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Updike v. Colvin

United States District Court, W.D. New York

May 30, 2014

CAROLYN COLVIN, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Plaintiff Michael Robert Updike ("Plaintiff"), represented by counsel, brings this action pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Social Security Insurance ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. Procedural History

On March 11, 2009, Plaintiff protectively filed an application for SSI, alleging disability beginning October 13, 2004, which was later amended to March 11, 2009. T.32. The application was denied on June 14, 2009, and Plaintiff timely filed a written request for a hearing. Administrative Law Judge Susan Wakshul (the ALJ") presided over the hearing, which was held via videoconference on August 5, 2010. Plaintiff was absent from the hearing, but his attorney, Gregory Fassler, Esq., appeared.

On August 16, 2010, the ALJ sent Plaintiff a Notice To Show Cause For Failure To Appear, T.125-30, directing him to show good cause for his absence. Plaintiff was informed that if ALJ found his explanation to be good cause, she would hold a supplemental hearing. By letter dated August 25, 2010, Plaintiff replied to the ALJ, stating that he did not appear at his hearing because he was "overwhelmed and harried" and had to care for his parents. T.131. Finding that Plaintiff failed to establish good cause, the ALJ did not set a new hearing date.

The ALJ issued an unfavorable decision on September 23, 2010, finding that Plaintiff was not disabled. T.10-27. On July 23, 2012, the Appeals Council denied Plaintiff's request for review, T.1-4, making the ALJ's decision the Commissioner's final decision.

III. Summary of the Administrative Record

A. Medical Evidence On April 28, 2008, a magnetic resonance image ("MRI") of

Plaintiff's left knee revealed a small effusion in the patellofemoral compartment but no evidence of a meniscal tear. T.296. In November 25, 2008, Plaintiff saw his physician at the Anthony L. Jordan Health Center ("the Health Center") to request Oxycontin and Percocet for carpal tunnel syndrome (secondary to right shoulder surgeries) following a recent fall from a ladder. T.348, 351.

On March 19, 2009, Plaintiff returned to the Health Center for refills of Xanax, Norco, Ambien, Prozac, Adderall, Flonase, and Flexeril. T.350. The only clinical finding made was "limited back ROM [range of motion]." Id . Plaintiff explained that he wanted to increase his narcotic pain medication dosage so that he would not have to return to the doctor as often. T.353. He alleged shoulder/back pain but there were no objective findings on examination. The health care provider (whose signature is illegible) "suspect[ed]" Plaintiff was exhibiting "drug-seeking behavior". T.352. On March 20, 2009, Plaintiff went to the Health Center seeking more Xanax and Norco; when his request was denied, he became verbally confrontational, abusive, and loud. He stated that he was no longer going to be a patient at the Health Center and was going to go the Pain Center instead.

On April 7, 2009, Plaintiff returned to the Health Center, seeking more narcotics. T.354. His request was denied "due to no ongoing pt. doctor relationship & lack of objective medical evidence of need for chronic narcotics." T.354 (emphasis in original).

On May 7, 2009, Plaintiff was examined by consultative physician Dr. Karl Eurenius at the request of the Social Security Administration ("the SSA"). T.356-62. Plaintiff told Dr. Eurenius that he had been a bodybuilder most of his life, which Dr. Eurenius noted was apparent based on Plaintiff's gait, general movements, and musculature. T.356. Plaintiff complained of bilateral knee and shoulder pain and described his daily activities as cooking, laundry, showering, dressing himself, watching television, and listening to the radio. T.357. On examination, Plaintiff had a normal gait and stance. He was "extremely well-tanned and ha[d] a very highly developed musculature." He was able to squat fully with some low to mid-back pain and used no assistive devices. T.357. His cervical spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally although Plaintiff noted that he felt pain in the posterior neck, particularly with full rotation to the left. T.358. His lumbar spine showed full flexion to 90 degrees, with pain felt in the lower mid-back without radiation; full extension; full lateral flexion bilaterally; and full rotary movement bilaterally. Straight leg raise ("SLR") testing was positive at approximately 20 degrees bilaterally with pain felt in the lower mid-back. This result was reproduced while sitting. Plaintiff had full range of motion bilaterally in his shoulders, elbows, forearms, and wrists. He also had full range of motion of the hips, knees, and ankles bilaterally. Strength was full (at 5/5) in the upper and lower extremities. T.358-59. Plaintiff's joints were stable and nontender, and he had full grip strength.

Dr. Eurenius diagnosed chronic bilateral knee and shoulder pain, probable ligament disease, and "bipolar disorder with anxious and panic attacks per [Plaintiff]." T.359. Dr. Eurenius opined that Plaintiff was "moderately" limited in climbing more than 2 flights of stairs; kneeling; lifting more than 20 pounds; and carrying more than 40 pounds, due to chronic bilateral knee pain. Id . Dr. Eurenius believed Plaintiff's condition was "stable". T.359.

Also on May 7, 2009, Plaintiff was examined by consultative psychologist Adele Jones, Ph.D. T.363-66. Plaintiff reported being driven to the appointment by his parents with whom he lived. T.363. Plaintiff stated that he had 7½ years of college without a degree, and had only held down short-term jobs. He stated that he felt "angry and a little anxious"; no other psychiatric symptoms were reported. T.363. Plaintiff was able to care for his personal needs, cook, prepare foods, clean, launder, and drive. T.365. He claimed not to be able to manage his money and had never had to take public transportation. He had good relationships with his family and liked to work out. He spent his days watching television. T.365.

On examination, Dr. Jones found Plaintiff cooperative with a "somewhat poor manner of relating". T.364. His eye contact was appropriate and his speech was fluent. His thought processes were tangential but concrete. His affect was full range and his mood was "angry and anxious". Plaintiff's attention and concentration were intact with counting, simple calculations, and serial 3s. However, his recent and remote memory skills were mildly impaired due to anxiety during the evaluation. T.364. Dr. Jones believed Plaintiff's intellectual functioning was below average.[1] T.365. She found his insight to be fair and his judgment, adequate. For her medical source statement, Dr. Jones opined

He can appear to maintain attention and concentration, make appropriate decisions, and appropriately deal with stress. He cannot follow and understand simple directions, learn new tasks, or perform complex tasks independently. It is unclear if he can perform simple tasks independently or relate adequately with others. He appears to be able to maintain a regular schedule with his parents help. The difficulties are caused by cognitive deficits and psychiatric problems. The results of the examination appear to be consistent with psychiatric and cognitive problems, and this may significantly interfere with the claimant's ability to function on a daily basis.


Dr. Jones' diagnoses on Axis I were "deferred" and "rule out schizoaffective disorder"; her diagnosis on Axis II was borderline intellectual functioning. T.365.

Plaintiff began seeing Dr. Melanie Conolly from Unity Family Medicine at Spencerport ("Unity") on May 22, 2009, for knee and low back pain which was aggravated by bending and lifting. T.398. Plaintiff also reported that he had bipolar disorder, and that it was somewhat difficult for him to meet home, work, and social obligations. T.398. He had not seen a psychiatrist recently. T.398. On examination, Plaintiff's affect was labile and negative for anhedonia. Plaintiff did not exhibit compulsive behavior or obsessive thoughts, although he had poor insight and judgment and poor attention span anc concentration (characterized as concentration disjointed). Dr. Conolly noted that Plaintiff had very tangential, rapid speech, with flight of ideas. T.399. She referred him to Dr. Evelyn Brandon for outpatient mental health treatment. T.400.

Plaintiff saw Dr. Conolly again on June 19, 2009, complaining of continued low back pain. T.395. On examination, Plaintiff's affect was labile and negative for anhedonia, and he was not anxious or euhporic or fearful. T.396. Dr. Conolly diagnosed bipolar disorder, not otherwise specified. Plaintiff continued with his prescriptions for Xanax, Prozac, and Adderall XR.

On July 15, 2009, Plaintiff saw Dr. Conolly and complained of compulsive thoughts, poor concentration, and indecisiveness and back pain. T.392. Dr. Conolly noted that he had normal insight and normal judgment, did not exhibit anhedonia, was not fearful or anxious, was not forgetful or having memory loss, did not have mood swings, obsessive thoughts, or hopelessness. T.393-94. He did have poor attention span and concentration and pressured speech. T.393.

On August 10, 2009, Plaintiff returned to see Dr. Conolly for hypertension and a rash on his back. T.389-90. On examination, Plaintiff was in no apparent distress. T.390. Lumbar palpation revealed bilateral tenderness. His extremities appeared normal. Plaintiff was not anxious, did not exhibit compulsive behavior, was not euphoric or fearful, had no mood swings, and had normal insight and judgment, although he did have flight of ideas. T.390. Dr. Conolly opined that Plaintiff was "doing well on current meds" for his bipolar disorder. T.389.

On September 2, 2009, Plaintiff saw Dr. Conolly, stating that he was having compulsive thoughts and behaviors. T.430. Plaintiff's physical examination was essentially normal. Dr. Conolly characterized his bipolar disorder as chronic. T.431.

A physical examination on September 17, 2009, by orthopedist Michael Maloney, M.D. revealed that Plaintiff's bilateral knees had stable ligamentous testing. T.458. Dr. Maloney noted that the severity of Plaintiff's pain complaints seemed to be somewhat out of proportion to the clinical examination findings. T.458. Though Plaintiff seemed to be "somewhat adamant about his need for surgical intervention, " Dr. Maloney concluded that Plaintiff was not a surgical candidate for his alleged knee pain at that time. T.458.

Plaintiff returned to Dr. Conolly on September 23, 2009, and reported that exercise and medication relieved his depression symptoms, which were aggravated by lack of sleep. T.433. He continued to complain of "fluctuating", "intermittent" low back pain, however. Plaintiff's physical examination was essentially normal. T.435. Psychiatrically, he exhibited "[n]o unusual anxiety or ...

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