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Donald Winslow v. Michael Astrue

July 10, 2012

DONALD WINSLOW, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge

MEMORANDUM - DECISION AND ORDER

This action was filed by plaintiff Donald Winslow ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 14) seeking reversal of the Commissioner's decision with a finding of disability, or in the alternative, an order of remand for a new hearing. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 15) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.

I. Procedural History and Facts

A. Procedural History

Plaintiff did not submit a procedural history, and the Commissioner's history contains errors, including an incorrect date for plaintiff's application of benefits. The application date in the notice of disapproved claim was also incorrect. Accordingly, the court used the parties' submissions as a guide but compiled the following information from the record. On December 7, 2007, plaintiff filed a Title XVI application for supplemental security income benefits ("SSI"). On December 18, 2007, plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits ("DIB"). Plaintiff alleged disability beginning September 25, 2007. Plaintiff's claims were initially denied on February 8, 2008. Plaintiff filed a written request for a hearing on February 27, 2008. On February 10, 2009, plaintiff appeared for a video hearing in Binghamton, New York. Administrative Law Judge Dennis O'Leary ("the ALJ") presided over the video hearing from Newark, New Jersey. Tr.*fn1 11. The ALJ rendered an unfavorable decision on April 24, 2009, finding plaintiff not disabled. Plaintiff appealed, and on December 17, 2010, the Appeals Council denied plaintiff's request for review. Tr. 1. This action followed.

B. Facts

The following facts are taken from the record and the plaintiff's statement of the facts,*fn2 which is incorporated by reference by the Commissioner with the exception of any inferences, suggestions or arguments therein. The Commissioner submits additional facts, and the court adds relevant facts from the record as it deems necessary.

Plaintiff was born December 29, 1962 and worked at manual labor jobs until his alleged disability. Plaintiff states that he dropped out of school in either the eighth or ninth grade, and alleges that he cannot read and understand a newspaper, could not complete the forms for Social Security, and could not read the forms sent to him regarding his DIB and SSI claims. Plaintiff alleges that he needs help with a checking account and needs to have others pay his bills. Plaintiff has a history of cigarette smoking, diabetes mellitus, and morbid obesity.

On October 25, 2007, plaintiff was seen at the Lourdes Hospital emergency department for complaints of chest pain and numbness in both arms. The attending physician reported that plaintiff was moderately obese and appeared very anxious. Plaintiff's heart rate was regular and the rhythm was good. His chest x-ray and electrocardiogram ("EKG") were normal. It was determined that plaintiff was experiencing a non-ST elevation myocardial infarction. His chest pain was resolved with medication and he was admitted for observation and referred for cardiac catheterization and non-surgical revascularization. The heart catheterization revealed, inter alia, a very dominant right coronary artery with mild irregularities and plaintiff's left circumflex showed a 90% near-ostial lesion which was stented with a 3.0 mm x 12 mm Taxus drug eluting stent. Plaintiff was discharged with a diagnosis of coronary artery disease with a non-Q-wave myocardial infarction, status post-successful angioplasty, and stenting of a 90% circumflex lesion; morbid obesity*fn3 ; diabetes; history of smoking; and dyslipidemia. Plaintiff was advised to continue on aspirin and Plavix. He was released with instructions for no heavy lifting for one week, and no work for two weeks. The record reveals that plaintiff never returned to work after this incident.

On November 13, 2007, plaintiff was seen at Diabetic Care Associates ("DCA") by Dr. Ramanujapur Ramanujan ("Dr. Ramanujan"), an endicrinologist, for complaints of chest pain after wrestling with his grandchildren. Plaintiff's physical exam was normal except for evidence of a cough and some pain midsternum. Plaintiff was referred to the Wilson Memorial Regional Medical Center ("Wilson Hospital")*fn4 emergency room's chest clinic.

On January 1, 2008, plaintiff was again seen at Wilson Hospital for chest pain, alleging that he woke up in the middle of the night with sweating, nausea and vomiting, shortness of breath and chest pain. A single chest x-ray was taken, and the heart and mediastinal contours appeared normal. Bones and soft tissue were grossly normal, no pleural disease was seen, and the lungs were clear. There was no evidence of acute cardiopulmonary disease. However, a repeat cardiac catheterization was ordered. The diagnosis from that angiogram was as follows:

good result from stenting of the ostium of the circumflex artery leading into a high marginal (ramus branch); chronic total occlusion of small lateral marginal branch circumflex artery with right to left collateral; mild disease of other coronary arteries; and mild left ventricular systolic function. Medical management was recommended upon discharge.

On January 28, 2008, plaintiff was seen by Dr. Afzal ur Rehman ("Dr. Rehman") at Cardiology Associates. Plaintiff's weight was 301 pounds. Plaintiff's complaints included chest pain and that his fingers were occasionally of a bluish tint. Dr. Rehman reported that plaintiff's heart and chest exams were normal, and his EKG was normal.

On February 5, 2008, plaintiff was consultatively examined by Dr. Justine Magurno ("Dr. Magurno"). Plaintiff reported a New Year's Eve heart attack, and that he had fallen and hurt his wrist during the alleged second heart attack. He also reported that his "sugars" had been better since he had been off work. Dr. Magurno noted a history of heart disease, heart attacks, and diabetes, as well as hypertension, noting that plaintiff did not monitor his blood pressure. Plaintiff complained of chest pain, and reported that he cooked four days per week, performed light cleaning, took care of his personal needs, watched television, went for walks, and socialized with friends.

Dr. Magurno observed that plaintiff's gait was normal, and his blood pressure was 110/80. Plaintiff's chest was clear, and percussion was normal. Notably, examination of plaintiff's heart showed regular rhythm, and Dr. Magurno noted post myocardial infarction in left fifth intercostal space at midclavicular line, with no murmur gallop, or rub audible. Plaintiff's cervical and lumbar spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally. Plaintiff's thoracic spine showed no scoliosis, kyphosis, or abnormality. Plaintiff had a full range of motion of shoulders, elbows, forearms, hips, knees and ankles bilaterally. Finding all other areas to be normal, Dr. Magurno concluded that plaintiff's prognosis was stable, and that he should avoid strenuous activity, heavy lifting and carrying due to coronary artery disease. Plaintiff had moderate limitations for bending due to obesity, and mild visual limitations. Dr. Magurno found no physical limitations for standing, sitting, fine motor of the hands, reaching, and pushing and pulling of very light objects.

On February 20, 2008, plaintiff attempted a Bruce Protocol Treadmill Exercise test which was aborted when plaintiff was unable to continue after three minutes and fourteen seconds due to shortness of breath. However, only a mild increase in heart rate was noted before the test was aborted. On February 28, 2008, a Persantine Dual Isotope Myocardial Perfusion Scan revealed a moderate to large area of inferior, inferolateral and lateral ischemia. On March 3, 2008, Dr. Rehman revised plaintiff's diagnosis to probable small vessel disease; noncardiac chest pain and occasional angina pectoris; diabetes mellitus; obesity; and probable sleep apnea. Rehman wrote that plaintiff was unable to work due to the aforementioned conditions. On June 6, 2008, Dr. Rehman wrote to plaintiff's counsel, advising her that plaintiff had chronic stable angina due to small vessel disease, and was unlikely to be employable for exertional work, but as far as plaintiff's cardiac status was concerned, plaintiff could perform sedentary jobs.

On March 12, 2008, plaintiff saw a sleep disorder specialist for evaluation of his asleep apnea. He was prescribed a continuous positive airway pressure ("CPAP") device. Plaintiff reported improvement of his sleep apnea at a follow-up visit on July 31, 2008, and reported continued improvement ...


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