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Paries v. Colvin

United States District Court, Second Circuit

August 30, 2013

JAMES PARIES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


LAWRENCE E. KAHN, District Judge.


Plaintiff James Paries ("Plaintiff") appeals from a decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security ("Defendant"), denying Plaintiff child's insurance benefits. Dkt. No. 1 ("Complaint"). For the following reasons, the Commissioner's decision is affirmed.


A. Procedural History

On July 11, 2007, Plaintiff filed an application for Social Security disability insurance benefits, child's insurance benefits, and supplemental security income, alleging disability beginning April 1, 2005. Dkt. No. 8-5 at 134-55. Plaintiff alleged that his disability was caused by multiple sclerosis ("MS"), depression, anxiety, and irritable bowel syndrome ("IBS"). Dkt. No. 8-6 at 137. The claim for child's insurance benefits was denied on September 28, 2007, and Plaintiff then filed a written request for a hearing. Dkt. No. 8-4 at 56-69. Administrative Law Judge ("ALJ") John S. Pope held a hearing ("ALJ Hearing") on September 22, 2009. In a written decision, the ALJ denied Plaintiff's request for child's insurance benefits, concluding that Plaintiff was not disabled as defined by ยง 223(d) of the Social Security Act prior to his attaining the age of 22. Id. at 21. Plaintiff filed a request for review of the ALJ's decision on February 26, 2010. The request was denied by the Appeals Council on March 8, 2011, at which time the ALJ's decision became the final determination of the Commissioner. Dkt. No. 8-2 at 1. Plaintiff then commenced this action by filing the Complaint on April 25, 2011. Compl. Plaintiff requests that the Court reverse the decision of the Commissioner or remand for further development of the record. Id . Defendant filed an Answer on October 11, 2011. Dkt. No. 7 ("Answer").

B. Hearing Testimony

At the ALJ Hearing, Plaintiff testified that he was able to groom himself, make small meals, and eat without aid. Dkt. No. 8-2 at 35. He also testified that he watches his daughter on Tuesday, Thursday, and Saturday, and frequently spends time with his friends before he leaves for work at 4:30 P.M. Id. at 36. At the time of the hearing, he worked for his brother-in-law cleaning legal offices for five nights per week for four hours per night. Previously, he worked for Wegmans for 32 hours per week. Id. at 31-32, 43.

Plaintiff stated at the ALJ Hearing that he is able to lift thirty pounds, stand/walk for three to four hours, stand for one-and-a-half hours, and sit for two hours in an eight-hour workday, as well as drive without any difficulty. Id. at 41-42. Plaintiff stated that he is, however, in constant pain and experiences numbness in his hands, right arm, feet, and legs. Id. at 40-42.

Vocational expert Pamela Tucker ("VE Tucker") testified at the ALJ Hearing. Id. at 46. The ALJ presented VE Tucker with a hypothetical individual in the age range of 18-22 who was a high school graduate and had the same past relevant work experience as Plaintiff. Id. at 47. The hypothetical individual was also limited to light work and could only frequently finger and feel with the right hand. Id . The ALJ then asked VE Tucker how the restrictions would affect the performance of past relevant work. Id . VE Tucker stated that the hypothetical person would be capable of performing the work of an usher, ticket taker, and parking lot attendant, totaling 26, 000 positions within the region. Id. at 48. Further, she testified that there were a total of 100, 000 positions within the region that could accommodate Plaintiff's restrictions, including 25, 000 sedentary positions. Id.

C. Physician Opinions

1. Dr. Nabil A. Aziz, M.D.

Dr. Aziz, a neurologist, performed an initial neurologic consultation on March 24, 2005, conducted MRIs on March 29 and April 5, 2005, and ultimately diagnosed Plaintiff with early stages of relapsing-remitting MS on April 9, 2005. Dkt. No. 8-7 at 188-91. Dr. Aziz noted that Plaintiff's cranial nerves, motor, sensory, coordination, and gait were all normal; his muscle reflexes were 2/4; and his Romberg test was negative.[2] Id . Plaintiff began a course of medication at this time. Id.

2. Dr. Cornelia Mihai, M.D.

On July 25, 2005, Dr. Mihai, a neurologist, conducted an initial neurologic evaluation at the request of Plaintiff's primary care physician, Dr. Ellen Schurman. Id. at 217. Dr. Mihai affirmed Dr. Aziz's diagnosis of MS and stated that Plaintiff was stable and should stay active and exercise regularly to maintain strength, endurance, and energy level. Id. at 219. On November 30, 2005, Dr. Mihai noted that Plaintiff's physical examination was generally normal; however, Plaintiff was experiencing decreased vibratory sensation in both feet, his left side being worse than his right side, as well as decreased pinprick sensation in his feet and right-hand fingertips and slightly decreased hand coordination. Id. at 216. On March 1, 2006, Dr. Mihai again noted that Plaintiff's physical examination was normal and that he was still experiencing decreased vibratory sensation in both feet and hands, as well as decreased pinprick sensation over the right side of his body. Id. at 213. Plaintiff had not been exercising but was strongly encouraged by Dr. Mihai to do so. Id. at 213-14. On December 4, 2006, Plaintiff complained of a new symptom, a pulling sensation in both of his legs. He also admitted that he was not adhering to his medication regimen and had an unused two-month supply in his refrigerator. Id. at 211. Plaintiff was exercising every other day at this time. Id.

On March 12, 2007, Plaintiff reported to Dr. Mihai that he was adhering to his medication regimen and that his symptoms had improved, but that he was experiencing increased fatigue. Id. at 209. Dr. Mihai noted full strength in Plaintiff's upper and lower extremities; intact senses with mild decrease in vibration sense in ankles and toes; normal coordination; steady gait; and ability to toe, heel, and tandem walk without any problems. Id. at 210. On June 18, 2007, Dr. Mihai expressed concern about Plaintiff's condition and suggested a medication change; however, Plaintiff stated that he did not want to change medications because he was concerned about the different side effects. Id. at 208. On July 10, 2007, Plaintiff complained of tingling in his feet and right hand, urinary urgency and frequency, fatigue, and stress. Id. at 205. Dr. Mihai noted that Plaintiff had full strength in his lower and upper extremities with a slight decrease in vibratory and pinprick sensation, as well as slightly decreased coordination but stable gait. Id. at 206. Dr. Mihai advised Plaintiff to exercise regularly and completed a form authorizing Plaintiff to continue his employment at Wegmans. Id.

3. Dr. Richard Weiskopf, M.D.

Dr. Weiskopf conducted an internal medical consultative examination on Plaintiff on August 31, 2007. Id. at 228. Plaintiff was diagnosed with MS, IBS, anxiety, and depression. Id. at 231. Dr. Weiskopf concluded that Plaintiff had no limitation on sitting, standing, walking, bending, or lifting. Id . Plaintiff had a mild limitation on climbing and carrying, as well as decreased use of his right hand due to decreased grip strength and manual dexterity of his right hand. Id.

4. Dr. Dennis M. Noia, Ph.D.

Also on August 31, 2007, Dr. Noia conducted a psychological consultative examination on Plaintiff. Id. at 240. During the examination, Dr. Noia observed that Plaintiff had a normal motor behavior and gait; a coherent thought process; intact attention, concentration, and memory; and average intellectual functioning. Id. at 241-42. Dr. Noia noted that vocationally, Plaintiff was capable of understanding and following instructions, could regularly attend to a routine and maintain a schedule, had the ability to relate to and interact well with others, and was able to deal with stress with the help of medication. Id. at 242. Dr. Noia also diagnosed Plaintiff with MS, IBS, and depression. Id. at 243.

5. Dr. Burk Jubelt, M.D.

On December 17, 2008, Dr. Jubelt completed a radiology consultation report on Plaintiff after conducting three MRI scans. Id. at 262-63. The MRI of Plaintiff's brain revealed that Plaintiff's MS was progressing with multiple new enhancing lesions, compatible with progressive MS. Id. at 262. On January 12, 2009, Dr. Jubelt expressed great concern about the multiple new lesions on Plaintiff's brain, stating that the MS was very active. Id. at 264.

More recently, on May 6, 2009, Dr. Jubelt noted that Plaintiff had not been complying with his medication regimen. Id. at 269. Dr. Jubelt changed Plaintiff's medication to a once-a-week dose the hope that Plaintiff would be more compliant with the medication regimen, which he was. Id . At that time, Plaintiff did not complain of any new numbness, tingling, or weakness. Id . However, Plaintiff stated that he still experienced intermittent numbness in his extremities and extreme fatigue. Id . Even though Plaintiff's muscle bulk was within normal limits, Dr. Jubelt observed that Plaintiff's gait was slightly wide and unstable and that his tandem gait was also slightly unsteady. Id. at 270. Plaintiff was ...

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