United States District Court, W.D. New York
LAW OFFICES OF KENNETH HILLER, JAYA ANN SHURTLIFF, of Counsel, Amherst, New York, Attorneys for Plaintiff.
WILLIAM J. HOCHUL, JR., UNITED STATES ATTORNEY, KEVIN D. ROBINSON, Assistant United States Attorney, of Counsel, Buffalo, New York, STEPHEN P. CONTE, Regional Chief Counsel - Region II, BENIL ABRAHAM, Assistant Regional Counsel, United States Social Security Administration, Office of the General Counsel, of Counsel, New York, New York, Attorney for Defendant.
REPORT AND RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This action was referred to the undersigned by Honorable Richard J. Arcara on September 18, 2012. (Doc. No. 5). The matter is presently before the court on motions for judgment on the pleadings, filed on February 16, 203, by Plaintiff (Doc. No. 7), and on May 6, 2013, by Defendant (Doc. No. 11).
Plaintiff Sean Patrick Leonard ("Plaintiff" or "Leonard"), seeks review of Defendant's decision denying him Disability Insurance Benefits ("DIB") ("disability benefits") under, Title II of the Social Security Act ("the Act"), and Supplemental Security Income Benefits ("SSI") benefits under Title XVI of the Act. In denying Plaintiff's application for disability benefits, Defendant determined Plaintiff had the severe impairments of history of lung blebs (fluid filled blister formations) with spontaneous pneumothorax (abnormal presence of air around the lungs), emphysema, sternal deformity, upper thoracic muscle pain, low back pain, chronic tobacco use, borderline intelligence and depression, but does not have an impairment or combination of impairments within the Act's definition of impairment (R. 14-15). Defendant further determined Plaintiff had the residual functional capacity to perform the full range of sedentary work with the limitations of avoiding exposure to dust, fumes, gases, poor ventilation, temperature extremes, wetness or humidity, and limited to simple tasks involving simple instructions. (R. 16). As such, Plaintiff was found not disabled, as defined in the Act, at any time from the alleged onset date through the date of the Administrative Law Judge's decision on February 18, 2011.
Plaintiff filed applications for disability benefits on March 10, 2009 (R. 113), alleging disability based on a recurrent hole in his lung, poor ability to read and write, and poor memory and concentration. (R. 149). The application was initially denied by Defendant on August 18, 2009 (R. 54), and pursuant to Plaintiff's request filed September 30, 2009 (R. 66), a hearing was held before Administrative Law Judge William R. Pietz ("Pietz" or "the ALJ") on February 1, 2011, in Buffalo, New York. (R. 29-52). Plaintiff, represented by Amanda Jordan, Esq. ("Jordan"), appeared and testified at the hearing. (R. 4-17). Vocational Expert Jay Steinbrenner ("the VE" or "Steinbrenner") also appeared and testified at the hearing. (R. 48-52). The ALJ's decision denying the claim was rendered on February 18, 2011. (R. 9-28).
Plaintiff requested review by the Appeals Council, and the ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review on April 11, 2012. (R. 1-5). This action followed on June 6, 2012, with Plaintiff essentially alleging the ALJ erred by failing to find him disabled. (Doc. No. 1).
Defendant's answer, filed September 17, 2012 (Doc. No. 4), was accompanied by the record of the administrative proceedings. On February 16, 2013, Plaintiff filed a motion for judgment on the pleadings ("Plaintiff's motion"), accompanied by a memorandum of law (Doc. No. 7) ("Plaintiff's Memorandum"). Defendant filed, on May 6, 2013, Defendant's motion for judgment on the pleadings ("Defendant's motion"), accompanied by a memorandum of law (Doc. No. 11) ("Defendant's Memorandum"). On July 12, 2013, Plaintiff filed Plaintiff's Reply/Response to Defendant's motion for judgment on the pleadings and Plaintiff's Reply Memorandum of Law (Doc. No. 12) ("Plaintiff's Reply"). Oral argument was deemed unnecessary. Based on the following, Plaintiff's motion should be DENIED.
Plaintiff, Sean Leonard, ("Leonard" or "Plaintiff"), was born on December 3, 1983, attended special education classes at Kenmore-Tonawanda High School ("Ken-Ton") until grade 10 (R. 36), lives with his pre-school aged daughter (R. 36), and worked most recently as an usher from November 2008 until December 2008, and as a cook from August 2008 until December 2008, when Plaintiff left work as a result of a lung impairment. (R. 37). Plaintiff alleges he is not able to work because he has a learning disability, depression, anxiety, chest pain and shortness of breath. (R. 42-43).
Prior to the alleged date of disability onset, on March 2, 1999, Plaintiff underwent psychological evaluation by the Ken-Ton school district for placement in special education classes (R. 133), where school psychologist Tara Petrozzi ("Petrozzi") evaluated Plaintiff using the Wechsler Intelligence Achievement Test ("WIAT"), and assessed Plaintiff with a score of 88 for verbal IQ, 78 for performance IQ, and a full scale IQ of 81. (R. 142). Plaintiff's reading subtest score measured 67, equivalent to a fourth grade reading level. (R. 142).
On November 29, 2005, Victor S. Rogenbogen, M.D. ("Dr. Rogenbogen"), a radiologist, completed a chest X-ray on Plaintiff and diagnosed Plaintiff with a right-sided pneumothorax. (R. 245). Dr. Rogenbogen noted Plaintiff's chest X-ray revealed placement of a right-sided chest tube, and opined Plaintiff's pneumothorax was reduced in size. (R. 245). Plaintiff's chest tube was removed on December 5, 2005. (R. 249).
On February 5, 2009, James Panzarella, M.D. ("Dr. Panzarella"), completed a follow-up examination on Plaintiff who reported right chest pain after helping a friend to move, cold symptoms with pain while taking deep breaths, and coughing and sneezing. (R. 224). Dr. Panzarella assessed Plaintiff with mildly decreased airflow, and referred Plaintiff for a chest X-ray. Id. The same day, Bruce Buchner, M.D. ("Dr. Buchner"), a radiologist, reviewed an X-ray of Plaintiff's chest that revealed suspicion of early patchy infiltrate (something inside lungs)/atelectasis (partial collapse or increased volume) in Plaintiff's right middle lung lobe, mild pectus excavatum (hollowed chest), a "tiny" pneumothorax of less than 5%, and lucency (dark area) in Plaintiff's right medial lung apex which Dr. Buchner opined may be a post-operative change with emphysematous bulla (fluid-filled blister) formation. (R. 231).
A computerized tomography ("CT") scan of Plaintiff's lungs on February 6, 2009, revealed 10-15% pneumothorax with emphysematous bulla formation at the apices (highest point of lungs), post-operative surgical staples in Plaintiff's upper right lung lobe, a small right pleural effusion (excess fluid around lungs) and pectus excavatum. (R. 229).
On February 9, 2009, Jeffrey R. Neu ("Dr. Neu"), a cardiologist, completed a physical examination on Plaintiff who reported shortness of breath while laying down. (R. 220). Upon reviewing a computerized tomography ("CT") scan of Plaintiff's chest, Dr. Neu diagnosed Plaintiff with right apical pneumothorax with no significant bleb (fluid-filled blister) formation, and referred Plaintiff to a cardiothoracic surgeon for surgical consultation. (R. 221).
On February 10, 2009, Jan D. Aldridge, M.D. ("Dr. Aldridge"), a cardiothoracic surgeon, completed a consultative surgical examination on Plaintiff and diagnosed Plaintiff with pectus excavaturm, status post right thoracoscopy for pneumothorax with small recurrence, and advanced bullous emphysema. (R. 222). Dr. Aldridge advised Plaintiff to stop smoking, and referred Plaintiff for a chest X-ray. Id.
On February 17, 2009, Dr. Panzarella completed a physical examination on Plaintiff that showed mildly decreased airflow. (R. 252). Plaintiff reported improved symptoms, but increased pain after taking care of his daughter while his girlfriend was hospitalized, and that he had quit smoking by using the patch. Id.
On March 4, 2009, Dr. Buchner reviewed an X-ray of Plaintiff's chest that revealed pectus excavatum, but no obvious pneumothorax or pulmonary infiltrate. (R. 254).
During a visit to Dr. Panzarella on March 20, 2009, Plaintiff reported a three-day history of right shoulder pain with no shortness of breath. (R. 255). Upon examination, Dr. Panzarella assessed Plaintiff with spontaneous pneumothorax, unspecified backache, and tobacco use disorder, and referred Plaintiff for a chest CT scan. Id. Scott P. Cholewinski, M.D. ("Dr. Cholewinski"), a radiologist, evaluated a chest CT scan of Plaintiff completed the same day that showed no pneumothorax, stable small emphysematous bulla in both of Plaintiff's apices, stable post-operative changes, atelectasis in Plaintiff's right upper lung lobe, and no pleural effusion or consolidation. (R. 258).
On April 20, 2009, Plaintiff returned to Dr. Panzarella with complaints of right-sided back and chest pain after working at his construction job, and, upon examination, Dr. Panzarella assessed Plaintiff with good airflow, unspecified back and chest pain, and spontaneous pneumothorax. (R. 260).
On June 5, 2009, Thomas Chou, M.D. ("Dr. Chou"), a psychologist, completed a consultative intelligence examination on Plaintiff on behalf of the Social Security Administration, and administered the Wide Range Achievement Test III ("WRAT-III") test on Plaintiff, who scored 68 on reading, 81 on verbal comprehension, 77 on perceptual reasoning, 97 on processing speed, 74 on working memory, and a full scale IQ of 78. (R. 263-65). Dr. Chou diagnosed Plaintiff with borderline intelligence and lung blebs, recommended Plaintiff for vocational training, and opined Plaintiff was able to follow and understand simple instructions and directions, perform simple tasks independently, maintain attention and concentration and a regular schedule, perform complex tasks with supervision, make appropriate decisions, relate adequately with others, and appropriately deal with stress, but would require assistance handling funds. (R. 266). Plaintiff reported activities of daily living that included performing household chores, playing cards, and taking care of his one year old daughter. Id.
The same day, Nikita Dave, M.D. ("Dr. Dave"), completed an internal medical examination on Plaintiff, and assessed Plaintiff with significantly decreased AP diameter of the chest from severe pectus excavatum causing depression of Plaintiff's sternum one and one-half inches at the maximal point, and diagnosed Plaintiff with emphysema, numerous right lung blebs with spontaneous pneumothorax, deviated nasal septum, upper thoracic pain, lower back pain, and chronic tobacco use. (R. 271-72). Dr. Dave assessed Plaintiff with moderate limitation for activities requiring prolonged exertion, mild to moderate limitation to ...