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Nelson v. Colvin

United States District Court, E.D. New York

March 31, 2014

CAROLYN W. COLVIN, Commissioner of the Social Security Administration[1], Defendant.

Michael Brangan, Esq., Sullivan & Kehoe, Kings Park, NY, for Plaintiff

Vincent Lipari, Esq. United States Attorney's Office Eastern District of New York, Central Islip, NY, for Defendant.


JOANNA SEYBERT, District Judge.

Plaintiff Clearthur Nelson ("Plaintiff") commenced this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. ยง 405(g), challenging defendant the Commissioner of Social Security's (the "Commissioner" or "Defendant") denial of Plaintiff's application for disability insurance benefits and Supplemental Security Income ("SSI"). Presently before the Court are Plaintiff's and the Commissioner's cross-motions for judgment on the pleadings. For the following reasons, the Commissioner motion is GRANTED and Plaintiff's motion is DENIED.


On February 26, 2009, Plaintiff filed an application for disability insurance benefits and SSI, asserting that he has been disabled, and therefore unable to work, since December 1, 2008, due to left shoulder, bicep, and knee impairments; chronic lower back pain; jaw pain due to a post-fracture repair; right metacarpal fracture; and hypertension. (R. 20, 22, 106-07.)[2] Plaintiff's application was denied on April 23, 2009. (R. 56-65.) On May 14, 2009, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (R. 70-71.)

A hearing took place before ALJ Scott C. Firestone on July 29, 2010. (R. 30-55.) Plaintiff appeared in person, was represented by counsel, and was the only witness to testify at the hearing. (R. 30-55.)

The Court's review of the administrative record will proceed as follows: First, the Court will summarize the relevant evidence that was presented to the ALJ; second, the Court will review the ALJ's findings and conclusions; and third, the Court will review the Appeals Council's decision.

I. Evidence Presented to the ALJ

The Court will briefly summarize Plaintiff's testimonial evidence and employment history before addressing Plaintiff's medical records.

A. Testimonial Evidence and Employment History

Plaintiff was born on January 11, 1958. (R. 33.) He dropped out of school in the eighth grade but is able to read and write. (R. 39-40.) From March 2007 to December 2008, Plaintiff was incarcerated for two years for drug possession. (R. 37.) Plaintiff testified that he was assaulted while incarcerated and suffered a fractured jaw, which required surgery and a metal plate implant to repair. (R. 49-50.)

In his Work History Report, Plaintiff listed the following employment history: (1) from 1981 to 1982, Plaintiff worked as a laborer; (2) from 1982 to 1986, Plaintiff worked in maintenance for J.C. Penney; (3) from 1986 to 1988, Plaintiff worked for a bus company; (4) from 1988 to 1990, Plaintiff was a security guard; (5) from 1999 to 2004, Plaintiff worked as a construction truck driver and laborer. (R. 156.) The Work History Report does not indicate Plaintiff's employment status for the years from 1990 to 1998 and 2004 to 2007. However, Plaintiff testified that he last worked in construction in 2000 (R. 42), but he also stated that he was laid off from work in December 2006, (R. 127). Plaintiff testified that since his release from prison in December 2008, Plaintiff has not worked, nor has he sought employment. (R. 45.)

Plaintiff testified that he spends most of his time watching television, sleeping, preparing meals for himself, and "try[ing] to make [himself] comfortable." (R. 51-54.) Plaintiff lives with his fiance and four of his six children. (R. 43-44.) He claims to have no hobbies and does not do any household chores. (R. 52, 54.) His driver's license was suspended for failure to make child support payments. (R. 43.) He also receives welfare assistance in the form of food stamps. (R. 45.)

In his application for disability benefits, Plaintiff claimed that he had become disabled as of December 1, 2008. (R. 102, 106.) However, Plaintiff explained during his hearing that he had been experiencing pain in his knees, arm, and back for some time prior to his application, but only applied after his release from prison. (R. 33-37, 41.)

Plaintiff testified that he has "severe back pain" and that he cannot sit for longer than five minutes before having to move and that he cannot walk or stand for more than ten minutes. (R. 34-35.) He attended his hearing with a cane that was prescribed to him "back in the 90s, " but he also testified that he does not always use it. (R. 33.) Plaintiff also testified that he can lift only about ten pounds due to a tear of his left bicep that he sustained while incarcerated. (R. 35-36.) He claimed that when he does lift things, like a grocery bag, he will feel discomfort, stinging, and stiffness the next day. (R. 37.) With respect to his back, Plaintiff testified that his lower back pain is an "aching, stabbing, throbbing pain" and that the pain can go up to a ten out of ten when he is not on medication, but when he is on medication, the average is only three out of ten. (R. 47-48.) At the time of the hearing, Plaintiff was taking four tablets of Oxicodal per day. (R. 48.) Finally, Plaintiff testified that he experiences "aching" headaches due to the metal plate used to repair his jaw. (R. 50.)

B. Medical Evidence

In addition to Plaintiff's testimony, the ALJ also had before him all of Plaintiff's medical records. Plaintiff first sought medical attention on February 2, 2008 from the Nassau University Medical Center for jaw pain and contusions to the shoulder and knee. (R. 171-72.) A computed tomography ("CT") scan revealed an age-indeterminate fracture of the right mandibular ramus and an old fracture of the left anterior mandible coupled with a metal fixation. (R. 172.)

Plaintiff returned to the Nassau University Medical Center on February 19, 2009, complaining of a sore throat and body pain. (R. 174.) During this visit, Plaintiff claimed that he began experiencing pain in his left arm, at a score of six out of ten, six months prior to the visit; pain in his jaw, at a score of nine out of ten, one year prior to the visit; and chronic pain in his right knee, at a score of nine out of ten. (R. 174.)

On March 30, 2009, Plaintiff saw Dr. Sandra Pascal, D.O. for pain in his back, left arm, and jaw. (R. 189.) Dr. Pascal examined Plaintiff and found an unspecified decrease in range of motion for Plaintiff's left shoulder and decreased strength in his left arm. (R. 189-90.) Dr. Pascal diagnosed Plaintiff with gingivitis, chest pain, uncontrolled benign essential hypertension, and a ruptured bicipital tendon of the left arm. (R. 190.) Thereafter, on April 6, 2009, Dr. Pascal completed a Medical Report for Determination of Disability/Employability for the Nassau County Department of Social Services. (R. 201-02.) In her report, Dr. Pascal diagnosed Plaintiff with hypertension, asthma, and chest pain. (R. 201.) Further, Dr. Pascal concluded that Plaintiff was disabled and not employable because, "as per patient, " he was "unable to sit, or stand in one position for long periods due to back pain." (R. 201.)

On April 3, 2009, Dr. Samir Dutta conducted a consultative examination of Plaintiff on behalf of the Social Security Administration. (R. 179-82.) Dr. Dutta noted that Plaintiff "appeared to be in no acute distress, " had normal gait and station, and "needed no help changing for the exam or getting on and off [the] exam table." (R. 180-81.) Dr. Dutta also noted that Plaintiff declined to walk on his toes or heels and did not use an assistive device, but that he could only squat halfway. (R. 180-81.) Dr. Dutta further concluded that Plaintiff's fine motor activity of the hands was normal, with a grip strength of five out of five bilaterally. (R. 181.) Dr. Dutta found that Plaintiff had a full range of motion of the elbows, forearms, wrists, and fingers. (R. 181.) Dr. Dutta further noted that Plaintiff had forward elevation and abduction of the right shoulder to 120 degrees but only 90 degrees with respect to the left shoulder. (R. 181.)

Upon thoracic and lumbar spine examination, Dr. Dutta noted that there was a "[s]light spasm... on the lower lumbar area, " but that there was no spinal, paraspinal, SI joint, or sciatic notch tenderness. (R. 181.) Dr. Dutta also conducted a straight leg raise test, which was negative bilaterally. (R. 181.) Dr. Dutta's examination of Plaintiff's lower extremities was normal: Plaintiff had full range of motion in his ankles, and no muscle atrophy or sensory abnormality. (R. 181.)

Dr. Dutta's prognosis following the exam was "[m]ild to moderate limitation for sitting, standing, walking, bending, and lifting weight on a continued basis, ...

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