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Kinsey v. Colvin

United States District Court, W.D. New York

October 8, 2014

LARRY D. KINSEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration of the United States, Defendant.


FRANK P. GERACI, Jr., District Judge.


Pro se Plaintiff Larry D. Kinsey ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act ("SSA"), seeking review of the final decision of the Commissioner of Social Security ("Commissioner"), which denied his application for Supplemental Security Income ("SSI"). ECF No. 1. The Court has jurisdiction over this matter under 42 U.S.C. ยงยง 405(g) and 1383(c)(3).

Before the Court, currently, is the Motion for Judgment on the Pleadings consisting of a Notice of Motion (ECF No. 10) and a Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings (ECF No. 10-1) filed by Defendant pursuant to Federal Rules of Civil Procedure 12(c). Additionally, Defendant filed a Certificate of Service by Mail stating, that on December 30, 2013, these filed documents were mailed by the United States Postal Service to Plaintiff at the following address: 756 E. Main St., #1A, Rochester, New York 14605. (ECF No. 10-2). Plaintiff has not responded to the Defendant's motion. The absence of a response by Plaintiff does not relieve this Court of its obligation to review the decision of the Commissioner.

For the reasons set forth herein below, I find that the final decision of the Commissioner is supported by substantial evidence within the record[1] and accords with applicable legal standards. Therefore, this Court grants the Commissioner's Motion for Judgment on the Pleadings, and orders that the Complaint be dismissed.


A. Procedural History

Plaintiff applied for SSI on March 1, 2010, alleging disability due to a seizure disorder and depression, with an onset date of December 31, 2009. Tr. 146-49. His application for SSI benefits was denied administratively on May 14, 2010. Tr. 52-59. On July 13, 2011, Plaintiff, represented by his attorney Ida M. Comerford, Esq., appeared and testified at a video administrative hearing held before Administrative Law Judge Vivian W. Mittleman ("ALJ"). Tr. 30-51. Vocational Expert James Newton ("VE") appeared and testified, as well. Tr. 47-49. At the conclusion of the administrative hearing, the ALJ held the record open for two weeks for Plaintiff's attorney's submission of additional evidence from the Department of Human Services' Work Experience Program ("WEP") and from Plaintiff's neurologist at the Anthony Jordan Health Center. Tr. 40-42, 49-50.

On October 13, 2011, the ALJ issued an unfavorable decision finding that Plaintiff was not disabled. Tr. 9-24. The Appeals Council denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner on February 20, 2013. Tr. 1-3. Subsequently, Plaintiff timely commenced this action in the United States District Court for the Western District of New York appealing the Commissioner's decision.

B. Factual Background

Plaintiff, who protectively applied for SSI benefits on March 1, 2010, was 48 years old, eleven days shy of his 49th birthday, at the time of the administrative hearing, had completed a GED, but had been in regular education in school, and had taken a janitorial course in 1992 while incarcerated. Tr. 46, 170. His employment history included work as a dishwasher, laborer, machine operator, production assistant, and receiving clerk. Tr. 171, 186-189, 204, 219. Plaintiff indicated that he had not worked since 2009. Tr. 171, 204, 219.

On the petition for SSI benefits, Plaintiff stated as the basis for relief seizure disorder and depression and alleged disability as of December 31, 2009. Tr. 146. On a form completed by Plaintiff on April 3, 2010, he stated that he lived alone in an apartment, had no problems with personal care, prepared his own meals daily, cleaned, did the laundry and ironing, and went shopping once a month for food. Tr. 178-80, 181. Preparing meals took 10 to 20 minutes. Tr. 179. Plaintiff stated that he went outside alone two or three times a week, and traveled by walking or using public transportation; he did not have a driver's license. Tr. 180. He could walk continuously for one or two miles, but needed to rest 10 to 20 minutes to continue walking. Tr. 183. Plaintiff's listed hobbies included daily reading, watching television and listening to music. Tr. 181. Plaintiff indicated that he regularly talked to friends and went to appointments, but sometimes had problems getting along with family, friends, neighbors or others, and stayed home most days and evenings. Tr. 182. He also had problems getting along with bosses, teachers, police, landlords or others in authority, stating that "authority figures have given me trouble most of my life." Tr. 183. He acknowledged losing a job because he was "not able to take commands from an equal." Tr. 184. While alleging problems paying attention, Plaintiff stated that he could finish tasks started and could follow spoken and written instructions. Tr. 183. Plaintiff stated that stress made him feel depressed, so that he didn't want to leave home, and he had trouble remembering things due to his sickness. Tr. 184. He wrote down all appointments and tried to take his medications at the same time every day. Tr. 179.

At the administrative hearing held on July 13, 2011, Plaintiff's representative did not seek review of the seizure disorder as a listing level impairment, but indicated that the seizure disorder, in combination with his anxiety and depressive disorders, and the more recent right leg pain due to status-post gunshot wound to the right buttock, thigh and calf, made it impossible for Plaintiff to sustain any kind of gainful activity on a long-term basis. Tr. 34-35.

Plaintiff testified that in June 2010, after a misunderstanding and argument with the nephew of a building neighbor over a bus pass, he was shot in the back. Tr. 36. Plaintiff had not been to physical therapy since being shot, although orthopedic and physical therapy were recommended by a Highland[2] doctor. Tr. 36-37.

Regarding the alleged seizure disorder, Plaintiff testified that he took medication, Tegretol, three times a day and that he last had a seizure a week or two ago, because his "tongue was bitten up." Tr. 38. Plaintiff stated that he had not followed up with a neurology appointment at Highland because he changed to a doctor at Anthony Jordan Health Center and was awaiting a neurology appointment in the mail. Tr. 38-39, 41-42. Plaintiff testified that he had been hospitalized because of his seizures, but could not remember when because the seizure disorder caused him to have a bad memory. Tr. 42. According to Plaintiff, there were no witnesses to these seizures because he lived alone. Id. He did not have a driver's license and could not drive because of the seizure disorder. Tr. 43.

Plaintiff testified that he had not worked for a paycheck, but worked around the house, or doing odd jobs, and could work for an hour or two, but would have to stop and sit down, because of the pain and when, possibly due to high blood pressure, his "head will get light." Tr. 39-40. Additionally, every day, he went to the WEP program, but was limited to working a total of 16 hours per week. Tr. 40.

Plaintiff testified that he had a history of using drugs and alcohol, and last used drugs many years ago, but drank "three beers a day, " even though doctors told him and he understood, alcohol would cause his seizure medication and the antidepressants he also was taking not to work. Tr. 42, 45-47. Plaintiff stated that he had tried many times to quit drinking alcohol and had been in programs to quit, but couldn't remember the last time. Tr. 43. He was attending NA meetings next door to the WEP program, but confidentiality was an issue there. Id. Plaintiff stated that even if he wasn't drinking alcohol, he could only work part-time, anyway. Tr. 43-44. He acknowledged telling psychologist Christine Ransom during an evaluation that he stopped working in February of 2010, but explained that as part of his sickness with his seizure disorder, his memory was really terrible. Tr. 45.

Testifying that he had received his GED when he was in jail, Plaintiff stated he couldn't remember when he was last in jail. Tr. 46-47. Plaintiff testified that he was in regular education in school. Tr. 46. He also had limited vision in his right eye, but did not have to wear glasses. Tr. 48.

In response to questioning by the ALJ, the VE testified regarding positions in the national economy that a hypothetical individual of claimant's age, education, and work experience, who had a high school education, no past relevant work, a medium or light exertional restriction, a limitation of simple, routine and repetitive tasks, limited vision in his right eye, but did not have to wear glasses, no limitation for any fine and gross motor activity, no climbing ladders, ropes, and scaffolds, and no heights and machinery, could perform. Tr. 47-49. The VE offered that the hypothetical individual could engage in four types of medium or light, unskilled jobs in the national economy: hospital cleaner (medium exertion), dietary aide (medium exertion), garment sorter (light exertion), and housekeeper/cleaner (light exertion). Id. at 48-49. Respectively, in the state economy and national economy, there were 5600/150, 000 hospital cleaner jobs; 4400/186, 000 dietary aide jobs; 1300/48, 000 garment sorter jobs; and 20, 000/800, 000 housekeeping/cleaner jobs. Id.

C. Medical Evidence

Plaintiff was treated at University of Rochester Medical Center's Highland Family Medicine Neurology Clinic ("Highland Neurology Clinic") from June 3, 2009 to July 6, 2010 for his seizure disorder, and various, physical medical conditions. Tr. 275-343; partially repeated at Tr. 224-39. At the visit on January 18, 2010, Plaintiff reported to Dr. Timothy Ashley a history as follows: his first seizure occurred in 1988 or 1989 during a prison stay; with no acute trauma at the time, was struck in the head with a baseball bat in 1985 or 1986; unable to describe the first seizure, but indicated that he lost consciousness in prison intake and was witnessed by prison staff to be shaking; seizures in the past at the wheel of a car and has not driven since the early 1990's; many episodes of generalized shaking witnessed by relatives, friends, acquaintances, and medical personnel; cannot personally recall any of the seizures, but his wife described them as "shaking all over;" and girlfriend described to him "generalized shaking" the morning after she witnessed it at night; knowing he's had a seizure if upon awakening he's bitten the inside of his jaw; infirm memory, but recollection of one time in jail when he had numerous seizures resulting from receiving generic medication instead of the name brand Tegretol; and past hospitalization for medication overdose, but never specifically for uncontrolled seizure. Tr. 325.

The physical examination conducted on January 18, 2010 was otherwise normal, and the observations of his mental status showed that Plaintiff had a Mini-Mental State Examination ("MMSE") score of 30; normal attention; no signs of neglect; fluent language; full orientation; normal short term memory, but hazy for past events; and his intellectual fund of knowledge, judgment, mood and affect, thought content, all appeared normal. Tr. 326. Dr. Anthony Maroldo, M.D. noted that the only EEG available reports were from an acute hospitalization in 2004 which did not reveal any "epileptiform abnormalities, " however, the results of a November 2006 non-contrast CT revealed "a slight asymmetry of the temporal horns of the lateral ventricles, with the right being larger than the right [sic], [] but "no clear ipsilateral mesial temporal atrophy." Tr. 327. There were no obvious structural abnormalities that would predispose him to seizures. Id. Plaintiff was agreeable with the medical regime discussed. Id. The MMSE score suggested only mild cognitive impairment. Tr. 330. Dr. Maroldo referred Plaintiff for an outpatient EEG to evaluate "inter-ietal epileptiform abnormalities." Tr. 327.

When Plaintiff appeared at Highland Neurology Clinic for the EEG appointment on February 3, 2010, he reported a known seizure disorder since 1984, after being hit in the head with a bat; typically, with seizures two to three times a week. Tr. 323. The EEG study performed that day revealed an "abnormal EEG due to frontally predominant spike with after coming slow wave discharges primarily occurring over the left frontal region and rarely over the right frontal region in addition to some intermittent bi-frontal slowing with drowsiness, " findings which reflected that Plaintiff had "ongoing bifrontal epileptogenicity which is more prominent over the left frontal region than the right as well as underlying neuronal dysfunction of the frontal regions bilaterally." Id.

On May 4, 2010, Dr. Harbinder Toor, M.D. performed a consultative physical examination of Plaintiff. Tr. 245-48. Plaintiff's chief complaint was a history of hepatitis C, a seizure disorder since 1990, depression, and mental health issues. Tr. 245. He reported current medications as Tegretol, Lamotrigine and Lexapro, but denied having any recent seizures or pain during the exam. Id. Plaintiff reported drinking alcohol, but indicated that he quit using marijuana and cocaine in 2007. Id. His reported activities of daily living included cooking five days a week, laundry once a month, cleaning every day, shopping twice a month, showering and bathing five days a week, dressing himself daily, watching TV, listening to the radio, going out to walk, to the store and socializing with friends and family. Tr. 245-246. Reading the Bible was his hobby. Tr. 246. Upon conducting a physical examination, Dr. Toor noted that Plaintiff was 5'11, " weighed 166 pounds and appeared to be in no acute distress. Id. His vision was 20/20 in the right eye[3] and 20/25 in the left eye, with both eyes 20/25 on the Snellen chart at 20 feet. Id. Plaintiff had severely decreased vision in the right eye. Id. His gait was normal, and he could walk on his heels and toes without difficulty, squat fully, stand normally, and used no assistive devices. Id. Additionally, Plaintiff needed no help changing for the examination or getting on and off the examination table, and was able to rise from a chair without difficulty. Id. His cervical spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally, with no evidence of scoliosis, kyphosis or abnormality in the thoracic spine. Tr. 247. The lumbar spine showed full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally. Id. Plaintiff had the full range of motion in his shoulders, elbows, forearms, and wrists bilaterally, and hips, knees, and ankles bilaterally. Id. His strength in upper and lower extremities was 5/5, with no evident subluxations, contractures, ankylosis, or thickening; his joints were stable and nontender, with no redness, heat, swelling, or effusion. Id.

Neurologically, Plaintiff had no motor or sensory deficit; his deep tendon reflexes were physiologic and equal in the upper and lower extremities. Id. His extremities showed no cyanosis, clubbing or edema, or significant varicosities or trophic changes, and his pulses physiologic and equal. Id. Plaintiff's hand and finger dexterity was intact and his grip strength was 5/5 bilaterally. Id. Dr. Toor opined that Plaintiff's prognosis was fair and assessed Plaintiff as having no limitation for any fine or gross motor activity, but stated that he should be careful at heights or operating machinery because of a history of seizures and should be careful about daily routines because of severely decreased vision in his right eye. Tr. 248. Dr. Toor further advised that Plaintiff could be evaluated by a psychologist or psychiatrist for depression, but noted that his evaluation suggested no other medical limitations. Id.

At the Commissioner's request, Christine Ransom, Ph.D., a licensed psychologist, conducted a consultative psychiatric evaluation of Plaintiff on May 4, 2010. Tr. 241-244. Plaintiff provided background information including that he lived alone and walked four miles to the evaluation; he had completed his GED and was in regular education in school; work during his lifetime consisted of janitorial work, shipping, receiving and general moving; he stopped work in February 2010 and was unable to find a another job. Tr. 241.

Dr. Ransom noted that Plaintiff never had to be hospitalized for a psychiatric problem, but he had received outpatient treatment at Genesee Mental Health in 2007 and current treatment for depression was provided by his primary care physician; he was also receiving medication for depression. Tr. 241. Plaintiff's medical history included hospitalization in 2008 at Strong Memorial Hospital for seizure and chronic conditions of disorder and hepatitis C. Id. Plaintiff's current daily medications were Tegretol, Lamotrigine, and Lexapro. Id. He had a history of abusing alcohol, but indicated that he stopped using marijuana and cocaine in 2007. Tr. 242.

During the mental status examination, Dr. Ransom observed that Plaintiff, who appeared to be his stated age, was cooperative and socially appropriate. Tr. 242. Plaintiff was neatly and appropriately dressed and groomed, with normal gait, posture, motor behavior, and appropriate eye contact. Id. Plaintiff's speech was fluent and intelligible, voice quality was clear, both expressive and receptive language skills were good, and his thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. Id. He expressed a full range of affect appropriate to speech and thought content and his mood was neutral. Id. His sensorium was clear, and he was oriented to person, place, and time. Tr. 243. Plaintiff's attention and concentration, as evidenced by counting backwards from 20, doing simple calculations and serial threes without error, were intact. Id. Dr. Ransom also determined that Plaintiff's recent and remote memory was intact based on his recalling three out of three objects immediately and again, after five minutes; remembering five digits forward and three digits backwards; and recalling adequate detail about his ...

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