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Robert Henderson v. Michael J. Astrue

January 19, 2011

ROBERT HENDERSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

ORDER AND OPINION

I. Introduction

Plaintiff, Robert Henderson, brings this action pursuant to Section 205(g) of the Social Security 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 Supplemental Security Insurance ("SSI") and Disability Insurance Benefits ("DIB"). The plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Item 12). The Commissioner moves to remand this action in order to further develop the administrative record (Docket Item 16). For the reasons set forth below, plaintiff's motion is denied and the Commissioner's motion to remand is granted.

II. Background

A. Procedural Background

Plaintiff filed an application for SSI and DIB on March 17, 2005 alleging that he had been disabled since March 9, 2005 due to a broken left ankle (Tr.*fn1 61-65, 67-68, 70-71). The Social Security Administration denied plaintiff's application for benefits on June 7, 2005, finding that plaintiff's condition was not expected to remain severe enough for twelve consecutive months to prevent him from working (Tr. 50). After his initial application, plaintiff claimed that he subsequently broke his right ankle, dislocated his left*fn2 elbow, suffered a laceration to his head, and was stabbed in his back (Tr. 96, 98, 194-195, 197). Plaintiff timely requested (Tr. 43) and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 25-42).

The ALJ, Terence Farrell, conducted a video hearing on May 3, 2007 at which plaintiff appeared pro se (Tr. 180-204). In a decision dated May 25, 2007, the ALJ found that plaintiff had not been under a disability within the meaning of the Social Security Act from March 9, 2005 through the date of the decision (Tr. 13-24). The ALJ's determination became the final decision of the Commissioner on August 23, 2007, when the Appeals Council denied plaintiff's request for review (Tr. 9-11). On that date, the Appeals Council also noted that it had received additional evidence which it had made part of the record, including treatment records from The Kingston Hospital (Tr. 12, 160-78). On October 14, 2007, plaintiff requested an extension of time for filing a Notice of Claim in civil court regarding the Commissioner's decision (Tr. 6-8). The Appeals Council granted this request (Tr. 3).

Plaintiff commenced the present action on November 26, 2007 (Complaint, dated November 26, 2007 (Docket Item 2), ("Compl.") at 1). He alleged in his complaint that he was disabled "due to receiving a broken left ankle, a broken right ankle and a dislocated left elbow, a stab wound to the lower right portion of the back and a laceration to the back of the head that required several staples, all within a six month time frame" (Compl. ¶ 4). Plaintiff requests that "this court should reverse the decision of the defendant to grant benefits to the plaintiff, retroactive to the date of the initial disability, or in the alternative, remand to the Commissioner for reconsidera- tion of the evidence" (Compl. at 3-4). Plaintiff filed a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure on May 14, 2008 (Notice of Motion for Judgment on the Pleadings, dated May 14, 2008 (Docket Item 12)).

By a letter dated July 25, 2008, the Commissioner proposed to plaintiff that the action be remanded for further proceedings with the ALJ, but plaintiff did not consent to this remand (Memorandum of Law in Support of Defendant's Motion for a Remand, dated August 29, 2008 (Docket Item 17), ("Def.'s Mem. in Support") at 2 n.3). On August 29, 2008, the Commissioner filed a Notice of Motion and Memorandum of Law in Support of Defendant's Motion for a Remand (Docket Items 16 and 17) requesting further administrative proceedings pursuant to 42 U.S.C. § 405(g). The Commissioner stated that "there are gaps in the administrative record relating to treatment at Kingston Hospital and, thus, further proceedings are necessary to fully develop the record and obtain this evidence from plaintiff's treating source" (Def.'s Mem. in Support at 8).

B. Plaintiff's

Social Background

Plaintiff was born on October 31, 1963 (Tr. 45). At the time of the ALJ hearing he was forty-three years old (Tr. 189). He received his GED in 1981 and reported completing some college credits (Tr. 75, 190). Plaintiff is married to Tracey Napoli, but stated in his initial application that they were in the process of getting divorced (Tr. 61, 63). His previous marriage to Ramona Crowder ended in divorce in 2000 (Tr. 61). He has seven children (Tr. 189). In his initial application, plaintiff reported that one of his children lived with him, one lived with his grandmother in South Carolina, two lived with Ms. Napoli in Standfordville, New York, and one lived with his mother in Virginia (Tr. 62-63). At the time of the ALJ hearing, plaintiff testified that the youngest of his children was one-year-old and that all of his children lived with their mothers, except for one child who was in the air force (Tr. 190).

Plaintiff reported that after his initial injury, his daily routine consisted of caring for his children, completing house chores, watching television, reading, writing and socializing with friends and family (Tr. 78). He mostly spent his time cooking and eating, playing games, attending "outings" and engaging in conversation (Tr. 82). Generally, he reported that he could see, hear, talk, reach, and use his hands well, while activities involving walking, standing, or otherwise using his legs "cause[d] [him] difficulty" (Tr. 82).

Following his injury, plaintiff began selling narcotics on a daily basis (Tr. 201-02). He described himself as a "petty drug dealer" earning about twenty to thirty dollars per day, which he claimed was "just enough to feed myself and when the car insurance was due I was able to pay it" (Tr. 202-03). Prior to the ALJ hearing, plaintiff was sentenced to a six year prison term for possession of a controlled substance (Tr. 200). He testified that his incarceration began on either September 24th or 26th 2005 (Tr. 197). Previously, plaintiff had been convicted of "weapon possession" in 1998 and attempted robbery in 1993 (Tr. 201). He reported that he had been incarcerated for some period of time in 1992 and 1993, and again from March 24, 1998 to July 1, 2002 at the Clinton Correctional Facility in New York State (Tr. 62).

Prior to his injury, plaintiff worked as a developmental aide trainee at a New York State adult mental health facility from September 2003 until he was terminated on March 3, 2005 (Tr. 71).*fn3 For eight hours per day, plaintiff assisted persons with developmental disabilities, particularly adult males with violent tendencies, with activities of daily living including shaving, cooking, showering, cleaning, and taking medications (Tr. 71). Plaintiff spent a substantial portion of his time standing and walking, and often had to climb, crouch, kneel and handle large objects*fn4 (Tr. 72). Plaintiff sometimes had to restrain patients if they became violent, and reported that the heaviest weight he had had to lift was one hundred pounds or more (Tr. 72, 89). He more frequently lifted between ten and fifty pounds*fn5 (Tr. 72,89).

Plaintiff also worked as a counselor at a child rehabilitation center for an unspecified period of time in 1997 (Tr. 88). There he oversaw young people who had been court ordered to attend the facility for substance abuse treatment (Tr. 91, 193). Plaintiff spent three hours per day walking and spent one hour per day standing, sitting, handling large objects, and handling small objects or writing (Tr. 91). The heaviest weight that plaintiff lifted at this job was about twenty-five pounds, which plaintiff lifted frequently (Tr. 91). He testified that on rare occasions he would have to carry supplies and that he may have had to restrain one of the teenagers if necessary (Tr. 194).

From 1995 through 1997, plaintiff worked as a direct care worker at a youth rehabilitation center (Tr. 88). At this job, plaintiff "cared for" about thirteen children "with various levels of special needs" (Tr. 90). Four hours of his shift were evenly divided between walking and standing (Tr. 90). He would also spend one hour per day sitting, handling large objects and handling small objects or writing, with twenty minute intervals spent kneeling, crouching and crawling (Tr. 90). He would sometimes help the children to sit up and would often carry them, as well as supplies for their care (Tr. 90). He also cleaned the facility and washed laundry (Tr. 90). The heaviest weight he lifted while at this job was about one hundred pounds, but he more frequently lifted between twenty-five and thirty pounds (Tr. 90).

Defendant previously worked as a case manager for a housing project from 1994 to 1995 (Tr. 88, 192). There he oversaw the workings of a housing complex with a team of crisis intervention and prevention specialists (Tr. 92, 193). Mainly, he supervised a security team in this four hundred unit housing complex (Tr. 92, 193). He spent four hours per day walking and four hours divided evenly between standing, sitting, climbing, handling large objects and handling small objects or writing. He also spent about half an hour per day kneeling and half an hour crouching (Tr. 92). He frequently lifted weights of about ten pounds, which was the heaviest weight that he lifted at this job (Tr. 92).

Prior to this, defendant worked as a security guard in a housing project from 1993 to 1994 (Tr. 88). He patrolled various apartment buildings and high-drug areas, walking about five hours per day (Tr. 93). He also spent about one hour standing and one hour handling small objects or writing, with fifteen minutes intervals of kneeling, crouching and crawling (Tr. 93). He frequently lifted weights of ten pounds; the most he lifted was fifty pounds (Tr. 93).

From 1983 to 1990, plaintiff worked as a printer for various publications (Tr. 88). He reported that he operated a printing press and assisted in other "office related work" (Tr. 94). He sometimes carried office supplies, including boxes of paper or ink (Tr. 94). He spent one hour per day walking and one hour handling large objects, five hours standing, and half an hour sitting, with fifteen minute intervals of kneeling or crouching (Tr. 94). The heaviest weight he lifted while at this job was fifty pounds, but he most frequently lifted objects weighing less than ten pounds (Tr. 94).

C. Plaintiff's

Medical Background

1. Information

Reported by Plaintiff

Plaintiff reported that several cases of water fell on his left ankle while he was shopping at a Walmart store in Kingston, New York, breaking his left fibula*fn6 near his ankle (Tr. 62, 70, 191). Plaintiff claimed that following this accident he wore a cast up to his knee and had difficulty walking and standing (Tr. 71). He also reported that he was able to do mostly everything he did before his injury, "just not as much or as often" (Tr. 78). This included indoor and outdoor chores (Tr. 80). He prepared his own meals daily, which he claimed took him about two hours, but noted that he was eating and cooking less than before his injury because he had difficulty standing for long periods of time (Tr. 79). He completed his own shopping, which took him "anywhere from 10 minutes to 2 hours" (Tr. 81). He reported no difficulty with personal care (Tr. 78-79).

Plaintiff maintained that his hobbies and interests included "physical fitness, children, cooking and outdoor activities" which he engaged in "as often as time, money and my health allows" (Tr. 81). He sometimes used crutches, a cane, or a brace or splint to help him walk long distances, stand for long periods, complete chores and shop (Tr. 83). He reported being able to walk one-sixteenth of a mile before needing to rest for about ten to fifteen minutes (Tr. 83).

Plaintiff reported that he experienced uncomfortable sharp pains at times, accompanied by throbbing and swelling, limiting his movement (Tr. 85). He felt this pain in the arch of his foot and in his calf, and reported that it would sometimes radiate into his back (Tr. 85). He also stated that he occasionally had trouble getting comfortable when attempting to sleep if he was wearing a cast or was otherwise in pain (Tr. 78).

In his initial application, plaintiff first stated that he was not taking any medication for this injury (Tr. 74). He later reported that he had received one prescription for Vicodin (Tr. 86-87) and often took Tylenol for pain (Tr. 86-87).

On October 25, 2006, plaintiff filed an appeal in which he described new injuries (Tr. 96-100). He reported that in June 2005 he "broke [his] right foot in two places two days after the cast was removed from [his] left leg and [his] right elbow was dislocated and had to be reset" and that he had "also been stabbed in [his] back" (Tr. 96). He also reported suffering "injuries on [his] head" in July 2005 (Tr. 97-98). At the ALJ hearing, he testified that he had a puncture wound in his head and was treated with eight staples, which were removed just prior to September 2005 (Tr. 197). As a result of these injuries, plaintiff was unable to walk, bend his arm and had back pain (Tr. 96, 98). In his appeal report, he stated that he was taking the antibiotic Cephalexin*fn7 , Hydrocod*fn8 , Hydrocodone*fn9 with APAP, and Vicodin, all causing drowsiness (Tr. 98). During the ALJ hearing, plaintiff testified that he was prescribed Vicoden twice, but he was unsure how many bottles he actually received (Tr. 198). He believed that he stopped taking this medication in August or September 2005 (Tr. 199). He did not require surgery for any of these injuries (Tr. 195).

2. Treatment Records

Plaintiff has visited several physicians and clinics for treatment of his injuries. Specifically, he was treated at The Kingston Hospital and Benedictine Hospital, and was examined at Odgensburg Correctional Facility after his incarceration. He was unable to provide the ALJ with the names of any individual doctors who treated him for his injuries (Tr. 200).

a. March 2005 Treatment at The Kingston Hospital Emergency Department

Plaintiff went to the Emergency Department ("ED") at Kingston Hospital on March 9, 2005 following his injury at Walmart (Tr. 110). The records indicate that plaintiff's chief complaint at this time was "immediate severe pain and inability to bear weight" after the Walmart merchandise had fallen on his ankle (Tr. 118, 120). In the Neuro Assessment section of the Nursing Record, the nurse noted that plaintiff presented as "confused" and refused to remove his shoe (Tr. 120).

Plaintiff received x-rays and was diagnosed with a spiral fracture*fn10 of the lateral malleolus*fn11 , or fractured left ankle (distal*fn12 fibula) (Tr. 110, 117-19, 121-22). He was told that he should place ice on his leg, keep it elevated and use crutches to avoid putting weight on the injured ankle (Tr. 110, 113, 117, 121). He was also given a soft splint and instructed to take Tylenol or Vicoden (Tr. 1-6, 110, 117, 121).

Plaintiff returned to the Kingston ED on March 24, 2005 and March 25, 2005*fn13 . The Nursing Record indicates that plaintiff had an "ex lateral malleous" and had been told to return to the hospital for casting now that the swelling in his ankle had decreased (Tr. 115). This record also indicates that plaintiff was taking Vicoden (Tr. 115). The nurse noted that plaintiff had ecchymosis*fn14 on his left toes, but otherwise presented normally (Tr. 106).

The ED records note that plaintiff "refuse[d] to meet Dr. Null[, plaintiff's attending physician] for placement of cast on [left] leg" (Tr. 105-06). Dr. Null reported that he had seen plaintiff on March 9, 2005 when he had referred plaintiff to the "HVO" clinic, which referred him back to Kingston Hospital for casting (Tr. 113). At this time, plaintiff was given a replacement splint and was discharged to his home after receiving verbal instructions from Dr. Null to call Hudson Valley Orthopedics for follow-up care (Tr. 105-06, 111-12, 114, 116).*fn15

b. Benedictine Hospital

On March 15, 2005, plaintiff went to Benedictine Hospital to have a cast placed on his leg. Dr. Kristin Wolf, the emergency physician who treated plaintiff, noted that plaintiff reported that Orthopedic Associates "told him that he had to pay up front so he decided to [go to Benedictine Hospital] to get casted instead" (Tr. 135). In the "Physical Exam" section of her report, Dr. Wolf noted that plaintiff's "left foot was splinted appropriately" (Tr. 135). Dr. Wolf then noted in the "Management and Plan" section that "[t]he patient was advised that full testing is not done in the emergency room. He was given the number for orthopedic clinic and asked to follow-up there" (Tr. 135). Dr. Wolf further observed that "[h]ealing of this fracture takes about four to eight weeks" (Tr. 134). Next to "Current Medications" Dr. Wolf listed Vicodin (Tr. 135), but the ED Nursing Documentation indicated that plaintiff had not actually taken any Vicodin at that point (Tr. 132).

Plaintiff went to the Podiatry Clinic at Benedictine Hospital on March 24, 2005. The record of this visit states that "patient with this type of fracture is not appropriate for podiatry clinic. Patient will return to Kingston Hospital ER. He believes he needs to be casted" (Tr. 131).

On April 12, 2005, plaintiff went to the Benedictine Orthopedic clinic to have his cast removed (Tr. 128). Dr. Thomas Koshy observed in his Radiology Report that "[t]hree views of left ankle show healing aligned fracture lateral malleolus. There is a callous at the fracture site. Bone union is not complete. Ankle mortise in intact" (Tr. 128). That day, Dr. Stephen Maurer provided plaintiff ...


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