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O'Brien v. Colvin

United States District Court, E.D. New York

September 8, 2014

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


DORA L. IRIZARRY, District Judge.

On March 8, 2010, Plaintiff Kevin John O'Brien ("Plaintiff") filed an application for Social Security disability insurance benefits ("DIB") under the Social Security Act (the "Act"), alleging disability beginning on October 12, 2002 through June 30, 2009, the date last insured. ( See Certified Administrative Record ("R."), Dkt. Entry No. 17 at 10.) On July 16, 2010, his application was denied and he timely requested a hearing. (R. 130-131.) On October 12, 2011, Plaintiff appeared with counsel, and testified at a hearing via video teleconference before Administrative Law Judge Hilton R. Miller (the "ALJ"). (R. 97-114.) By a decision dated October 25, 2011, the ALJ concluded Plaintiff was not disabled within the meaning of the Act. (R. 7-19.) On November 7, 2012, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-6.)

Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. ยง 405(g). ( See Complaint ("Compl."), Dkt. Entry No. 1.) The Commissioner moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking affirmation of the denial of benefits. ( See Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem."), Dkt. Entry No. 13.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. ( See Mem. in Opposition to Def.'s Mot. for J. on the Pleadings and in Supp. of Pl.'s Cross Mot. ("Pl. Mem."), Dkt. Entry No. 15.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted and Plaintiff's motion for judgment on the pleadings is denied. The instant action is dismissed.


A. Non-Medical and Self-Reported Evidence

1. Work History

Plaintiff was born in 1953.[1] (R. 170.) He completed three years of college, and graduated from the Fire Academy in 1981. (R. 195.) Plaintiff worked as a firefighter for the New York City Fire Department ("FDNY") for twenty-one years, retiring in October 2002. (R. 100-101.) On March 23, 2010, while his DIB application was pending, Plaintiff submitted a Work Activity Report for a Self-Employed Person. (R. 186-189.) Plaintiff indicated that, after retiring from the FDNY, he worked as a convention consultant for firefighter trainings that occurred twice a year. ( Id. ) For each convention, he served as an organizer and worked approximately six days. (R. 186-187.) His annual gross salary for the conventions was $1, 800.00 and he reported earnings for the years 2007 through 2009.

2. Medical History

Plaintiff was a first responder to the World Trade Center ("WTC") terrorist attacks on the morning of September 11, 2001. (R. 13.) Plaintiff alleges that, due to his service at the WTC, he developed severe respiratory conditions that caused him to stop working as a firefighter. ( Id. )

Plaintiff testified that, when he retired from the FDNY in 2002, he "felt fine but as the years went further away from September 11 [he] started developing asthmatic and sinus conditions." (R. 13, 101.) He started treatment for his pulmonary conditions in 2004. (R. 103.)

Plaintiff alleges that, due to his conditions, he is unable to engage in any physical activity. (R. 204.) He is restless at night and sleeps during the day. ( Id. ) He feels winded and fatigued, and is unable to assist with household chores. (R. 205, 206.) Plaintiff has a driver's license and is able to drive his car for short distances. ( Id. ) He shops for light items for short periods of time. (R. 207.) Plaintiff is able to walk for ten minutes, but then must rest for three minutes. (R. 209.) During the day, Plaintiff prepares simple meals, takes his medications, attends doctor's visits, but mostly remains at home resting. (R. 102, 204-205.)

On February 18, 2010, the Medical Board of the FDNY ("FDNY Medical Board") granted Plaintiff's application for Accident Disability pursuant to the WTC Bill for a lower respiratory condition. (R. 310.) The FDNY Medical Board noted that Plaintiff's condition at the time (moderate chronic obstructive pulmonary disease ("COPD") with a bronchospastic component) would preclude full firefighting, but that he could engage in a "suitable occupation." ( Id. ) Subsequently, on March 24, 2010, Plaintiff's retirement status was modified to reflect his award of Accident Disability Retirement. (R. 161.)

Plaintiff testified that he suffers from weekly asthma attacks that last fifteen to twenty minutes. (R. 102.) These attacks remind him of trying to breathe "at a fire and [his] mask running out." (R. 103.) He also suffers from "minor attacks" during which he cannot stop coughing. (R. 102.) Plaintiff reported that the physicians who examined him tried "every combination" of inhalers, and that "some of them worked at certain times and some of them just don't." (R. 103.) Plaintiff testified that humidity, temperature changes, air conditioning, dust, and certain smells and perfumes aggravate his lung condition. (R. 102.)

B. Medical Evidence

1. Medical Evidence from the Relevant Period (October 12, 2002 to June 30, 2009)

On June 27, 2004, Dr. David Prezant from the FDNY Bureau of Health Services clinic examined Plaintiff. (R. 320, 334.) Plaintiff reported that he spent nearly everyday at the WTC site until the site closed. ( Id. ) Plaintiff was an ex-smoker, and had started smoking again on September 11, 2001. ( Id. ) Plaintiff smoked about one pack of cigarettes every one to two days. ( Id. ) Plaintiff complained of a new dry, daily cough, gastroesophageal reflux disease ("GERD"), new significant sinus congestion and nasal drip, and wheezing in the morning hours. He also mentioned that he coughed blood during the first month he worked at the WTC site. ( Id. ) Plaintiff denied taking any medications at the time. His lungs were clear and his throat and heart were normal. ( Id. ) Plaintiff had lost weight due to diet and increased work. ( Id. ) Dr. Prezant's impressions were a sinus disorder and tracheitis. ( Id. ) He diagnosed Plaintiff with an unspecified respiratory disease and tracheitis. ( Id. ) Dr. Prezant recommended that Plaintiff attend a tobacco cessation program and prescribed him Rhinocort, Atrovent, and Doxycycline. ( Id. )

On July 2, 2004, Plaintiff underwent a pulmonary-function test, which showed that Plaintiff's forced expiratory volume ("FEV1") was 74% of the predicted value, and that Plaintiff's lung age was 82. (R. 290.) The results were interpreted as low vital capacity possibly due to restriction of lung volumes. ( Id. ) His electrocardiogram ("EKG") results were normal. (R. 292.) Plaintiff was diagnosed with skin cancer on this date. (R. 319, 333.) The doctor made no findings as to Plaintiff's work status. (R. 319.)

On July 21, 2004, Plaintiff underwent a Methacholine bronchoprovocation study, which showed a reduced FEV1/forced vital capacity ("FVC") ratio, and reduced mid-expiratory airflows. (R. 379.) The impression was obstructive airway dysfunction, with evidence for bronchial hyper-reactivity during Methacholine bronchoprovocation. ( Id. )

On July 25, 2004, Plaintiff was diagnosed with asthma/reactive airways dysfunction syndrome ("RADS"), and sinusitis. (R. 318, 332.) The FDNY Medical Board physician who examined Plaintiff counseled him to quit smoking, but Plaintiff decided to "[hold] off" until his wife's medical condition improved. ( Id. ) The physician prescribed Rhinocort, Benadryl, Advair, and Albuterol for attacks. ( Id. ) He discontinued Atrovent nasal spray. ( Id. ) The doctor noted that Plaintiff's "Current Duty Status" was full duty. (R. 318.)

On August, 29, 2004, Dr. Prezant examined Plaintiff. (R. 317, 331.) Plaintiff's asthma was stable except during periods of humidity. ( Id. ) Dr. Prezant found that Plaintiff's lungs were clear, but that nasal congestion was still present despite Plaintiff's use of Rhinocort and Benadryl. ( Id. ) Dr. Prezant discontinued Benadryl, continued Advair, Albuterol, Rhinocort, and restarted Atrovent. ( Id. ) Dr. Prezant noted that Plaintiff's "Current Duty Status" was full duty. (R. 317.) Dr. Prezant examined Plaintiff again on November 14, 2004, and noted that Plaintiff's asthma was stable, his lungs clear, his sinus congestion persistent, and that he was attending a smoking cessation program. (R. 316, 330.) He noted that Plaintiff's "Current Duty Status" was full duty. (R. 316.)

On April 30, 2006, Plaintiff underwent a pulmonary-functioning test, which showed that his FEV1 was at 82% of the predicted value. (R. 352.) These results were interpreted as normal spirometry. ( Id. ) An EKG on the same date showed an ectopic atrial rhythm, which was borderline abnormal. (R. 354.) An x-ray of Plaintiff's chest was normal. (R. 347.) Plaintiff's lab testing showed higher than normal blood glucose, cholesterol, and LDL cholesterol levels. (R. 349.) Plaintiff's urinalysis showed mild abnormalities. ( Id. ) Lab testing conducted on April 6, 2007 showed higher than normal blood levels of microalbumin, LDL cholesterol, cholesterol, hemoglobin A1C, and glucose. (R. 249-251.)

On September 18, 2007, Dr. Jonathan Okun examined Plaintiff. (R. 252-255.) Dr. Okun noted that Plaintiff was diagnosed with diabetes mellitus in February 2007. (R. 254.) An eye examination revealed an established, stable, cortical cataract, which was asymptomatic and did not threaten Plaintiff's vision. (R. 255.)

An FDNY WTC Monitoring and Treatment Visit Summary Form dated September 20, 2007, listed asthma and sinusitis as Plaintiff's WTC-related diagnoses, and indicated that Plaintiff's treating doctor was Dr. Michael Weiden. (R. 343.) Dr. Weiden examined Plaintiff on the same date. (R. 315, 329.) Plaintiff reported cough, trouble breathing, and sputum production. ( Id. ) Dr. Weiden diagnosed Plaintiff with asthma/RADS and sinusitis. ( Id. ) He ordered a Computed Tomography Scan ("CT-scan") of Plaintiff's chest and a pulmonaryfunction test. ( Id. ) He prescribed Zithromicin and Combivent. (R. 315, 329, 343.)

On September 27, 2007, Plaintiff underwent a CT-scan of his chest, which showed mild diffuse bronchial wall thickening. (R. 340-341, 385-386.) Minimal mosaic attenuation was present in both lungs on expiration, which was most likely within physiologic limits. (R. 340, 285.) Very mild focal paraseptal emphysema was present at the right lung apex, and there was evidence of prior granulomatous disease, including a calcified nodule in the right upper lobe and calcified right paratracheal and hilar lymph nodes. ( Id. ) Focal atelectasis/scarring was present within the right upper lobe and inferior lingula, without evidence of endobronchial lesion. (R. 341, 386.) The exam showed a fatty liver and normal heart size. (R. 340-341, 385-386.) On the same date, Plaintiff underwent a pulmonary-function test, which showed vital capacity and total lung capacity within normal limits, increased residual volume suggesting air trapping, reduction in airflow at all lung volumes, and minimal changes in expiratory airflow function following the administration of a bronchodilator. (R. 374.) The impression was obstructive airway dysfunction with air trapping, and no response to bronchodilator at the time of testing. ( Id. )

On September 29, 2007, Plaintiff visited Dr. Weiden. (R. 314, 328.) Dr. Weiden diagnosed Plaintiff with asthma/RADS and sinusitis, and started Plaintiff on Advair and Flonase. ( Id. ) Dr. Weiden authorized a CT-scan of Plaintiff's sinuses. ( Id. ) On October 4, 2007 Plaintiff underwent a CT-scan of his sinuses, which showed nasal septal deviation with scattered, minimal to mild inflammatory disease in the paranasal sinuses and their respective drainage pathways. (R. 338-339, 387-388, 419-420.) Variations in the configurations of the drainage pathways could predispose Plaintiff to recurrent episodes of inflammatory disease. (R. 339, 388, 420.)

On October 25, 2007, Dr. John Dodaro, a physician with the FDNY, examined Plaintiff. (R. 263-265.) Plaintiff complained of tinnitus, chronic sinus infection, allergies, and earache. (R. 263). Plaintiff's allergy onset was gradual, chronic, and of mild to moderate severity. ( Id. ) Plaintiff described sinus pressure, aggravated by weather change. ( Id. ) Medications relieved Plaintiff's allergies. ( Id. ) At the time, Plaintiff also experienced postnasal drip, and complained of asthma, pharyngitis, eczema, dizziness, headache, hives, hoarseness, infections, earache, reflux, cough, sinus pain, and reddened eyes. ( Id. ) Plaintiff's bilateral earache was gradual, constant, and mild to moderate in severity, including pressure, ear popping, and congestion. ( Id. ) Plaintiff complained of "bleeding from ear, clear drainage, decreased appetite, dizziness, fever, purulent drainage, [and] decreased hearing and cough." ( Id. ) An ear examination revealed cerumen impaction in both ears. (R. 264.) Hearing was decreased in the left ear, and grossly intact in the right ear. ( Id. )

During the same visit, a nose examination revealed nasal congestion, while throat and mouth examinations revealed change in voice and hoarseness. (R. 263-264.) A respiratory examination showed no cough, no audible wheeze, and regular respiration. (R. 264.) An endoscopy showed a septum that was deviated to the left, mucosa with a crusty discharge, and inferior turbinates that revealed moderate hypertrophy. (R. 265.) A laryngoscopy showed normal results. ( Id. ) Dr. Dodaro diagnosed Plaintiff with chronic allergic rhinitis, chronic sinusitis, chronic hypertrophy of the nasal turbinate, chronic impacted cerumen, chronic dysfunction of the eaustachian tube, chronic deviated nasal septum, chronic laryngitis, and ...

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