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Key v. Commissioner of Social Security

United States District Court, E.D. New York

March 31, 2014



SANDRA L. TOWNES, District Judge.

Pro se plaintiff Melvin Alonzo Key brings this action pursuant to Section 405(g) of the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Commissioner moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff has not opposed the motion. For the reasons set forth below, the Commissioner's motion is granted.


Plaintiff filed applications for DIB and SSI on May 3, 2010. (R. 121-32). He alleged that he had been disabled since November 23, 2008, due to HIV and hepatitis C. (R. 126, 170-71). His applications were denied on July 23, 2009, (R. 40, 41, 50-57), and he requested a hearing before an administrative law judge ("ALJ"), (R. 59-60).

On July 8, 2011, ALJ Wallace Tannenbaum dismissed Plaintiff's request because he failed to appear for the scheduled July 5, 2011, hearing. (R. 42-46). On March 1, 2012, the Appeals Council remanded the matter and directed the ALJ to schedule another hearing because Plaintiff had demonstrated good cause for failing to appear. (R. 47-49).

On August 7, 2012, ALJ Margaret A. Donagy held a hearing at which Plaintiff, who was not represented, was the only testifying witness. (R. 20-39). ALJ Donagy issued a decision on September 5, 2012, in which she concluded that Plaintiff was not disabled within the meaning of the Act. (R. 6-19). On November 15, 2012, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-3). Plaintiff timely commenced this action on January 18, 2013, proceeding pro se. On January 17, 2013, the Commissioner filed, with permission of the Court, its unopposed motion for judgment on the pleadings pursuant to Rule 12(c), after Plaintiff was given notice and nevertheless failed to respond. (See Docket Nos. 11-15).


A. Nonmedical Evidence

Plaintiff was born on March 3, 1964. (R. 27). He completed high school and approximately one year of college coursework. (R. 27, 171). From 1993 to 2007, Plaintiff worked as a laborer. (R. 172). During the same period, Plaintiff also worked at retail stores in marketing, sales, as a receiving clerk, and with visual displays. (R. 172). His duties variously included assembly line work, packing boxes, lifting products, building backdrops, unloading trucks, stocking store shelves, moving fixtures, setting up store window displays, and operating a cash register, computer, and price gun. (R. 190-95). In all of these positions, Plaintiff stated somewhat confusingly that the heaviest weight he lifted was 20 pounds, but that he "frequently" lifted 25 pounds (and as much as 50 pounds at his sales job). (R. 190-95).

Plaintiff reported that he stopped working on November 23, 2008, at the age of 44, due to hepatitis C and HIV infections. (R. 170-71). As of May 20, 2010, the date he applied for benefits, Plaintiff reported that he was living in a shelter and that he could dress, bathe, shave, and take care of his other personal needs. (R. 178-80). He wrote that on a daily basis he would take a shower, get dressed, walk around Central Park, sit on a bench, then go to the library to use the computers. (R. 179). Plaintiff reported that he was able to walk for about an hour at a time before he would stop and sit "not long" before continuing. (R. 184). He also indicated that he remembered to take his medications, was able to prepare his meals, clean his room, manage his laundry, walk outside, shop for food every other day, and use public transportation. (R. 180-82). His hobbies included reading magazines, drawing, and hand sewing, which he did approximately once a week. (R. 182). However, Plaintiff stated that he felt depressed and "tired all the time, " uninterested in hobbies. (R. 182). Although he could follow spoken and written instructions, he reported that he never finished what he started, had problems paying attention, and that his mind was always wandering. (R. 184). He stated that he experienced dizziness, lack of appetite, and ringing or "train sounds" in his ears from his medication. (R. 186). Plaintiff also described pain in the bottom of his left foot, in his right knee, and between his shoulder blades. (R. 186). He reported taking Atripla, [1] but no medication for pain. (R. 187).

At the August 7, 2012, hearing before the ALJ, Plaintiff testified that he lived alone in a one bedroom apartment, paid for by an association that provides supportive housing for people with HIV. (R. 28). He stated that he stopped drinking in March 2012, last used marijuana six months earlier, and last used cocaine one year earlier. (R. 29). Plaintiff testified that in 2010 he was fired from his most recent job at a furniture store "[b]ecause I had social skills with the other employees and stuff like that, I had mood swings, stuff like that." (R. 30). He stated that he believed he became disabled:

Because of the disease that I have, the HIV and then Hepatitis C, and then out of - I don't know if it's due to the medication and stuff that I was taking I was diagnosed with high blood pressure, and then they told me that I had a bad heart that I had an irregular heart beat, and a lot of times when I'm out and about, climbing stairs or just walking around, my heart just all of a sudden starts racing and I have to like sit down and before I didn't even know, I didn't even have these symptoms.

(R. 32). Plaintiff stated that his HIV medication caused nausea, dizziness, and "excessive diarrhea." (R. 34). With regard to his hepatitis C, Plaintiff said that a recent liver biopsy had shown "some damage." (R. 33). He also testified that he met with a psychiatrist at Belleview Hospital ("Belleview") who prescribed Lexapro[2] for his mood swings, but that Plaintiff - on his own - discontinued the medication after two months because he was "more concerned about everything that I took that would flush through my liver to make my liver bad." (R. 33-34).

Plaintiff testified that on some days he could walk from Brooklyn to Manhattan, while on other days his "heart gets to racing and speeding" and he could walk no more than four or five blocks. (R. 35-36). He did not have trouble sitting or standing, except dizziness if he stood up too fast. (R. 36). He also stated that he had no problem lifting or carrying items, preparing his meals, washing dishes, doing his laundry, or with his personal care. (R. 36, 37). Plaintiff indicated that he had a driver's license, but did not drive or ride a bicycle because his doctors told him he could get dizzy and cause an accident. (R. 36). He testified that he used public transportation. (R. 37). Plaintiff also indicated that all of his medical treatment took place at Bellevue. (R. 35).

B. Medical Evidence

On January 4, 2010, Plaintiff was treated at the Belleview emergency room for a dental abscess, where he denied taking any medication. (R. 362). On January 28, 2010, Plaintiff returned to the emergency room with a cough and sore throat, complaining of approximately three episodes of diarrhea per day. (R. 358-59). His assessment report noted that he had a history of HIV, hepatitis B, and hepatitis C, with no history of AIDS defining illnesses, and had not seen a doctor or had taken a white blood cell count for two years. (R. 358-59). The report further indicates no clinical or cardiac findings or abnormalities. (R. 359). Plaintiff's ...

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