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Lefkios Antoniou v. Michael Astrue

September 27, 2011

LEFKIOS ANTONIOU, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

Pursuant to 42 U.S.C. Section 405(g), plaintiff Lefkios Antoniou ("plaintiff") appeals the final decision of defendant Commissioner of Social Security Michael Astrue ("defendant" or "Commissioner") denying plaintiff's application for Social Security Disability Insurance Benefits ("SSD") under Title II of the Social Security Act (the "Act"). Plaintiff, who is represented by counsel, contends that he is disabled and therefore entitled to receive SSD benefits due to a combination of severe impairments of "medical, orthopedic, and psychiatric" natures, which have prevented him from obtaining gainful employment since August 16, 2006. (ECF No. 1, Complaint, dated 3/18/2010 ("Compl.") ¶¶ 5-6.) Presently before the court are plaintiff's and defendant's cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, both plaintiff's and defendant's motions are denied and the case is remanded for further proceedings.

BACKGROUND

I.Plaintiff's Personal and Employment History

Plaintiff was born on April 12, 1946 in the Republic of Cyprus and moved to the United States on December 6, 1975. (Administrative Transcript ("Tr.") at 26.) Plaintiff obtained his high school education in Cyprus, where he also received vocational training in air conditioning and heating work. (Id. at 26-27.) Plaintiff reported that he ran his own air conditioning and heating system repair business in the United States for 25 years. (Id. at 27.) His job often involved climbing through "moving ladders," working on roofs, and lifting heavy objects. (Id. at 27-28, 36.) Plaintiff testified that he regularly lifted 40 to 50 pounds in this capacity and that, depending on the job, "[he] need[ed] a lot of help" to lift some of the objects, which were "really heavy." (Id. at 27-28, 36.)

On or about August 16, 2006, plaintiff stopped working in air conditioning and heating repair after reportedly experiencing several instances of choking feelings, disorientation, and fear while working on rooftops. (See id. at 27-28, 39.) Plaintiff testified that from the time he stopped working until he turned 62 and began to collect retirement benefits, he lived off his savings. (Id. at 39.) When his savings ran out, he terminated his insurance plan and, as a result, could not afford to obtain treatment for any of his medical conditions. (Id. at 30, 39.)

In 2007, at his therapist's suggestion, plaintiff traveled to Cyprus, where he believed the cost of living would be cheaper and he could receive free medical treatment. (Id. at 33, 39-40.) In Cyprus, plaintiff lived with his mother. (Id. at 40.) On a typical day, his brother drove him to the beach, where plaintiff would swim and relax. (Id.) Plaintiff testified that he lived in Cyprus for a year and a half, but traveled back and forth between the United States and Cyprus during that time. (Id. at 39-40.) Plaintiff married his second wife in Cyprus in 2007, but the couple divorced in 2009.*fn1 (See id. at 40, 308.)

Plaintiff testified that he currently lives in his daughter's home in Whitestone, New York, where his bedroom is on the second floor. (Id. at 1, 35, 38.) The stairway to the second floor has ten steps that plaintiff walks up and down once per day. (Id. at 38.) His daughter cooks and cleans, and plaintiff occasionally goes shopping alone. (Id. at 35.) When the shopping bags are "too much then [his daughter] goes with [him]." (Id. at 36.)

II.Plaintiff's Medical History

A.January 31, 2005: Cardiac Stent Replacements

In 2005, plaintiff was referred to the New York Hospital Medical Center of Queens ("Medical Center") by his primary care physician, Dr. Daniel Byrns, after experiencing acute dyspnea while swimming. (Id. at 232.) On January 31, 2005, plaintiff underwent a dual-isotope exercise myocardial perfusion imaging study and a cardiac stress test at the Medical Center. (Id. at 230-32.) Dr. David Schechter, plaintiff's treating cardiologist at the Medical Center, noted that plaintiff had a history of hypertension, remote small CVA with chronic neck discomfort, and rare ventricular couplets during stress. (Id. at 232.) The test results showed that plaintiff had a normal exercise capacity, but also revealed myocardial ischemia. (Id. at 230, 232.) A coronary angiogram and catheterization, also performed on January 31, 2005, confirmed that plaintiff suffered from triple vessel coronary heart disease. (Id. at 42, 58, 239-40.)

At Dr. Schechter's recommendation, on January 31, 2005, plaintiff underwent a procedure to place three stents in his heart. (Id. at 240-41.) On May 6, 2005, two more stents were inserted. (Id. at 243.) Dr. Schechter's final diagnosis on May 6, 2005 was two-vessel coronary artery disease, with intervention attempted in two lesions present in both vessels, and both lesions dilated. (Id. at 244.) Plaintiff was to undergo a follow-up catheterization in three months. (Id.)

B.August 1, 2005 to August 11, 2006: Follow-up

Catheterizations and Cardiac Examinations

On August 1, 2005, a cardiac catheterization revealed that plaintiff had non-significant coronary artery disease ("CAD") and patent stent sites. (Id. at 172.) Continuing medical therapy was recommended. (Id.) On a post-stent placement follow-up appointment on September 29, 2005, Dr. Schechter reported that plaintiff presented with diagnoses of arteriosclerotic heart disease, lipidemia, hypertension, and impotence. (Id. at 277.) Plaintiff's medications included Viagra, Ecotrin, Plavix, Zocor, and Niaspan. (Id.) Plaintiff informed Dr. Schechter that he was asymptomatic and had good functional capacity. (Id.) Dr. Schechter also noted that plaintiff was comfortable and in good spirits and his heart sounds were normal. (Id.) In addition, an examination of plaintiff's extremities revealed no edema. (Id.) Dr. Schechter opined that there was no evidence of recurrent angina or congestive heart failure. (Id.) Dr. Schechter cleared plaintiff for airplane travel and told him to return for a follow-up appointment in three months. (Id.)

At his next appointment with Dr. Schechter on January 10, 2006, plaintiff reported that he continued to have good functional capacity without any chest pain, dyspnea, palpitations, or syncope. (Id. at 279.) Plaintiff's cardiac examination was normal. (Id.) Plaintiff reported that he sometimes skipped taking his Plavix medication because he believed it upset his stomach. (Id.) Dr. Schechter instructed plaintiff that he should not stop taking Plavix and that, if his stomach continued to bother him, he should decrease his daily aspirin dosage. (Id. at 280.) Dr. Schechter also instructed plaintiff to take Protonix in the morning. (Id.) Dr. Schechter diagnosed status-post eluting stents, elevated lipoprotein (a) and lipidemia with adequate control, and controlled hypertension. (Id. at 279.) Dr. Schechter's impression was that plaintiff remained asymptomatic following the multi-vessel stenting in May 2005. (Id. at 280.)

In a letter addressed to Dr. Byrns dated July 18, 2006, Dr. Schechter noted that although plaintiff's blood pressure was borderline elevated, plaintiff had normal heart sounds, patent vessels with no significant obstructive disease, an absence of edema, and that plaintiff was "feeling well and living an active life without symptomatology." (Id. at 278.) In addition, Dr. Schechter wrote that he advised plaintiff to lose weight in order to lower his blood pressure prior to starting an anti-hypertensive medication. (Id.) Dr. Schechter noted that a catheterization was planned for early August to reassess whether there was any in-stent stenosis. (Id.)

On August 11, 2006, a follow-up left heart catheterization, left ventriculography, aortogram, and coronary angiography were performed at the Medical Center. (Id. at 167-68.) These tests showed non-significant vessel disease with previous PCI and patent stent RCA, CFX and LAD and normal left ventricular function. (Id.) Continued medical therapy and secondary prevention measures were recommended. (Id.)

C.March 21, 2006 to March 20, 2007: Early Visits with Dr. Byrns

On March 21, 2006, plaintiff saw Dr. Byrns, his internist, with complaints of dizziness and weakness. (Id. at 290.) He stated that he was not taking his Plavix due to gastrointestinal side effects, but that he was taking aspirin at a dose of 325 mg. (Id.) Plaintiff was also taking Zocor, Viagra, Cozaar, and Protonix. (Id.) Dr. Byrns suspected that plaintiff's symptoms might be due to low blood pressure. (Id.) Dr. Byrns instructed plaintiff to discontinue Cozaar for two weeks, at which time he would be re-evaluated. (Id.)

In a follow-up visit on April 18, 2006, plaintiff complained of episodes of right upper quadrant pain radiating to his back. (Id.) Dr. Byrns noted minimal tenderness in the right quadrant, (id.), but an abdominal ultrasound performed on April 26, 2006 revealed unremarkable results, (id. at 284).

A routine check-up by Dr. Byrns on December 11, 2006 was unremarkable. (Id. at 291.) Dr. Byrns instructed plaintiff to continue with his medications, including taking Plavix on a daily basis, and to follow-up with his cardiologist. (Id.)

On March 2, 2007, plaintiff saw Dr. Byrns on an emergency basis, reporting that he was not feeling well and experiencing problems with forgetfulness. (Id.) Plaintiff stated that he had "for the most part retired from his job because of his feelings." (Id.) A mini-mental state evaluation ("MMSE") and clock-face drawing test, however, revealed normal cognitive functioning. (Id.) Dr. Byrns attributed any dysfunction to depression, noting that plaintiff was "making some difficult decisions in his life at this point." (Id.) Dr. Byrns prescribed plaintiff Lexapro and stated that he would reevaluate plaintiff when he returned from Cyprus in two months.*fn2

(Id.)

Two weeks later, on March 20, 2007, plaintiff again saw Dr. Byrns on an emergency basis for an upper respiratory tract infection. (Id. at 292.) During that visit, there was no follow-up regarding depression or mention of it. (Id.)

D.February 15, 2007: Physical Therapy Appointment

On February 15, 2007, plaintiff saw Dr. Mark Mabida, a physical therapist, complaining of intermittent dull aching pain on his cervical spine radiating down his left shoulder and arm, numbness in his left hand, and decreased functional mobility and strength. (Id. at 286-88.) Dr. Mabida treated plaintiff with moist heat, electrical stimulation, trigger point and myofacial stretching, therapeutic massage, therapeutic exercise, and neuromuscular reeducation. (Id.) Dr. Mabida observed that plaintiff experienced pain with AROM testing and noted that plaintiff's cervical spine exhibited a limited active range of motion as follows: flexion to 15 degrees, extension to 20 degrees, lateral flexion to 15 degrees, and rotation to 30 degrees. (Id.) Dr. Mabida further noted that plaintiff's neurological status was intact throughout. (Id.) Dr. Mabida identified the following problems that required skilled therapy services: pain that limits function, decreased range of motion, decreased strength, decreased independence with ADLs, and a lack of a home exercise program. (Id. at 287.)

E.September 25, 2007: Consultative Examination

On September 25, 2007, plaintiff was referred by the Division of Disability Determination in the New York State Office of Temporary and Disability Assistance ("Division of Disability Determination") to Dr. David Guttman for a consultative internal medicine examination. (See id. at 191-220.) Dr. Guttman noted that plaintiff's chief complaint was hypertension since 1998 and that he also complained of cardiac disease. (Id. at 191.) In addition, plaintiff complained of pressure in his abdomen and chest and neck pain. (Id.) Plaintiff's medications were Plavix, Cozaar, Niaspan, Protonix, Zocor, aspirin, and Lexapro. (Id.) As an initial matter, Dr. Guttman observed that plaintiff appeared to be in no acute distress, had a normal gait and stance, could squat and "walk on [his] heels and toes without difficulty," needed no help changing for the exam or getting on and off the exam table, used no assistive devices, and was able to rise from his chair without difficulty. (Id. at 192.) Dr. Guttman assessed plaintiff's health as "fair" with hypertension, atherosclerotic heart disease post stent replacement, and a history of transient ischemic attack. (Id. at 193.)

Dr. Guttman performed a stress test, an internal medicine examination, and a physical examination. (See id. at 191-95.) During the stress test, plaintiff exercised to 85 percent of the MVHR for his age. (Id. at 195.) Dr. Guttman observed an absence of ischemic changes after seven minutes of exercise and recorded plaintiff's blood pressure as 198/117. (Id.) Dr. Guttman also noted that plaintiff's heart had a "regular rhythm" and lacked an audible murmur, gallop, or rub. (Id. at 192.)

In addition, Dr. Guttman found that plaintiff's cervical spine and lumbar spine showed full flexion, extension, and full rotary movement bilaterally. (Id. at 193.) Dr. Guttman further found that plaintiff did not have scoliosis, kyphosis, or abnormalities in his thoracic spine. (Id.) Additionally, Dr. Guttman recorded that plaintiff had full range of motion of his shoulders, elbows, forearms, wrists, hips, knees, and ankles bilaterally. (Id.) Dr. Guttman also noted that plaintiff had "[s]trength 5/5 in upper and lower extremities, joints [that were] stable and non-tender . . . [and] no redness, heat, swelling, or effusion." (Id.)

F.October 16, 2007: Residual Functional Appraisal by Medical Consultant

Dr. P. Seitzman, a medical consultant with the Division of Disability Determinations, reviewed the medical record on October 16, 2007. (Id. at 221.) Dr. Seitzman opined that plaintiff could perform medium work, lift 50 pounds occasionally and 25 pounds frequently, and sit, stand, and/or walk for six to eight hours per day. (Id.) Dr. Seitzman noted that a treadmill exercise test revealed no ischemic changes and that plaintiff reached his target ...


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