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Patterson v. Colvin

United States District Court, S.D. New York

June 9, 2014

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

Decided June 6, 2014

Page 357

Nikimia Patterson, Plaintiff, Pro se, Bronx, NY.

For Commissioner of Social Security, Defendant: Joseph Anthony Pantoja, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY.


Page 358


GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Nikimia Patterson brings this action pro se pursuant to 42 U.S.C. § § 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claims for Disability Insurance Benefits and Supplemental Security Income (" SSI" ) under the Social Security Act. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Patterson has not responded to the motion. For the reasons stated below, the Commissioner's motion is granted.


A. Patterson's Claim for Benefits and Procedural History

Patterson applied for disability benefits on November 5, 2010, and for SSI benefits on November 12, 2010, alleging that she became disabled on July 16, 2008. See Administrative Record, filed Nov. 21, 2013 (Docket # 10) (" R." ), 79, 248-65. She was insured for benefits through December 31, 2012. R. 79. Patterson was born on October 31, 1971, R. 248, and has most recently worked as a home health aide, R. 89.

On February 23, 2011, the Commissioner denied Patterson's application for disability and SSI benefits. R. 182-87. Patterson requested a hearing before an administrative law judge (" ALJ" ). R. 188-91. The ALJ held a hearing on February 1, 2012. R. 158-78. On April 5, 2012, the ALJ issued a decision finding that Patterson was not disabled. R. 79-91. Patterson appealed the ALJ's ruling to the Appeals Council, R. 72, but her request for review was denied on April 22, 2013, R. 1-4.

On June 24, 2013, Patterson filed the instant pro se lawsuit seeking review of the ALJ's decision under 42 U.S.C. § § 405(g) and 1383(c)(3). See Complaint, filed June 24, 2013 (Docket # 2). The Commissioner moved for judgment on the pleadings. See Notice of Motion, filed Nov. 21, 2013 (Docket # 11); Memorandum

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of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, filed Nov. 21, 2013 (Docket # 12) ("Gov't Mem." ). When Patterson failed to respond, the Court issued an order sua sponte extending her time to do so. See Order, filed Jan. 2, 2014 (Docket # 16). Notwithstanding this Order, Patterson has filed no papers in opposition to the Commissioner's motion. The parties consented to this matter being decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consent to Proceed Before United States Magistrate Judge, filed Jan. 30, 2014 (Docket #18).

On March 10, 2014, this Court issued an order requesting the parties to provide additional briefing on three issues: (1) whether the ALJ satisfied his duty to develop the record; (2) whether the ALJ gave proper consideration to Patterson's right knee medical condition; and (3) whether the Appeals Council failed to consider additional evidence supplied by Patterson. See Order, filed Mar. 10, 2014 (Docket # 19) (" Order" ). The Commissioner addressed these issues in a letter dated March 17, 2014. See Letter, filed Mar. 19, 2014 (Docket # 21) (" 3/17/14 Letter" ). Patterson did not respond to this Order.

B. The Administrative Record

The Commissioner has provided a summary of the medical evidence contained in the administrative record. See Gov't Mem. at 2-12. Patterson has not contested the Commissioner's summary of this evidence. Having examined the administrative record, the Court adopts the Commissioner's summary as accurate and complete for purposes of the issues raised in ths suit. We discuss the portions of the record pertinent to the adjudication of this case in section III below.

C. The ALJ Hearing

At the hearing before the ALJ on February 1, 2012, Patterson testified that she lives in an apartment with her five children, who range in age from seven to nineteen. R. 162. Patterson has a high school diploma, id., and has previously worked as a home health aide and certified nursing assistant, R. 163-64. To receive the certification to become a nursing assistant, she took a six-week training course in which she obtained " basic knowledge of the nursing field, temperatures, ADL's, and basic care for . . . senior citizens, elderly, and young people." R. 164. She also took a three-week course to receive her certification to become a home health aide. Id. Patterson testified that she had been driven to the hearing that day but that she is capable of traveling by bus or subway by herself. R. 163.

When asked to describe her alleged disability, Patterson explained: " The left knee. It twisted as I was coming up from performing one of my duties, and I -- it twisted and I felt a pop and then it swelled up, and then I had to call my job, and explain to them the situation that happened, and then they told me to just go straight to the emergency room." R. 164. The injury occurred on July 16, 2008, and Patterson stated that afterwards she was not able to return to her job. R. 165. However, she babysat for several months so that she had some income. Id.

Patterson testified that she had received a " same day operation" for her left knee injury performed by Dr. Michael Palmeri on June 10, 2009, and that she was considering undergoing a second surgery for that knee. R. 166-67. She explained that Dr. Palmeri and his assistant Richard Cohen had recommended the second surgery because " there is [sic] degenerate changes in the knee and [she] now [has] an ACL tear, and they need to -- they want to go back in

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to repair it." R. 167. Patterson stated, " I also have the form of osteoarthritis that is forming in the knee, and I have a degree of joint damage." Id. Patterson has not been prescribed a cane or walking device, but she keeps a cane in her house that she uses periodically. R. 168. She also testified that she no longer goes to physical therapy, but she still regularly sees Dr. Palmeri. Id. When asked by the ALJ if Dr. Palmeri had given her any medications, Patterson replied that she takes Percocet to treat the pain and Mobic for the inflammation. Id. She described the pain in her left knee as follows: " It's sharp and it's constant. Every day it's a little different, and some days it's more than the other . . . . Some days it's a little pain, and some days, like today, I got up and it was raining. It was throbbing bad." R. 169. When then asked if the Percocet helped, Patterson responded, " [i]t doesn't like take the pain away right away . . . [but] when the Percocet kicks in then I'm fine." Id.

As to any possible mental impairment, Patterson testified that she is not receiving any psychiatric treatment. R. 165. She stated that she has never been hospitalized for mental health issues and that she is not currently seeing any mental health professional or taking any medication in order to treat those issues. R. 166. Patterson also said that she is getting along well with her children and that she has a " couple" of friends. R. 165-66.

Patterson testified that she had been seeing Dr. Sana Bloch because she had been having " terrible headaches," but Dr. Bloch had not been able to " pinpoint exactly where they were coming from, and what type of headaches they were." R. 169. Dr. Bloch had given Patterson medication for the headaches, but she stopped taking the medication because the headaches " pretty much seem to come and go." R. 169-70.

The ALJ questioned Patterson about her daily activities. She testified: " I have five children. So my day starts off that I have to get up at 5:30 in the morning. My son has to catch a bus by 6:42. So I have to get him up, dressed, and out of the house on the bus, and then the rest of the kids, they are high school students. So they get themselves off, and then I have to walk my daughter to school." R. 170. Her daughter's school is three blocks from Patterson's home. Id. When her children are at school Patterson generally stays at home and rests. Id. When asked who cleaned the house, Patterson responded, " [w]ell, when the kids come home . . . they have the chores to do. I mean, I cook. I do the cooking but I have, you know, all the kids. So they participate in the cooking . . . And I do as much cleaning as I . . . can do that doesn't involve bending. As long as it doesn't involve the bending I can do it." Id. Patterson further explained, " [t]he bending is excruciating pain for me, and I get down there I can't get up. So if I bend down I need help to get up." Id.

Patterson generally does not have problems walking, but she sometimes has to tolerate knee pain when walking. R. 171. When asked whether she has any problem walking three blocks back and forth when she takes her daughter to school, Patterson replied, " sometimes it takes me longer to get to the school, but I just take my time to get there." Id. Patterson reported that she does not have any problems standing or lifting or carrying things. Id. Additionally, she reported having " just a little pain sitting." Id.

Finally, Patterson informed the ALJ that she was also planning to have surgery on her right knee. Id. When asked whether she had suffered the right knee injury in the same accident as the left knee injury, she replied, " [i]t's two different. I think it's just a period of time with the

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bending and stuff from working as a home health aide. So I have a meniscus tear in my right knee." R. 171-72. The ALJ then asked Patterson when the right knee injury appeared, to which Patterson responded, " [t]hat started maybe like six months ago, and I went to physical therapy with my regular physician for that." R. 172. Additionally, Patterson stated that she has been seeing a different doctor, whom she identified as " Dr. Sotelo," to treat the right knee injury. Id.

The ALJ noted that there was nothing in Patterson's medical history record pertaining to the right knee injury. Id. He asked Patterson for Dr. Sotelo's contact information so that he could subpoena Patterson's medical record from him. R. 174. Patterson told the ALJ that she would fax him Dr. Sotelo's contact information. Id. The Administrative Record indicates that on February 10, 2012, Patterson faxed the ALJ a document in which she wrote the address and full name of " Dr. Danilo Sotelo." R. 1222. On February 16, 2012, the ALJ issued a subpoena to Dr. Sotelo ordering him to produce Patterson's medical record. R. 1223-24. Dr. Sotelo did not respond to the subpoena. R. 79.

A vocational expert, Raymond Cestar, relied on the Dictionary of Occupational Titles (" DOT" ) to testify that Patterson has past relevant work as a certified nursing assistant, a home health aide, and a babysitter, and that all of these are categorized as medium exertion jobs. R. 175-76. Cestar assessed that " a person with the same age, education, and past relevant work [as Patterson] . . . [who] is capable of performing the exertional demands of the full range of light and sedentary work with no significant bending or stooping" would not be able to perform any of Patterson's past relevant work. R. 176. However, Cestar testified that a hypothetical person with such restrictions could perform the following jobs: a clerical worker, which is an unskilled sedentary job of which there are approximately 6,500 positions in the local economy and 100,000 positions nationally; an assembler, which is a sedentary and unskilled job with 2,600 positions in the local economy and 229,000 in the national economy; an order clerk, which is a sedentary and unskilled job with 6,000 positions in the local economy and 200,000 in the national economy; a mail clerk, which is a light exertion and unskilled job with 7,000 positions in the local economy and 119,000 in the national economy; a fast food worker, which is a light exertion and unskilled job with 58,000 positions in the local economy and 2.6 million in the national economy; and a cashier, which is a light exertion and unskilled job with 97,000 positions in the local economy and 3.3 million in the national economy. R. 176-77.

D. The ALJ's Decision

On April 5, 2012, the ALJ issued a decision denying Patterson's request for benefits. R. 79-91. The ALJ found that Patterson suffers from the following severe impairments: " left knee medial and lateral meniscal tear, a Grade III chondral injury patella and lateral tibial plateau, synovitis and left knee cyst with partial tear ACL and anterior horn of the lateral meniscus . . . and headaches." R. 81. The ALJ found that Patterson's depression is a non-severe impairment that " has not resulted in any significant mental limitations." R. 83. The ALJ determined that none of Patterson's impairments or combination of impairments " meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." Id. ...

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