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Perez v. Colvin

United States District Court, S.D. New York

June 2, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


ANDREW J. PECK, Magistrate Judge.

Plaintiff Anthony Perez, represented by counsel, 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 him Supplemental Security Income ("SSI") benefits. (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 20: Perez Motion; Dkt. No. 25: Comm'r Motion.) The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 24: Consent Form.)

For the reasons set forth below, the Commissioner's motion is GRANTED and Perez's motion is DENIED.


Procedural Background

On August 21, 2009, Perez applied for SSI benefits, alleging that he was disabled since September 9, 1997. (Dkt. No. 14: Administrative Record filed by the Comm'r ("R.") 164-70, 175, 190.) Perez alleged disability related to post-traumatic stress disorder ("PTSD"), lead-induced dementia resulting from ingestion of lead-based paint chips, dementia resulting from head trauma, depression, nerve damage in the middle fingers of both hands, and nerve issues in his back with lower back pain. (R. 190.) On January 7, 2010, the Social Security Administration ("SSA") found that Perez was not disabled, and denied his application. (R. 57, 78-81.) Perez requested an administrative hearing. (R. 82-84.)

Administrative Law Judge ("ALJ") Michael Friedman conducted the hearing on August 16, 2010. (R. 40-56.) On August 26, 2010, ALJ Friedman issued a written decision finding that Perez was not disabled. (R. 58-68.) Perez appealed, and the Appeals Council vacated ALJ Friedman's decision and remanded the case for additional proceedings to include the testimony of a vocational expert to determine the limitations of Perez's occupational base. (R. 72-75.) On October 17, 2011, ALJ Friedman conducted a second hearing with vocational expert Victor Alberigi. (R. 5-22.) On November 7, 2011, ALJ Friedman again found Perez not disabled. (R. 25-36.) ALJ Friedman's second decision became the Commissioner's final decision when the Appeals Council denied Perez's request for review on April 30, 2013. (R. 1-3.)

On February 18, 2013, Perez filed a motion for judgment on the pleadings. (Dkt. No. 20: Perez Motion.) On March 18, 2013, the Commissioner filed a cross-motion for judgment on the pleadings. (Dkt. No. 25: Comm'r Motion.) On April 8, 2013, Perez filed a reply memorandum opposing the Commissioner's motion. (Dkt. No. 29: Perez Reply Br.)

The issue before the Court is whether the Commissioner's decision that Perez was not disabled is supported by substantial evidence.

Non-Medical Evidence

Hearing Evidence

Perez, born on August 10, 1962, was thirty-five years old at the September 9, 1997 alleged onset of his disability. (R. 164.) Perez attended school in through the ninth or tenth grade, speaks and reads English, but neither graduated high school nor received his GED. (R. 47, 198.) He received some vocational training as a health care aide. (R. 47.) Perez lives alone in a Bronx apartment. (R. 42.) However, for much of his life since 1996, Perez either has been homeless, in prison, or a transient guest at social service facilities. (R. 223.)

From 1992 to 1993, Perez worked in construction as a "[s]killed [l]aborer, " and from 1993 to 1994, he worked in a factory. (R. 179.) Perez again worked in construction as a carpenter in September-October 1997. (R. 179.) Perez stated that he lifted wheelbarrows and installed insulation, sheet rock and wooden boards. (R. 53-54.) Perez stated that he would not be able to perform these job functions in his present state, particularly in light of his inability to grip with his hands. (R. 54-55.) He worked as a health care aide in 2002, but stopped because his hands were broken. (R. 47.) At the August 16, 2010 hearing, Perez stated that a year before he had worked in construction for a few months, but had to stop because of his ailments. (R. 42-43.)

At the hearing, Perez complained of neck and shoulder pain. (R. 8, 12.) Perez stated that he feels sharp pain in his back after sitting for half an hour. (R. 12-13.) He stated that three days a week, the pain in his back prevents him from cleaning or cooking. (R. 13.) Perez had physical therapy, but it did not help. (R. 14, 43.) Resting and lying down do not help the pain. (R. 43.) Perez stated that his back pain started in 1994 when he was hit by a car while riding his bike. (R. 52.) Perez was assaulted during a robbery and required a five-hour surgery on both of his hands and staples in his head and back. (R. 44, 48.) Doctors removed a bone from Perez's middle finger on his left hand. (R. 48.) Perez has scarring on his right hand from the assault and from a childhood injury from a razor blade. (R. 48-49.)

Perez stated that he has problems standing, sitting and walking; he could stand for five minutes, sit for ten minutes and walk five blocks. (R. 9-10, 44-45.) Perez uses public transportation, goes grocery shopping, and cleans his apartment by himself. (R. 10, 45.) Perez's cooking is limited to simple meals like soup or pasta. (R. 50.) Perez has no hobbies or special interests and does not read, but he does watch television. (R. 10, 45-46.) Perez cannot open a jar or hold up a gallon of milk. (R. 49.) Perez cannot make a fist with his left hand. (R. 49.) Perez stated he could not lift a ten pound grocery bag, but could lift a one to two pound bag. (R. 45.) Perez stated that if offered a job to clean offices at night, he could not do that kind of work because of his back problems. (R. 11.) Perez also stated that he could not perform an assembly job because he cannot stand for long periods of time. (R. 11, 45.)

Perez suffers from depression and PTSD. (R. 8.) He is easily angered or upset. (R. 8.) Perez finds it hard to be around people he does not know. (R. 9.) Perez has been seeing a psychiatrist and a therapist for his depression and PTSD, each once or twice a month. (R. 8-9, 44.) Perez stated that his concentration, memory and focus are poor. (R. 9, 44.)>[1]

Medical Evidence

Prior to August 21, 2009[2]

Mental Impairments

Common Ground Housing Assistance

On December 5, 2007, Dr. Dillon Euler and Nurse Practitioner Alexandra Back performed a psychiatric examination of Perez as part of Perez's housing application. (R. 221-26.)[3] Perez was homeless, drifting between Flatbush, Crown Heights, and Park Slope for the past three to four years. (R. 221, 223.) Perez reported that he had been in jail for the previous two months due to an assault at the public assistance office. (R. 221, 223.) Perez described the experience as traumatic and expressed guilt and frustration over this regression. (R. 221.) Perez denied thoughts of suicide and homicide, visual and auditory hallucinations, and paranoid ideation, but continued to ruminate over those who have assaulted or abused him in the past. (R. 221.) Perez presented with feelings of depression, daily sadness, irritability and insomnia. (R. 221.) Perez reported severe disturbances in concentration and hyper-vigilance. (R. 221.) Perez had not used marijuana or other drugs since September 2007. (R. 221.)

Nurse Practitioner Back administered the Repeatable Battery for the Assessment of Neuropsychological Status ("RBANS"), [4] which evidenced that Perez suffers from extensive cognitive impairment in the areas of immediate and delayed memory, attention and language. (R. 221-22, 225.) His immediate memory ranked in the first percentile and his delayed memory ranked in the one-tenth percentile. (R. 225.) Perez stated that he had eaten lead-based paint as a child, and always felt "idle'" and "out of focus.'" (R. 222.) Perez reported that he passed his classes in school, but had extreme difficulty concentrating. (R. 222.) Perez sought psychiatric treatment only once before this examination. (R. 222.) Nurse Back concluded that Perez's "[f]und of knowledge [was] below average" and that he was "of borderline intelligence." (R. 225.) The report also stated that Perez "suffers debilitating problems with impulse control and lack of ability to determine [the] consequences of [his] actions." (R. 225.) The evaluation report indicated that Perez has multiple visible scars on his head, face, and hands, that Perez was appropriately groomed, and that he was pleasant and cooperative. (R. 224.) Perez's speech was normal in rate, rhythm, and volume. (R. 224.) Perez's thought process was logical, linear, and coherent, with the ability to abstract. (R. 224.)

Dr. Euler and Nurse Practitioner Back diagnosed Perez with chronic PTSD, mild major depressive episode, and lead-induced persisting dementia and dementia due to a head trauma on Axis I, mandibular fracture, bilateral surgical repair of his hands, arthritis in his knees, and chronic neck and back pain on Axis III, and a Global Assessment of Functioning ("GAF") score of 40 on Axis V. (R. 226.)[5] They recommended that Perez be placed in supportive housing and referred Perez for cognitive remediation of his dementia. (R. 226.) They prescribed Lexapro and Ambien. (R. 226.)

On August 12, 2008, Dr. Euler and Nurse Practitioner Back performed an updated psychiatric evaluation of Perez. (R. 227-28.) Perez reported situational depression and poor impulse control. (R. 227.) Perez stated that he continues to suffer from severe concentration disturbances, feelings of detachment from others, and insomnia. (R. 227.) Perez had followed his Lexapro and Ambien regimen until April 2008 when he left transitional housing and returned to the streets. (R. 227.) Perez reported that the medications were effective. (R. 227.)

The evaluation report indicates that Perez was appropriately groomed, pleasant and cooperative. (R. 229.) Perez's speech was normal in rate, rhythm, and volume. (R. 229.) Perez's thought process was logical, linear, and coherent, with the ability to abstract. (R. 229.) His insight and judgment were good at the time of the evaluation. (R. 230.) Dr. Euler and Nurse Practitioner Back diagnosed Perez with a cognitive disorder, lead-induced dementia and dementia from head trauma, chronic PTSD, cannabis and alcohol dependence, and mild major depressive episode on Axis I, mandibular fracture, bilateral surgical repair of his hands, arthritis in his knees, and chronic neck and back pain on Axis III, and a GAF score of 50 on Axis V. (R. 230.)[6] Dr. Euler and Nurse Practitioner Back recommended continued psychiatric treatment, medication, and substance abuse treatment and support. (R. 231.)

Physical Impairments

Jamaica Hospital Medical Center

On February 21, 2008, Perez presented at Jamaica Hospital Medical Center ("JHMC") complaining of pain, parasthesia and limited range of motion in both hands. (R. 247.) The injuries stemmed from a 2006 assault where Perez was beaten with a metal pipe. (R. 247.) X-rays revealed an old healed fracture of the fifth metacarpal on the right hand, with significant callous formation at the fracture site. (R. 247-48.) The rheumatoid factor was negative. (R. 247, 249.) The remaining bony structures in Perez's hands were within the normal limits and the joint spaces were well-maintained. (R. 248.) The consultation report indicated a plan of occupational therapy twice a week for four weeks. (R. 247.)[7]

After August 21, 2009

Mental Impairments

Common Ground Housing Assistance

On October 2, 2009, Dr. Euler and Nurse Practitioner Back completed a New York State Office of Temporary and Disability Assistance questionnaire concerning Perez's mental ability to function. (R. 211-18.) Referencing their findings from their examinations in December 2007 and August 2008 (the last time they saw Perez), Dr. Euler and Nurse Practitioner Back concluded that Perez had a "poor" ability to perform work-related mental activities. (R. 216.) They noted that Perez suffered from limitations in understanding and memory, sustained concentration and persistence, social interaction and adaption. (R. 217, 219-31.)

Consultative Examinations

On November 20, 2009, Dr. Herb Meadow consultatively examined Perez for the New York Division of Disability Determination. (R. 255-58.) Perez had entered psychiatric treatment six months earlier and currently was seeing Dr. Santilli at Premosa once a month. (R. 255.) Perez presented with complaints of insomnia, depression, moodiness, irritability, low energy, diminished self-esteem and difficulty concentrating. (R. 255.) Perez had passive suicidal thoughts, but no intent. (R. 255.) He had flashbacks and nightmares about his 2006 assault. (R. 255.)

Dr. Meadow's mental status evaluation revealed a coherent and goal-directed thought process and intact attention and concentration. (R. 256.) Perez was able to repeat three out of three objects immediately and after five minutes during a memory test. (R. 256.) Perez had average cognitive functioning with a general fund of information appropriate to his experience. (R. 257.) Perez's insight and judgment were fair. (R. 257.) Dr. Meadow noted that Perez takes care of his personal hygiene, does household chores and socializes with friends and family. (R. 257.) Dr. Meadow's medical source statement says "[t]he claimant would be able to perform all tasks necessary for vocational functioning. The results of the exam appear to be consistent with psychiatric problems, but in itself does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." (R. 257.) Dr. Meadow diagnosed PTSD, adjustment disorder with depressed mood, and alcohol and cannabis abuse/dependence in remission on Axis I, and hand pathology, peripheral neuropathy, and back and neck pain on Axis III. (R. 257.) Dr. Meadow recommended that Perez continue with his psychiatric treatment. (R. 257.)

On January 4, 2010, Dr. L. Meade, a psychologist from the New York State Division of Disability Determinations, performed a psychiatric review of Perez. (R. 274-87.) Dr. Meade concluded without elaboration that Perez's mental impairment was not severe. (R. 274.)

South Bronx Mental Health Council

On April 30, 2010, Perez presented at the South Bronx Mental Health Council complaining of depression, anxiety, fear of being assaulted, poor memory and bad dreams. (R. 298-300.) Perez stated that he had abstained from alcohol and marijuana for the past two years. (R. 298-99.) Perez had seen a chiropractor for his back. (R. 299.) The screening therapist diagnosed depression, PTSD, back and neck problems and a history of homelessness. (R. 300.) Perez's GAF score was 55. (R. 300.)[8] A subsequent treatment evaluation on May 28, 2010 revealed anxiety and paranoia, specifically Perez's belief that others were targeting him. (R. 335-36.)

On June 9, 2010, psychiatrist Dr. Margaret Chu performed a mental status evaluation. (R. 302-19.) Perez appeared well-groomed with clearly articulated speech and no motor behavior abnormalities. (R. 302, 316.) Dr. Chu noted that Perez was cooperative but demanding and manipulative. (R. 304.) Perez indicated that he believed he had dementia because of his forgetfulness, but Dr. Chu stated that Perez had no difficulty with concentration or attention. (R. 318.) Perez had an average fund of knowledge and average intelligence. (R. 318.) Dr. Chu diagnosed Perez with depression, a personality disorder and paranoid features. (R. 319.) Perez's GAF score was 60. (R. 319.)

On July 12, 2011, Dr. Chu performed a follow-up evaluation. (R. 339.) Dr. Chu noted that Perez seemed less anxious and since the last evaluation no irritability or psychotic features were reported. (R. 339.) Perez remained isolated because his friends liked to drink and use drugs. (R. 339.) Perez's GAF score was 60-65. (R. 339.)[9]

Physical Impairments

Consultative Examinations

Dr. Dipti Joshi consultatively examined Perez for the New York State Division of Disability Determinations on November 20, 2009. (R. 259-63.) Perez presented with numbness, tingling, and sharp pain in both hands, subjectively rated as seven out of ten in both hands. (R. 259.) Perez also complained of intermittent and spasmodic nonradiating neck and lower back pain, rated as five out of ten, but worse when the weather changes. (R. 259.) Perez reported Lipitor, Lexapro, Lyrica, Zolpidem and Skelaxin as his current medications. (R. 260.)

Dr. Joshi's report indicated that Perez lives alone, cooks every day, cleans every week and does laundry and grocery shopping every two weeks. (R. 260.) Perez showers and dresses himself daily. (R. 260.) Perez likes to watch TV and socialize with friends. (R. 260.) Perez's gait and stance were normal, and he appeared to be in no acute distress. (R. 260.) Perez was able to rise from a chair without difficulty and did not require assistance changing for the exam or getting on or off the exam table. (R. 260.) Perez's lumbar spine showed full flexion and extension, full right lateral flexion and left lateral flexion approximately thirty degrees, and full rotary movement bilaterally. (R. 261.) Perez reported mild point pain in his cervical spine region around C5 to C7. (R. 261.) The cervical spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally. (R. 261.) An x-ray noted degenerative changes. (R. 262, 265.) Perez had full range of motion in both his shoulders, elbows, forearms and wrists. (R. 261.) However, Perez was unable to flex his third digit on his left hand and had difficulty fully flexing his fifth digit on his right hand. (R. 261.) Perez's grip strength in his left hand measured four out of five, and he was able to zip, button and tie with that hand. (R. 262.) Fine motor activity was preserved in both hands. (R. 262.)

Dr. Joshi concluded that Perez had neuropathic symptoms in both hands with limited grip strength in the left hand, intermittent and spasmodic neck and lower back pain, and depression. (R. 262.) Dr. Joshi described Perez's limitation as moderate in gripping with his left hand, and pushing, pulling, carrying, and lifting with both hands. (R. 262.)

On January 4, 2010, Dr. Patelunas completed a physical residual functional capacity assessment of Perez. (R. 268-73.) Dr. Patelunas concluded that Perez could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, and stand, sit, and/or walk for a total of about six hours in an eight hour workday. (R. 269.) Perez's capacity to push and/or pull, including operating hand and foot controls, was unlimited. (R. 269.) Accordant with Dr. Joshi's findings, Dr. Patelunas noted that Perez's grip strength was four out of five in the left hand, he could not flex the third digit on his left hand, and he had difficulty flexing the fifth digit on his right hand. (R. 269.)

Jamaica Hospital Medical Center

On October 10, 2011, neurologist Dr. Osafradu Opam stated that Perez had been treated for chronic neck and lower back pain, muscle spasms, and fibromyalgia. (R. 343.)

Vocational Expert Testimony

At the second ALJ hearing on October 17, 2011, consistent with the Appeals Council's remand instructions, ALJ Friedman asked vocational expert Victor Alberigi whether work existed in significant numbers for an individual who was restricted to low-stress, simple work that required only occasional contact with supervisors and co-workers and minimal contact with the public. (R. 16.) Alberigi replied that such work existed in the form of an office or hotel cleaner, of which 1.5 million positions existed in the national economy with over thirty thousand in the greater New York metropolitan area. (R. 16-17.) Alberigi testified that those jobs were "illustrative" and there were other available jobs as well. (R. 17.) However, if Perez were to miss more than two or three days of work a month on an ongoing basis, there would not be jobs available. (R. 19-20.)

ALJ Friedman's November 7, 2011 Decision

On November 7, 2011, ALJ Friedman issued a second written decision denying Perez's application for SSI benefits. (R. 25-36.)

ALJ Friedman applied the appropriate five-step legal analysis. (R. 29-35.) First, ALJ Friedman found that Perez had "not engaged in substantial gainful activity since August 21, 2009, the application date." (R. 30.) Second, he determined that Perez had the severe impairments of major depressive disorder and PTSD. (R. 30.) However, ALJ Friedman determined that Perez's mild cervical degenerative disc disease and his post-assault hand injuries were nonsevere physical impairments. (R. 30.) Third, ALJ Friedman found that Perez did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (R. 30-31.) ALJ Friedman determined that Perez had the residual functional capacity to perform a full range of low-stress, simple work at all exertional levels that allows for occasional contact with supervisors and co-workers, and minimal contact with the general public. (R. 31.)

ALJ Friedman made a credibility determination about Perez's subjective pain allegations, finding that Perez's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (R. 32.) ALJ Friedman noted that there was no objective medical evidence of any severe physical impairment. (R. 33.)

ALJ Friedman gave consultative examiner Dr. Joshi's findings that Perez had moderate limitation in gripping with his left hand and pushing, pulling, carrying, and lifting with both hands "little weight" because they were "inconsistent with [Perez's] reported level of functioning, " that is, that Perez "can cook, clean, do laundry, and shop, " as well as shower and dress himself daily. (R. 33.) ALJ Friedman also gave Dr. Patalunas' consultative opinion as to Perez's physical impairment "little weight, " finding it "inconsistent with the record as a whole." (R. 33.) ALJ Friedman further noted that the Appeals Council, in reviewing Perez's first appeal, "held that the evidentiary record does not support a medically determinable back impairment" and that "there is little, if any, evidence of a severe physical impairment causing work related functional limitations." (R. 33.)

Further, while ALJ Friedman acknowledged that there was evidence of psychiatric impairments, he found that those impairments did not inhibit Perez's capacity to perform "the mental demands of basic unskilled work." (R. 33.) ALJ Friedman gave "little weight" to Dr. Euler and Nurse Practitioner Back's 2007-08 assessment that Perez "has a poor ability to perform work related me[n]tal activities" and that he "suffers significant cognitive impairment" because the "treatment notes end in 2008, prior to the application date, and there is no indication that the severity level of his impairment has remained the same." (R. 34.) To the contrary, ALJ Friedman noted that Perez's "activities of daily living do not support [the finding of] limited function." (R. 34.) However, ALJ Friedman also gave "little weight" to consultative examiner Dr. Meadow's finding that Perez "would be able to perform all tasks necessary for vocational functioning" because Dr. Meadow failed to consider Perez's subjective complaints. (R. 34, emphasis added.) The South Bronx Mental Health Council records indicated depression and PTSD, anxiety, some paranoid ideation and preoccupations, and improving GAF scores in the moderate range. (R. 33-34.)

At the fourth step, ALJ Friedman determined that Perez had no past relevant work. (R. 34.) At the fifth and final step, ALJ Friedman found that, "[c]onsidering [Perez's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Perez] can perform, " based on the vocational expert's testimony. (R. 35.) ALJ Friedman concluded that Perez was not "under a disability, as defined in the Social Security ...

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