Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Graves v. Astrue

United States District Court, Second Circuit

September 5, 2013

CHARLENE R. GRAVES, Plaintiff,
v.
MICHAEL J. ASTRUE Commissioner of Social Security, Defendant.

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

Plaintiff Charlene Graves brought this suit under § 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability and supplemental security benefits.

I. FACTS

a. Procedural History

On July 17, 2008, the Plaintiff filed applications for disability insurance benefits and supplemental security income. (T. 149-59, 164, 169.) On August 13, 2010, Administrative Law Judge ("ALJ") Robert E. Gale denied the application by finding that: (1) Plaintiff had not engaged in substantial gainful activity since November 1, 2006, the alleged onset date (T. 31); (2) Plaintiff's fibromyalgia, mixed connective tissue disease ("MCTD"), and adjustment disorder with depressed mood constituted severe impairments (T. 32); (3) Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. § 416.925 and §416.926 (T. 35); (4) Plaintiff had the Residual Functional Capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for six to eight hours in a workday; occasionally perform postural activities (T. 35); and mentally could perform the basic demands of competitive, remunerative, unskilled work such as understanding, carrying out, and remembering simple instructions, responding appropriately to supervision, coworkers and usual work situations, and dealing with changes in a routine work setting (T. 35); and (5) based on Plaintiff's age, education, work experience and RFC, there were jobs that exist in significant numbers in the national economy that the Plaintiff can perform (T. 35).

On November 28, 2011, the Administration's Appeal Council denied review of the ALJ decision. (T.1.) Plaintiff commenced the present action for a review of the Commissioner's decision.

b. Medical Background

The Court primarily adopts Plaintiff's medical history as set forth in her objections to the findings of the ALJ. (Pl. Mem. 2-13.) Plaintiff's alleged disability onset date is November 1, 2006, when she was 46 years of age. (T. 153, 164.) Plaintiff had obtained her General Education Diploma, and reported past work as a bus aide, cashier, home health aide, machine operator, and in the fast food industry. (T. 174, 176.) Plaintiff's date last insured was September 30, 2011. (T. 164.)

On September 1, 2006, Plaintiff reported to the hospital for abdominal pain that had progressively become more severe. (T. 261.) She was treated with levofloxacin and metronidazole intravenously, as well as morphine as needed, and was diagnosed with acute diverticulitis and right renal cysts. (T. 261). Plaintiff was discharged in good condition on September 5, 2006 and was prescribed with Metronidazole, Levofloxacin, Hydrochlorothiazide, Diltiazem CD, and Clopidogrel. (T. 261-62.)

On November 16, 2006, Plaintiff treated with Alfredo Perez, M.D., for follow-up treatment. (T. 402.) Dr. Perez diagnosed Plaintiff as suffering, inter alia, from stage 3 chronic kidney disease and class 2 obesity. (T. 402.) On January 1, 2007, Plaintiff treated again with Dr. Perez for follow-up treatment. (T. 401.) Dr. Perez diagnosed Plaintiff as suffering from stage 2 chronic kidney disease, anemia, and MCTD based on a positive ANA test. (T. 401.) He also referred Plaintiff to a rheumatologist. (T. 401.)

On April 4, 2007, Plaintiff saw Hom P. Neupane, M.D., for muscular pain, a positive ANA test, and evaluation for autoimmune disease. (T. 355.) Plaintiff gave a "history of aches and pains for 5 years" and complained of "numbness and tingling in her hand." (T. 355.) Plaintiff further explained that "she cannot pick up heavy objects" and "she uses orthopedic shoes to walk." (T. 355.) She also reported that "she wakes up frequently at night" because of the pain. (T. 355.) On examination, Dr. Neupane found that Plaintiff "has cold extremities suggestive of Raynaud's." (T 355.) Dr. Neupane further found that Plaintiff "does have tender fibromyalgia points." (T. 356.) He diagnosed Plaintiff as suffering from, inter alia, mild impairment of the kidneys and clinical fibromyalgia. (T. 356.) Dr. Neupane further found that "the association of connective tissue disease cannot be ruled out." (T. 356.) He prescribed Nortriptyline. (T. 357.)

On April 5, 2007, x-rays of Plaintiff's hands revealed "evidence of very early degenerative joint disease in the interphalangeal joints of all the digits... a slight deformity of the base of the metacarpal of the left little finger, " and a "boutonniere deformity of the left index finger." (T. 320.) It was noted that "[t]he degree of change is not uncommon in patients of this age, " (T. 320) in regards to the degenerative joint disease. (T. 320).

On April 6, 2007, Plaintiff again saw Dr. Perez for follow-up treatment. (T. 399.) On examination, Dr. Perez found that Plaintiff had gained 6 pounds. (T. 399.) He diagnosed her as suffering from MCTD and stage 2 chronic kidney disease. (T. 399.) He prescribed Nortriptyline and Lovastatin. (T. 399.)

On April 12, 2007, Plaintiff reported to the emergency department for abdominal pain that radiated down her leg, and was seen by Davis W. Clark Jr., D.O. (T. 268). Plaintiff was treated for diverticulitis. Plaintiff was discharged home with prescriptions for Lortab, Cipro, and metronidazole. (T. 270.)

On April 13, 2007, a CT scan of Plaintiff's abdomen revealed minimal bibasilar atelectasis, a small hernia, a renal cyst in the right lower pole, and "low density lesions too small to characterize." (T 318.) A CT scan of the pelvis showed "[d]iverticulosis with mild pericolonic soft tissue stranding in the region of the proximal sigmoid colon consistent with diverticulitis" and a "[s]mall amount of fluid in the pelvis." (T. 318.)

On May 4, 2007, Plaintiff had a follow up appointment with Dr. Neupane for pain and a positive ANA test. (T. 353.) Plaintiff complained that she continues to have spasms and pain in her thighs and feet. (T. 353.) On examination, Dr. Neupane found that Plaintiff "does have tender fibromyalgia points." (T. 354.) He also found "mild soft tissue swelling in [Plaintiff's] MCP ["metacarpophalangeal"] and PIP ["proximal interphalangeal"] joints." (T. 354.) Dr. Neupane further found that Plaintiff "has a lot crepitus in her knees." (T. 354.) Xrays of Plaintiff's wrists revealed the following: "deformity of the base of the metacarpal, left little finger suggestive of old healed fracture, " and "[r]esolved small ossification center distal to the left ulnar in a triangle." (T. 354.) Dr. Neupane assessed, inter alia, positive ANA, active fibromyalgia, and Raynaud's disease. (T. 354.) He prescribed Plaquenil and Flexeril. (T 354.)

On July 3, 2007, Plaintiff met with Dr. Perez for follow-up treatment. (T. 398.) Dr. Perez diagnosed Plaintiff as suffering, inter alia, from stage 2 chronic kidney disease and MTCD. He ordered "renal function re-evaluation, spot albumin, and creatinine and urinary sediment evaluation." (T. 398.)

On July 6, 2007, Plaintiff attended a follow-up visit with Dr. Neupane (T. 351.) Plaintiff complained of swelling in the ankles and pain in the neck, thighs, and feet. (T. 351.) On examination, Dr. Neupane found that Plaintiff "has tender fibromyalgia points" and "mild swelling in her ankles." (T. 352.) Dr. Neupane prescribed Plaquenil, Hydrocodone, and Nortriptyline among other medications. (T. 352.)

On August 10, 2007, Plaintiff met with Dr. Neupane. (T. 379.) Plaintiff complained of fatigue. (T. 379.) On examination, Dr. Neupane found that Plaintiff "has tender fibromyalgia points" and "cold hands." (T. 380.) Dr. Neupane opined that Plaintiff's fatigue "could be related to her medications." (T 380.) However, Plaintiff's pain had improved significantly. (T. 380.) He discontinued Flexeril and continued Plaintiff's dosage of Nortriptyline and Hydrocodone. (T 380.)

On September 30, 2008, Plaintiff saw Dr. Kristin Barry for a psychiatric evaluation. Dr. Barry found that Plaintiff's gait, posture, and motor behavior were normal. (T. 275). Her thought processes were "coherent and goal directed...." (T. 275.) Her attention and concentration were "somewhat impaired", "and her cognitive functioning was estimated to be "in the borderline to low average range, " with poor insight and judgment." (T. 275). Dr. Barry went on to find that Plaintiff "appears able to follow and understand simple directions and instructions. She is able to maintain her attention and concentration... and has poor judgment." (T. 276) Dr. Barry also noted that Plaintiff "did appear at times to be malingering on testing." (T. 276). She diagnosed Plaintiff as suffering from, inter alia, adjustment disorder with depressed mood, history of stroke, knee and leg problems, and fibromyalgia. (T. 276.) She recommended that Plaintiff receive "medical follow-up and individual counseling." (T. 277.) Dr. Barry noted that Plaintiff's "allegations are partially consistent with the examination results." (T. 276).

Dr. Barry also conducted an organicity evaluation. Dr. Barry stated that "the results of the evaluation should be interpreted with caution... claimant's attitude toward the evaluation appeared somewhat resistant and apathetic. She did not appear to be putting forth a lot of effort... She was able to recall and understand the instructions, but her style of responding was seen as very careless at times. The claimant's attention and concentration were good. She did not evidence any severe emotional distress. However, she at times appeared to be doing poorly because of her lack of effort." (T. 283). Plaintiff was found to have a 4th grade reading level equivalent, (T. 283) and is "functioning in the deficient range of intelligence." (T. 284). However, Dr. Barry again noted that the "claimant's general cognitive functioning... should be interpreted with caution... it is more likely that the claimant is functioning at a higher level. She did not appear to be putting forth a lot of effort." (T. 284). Dr. Barry repeated that Plaintiff did not put forth much effort in the examination and then stated that her "short term auditory memory was average. Her sequential reasoning ability is below average." (T. 284.) Dr. Barry also noted that Plaintiff's "numerical reasoning abilities and practical judgment mediated by experience were significantly below average. Her visual constructual skills and visual-motor efficiency were significantly below average." (T. 284-85.) Dr. Barry then administered the Bender Visual-Motor Gestalt Test, again stating the results should be interpreted with caution as Plaintiff "rushed through the tasks, [and] worked in a very sloppy fashion. [Plaintiff] did not appear to be putting forth any effort and therefore did evidence significant distortions of simplification and closure, but it does not appear as if there is a severe degree of weakness within the perceptual motor integrative field. At this time, her reading, math, and written language abilities all appear fair." (T. 285). Dr. Barry's medical source statement was that "claimant at this time appears able to follow and understand simple directions and instructions. She is able to maintain her attention and concentration." (T. 285.) Dr. Barry's diagnosis was identical to those found in her first evaluation. (T. 286.)

Plaintiff was also examined on September 30, 2008 by Dr. Ganesh for an internal medicine examination. (T. 278.) Dr. Ganesh found that Plaintiff cannot walk on her heels or toes or squat, but she "[u]sed no assistive devices. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty." (T. 279.) For the musculoskeletal portion of the exam, Dr. Ganesh found that Plaintiff's "[cervical spine shows full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally... [l]umbar spine shows full flexion... and full rotary movement bilaterally. SLR negative bilaterally. Full ROM of hips, knees, and ankles bilaterally. Strength 5/5 in upper and lower extremities... Joins stable and nontender. Tenderness is two to lateral epicondyle. Control points is two to mid-forearm." (T. 280.) For the fine motor activity of hands, Dr. Barry noted that Plaintiff's "hand and finger dexterity intact. Grip strength 5/5 bilaterally." (T. 280.) Dr. Ganesh's medical source statement was that Plaintiff had "no gross physical limitation noted to sitting, standing, walking, ro the use of upper extremities." (T. 280.)

On October 28, 2008, State Agency Analyst, S. Marino completed a physical RFC assessment. (T. 301-06.) Marino found that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift/and or carry 10 pounds, stand and/or walk with normal breaks for about 6 hours in an 8 hour workday, sit with normal breaks for about 6 hours in an 8 hour work day, and push and/or pull unlimited, other then as shown for lift and/or carry evaluations. (T. 302.) The assessment stated that Plaintiff may frequently have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.