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Lavere v. Astrue

United States District Court, Second Circuit

September 5, 2013

TODD LAWRENCE LAVERE, Plaintiff,
v.
MICHAEL J. ASTRUE Commissioner of Social Security, Defendant.

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

Plaintiff Todd Lavere brings 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 March 5, 2010, the Social Security Administration ("Administration") denied Plaintiff's claim for disability benefits. R. at 56. On March 23, 2011, Administrative Law Judge Fein ("ALJ") held a hearing regarding the claim, wherein Plaintiff testified. R. at 32-54. On June 8, 2011, the ALJ delivered an unfavorable decision to Plaintiff. R. at 16-27. On January 19, 2012, the Appeals Council denied Plaintiff's request for a review of the ALJ's decision. On March 23, 2013, Plaintiff filed a Complaint for judicial review of the final decision from the Commissioner of the Administration. Dkt. No. 1.

b. Medical History[1]

On May 13, 2009 Plaintiff reported to Dr. Williams that he had bumped his left ankle on a ladder. R. at 226. Dr. Williams noted soft tissue swelling and aching. R. at 226. Dr. Williams put a basketweave strap on Plaintiff's ankle and noted he was taking a prescription pain medication. R. at 226.

On May 21, 2009, Dr. Williams noted that Plaintiff's ankle was much worse, he was barely able to walk, "the EDB brevus muscle belly was extremely inflamed", along with other findings. R. at 225. Dr. Williams did not observe fractures in the x-rays taken, but noticed joint space widening. R. at 225. Dr. Williams ordered blood work and gave Plaintiff a forefoot compressive dressing. R. at 225.

Plaintiff was admitted to St. Joseph's Hospital in Syracuse, NY on May 27, 2009, after being referred by Dr. Kellogg. R. at 227. He was discharged on June 16, 2009, with a principal diagnosis of left leg ischemia, and secondary diagnoses of diabetes mellitus type 2, hypertension, metabolic syndrome, sleep apnea, right internal carotid occlusion with dissection, history of upper extremity deep vein thromboses, heparin induces thrombocytopenia, and alcoholism. R. at 227.

While at St. Joseph's, Plaintiff was seen by Dr. Semel, where it was found Plaintiff needed an angiogram and possible thrombolysis. R. at 227. Plaintiff was then taken to interventional radiology, and returned everyday for follow up thrombolysis. R. at 227. On June 2, 2009, Plaintiff lost all pulses in his left lower leg, which also became pale. R. at 228. He was taken to the emergency room with Dr. Riley, Dr. Zama, and Dr. Carlin, who conducted a left lower extremity embolectomy, two compartment fasciotomy, popliteal and anterior tibial exposure with on table aniogram and an anterior tibial and popliteal artery patch angioplasty, and also a popliteal artery to saphenous vein bypass with reverse saphenous and vein graft. R. at 228. After Plaintiff's condition worsened, Dr. Riley conducted a left leg below the knee amputation. R. at 228. It was noted that Plaintiff had heparin induced thrombocytopenia, and was given Relfludan. R. at 288. Plaintiff was also prescribed Coumadin, among various other medications. R. at 228. Plaintiff was discharged to Samaritan Medial Center Acute Rehab Center in Watertown, NY in stable condition. R. at 228.

Plaintiff was admitted to Samaritan Medical Center on June 18, 2009, and discharged on June 26, 2009 in stable condition. R. at 256-57. Plaintiff's discharge diagnoses were "late effect left transtibial amputation, metabolic syndrome/diabetes mellitus, hypertensive cardiovascular disease, history of alcohol abuse, acute vascular occlusion/rule out hypercoaglable, state/coumadin therapy, hyperlipidemia with low HDL, elevated liver enzymes, history of smoking, intertrigo, actue blood loss anemia, and borderline hyponatremia. R. at 256. It was noted that Plaintiff's residual limb was "coming along excellent." R. at 256. Plaintiff underwent an intensive multidisciplinary rehabilitation program, and was found safe to return home by occupational therapy. R. at 256. Plaintiff was discharged with multiple medications. R. at 257-58.

On June 29, 2009, Plaintiff saw Bonnie L. Servage, A.N.P. at Watertown Internists who went over Plaintiff's medical history and prescriptions. R. at 339.

On June 30, 2009, Plaintiff saw Bonnie L. Servage, A.N.P. who noted Plaintiff was given a commode, folding walker, and transfer wheelchair when he was discharged from the hospital. R. at 338. On June 30, 2009, Plaintiff saw Dr. Riley who noted Plaintiff's stump was swollen but healing well. R. at 323. Dr. Riley prescribed Augmentin for mild erythema and probable cellulitis in the stump. R. at 323.

On July 14, 2009 Plaintiff followed-up with Dr. Riley, who removed staples from Plaintiff's incision, and started Plaintiff wearing a shrinker in anticipation of use of a prosthetic for ambulation. R. at 321.

On August 8, 2009, Dr. Riley opined that Plaintiff "... has begun walking with a prosthetic and is doing well. He continues to require Lortab for occasional pain... [h]is incisions are well healed ...


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