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McCreery v. Commissioner of Social Security

United States District Court, S.D. New York

July 9, 2014

DAVID McCREERY, Plaintiff,



Plaintiff David McCreery, proceeding pro se, filed this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking review of a decision of the Commissioner of Social Security (the "Commissioner") that denied Plaintiff's application for Social Security Disability Insurance benefits based on a finding that Plaintiff was not disabled under the Act. Defendant has moved, unopposed, for judgment on the pleadings requesting that the Commissioner's decision be upheld. Because the Commissioner's decision is supported by substantial evidence, Defendant's motion is granted.


A. Plaintiff's Physical Impairments and Medical Evaluations

In 1992, Plaintiff was struck in the head by a crane hook while on the job. (SSA Rec. 5). Shortly after the incident, Plaintiff testified that he began experiencing "funny feelings in [his] head" and recurrent headaches. ( Id. at 5, 28). According to Plaintiff, he was examined by a doctor, and underwent a CAT scan and neurological evaluation, but those examinations revealed no impairments. ( See id. at 5-6).

In 2006, approximately 13 years later, Plaintiff indicated that he was still experiencing headaches, which he attributed to the 1992 work-related crane injury. ( See SSA Rec. 5-6). Because he was still experiencing headaches, Plaintiff went for medical evaluation. In February 2006, a sleep-deprived electroencephalogram ("EEG") was performed on Plaintiff, which revealed that he had bi-temporal slowing and sharp waves, suggesting potential epileptogenic activity (i.e., seizures). ( Id. at 180, 188, 216). Plaintiff was prescribed medication for the reported headaches. ( Id. at 180). Additional EEG monitoring was conducted from July 17 to 22, 2006; all tests returned "normal" results, even when Plaintiff was taken off his prescribed medication. ( Id. at 194). In March and May 2006, Plaintiff also had magnetic resonance imaging ("MRI") examinations of the brain, both of which revealed no abnormalities. ( Id. at 210-11). The record does not contain medical evaluations for Plaintiff between 2006 and 2010, and it appears that no such evaluations were conducted.

In May of 2010, Plaintiff began taking days off from work because of the headaches he was experiencing. (SSA Rec. 27). Ultimately, Plaintiff was terminated from his job due to the amount of sick leave he had taken as a result of his headaches. ( Id. ). Plaintiff now contends that he became disabled as of May 22, 2010, due to headaches and back problems. ( Id. at 100).

In 2010, Plaintiff was evaluated by two doctors. First, on June 24, 2010, Dr. Leena Philip, an internist, evaluated Plaintiff. (SSA Rec. 162). Dr. Philip's report included Plaintiff's reports that he had a history of headaches that he attributed to the 1992 work-related injury, and that he gets headaches daily that range between three to four on a scale of one to ten (with ten being the worst), and that at times he feels like he is "spacing out." ( See id. ). As for back pain, the report indicated that Plaintiff reported having low back pain since age fifteen that occurred suddenly after kicking a basketball. ( Id. ). Plaintiff had never had any x-rays or an MRI to evaluate the back pain, and informed Dr. Philip that he last saw a chiropractor for treatment ten years ago. ( Id. ). Dr. Philip indicated that there was "no radiation of the low back pain; no associated numbness or tingling, " and that Plaintiff described the pain as a one to two on a scale of ten being the worst. ( Id. ). The report also documented that Plaintiff has a history of spastic colon since the age 20 and that he has been diagnosed with irritable bowel syndrome. ( Id. ).

Dr. Philip's report indicated that Plaintiff's general appearance and gait were normal; he appeared not to be in any acute distress; and he did not need the use of any assistive devices. (SSA Rec. 163). An x-ray of Plaintiff's spine showed that there was disc-thinning and facet arthropathy in the lower spine. ( Id. at 165). Dr. Philip's physical examination, however, revealed no abnormalities. ( See id. at 163-64). After examining Plaintiff, Dr. Philip diagnosed him with (i) a history of low back pain; (ii) a history of chronic headaches; and (iii) a history of irritable bowel syndrome. ( Id. at 165). The doctor concluded that in her "medical opinion, there [were] no medical limitations for [Plaintiff] at [that] time." ( Id. ).

Plaintiff was also evaluated by Dr. Kishori Shah on April 14, 2011. (SSA Rec. 167-72). Dr. Shah's report summarized Plaintiff's condition with respect to his headaches in a similar fashion as Dr. Philip's report. Dr. Shah reported that Plaintiff advised that his headache symptoms included "spacey feeling, numbness in the face, [and] some pain in the left side of the scalp." ( Id. at 167). These symptoms were "always there, " according to Plaintiff, and got worse when he was very tired. ( Id. ). Plaintiff confirmed that he was not taking any medication except Motrin. ( Id. ).

Plaintiff related to Dr. Shah that he had experienced lower back pain since he was a teenager. (SSA Rec. 167). In contrast to his statements to Dr. Philip, however, Plaintiff reported to Dr. Shah that he was seeing a chiropractor, who had conducted x-rays that returned "negative" results. ( Id. ). Plaintiff described the pain at a level of ten at times, and noted that "[l]ifting and carrying makes [Plaintiff] have pain in his lower back." ( Id. ). Plaintiff reported his history of irritable bowel syndrome. ( Id. at 168). He also reported that he had episodes of anxiety for the last two to three years and experienced tremors in his left arm at times for the last year, but had not received treatment for either of these conditions. ( Id. at 170). An x-ray on Plaintiff's spine showed "degenerative changes." Dr. Shah's physical examination, however, identified no abnormalities. ( Id. at 168-69). Dr. Shah diagnosed Plaintiff with (i) a history of lower back pain; (ii) a history of headaches; (iii) irritable bowel syndrome; (iv) a history of anxiety; and (v) a history of left hand tremors. ( Id. at 170). From this, Dr. Shah concluded that Plaintiff has "mild restriction for heavy lifting, carrying, and bending over." ( Id. ).

Plaintiff testified in connection with his application for benefits that he has experienced "steady" headaches that have gotten "progressively worse" since 1992. (SSA Rec. 28). He confirmed that since the onset of this claimed disability (i.e., on May 22, 2010), he has not been prescribed any medication for his headaches, but rather only takes over-the-counter medications, such as Motrin, for relief. ( Id. at 29). Plaintiff acknowledged that his condition did not prevent him from caring for himself or his elderly mother, with whom he lives. ( Id. at 31, 108). Among other things, Plaintiff is capable of helping around the house by vacuuming, doing the dishes, mowing the grass, going grocery shopping, preparing meals, and removing snow in the winter. ( Id. at 31-32, 108-09). In his spare time, Plaintiff testified that he watches television and performs auto mechanic work in his garage. ( Id. at 32-33).

B. Work History

The record demonstrates that Plaintiff has held three full-time employment positions since 1995. ( See SSA Rec. 101). From June 1995 through July 1996, Plaintiff was employed as a carpenter for a construction company. ( Id. ). Plaintiff then worked as a delivery truck driver from October 1996 through March 1997. ( Id. ). Finally, from April 1997 through May 2010, when Plaintiff asserts he became disabled, he worked as a mechanic for an energy service company. ( Id. ).

Since May 22, 2010, the onset of Plaintiff's alleged disability, he has completed a minimal amount of auto mechanic work from the garage of his home, and also performed mechanic work for one individual during the summertime. (SSA Rec. 25). Plaintiff works approximately one day ...

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