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Kemp v. Astrue

United States District Court, W.D. New York

September 24, 2014

BOBBY KEMP, Plaintiff,
v.
MICHAEL J. ASTRUE, [1] COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Bobby Kemp ("Kemp") brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 6).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 8, 14). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and complies with applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Kemp's motion for judgment on the pleadings is denied.

BACKGROUND

I. Procedural Background

Kemp applied for SSI and DIB on May 11, 2009, alleging disability beginning on April 18, 2009, due to a stroke and diabetes. (Tr. 193, 200, 214).[2] On May 5, 2011, a hearing to determine Kemp's eligibility for benefits was held before Administrative Law Judge ("ALJ") Scott M. Staller. (Tr. 43-70). Kemp was represented by Kelly Laga, Esq., at the hearing. By decision dated June 10, 2011, the ALJ found that Kemp was not disabled and was not entitled to benefits. (Tr. 23-35).

On October 25, 2012, the Appeals Council denied Kemp's request for review of the ALJ's decision. (Tr. 3-8). Kemp commenced this action on December 5, 2012, seeking review of the Commissioner's decision. (Docket # 1). Kemp had previously applied for benefits, which the Commissioner denied by final decision dated April 5, 2002. (Tr. 210).

II. Kemp's Application for Benefits

Kemp was born on January 29, 1965, and is now forty-nine years old. (Tr. 209). Kemp completed the eleventh grade in 1983 in a regular class setting.[3] (Tr. 219). Kemp reported that he has decreased movement on his left side, is unable to lift heavier objects and suffers from back pain. (Tr. 214). According to Kemp, he struggles to dress himself because the stroke affected the left side of his body and is no longer able to lift his body weight. (Tr. 223). Kemp reported that he prepared his own meals approximately two or three times each day, can perform light cleaning including wiping surfaces, light mopping, light vacuuming, watering plants, light dish washing, and can shop for himself. (Tr. 225-26). Kemp reported that he is no longer able to lift weights, play basketball, dance or ride his bicycle. (Tr. 226). Kemp also stated that he drags his left leg when he walks, standing aggravates his back and he is unable to reach over his head. (Tr. 227). According to Kemp, he experiences pain in his left shoulder and lower back that is aggravated when he walks, sits, bathes, lifts, cleans, stands and sleeps. (Tr. 229-30). Kemp takes Tylenol to relieve his pain, but reports that it is ineffective. (Tr. 230).

Kemp reported that his previous work history included employment as a dishwasher, factory laborer, farm laborer, recess monitor and custodian. (Tr. 215). At the time of his applications, Kemp was taking Lisinopril to manage his blood pressure and Metformin and Simvastatin to address his diabetes. (Tr. 218). According to Kemp, none of his medications caused any side effects. ( Id. ).

Kemp updated his application in October 2009. (Tr. 246-56). According to Kemp, he no longer prepares his own meals, but relies upon his ex-sister-in-law to prepare his meals because of his instability and shakiness in his left hand. (Tr. 248). In addition, Kemp reported that his sister-in-law does most of his shopping, although he still shops approximately once a month. (Tr. 250). According to Kemp, he continues to be able to perform light cleaning. (Tr. 249). Kemp reported that he continues to experience pain in his back when walking, standing and rising from a seated position. (Tr. 251).

III. Relevant Medical Evidence[4]

A. Treatment Records

Treatment notes from F.F. Thompson Hospital ("Thompson") indicate that Kemp suffered a stroke and was admitted to the hospital on April 18, 2009. (Tr. 317). Kemp was discharged five days later. (Tr. 320). At discharge, Kemp was diagnosed with right pons stroke with left hemiparesis; diabetes mellitus type 2, new onset; hypertension; hyperlipidemia; and, a possible left tooth abscess. ( Id. ). Kemp was prescribed Lisinopril, Metformin, Simvastatin, Glyburide, Aspirin and Penicillin. ( Id. ). Kemp was also advised to establish a relationship with a primary care physician to monitor his health. (Tr. 321).

On April 30, 2009, Kemp attended his first appointment with John Sharza ("Sharza"), MD. (Tr. 368). Treatment records reflect that Sharza was Kemp's primary care provider until at least April 21, 2011. ( See Ex. 2F at Tr. 350-57, Ex. 3F at Tr. 358-71, Ex. 12F at Tr. 409-13, Ex. 14F at 421-27, Ex. 20F at Tr. 507-08, Ex. 24F at Tr. 529-30, Ex. 30F at Tr. 584-85). During that time, Sharza monitored Kemp's medical conditions including his high blood pressure, diabetes and weight. ( See id. ). Sharza routinely counseled Kemp regarding his diet, exercise routine, efforts at smoking cessation and need to attend physical therapy. ( See id. ). On a number of occasions, Kemp complained to Sharza of pain in his shoulder and lower back. ( See, e.g., Tr. 365, 411-12, 425). Sharza referred Kemp to an orthopedist to assess his back pain. ( See Ex. 16F at Tr. 495).

Kemp saw an orthopedic physician, Rajeev Patel ("Patel"), MD, on October 18, 2010. (Tr. 495-98). After interviewing and examining Kemp, Patel opined that Kemp's symptoms did not suggest radiculopathy or other underlying focal spinal pathology that would be addressed through spine rehabilitation, intervention or surgical options. (Tr. 497-98). Patel suggested that Kemp might suffer from a spine alignment or joint displacement condition and directed him to consult with a chiropractor to determine whether chiropractic treatments could address Kemp's back problems. ( Id. ). Patel recommended further physical therapy. (Tr. 497).

Treatment notes from Sharza dated January 6, 2011 indicate that Kemp was evaluated by the Spine Center and that the consultant did not believe that Kemp's symptoms were suggestive of a spinal alignment or joint displacement condition. (Tr. 508). Sharza referred Kemp to a pain clinic and ultimately to a neurologist. (Tr. 508, 585).

Treatment notes indicate that Kemp attended approximately six physical therapy sessions after his stroke in April 2009, but discontinued physical therapy because "things came up." (Tr. 430). Kemp returned to physical therapy on February 3, 2010. ( Id. ). Kemp attended approximately forty-one physical therapy sessions between February 2010 and August 26, 2010. (Tr. 430-39, 475). During his physical therapy treatment, Kemp repeatedly reported that he continued to experience severe pain in his back and left leg and that he did not believe that physical therapy provided any improvement. (Tr. 433-39). Kemp's physical therapy providers noted that Kemp experienced improved balance and gait through therapy sessions, although his progress was slow, he continued to walk with a limp and his pain appeared to limit his success. ( Id. ). Kemp was discharged from physical therapy on November 12, 2010. (Tr. 500). According to the discharge notes, Kemp reported that he was sore because he had "tried to do some painting for his landlord." ( Id. ). The notes indicate that Kemp had not made any significant progress in physical therapy and that he was discharged from therapy with instructions to consult his primary care physician. ( Id. ).

Kemp also received treatment at the Canandaigua Eye Center for ocular hypertension. (Tr. 548-65). Treatment notes indicate that although Kemp was initially prescribed Xalatan, he did not consistently apply the medication, reportedly failing to apply the eye drops approximately 25% of the time. (Tr. 553, 557). Accordingly, Frank C. Lee ("Lee"), MD, recommended that Kemp undergo a selective laser trabeculoplasty ("SLT") in both eyes. (Tr. 557). Lee performed the SLT procedure in Kemp's right eye on February 9, 2010 and in his left eye on February 18, 2010. (Tr. 558-59). Subsequent treatment notes indicate that Kemp had "an excellent response" to the SLT procedures, which successfully reduced the pressure in Kemp's eyes. (Tr. 562).

Kemp received treatment from Dr. Shahana Arshad ("Arshad"), an endocrinologist between July 2010 and March 2011. (Tr. 521-28, 539-43). Arshad noted that Kemp's blood pressure was "optimal, " his left-sided weakness had been "resolved, " his blood sugar was "rarely high" and his vision has been "stable." (Tr. 522-23, 528).

B. Medical Assessments

On August 25, 2009, state examiner Kalyani Ganesh ("Ganesh"), MD, conducted a consultative neurological examination of Kemp. (Tr. 374-77). Kemp reported that he suffered a stroke in April 2009 and, despite physical therapy, he continues to experience weakness on the left side of his body and cannot raise his arm all the way. (Tr. 374). Kemp used a cane during the examination for his back pain, but reported that the cane was not prescribed by his doctor. ( Id. ). Kemp reported that he has diabetes and high blood pressure, but that both are controlled with medication. ( Id. ). Kemp stated that his ex-sister-in-law, with whom he lived, performed the household chores. (Tr. 375). Kemp reported that he could shower and dress himself. ( Id. ). Kemp's activities included watching television, listening to the radio and socializing with friends. ( Id. ). At the time of the examination, Kemp was approximately five feet, nine inches tall and weighed 234 pounds. ( Id. ). Ganesh noted that Kemp had a limp that favored his left side, his station was normal, he was able to walk on his heels but could not walk on his toes, and his tandem walk heel-to-toe was normal. ( Id. ). According to Ganesh, Kemp used the cane as an assistive device, but it did not appear necessary. ( Id. ). In addition, ...


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