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Flanigan v. Colvin

United States District Court, S.D. New York

May 15, 2014

JOHN M. FLANIGAN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

Page 286

John M. Flanigan, Plaintiff, Pro se, Yonkers, NY.

For Commissioner of Social Security, Defendant: Kirti Vaidya Reddy, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY.

OPINION

Page 287

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff John Flanigan brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the " Commissioner" ) denying Disability Insurance Benefits (" DIB" ) and Supplemental Security Income (" SSI" ) benefits. (Dkt. No. 2: Compl.) Presently before the Court is the Commissioner's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 16: Comm'r Notice of Motion.) The parties have consented to my decision of this case pursuant to 28 U.S.C. § 636(c). (Dkt. No. 31: Consent to Magistrate Judge Jurisdiction.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 16) is GRANTED.

FACTS

Procedural Background

In September 2010 Flanigan applied for DIB and SSI benefits, alleging that he was disabled since November 1, 2008. (Dkt. No. 13: Admin. Record filed by the Comm'r (" R." ) 13, 108; see also Dkt. No. 2: Compl. ¶ 5.) Flanigan alleged disability due to chronic obstructive pulmonary disease (" COPD" ), severe back pain, cervical spine impairment, herniated disc, bulging

Page 288

disc, degenerative disc disease, hypertensive cardiovascular disease, hypertension, headaches, spondylosis, neuropathy of the left wrist and high cholesterol. (R. 112; see also Compl. ¶ 4.) On December 10, 2010, the Social Security Administration (" SSA" ) found that Flanigan was not disabled and denied his applications. (R. 46-54.) On January 19, 2011, Flanigan requested an administrative hearing. (R. 55-60.)

Administrative Law Judge (" ALJ" ) Robert Gonzalez conducted the administrative hearing on January 31, 2012, at which Flanigan appeared with counsel. (R. 13, 21-42.) At the end of the hearing, ALJ Gonzalez left the record open to allow Flanigan's counsel additional time to obtain and submit supplemental medical records, which she did. (R. 36-41, 205-06, 243-63.) On April 12, 2012, ALJ Gonzalez issued a written decision finding that Flanigan was not disabled. (R. 10-17.) ALJ Gonzalez's decision became the Commissioner's final decision when the Appeals Council denied Flanigan's request for review on April 16, 2013. (R. 1-3.)

On January 31, 2014, the Commissioner filed a motion for judgment on the pleadings. (Dkt. No. 16: Comm'r Notice of Motion.) On February 28, 2014, Flanigan filed an opposition brief attaching supporting documentation, including a limited number of new records that were not considered by ALJ Gonzalez or the Appeals Council. (See pages 12-15 below.)[1] In his opposition, Flanigan argues that the November 1, 2008 disability onset date should be amended to December 8, 2008. (Flanigan Opp. Br. at 4-6; see page 12 below.) The Commissioner filed its reply brief on April 16, 2014. (Dkt. No. 27: Comm'r Reply Br.)

The issues before the Court are: (1) whether the Commissioner's decision that Flanigan was not disabled between November 1 and December 31, 2008 (Flanigan's date last insured) is supported by substantial evidence, and (2) whether Flanigan's submission of additional evidence warrants a remand. Thus, this case involves benefits for at most a two-month period, November-December 2008.

Non-Medical Evidence

Flanigan was born on December 11, 1960 and was almost forty-eight years old at the alleged onset of his disability. (Dkt. No. 13: R. 108.) Flanigan obtained a general equivalency diploma (" GED" ) in 1979. (R. 113.) Flanigan lives with his wife and three children. (R. 30.) Flanigan's family

Page 289

depends on his wife's SSI and Department of Social Services benefits. (R. 29-30.)

Flanigan worked as a warehouse supervisor from 1980 to 2003. (R. 25, 113.) From April 2003 to March 2005, Flanigan received workers' compensation payments, " and once [he] got off that [he] started looking for work again actively." (R. 25; see page 14 below.) In July 2008, Flanigan found work as a warehouse supervisor at Burlington Coat Factory, where he performed " manual labor," " constant lifting, movement," " [l]oading trucks" and " general warehouse work." (R. 25-27, 113-14.) Flanigan stopped working at Burlington Coat Factory in December 2008 because his neck pain was causing nausea and severe headaches whenever he had to bend or lift. (R. 27-31; see page 12 below.) Flanigan " spoke to [his] doctor about . . . try[ing] to look for another line of work" involving " less manual labor or no manual labor," such as " something clerical" or possibly " go[ing] back to school." (R. 28.) Flanigan looked for a new job " for a while" but " couldn't find any especially [because he] was trying to change fields." (R. 28.)

Flanigan testified that his condition " deteriorated fast" beginning in December 2009, and by February 2010 " it was debilitating." (R. 28-29, 33; see pages 26-27 & n.21 below.) Flanigan stated that he experiences neck pain that travels through his back and shoulder into his left hand where he suffers from nerve impingement. (R. 33.) Flanigan also stated that his neck pain causes nausea and severe headaches. (R. 31, 33.) However, the symptoms were not present to that degree in November 2008. (R. 33-34.)

Flanigan reported that he has " had asthma since [he] was young" and that his condition has been " considered COPD" for approximately " three to four years" (i.e., since January 2008 or 2009). (R. 34.) Flanigan stated that his daily COPD symptoms include " [s]hortness of breath, dizziness, [and] light headedness," which requires him " to use a nebulizer four times a day." (R. 34-35.) Flanigan testified that because of his COPD, surgery for his neck and back pain " was a last resort," and the pain " would have to get more severe before [his doctor] would recommend [him] doing it." (R. 34; see R. 227-28; see also page 15 below.)

Medical Evidence Before the ALJ 2008

January 1, 2008 -- October 31, 2008

On January 29, 2008, Dr. Kovoor saw Flanigan for flu symptoms and a bad cold. (Dkt. No. 13: R. 255.) On March 31, 2008, Dr. Kovoor saw Flanigan for a bad cold and sinus infection. (R. 254.) On May 30, 2008, Dr. Kovoor saw Flanigan for an earache and sore throat. (R. 253.) On July 31, 2008, Dr. Kovoor saw Flanigan for an unspecified reason. (R. 252.) On September 26, 2008, Dr. Kovoor saw Flanigan for complaints of light headedness and to check his blood pressure. (R. 251.) In his progress notes from the January, March, May and July 2008 visits, Dr. Kovoor indicated that Flanigan suffered from hypertension and asthma. (R. 252-55.)

November 1, 2008 -- December 31, 2008

All of the medical records from this period relate to a right hand injury, which Flanigan candidly admits " had nothing to do with" his alleged disabling conditions. (Dkt. No. 13: R. 27; see also Dkt. No. 29-1: Flanigan Opp. Br. at 4: " The date of November 1, 2008 is the date of a report within the medical records of the treating physician, for the entire year of 2008, which was for a hand injury unrelated to the claim for disability." )

On November 1, 2008, Flanigan was treated at the Montefiore emergency room after he fell and injured his right hand. (R. 261-62; see R. 200-01.)

Page 290

His aftercare instructions note that Flanigan was taking asthma medication (Proventil and Advair) and was given Tylenol with codeine, and that he was instructed not to return to work for one to two days, not to use his right hand and to set up an appointment at the Montefiore hand clinic. (R. 260-62.) On November 4, 2008, Flanigan had an x-ray taken of his right hand at the Montefiore hand clinic, which showed no fracture or dislocation. (R. 201, 203.) A November 4, 2008 note from the Montefiore hand clinic stated Flanigan " CANNOT return to work" and " [w]ill be seen again next week." (R. 263.)

On November 7, 2008, Flanigan saw Dr. Kovoor in connection with the previous week's hand injury, and noted that Flanigan " want[ed] clearance for work." (R. 242, 250.) Dr. Kovoor also noted that Flanigan was taking Advair and Chlorthalidone to treat his asthma and hypertension, respectively. (R. 242, 250.)

2009

On February 2, 2009, Flanigan complained to Dr. Kovoor of a cough, earache, sore throat and chest congestion for three days. (R. 249.) Dr. Kovoor's notes listed Flanigan's medications as Advair and Ventolin for asthma/COPD, Fioricet for migraines, and Chlorthalidone for hypertension. (R. 249.) On March 27, 2009, Flanigan saw Dr. Kovoor for a cough and bronchitis. (R. 248.) On June 26, 2009, Flanigan saw Dr. Kovoor for a cough; Dr. Kovoor diagnosed COPD exacerbation and prescribed Avelox, Albuterol, Advair and Prednisone. (R. 247.)

On June 28, 2009, Flanigan was treated at the Montefiore emergency room and was diagnosed with COPD, acute bronchitis and bacterial pneumonia. (R. 257.) His aftercare instructions show he was taking Prednisone, Albuterol, Proventil and Advair. (R. 257.) He was given prescriptions for Prednisone, Avelox, Combivent inhaler (Albuterol) for COPD and Sonata for insomnia, and instructed to follow up with his own doctor or return at any time if he experienced " any tr[o]uble breathing, fever, chest pain or any other ch[a]nge in condition." (R. 256-58.)

On September 28, 2009, Dr. Kovoor saw Flanigan for COPD chest pain, back pain, achiness, fevers and coughing with green phlegm, and diagnosed COPD. (R. 246.) In late 2009 (probably December 2009), Dr. Kovoor referred Flanigan for testing in connection with his neck and back pain and numbness in his left hand. (R. 28; see R. 210-13, 227-32.)

2010

Hudson Valley Radiology

On March 5, 2010, Flanigan underwent a cervical spine x-ray examination at Hudson Valley Radiology. (R. 212, 232.) Radiologist Dr. Donna M. Scuderi noted a history of " [n]eck pain with decreased range of motion." (R. 212, 232.) Dr. Scuderi found " straightening of the cervical lordosis" as well as " [d]egenerative spondylosis at the C4-5 through C6-7 levels with bilateral foraminal encroachment at the C5-6 and C6-7 levels and early foraminal encroachment on the left at the C4-5 level." (R. 212, 232.) Dr. Scuderi correlated her findings " with [an] MRI of the cervical spine dated 05/01/2002" and noted that " [t]he findings have progressed since the prior MRI of 2002." (R. 212, 232.)

On March 11, 2010, Flanigan underwent a cervical spine MRI. (R. 210-11, 230-31.) Radiologist Dr. Joel Schwartz noted a history of " [d]isc degeneration," and found " [d]isc degeneration involving C4-5 through C6-7, similar to the prior [i.e., 3/5/10] radiographs" and " [n]eural foraminal encroachment" most severe at C5-6 and C6-7. (R. 210-11, 230-31.)

Page 291

Westchester Neurological Consultants: Dr. Roshni Karnani

On March 15, 2010, Flanigan saw Dr. Roshni Karnani of Westchester Neurological Consultants for the first time. (R. 224-26.) Flanigan presented with " neck pain and numbness in the left hand," and reported a " history of neck trauma," which began " in 2001" when Flanigan was " carrying a pile of books, [and] fell and hit his head and neck posteriorly" while he was " working in Barnes and Nobles." (R. 224.) Dr. Karnani noted that while Flanigan " has been through intense physical therapy 3 times over the last few years," his symptoms have worsened " over the last 6 weeks," in particular " the tingling in the left ha[n]d." (R. 224.) Dr. Karnani further noted that Flanigan's medical history included high blood pressure, neck pain, back pain, migraines and COPD. (R. 224.) Dr. Karnani found Flanigan suffered from " C6, C7, and C8 Radiculopathy." (R. 225.)

On April 9, 2010, Flanigan underwent an electrodiagnostic study at Westchester Neurological Consultants. (R. 213, 223, 229.) Flanigan presented to Dr. Karnani " with neck pain radiating to the shoulders and hands with weakness of the left hand." (R. 213, 223, 229.) Flanigan told Dr. Karnani that " [t]hese symptoms have been present for years and have been progressing." (R. 213, 223, 229.) Dr. Karnani concluded that Flanigan's study was abnormal, finding there was " evidence of moderate chronic C5 C6 radiculopathy bilaterally, severe chronic C7 radiculopathy bilaterally" as well as " moderate left more than right median nerve neuropathy at the wrist, most probably related to Carpal Tunnel Syndrome." (R. 213, 223, 229.) Flanigan had follow up visits at Westchester Neurological Consultants on May 14, June 4, June 29, July 30, August 27 and November 9, 2010. (R. 217-22.)

Dr. Raj Murali

On August 4, 2010, Flanigan saw Dr. Raj Murali for a neurosurgical consultation. (R. 227-28.) Dr. Murali noted that Flanigan's " chief complaint is neck pain, midthoracic pain, weakness of the left hand, and diffuse pain in both upper limbs." (R. 227.) Flanigan told Dr. Murali that his " symptoms have been present for approximately seven years," but they have " become much worse" during " the last 15 months or so," and that " [f]or the last few months, he has not been able to work because of worsening pain especially in the neck." (R. 227.) Dr. Murali reviewed Flanigan's March 2010 MRI, " which shows the presence of diffuse spondylosis and cord compression from C3 through C7." (R. 227.) Dr. Murali informed Flanigan " that as the last resort he will be a candidate for cervical laminectomy and instrumented fusion from C3 through C7," noting that " [h]e has already had some physical therapy and pain medications without significant benefit." (R. 227-28.) Dr. Murali ...


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