-53) Dr. Pearlman's notes from the visit also indicate that Canns complained of "occasional" right ankle pain precipitated by changes in weather and strenuous exercise and relieved with over the counter medications. (R. 451-52) Dr. Pearlman also noted that Canns did not require these medications "very often." (R. 452)

On November 19, 2002, after undergoing several tests at the VAMC, Canns was diagnosed with necrotic renal cell carcinoma on his left kidney. (R. 448-50) On December 9, 2002, Canns underwent a left radical nephrectomy.*fn1 (R. 423-24) After the surgery, Canns complained of soreness in the abdomen and "mild" tenderness at the incision site; he was given morphine for his pain. (R. 411-12) Dr. Darren Freedman recommended that Canns undergo physical therapy four to five times a week for two weeks after his discharge. (R. 405) Canns was discharged from the VAMC on December 12, 2002. (R. 402)

On February 25, 2003, Dr. Pearlman saw Canns again. (R. 387) Her notes from that visit indicate that Canns had "been doing well since the operation" but was "sleeping more hours at night." (Id.) Dr. Pearlman also indicated that Canns complained of "generalized itching." (Id.) At the time of this visit, Canns suffered from no cardiovascular symptoms, was not affected by shortness of breath or cough, and had a "good exercise tolerance." (R. 388) Dr. Pearlman noted that he was "recovering well" from his surgery but still suffered from fatigue.

(R. 389) Dr. Pearlman referred Canns for a surgical consultation with regard to his hemorrhoids and for an orthopedic consultation with regard to his right ankle pain. (Id.)

Canns returned to see Dr. Pearlman on May 27, 2003. He reported that he "continue[d] to feel tired." (R. 385) Dr. Pearlman's notes reiterate her view that Canns was "recovering well" after his surgery except for his ongoing fatigue. (R. 386)

Canns saw Dr. David Chang, an orthopedist, on June 4, 2003. (R. 384) Canns reported "mild" right ankle pain that was worse with rain or walking uphill. (Id.) Dr. Chang indicated that that Canns's pain was "sharp on medial aspect of ankle/distal tibia" but noted that Canns could walk without an "assistive device." (Id.) Dr. Chang diagnosed probable post-traumatic arthritis in the right ankle and recommended that x-rays be taken. (R. 385)

On June 17, 2003, nurse practitioner Tanish Mojica saw Canns, noting that he "feels well" and that while he complained of "persistent fatigue," it was "getting better." (R. 381) Canns reiterated that his fatigue was "improving" when he saw Mojica again on July 22, 2003. (R. 375)

On August 20, 2003, Canns was seen by Dr. Sarah Pettrone in the VAMC Orthopedic Clinic. (R. 361) Dr. Pettrone noted that Canns complained of "an acceptable level of pain" in his right ankle. (Id.) Canns told Dr. Pettrone that his pain increased with "prolonged walking or rainy weather" but said that he was not taking any medicine for the pain. (Id.) Dr. Pettrone diagnosed post-traumatic arthritis and recommended use of non-steroidal anti-inflammatory drugs. (R. 362)

On August 28, 2003, Canns was seen at the VAMC's pulmonary clinic. (R. 357) Michael Goldman, a medical student, made notes from this visit which indicate that Canns complained of fatigue going back to October 2002. (Id.) Canns stated that he slept eight hours each night without awakening and that he felt "fatigued and must nap" daily from about 5:00 p.m. to 7:00 p.m. (Id.) He also complained of feeling lethargic and falling asleep while reading, watching television and being on the bus. (Id.) Canns also reported "decreased exercise tolerance." (Id.) Canns was advised to avoid daytime sleep and was referred for pulmonary function testing. (R. 359) Dr. Steven Jacoby added notes after Canns's August 28 visit, indicating that Canns had good exercise tolerance and "walks briskly." (Id.) Dr. Jacoby noted that he could not identify the source of Canns's fatigue but ordered pulmonary testing in light of Canns's history of smoking. (Id.)

On September 25, 2003, Canns returned to the VAMC to see Dr. Pearlman. (R. 346) Canns stated that he continued to feel "exhausted." (Id.) Dr. Pearlman noted that Canns had not suffered a recurrence of his cancer, though his continuing fatigue was "concerning." (R. 347) Dr. Pearlman also advised that Canns supplement his diet with ferrous gluconate to increase his iron levels. (R. 348) Canns advised that he preferred to eat iron rich foods than take the supplement. (Id.)

On September 29, 2003, Dr. Stacy Spivak prescribed physical therapy two times a week for one month in response to Canns's reported soreness of the right foot and "pronounced" difficulties negotiating stairs. (R. 343-45)

At this point, the Department of Veterans Affairs found that Canns was entitled to a non-service-connected pension as a result of disabilities stemming from his right ankle condition, onychomycosis,*fn2 status-post resection of the left kidney, and recurrent hemorrhoids.

(R. 209-11)

On October 21, 2003, Canns was seen for a follow-up in the VAMC Urology Clinic. (R. 333-34) He reported "persistent fatigue" but stated that it was "getting better." (R. 334) Dr. Joshua Fiske noted that Canns had not suffered any recurrence of cancer and that his fatigue was improving. (R. 334-35)

Dr. Pearlman saw Canns for a follow-up on January 12, 2004. Canns reported feeling exhausted. (R. 314) Nevertheless, Dr. Pearlman reported that his fatigue was much improved. (R. 316)

On January 14, 2004, Canns saw Dr. Jonah Green. (R. 311) Dr. Green's notes from that visit indicate that Canns reported that physical therapy helped to alleviate the weakness of his knees, but Canns continued to complain of decreased range of motion in the right ankle and tightness of the right ankle. (Id.) Canns also indicated that his strength was "significantly improved." (R. 314) Dr. Phillip Poulos, who made additional notes on this visit, indicated that he found Canns "in no apparent distress." (R. 314) Canns was advised to continue physical therapy. (R. 313)

Dr. David Adin examined Canns's right ankle on April 14, 2004. (R. 307) Dr. Adin noted that Canns was "able to ambulate many blocks without stopping from right ankle pain" and that Canns did not feel the pain with his shoes on, regardless of ambulation. (R. 307-08) Dr. Adin recommended continued physical therapy. (R. 308)

Canns returned to the VAMC to see Dr. Pearlman on May 25, 2004. (R. 305) Canns reported that his energy level was much improved and that he was working as an auxiliary policeman three times a week. (Id.) Dr. Pearlman concluded that Canns's fatigue was "much improved" and noted that he was receiving physical therapy for his right ankle pain. (R. 306)

On July 1, 2004, Canns saw nurse practitioner Fern Serrell, who noted that Canns's fatigue was "improving" and that he was "running and exercising and feels great." (R. 294-95)

Canns returned to the VMAC on November 17, 2004 with complaints of lower back pain that radiated down his right leg and increased with rest. (R. 294) The pain reportedly decreased after he walked or stretched. (Id.) Canns declined non-steroidal anti-inflammatory drugs. (Id.) He was referred to a neurologist for a consultation. (Id.) When Canns was seen by a neurologist on December 1, 2004, he reported some improvement in his lower back pain and was diagnosed with likely ...

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