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Howe v. Colvin

United States District Court, Second Circuit

July 16, 2013

Kim Ronnette HOWE, Plaintiff,
Carolyn L. COLVIN, Commissioner of Social Security, Defendant.


SARAH NETBURN, Magistrate Judge.

Plaintiff Kim Ronnette Howe, appearing pro se, brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security (the "Commissioner") denying her disability benefits.[1] The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and Howe has not opposed that motion. Because I conclude that substantial evidence supports the Commissioner's final determination, and that the administrative law judge ("ALF) did not commit legal error, I recommend that the Commissioner's motion be GRANTED.


I. Administrative Record

The following facts are taken from the administrative record. Howe was born on July 5, 1966. She completed at least two years of college, earning an associate's degree in either 1995 or 1996. From 1999 through June 2010, she worked as a secretary in a hospital, dealing with human immunodeficiency virus patients. At that job, she sat for about seven hours, stood and walked for about one hour and lifted less than ten pounds. She answered telephones and worked with a computer, making appointments, processing insurance forms, and taking care of patients. Howe alleges that she became disabled on June 3, 2010. She meets the disability insured status requirements of the Act through December, 2014.

A. Medical Evidence Before June 3, 2010

In March, 2010, Howe experienced a sudden onset of chest pain. After an initial diagnosis of gastroesophageal reflux disease, she was hospitalized at Bellevue Hospital ("Bellevue") for "NSTEMI."[2] At Bellevue, Howe underwent cardiac catheterization, which revealed an eighty percent distal left circumflex coronary artery lesion (AV groove), a forty percent mid right coronary artery (RCA) lesion and thirty percent luminal irregularities in the distal RCA. The catheterization team did not perform any intervention and recommended medical management. On March 27, 2010, Howe was discharged. Doctors prescribed ASA (aspirin), Plavix, Lisinopril, Toprol, Lipitor, and nicotine patches. Howe was to follow-up in the Bellevue cardiology clinic and smoking cessation clinics within two weeks and undergo additional testing.

Upon discharge, Howe received an instruction sheet indicating that her principal diagnosis was "NSTEMI." The sheet advised Howe to avoid strenuous activity for two weeks and then increase her level of activity as tolerated. Home care was not required, but Howe was to follow a low fat, low sodium and low cholesterol diet. As instructed, on April 13, 2010, Howe followed-up at Bellevue, at which time her problem was listed as an acute myocardial infarction ( i.e. a heart attack), and further testing was ordered.

In April 2010, Howe began treatment at Boro Medical POC ("Boro Medical"), where she was seen primarily by Dr. Jay Kavet. On April 15, 2010, and April 23, 2010, Howe's respective blood pressure was 122/80 and 130/76. On April 15, 2013, Howe's heart sounds one and two could be heard, her lungs were clear, and an electrocardiogram ("EKG") reported a normal sinus rhythm. Dr. Kavet assessed asymptomatic coronary artery disease ("CAD"), a history of hyperlipidemia and controlled hypertension. On both occasions, Howe denied experiencing shortness of breath or chest pain.

On April 23, 2010, Howe underwent a cardiac work-up at Mobile Cardiovascular Systems, LLC. An ultrasound of Howe's carotid arteries revealed no significant stenosis. A further ultrasound of Howe's abdominal aorta was normal.

On May 4, 2010, Howe underwent a stress echocardiogram ("ECG") exercise test at Gramercy Cardiac Diagnostic Services, P.C. Her results again were considered normal. On May 25, 2010, Dr. Kavet examined Howe, noting that she had no complaints of shortness of breath or chest pain or other atypical complaints. He assessed asymptomatic CAD and anemia.

B. Medical Evidence From June Through December 2010

(1) Cardiac Treatment

On June 3, 2010, Howe was seen at Boro Medical. Howe's blood pressure was 126/74. Dr. Kavet assessed asymptomatic CAD and a history of anemia. Howe remained on cardiac medication and also reported that she was taking fish oil.

On June 15, 2010, Howe again was seen at Boro Medical. She reported to Dr. Kavet that she had passed out on June 3, 2010. Her blood pressure was 138/88. Upon examination, Howe's heart sounds one and two could be heard. Her lungs also were clear. Dr. Kavet assessed a history of CAD, pre-syncopal episodes and anemia.

That same day, Dr. Kavet completed private disability insurance forms for Howe. He listed Howe's symptoms as including vertigo, chest pain, anxiety, weakness, tiredness, fatigue, intermittent pains, and thoughts of impending doom, and explained that Howe's treatment consisted of medical and cardiology monitoring and medication. He wrote that, as of June 3, 2010, Howe was unable to work, and that she would be able to return to work by approximately December 3, 2010. He noted, further, that Howe did not require direct personal assistance to perform her daily living activities.

On June 22, 2010, Howe returned to Boro Medical, and again was examined by Dr. Kavet. Again, Howe denied shortness of breath or chest pain. She had a blood pressure of 139/80. Dr. Kavet completed an additional insurance form, writing that from June 3, 2010, through December 3, 2010, Howe was restricted to sedentary work, which was defined as lifting or carrying up to 10 pounds occasionally, sitting over 50 percent of the time, and standing or walking occasionally. Dr. Kavet wrote, further, that Howe could not sit or stand for long periods due to swelling feet, cramps, intermittent chest pain, shortness of breath, weakness and fatigue.

(2) Psychiatric Treatment

In December 2010, Howe sought psychiatric care at Harlem Hospital Center. On December 7, 2010, psychiatrist Dr. Ebenezer Amofa-Boachie conducted an initial interview. Howe reported that she was depressed because she felt overwhelmed by the changes in her life. She stated that she slept poorly. She denied that she was easily distracted or had any history of panic attacks. She had reduced her smoking to five cigarettes a day, but said that she did not expect to quit fully.

Howe was given a mental status examination, which revealed that she had adequate hygiene and grooming and dressed appropriately. She made good eye contact, was cooperative and related well, had a good mood and an anxious affect, had clear and coherent speech, and a logical and fairly goal-directed thought process, was alert and oriented, and exhibited fair insight and judgment and good impulse control. Dr. Amofa-Boachie found no evidence of psychomotor agitation or retardation, and Howe denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities.

Dr. Amofa-Boachie diagnosed Howe as having depressive disorder not otherwise specified ("NOS") on Axis I; deferred diagnosis on Axis II; status post myocardial infarction, hypertension and possible mild obesity on Axis III; unemployment - with Workers' Compensation benefits expected to expire on December 8, 2010 - on Axis IV; and a GAF of 60 on Axis V.[3] He prescribed Escitalopram and Trazodone.

On December 22, 2010, Howe returned to Dr. Amofa-Boachie for a mental health followup. Howe was found to be stable, but she had not filled her prescriptions from the previous examination because of insurance issues. She denied experiencing any new malady, but reported feeling depressed or sad throughout the previous two weeks, variable loss of interest in her usual activities, and poor sleep. She denied feeling any fatigue, inability to concentrate or loss of energy. Dr. Amofa-Boachie's mental status examination showed adequate hygiene and grooming, appropriate dress, and good eye contact. Howe was cooperative and related well, and her mood was good but her affect anxious. Dr. Amofa-Boachie found no psychomotor agitation or retardation. Howe's speech remained clear and coherent. She had a logical and fairly goaldirected thought process. She was conscious, alert and oriented, and had fair insight and judgment, and good impulse control. She denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities. Her GAF remained at 60. Accordingly, Dr. Amofa-Boachie prescribed Citalopram and Trazodone.

(3) Consultative Examination

On August 4, 2010, Dr. William Lathan examined Howe as a consultative physician. At the time, Howe did not complain of chest pain or shortness of breath. She was taking Plavix, Lisinopril, aspirin, Lipitor, and Metoprolol. She denied that she smoked. She could cook and perform all activities involving personal care, but her daughter assisted with cleaning, laundry and shopping.

Dr. Lathan examined Howe, finding that her blood pressure was 110/70. He found that she appeared in no acute distress, had a normal gait and stance, could walk on heels and toes without difficulty and could fully squat. She did not use any assistive device, did not need help when changing for the examination or when mounting or descending from the examination table, and was able to rise from a chair without difficulty. Her lungs were clear to percussion and auscultation, with no significant chest wall abnormality. Her heart rhythm was regular, with no audible murmur, gallop, or rub. And her musculoskeletal examination revealed no abnormalities. Accordingly, Dr. Lathan diagnosed a history of heart attack with a stable prognosis and stated that Howe was severely restricted from strenuous exertion.

C. Medical Evidence in 2011

(1) Cardiac Treatment

On February 3, 2011, Howe saw Dr. Alisa Koval, an occupational and environmental medicine specialist, at Mount Sinai School of Medicine. Howe complained of anxiety, depression, and feeling overwhelmed by the management of her coronary artery disease. She reported easily provocable exertional angina and shortness of breath, which was brought on by cleaning, walking, excitement and sexual activity. At this time, she still smoked five cigarettes a day. She described herself as a homebody who enjoyed cooking, reading, watching television, and using the computer, but was limited in these activities due to blurred vision of late. She denied experiencing numbness, tingling, memory loss, or suicidal or homicidal ideation.

Dr. Koval examined Howe, finding that her blood pressure was 120/80. She was alert, fully oriented, and in no acute distress. Her heart rate and rhythm were regular, her lungs were clear, she had five out of five bilateral muscle strength, and her gait was within normal limits. Dr. Koval opined that Howe could lift up to twenty pounds and carry up to ten pounds occasionally, noting the March 2010 cardiac catheterization results in support of her assessment. She further opined that in an eight hour workday, Howe could sit for seven hours, one hour at a time, stand for two hours, one hour at a time, and walk for one hour, fifteen to twenty minutes at a time. In support of this assessment, Dr. Koval reported that Howe became short of breath and experienced chest pain upon strenuous exertion, and so could perform only mild activity. She also stated that Howe could do "no work" until she completed cardiac rehabilitation.

Expanding on her evaluation, Dr. Koval indicated that Howe frequently could reach, handle, finger, feel, push, pull, and operate foot controls, and occasionally could climb stairs and ramps, but never could climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. She found that Howe had no impairments affecting her hearing or vision, but could not tolerate exposure to unprotected heights, moving mechanical parts, humidity, wetness, pulmonary irritants, extreme temperatures, or vibrations, and could not operate a motor vehicle. In addition, Howe could not walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, climb a few steps at a reasonable pace with use of a single hand rail, or perform activities like shopping, but could travel without a companion, ambulate without assistive devices, prepare a simple meal and feed herself, care for her personal hygiene, and sort, handle, and use papers and files. In support of this assessment, Dr. Koval referred to Howe's reported angina most days of the week. She also opined that, upon return to work, Howe should avoid high stress high pressure work environments.

Dr. Koval continued to see Howe on an approximately monthly basis through May 2011. On March 3, 2011, Howe reported anxiety, depression, and feeling overwhelmed by the management of her coronary artery disease. She reported continued shortness of breath after exertion, but no episodes of chest pain since her last appointment. She described occasional blurred vision when reading or watching television, especially in the left eye, but denied numbness, tingling, memory loss, or suicidal or homicidal ideation. Dr. Koval examined Howe, finding that her blood pressure was 138/85. He found that she was was alert, fully oriented, and in no acute distress, her heart had a regular rate and rhythm and her lungs were clear, she had five out of five bilateral strength, and her gait was within normal limits.

On April 7, 2011, and May 12, 2011, Howe reported shortness of breath when walking one or two blocks, walking briskly, performing heavy cleaning activities like mopping or cleaning the bathtub, and climbing a flight of stairs. On April 7, she reported that she was able to perform her daily living activities so long as she did them slowly - yet occasionally she still felt lightheaded. She reported using Nitroglycerin about once per month, in both April and May. She continued to smoke.

At these visits, Dr. Koval again examined Howe, finding that her blood pressure was 125/80 in April and 150/90 in May. In April, Dr. Koval found Howe to be pleasant, with a depressed affect and no acute distress. In May, Howe appeared anxious, but again in no acute distress. On both occasions, Dr. Koval's examination revealed that Howe had a regular heart rate and rhythm, and that her lungs were clear. In April, she had five out of five strength and a normal gait. She was unable to complete a full six seconds of expiration on her lung function testing, but her overall results were unremarkable. Dr. Koval noted that ...

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