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Deno v. Colvin

United States District Court, N.D. New York

October 20, 2014

MICHAEL DENO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant

Decided October 18, 2014

Page 534

For Michael Deno, Plaintiff: Mark A. Schneider, LEAD ATTORNEY, Office of Mark A. Schneider, Plattsburgh, NY.

For Carolyn W. Colvin, Acting Commissioner of Social Security, in place of Michael Astrue, Defendant: Kristina D. Cohn, LEAD ATTORNEY, Social Security Administration, Office of Regional General Counsel, New York, NY.

Page 535




Michael Deno (" Deno" ) brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the " Commissioner" ). Deno challenges the decision of the Administrative Law Judge (the " hearing officer" ) denying him Supplemental Security Income (" SSI" ) benefits. Deno requests that this Court reverse the Commissioner's decision that Deno is not disabled. Compl. 3, ECF No. 1; Pl.'s SSI Br. (" Deno's Mem." ) 36, ECF No. 12. The Commissioner requests that this Court affirm the hearing officer's decision and grant her motion for judgment on the pleadings. Br. Supp. Comm'r's Mot. J. Pleadings (" Def.'s Mem." ), ECF No. 13.

A. Procedural Posture

On September 20, 2002, Deno filed a Title XVI application for SSI benefits. Soc. Sec. Admin. R./Tr. (" Admin. R." ) 113-22, ECF No. 9.[2] Deno's application was initially denied on January 10, 2003, id. at 19-22, and Deno filed a timely request for a hearing by a hearing officer on February 4, 2003. Id. at 24-26, 60. Deno testified at a hearing held on October 21, 2004, and was represented by an attorney. Id. at 60. The hearing officer issued an unfavorable decision on November 24, 2004. Id. at 65. Deno subsequently filed a timely request for review on December 1, 2004, id. at 66-67, leading the Appeals Council to vacate the decision and remand the case. Id. at 68-71.

The hearing officer conducted the remand hearing on May 2, 2007, id. at 74, 504, and issued an unfavorable decision on June 27, 2007. Id. at 17. Deno then appealed the 2007 hearing officer's decision, id. at 7, and the Appeals Council denied Deno's request for review on February 19, 2009. Id. at 4-6.

Deno appealed the Appeals Council's denial to this Court on March 9, 2009. Def.'s Mem. 1. On August 26, 2009, this Court reversed and remanded Deno's claim to the Commissioner. Admin. R. 645-46; Deno v. Astrue, No. 90-cv-279 (N.D.N.Y. August 26, 2009) (Hurd, J.). On January 20, 2010, the Appeals Council remanded Deno's claim to a different hearing officer with instructions to resolve inconsistencies in the reports of Deno's primary care physician on March 30, 2006. Admin. R. 647-51. The hearing officer conducted the remand hearing on July 14, 2010. Id. at 820-51. On December 28, 2010, the hearing officer again denied Deno's claim. Id. at 630-44. Deno subsequently filed a timely request for review, which the Appeals Council denied on August 1, 2012. Id. at 572-75.

On August 10, 2012, Deno filed the present action to review the decision of the Commissioner pursuant to 42 U.S.C. § § 405(g) and 1383(c). Compl. 1. The government filed an answer, Answer, ECF No. 8, and both sides filed briefs, Deno's Mem.; Def.'s Mem. On June 25, 2013, the case was reassigned to this Court. Order Reassigning Case, ECF No. 14.

B. Factual Background

Deno was born on March 13, 1968. Admin. R. 507. Deno has a GED and has

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completed the ninth grade. Id. at 561. He worked as a construction worker until 2000. Id. He was employed in 2007 as a light laborer through his brother. Id. at 825-26. Deno reported that he had a history of alcoholism but that he has not had a drink in a number of years. Id. at 789. He is able to read, cook for himself, shower himself, clean his home, watch TV, focus on puzzles, go out, and occasionally go to the store with the help of others. Id. at 171, 836-40. Deno has a history of numerous physical impairments, including back and spinal pain, stomach ulcers, anxiety, and depression.

1. Medical Evidence

The earliest sign of a physical impairment reflected in the record occurred in February 1985, when Deno experienced gastrointestinal bleeding. Id. at 420. On January 30, 1986, Deno experienced dizziness and vomited blood. Id. He reported to Dr. James Herbert at the Medical Center Hospital of Vermont, where he was endoscoped and underwent surgery; during surgery, forty percent of of Deno's stomach was removed. Id. at 422-23.

From October 2001 to November 2002, Deno saw Dr. Barry Kilbourne (" Dr. Kilbourne" ) for stomach pain. Id. at 165-69. On October 24, 2002, Dr. Kilbourne made the following conclusions: Deno had (1) reflux and distal esophageal irregularity, (2) irregular gastric fold thickening, and (3) questionable jejunal thickening. Id. at 319. On October 30, 2002, Deno underwent a CT scan which reflected Deno's previous surgery and small bowel loops through the abdomen that " exhibit[ed] prominent caliber." Id. at 168. The CT scan revealed suture material projected over the junction of the neck and body of the pancreas, but Dr. Kilbourne concluded that this was probably just volume averaging artifact. Id. The CT scan showed no signs of pancreatic dilation, pancreatic masses, or biliary tree dilation. Id.

On December 13, 2002, Deno saw Dr. Nader Wassef (" Dr. Wassef" ), an internist, for an internal medicine examination. Id. at 170-73. Deno told Dr. Wassef about the removal of part of his stomach in the 1980's, though he did not provide the doctor with corroborating medical records at that time. Id. at 170. Deno reported that he had been suffering from back pain for six months, which made it difficult for him to stand for long periods of time or climb stairs. Id. Deno added that he was able to do his own laundry, shop, socialize with friends, shower himself, read, and do crafts. Id. at 171. Dr. Wassef noted that Deno was physically normal in several capacities. He observed that Deno had normal blood pressure, ears, nose, throat, teeth, extremities, hand and finger dexterity, and a soft and non-tender abdomen. Id. at 172. The doctor also observed that Deno had the full range of motion in his cervical spine and lumbar spine. Id. Dr. Wassef did, however, find some tenderness in the left paralumbar area. Id. at 172. Dr. Wassef noted that he observed no limitations based on the examination, but suggested that Deno discuss his lower back pain with his primary care physician. Id. at 173.

On December 19, 2002, Deno had a lumbo-sacral spinal x-ray. Id. at 174. The x-ray revealed that Deno's disc space at the L5-S1 region was narrowed. Id. The x-ray also showed (1) no spondylolisthesis or spondylolysis, (2) mild " lipping", (3) maintenance of the heights of the lumbar vertebral bodies, and (4) the preservation of the lumbar lordotic curvature. Id.

On January 3, 2003, Dr. Kilbourne completed a New York State Office of Temporary and Disability Assistance form diagnosing Deno with severe peptic ulcer disease and anemia. Id. at 175-76. Dr.

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Kilbourne found that Deno was moderately limited in his ability to walk, stand, lift, carry, push, pull, bend, see, hear, use his hands, or climb stairs. Id. at 175. He observed that Deno's mental functioning was unproblematic, and he found no limitations of Deno's ability to understand and remember instructions, maintain attention or concentration, make simple decisions, interact appropriately with others, achieve basic standards of hygiene and grooming, and appear able to function in a work setting. Id. Dr. Kilbourne reported that Deno's physical limitations meant that Deno could not work, and noted that Deno's restrictions were expected to last longer than ninety days. Id. at 176.

On March 13, 2003, Deno reported back to Dr. Kilbourne for a gastroscopy. Id. at 313. Dr. Kilbourne observed that Deno had a history of chronic pain, vomiting, indigestion, difficulty maintaining weight, and a previous history of a near-total gastrectomy with at least half of his stomach removed due to bleeding ulcers. Id. at 313. He noted that Deno continued to struggle maintaining his weight. Id. Dr. Kilbourne further noted that Deno had a normal esophagus, free reflux, an open esophagogastric junction, and typical chronic inflammation and redness. Id.

On June 24, 2003, Deno saw Dr. Edward G. Hixson (" Dr. Hixson" ) at Adirondack Medical Center due to postprandial pain. Id. at 238. Deno underwent an ultrasound that revealed a polyp or stone within the gallbladder. Id. Dr. Hixson then performed a laparoscopic cholecystectomy, with a cystic duct chloangiogram that was unremarkable. Id. Dr. Hixson diagnosed Deno with (1) chronic gallstone disease, (2) intraabdominal adhesions after gastric surgery, and (3) depression. Id. Dr. Hixson noted that Deno was taking Paxil for his depression, " with good result." Id.

On December 10, 2003, Deno returned to Adirondack Medical Center, where Dr. Howard Novick (" Dr. Novick" ), a radiologist, performed an MRI of Deno's lumbar spine. Id. at 228. The MRI revealed no obvious clumping of the intrathecal nerve to suggest arachnoiditis, no ominous osseous lesions, and no evidence of compression fractures or listhesis. Id. at 227. Dr. Novick reported that at the L1-L2, L2-L3, and L3-L4 levels, Deno had normal disc height and hydration with no evidence of focal disk herniation or spinal canal stenosis. Id. Dr. Novick found decreased hydration consistent with degenerative disc disease at the L4-L5 level and L5-S1 level. Id.

On February 2, 2004, Deno reported back to Adirondack Medical Center to see Scott Stoddard, a physical therapist, for degenerative disc disease at the L4-L5 and L5-S1 levels. Id. at 186. Deno reported that he had been suffering from lower back pain for two years, and that he has been unable to relieve his back pain except by changing his body position when pain occurs. Id. Deno also reported that his history of stomach pain had prevented him from returning to construction work since 2000, and that his lifestyle was quite sedentary due to the pain. Id. Deno was taking Nexium for his stomach pain at the time. Id. at 187.

Stoddard observed that Deno had stiff posture in his lower and middle back. Id. at 187. He noted that Deno had negative myotomes throughout the lower extremities, decreased lumbar flexion and extension, and tenderness and muscle spasms throughout the lumbar spine. Id. at 187-88. Stoddard concluded that Deno presented signs of degenerative disk disease of the lumbar spine, finding that Deno's " primary limitation at this point is his decrease in motion and decrease in activity over the past two years." Id. at 188.

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Specifically, Deno's limitations included hesitancy to move, lack of motion, and spinal tightness, but Stoddard predicted that Deno could improve in rehab if he could work through some of the initial pain. Id. Stoddard set concrete goals for Deno's physical therapy, writing that Deno " will be able to perform full extension of the lumbar spine, as well as flexion, 80% to 90% of normal, without any increase in pain in his lower extremity." Id.

Between his initial consultation on February 2, 2004, and March 4, 2004, Deno reported to the Adirondack Medical Center for therapy eight times. Id. at 190. Deno reported that he was experiencing vomiting and poor nutritional intake, but noted that his back was doing well, though he experienced slightly more back pain while feeling sick. Id. Stoddard reported that Deno was " doing very well functionally and mobility-wise since starting therapy," and that Deno's pain was steadily decreasing. Id. at 191. Stoddard also observed that Deno was performing his therapeutic exercises with increased tolerance, demonstrating relatively good core stability. Stoddard noted " [i]t is not felt the patient will need much longer before he is able to return to a job that he had performed prior." Id. at 191.

On July 21, 2006, Deno saw Dr. Wassef, the same internist who had performed an internal workup in December 2002, for an orthopedic examination. Id. at 469. The Division of Disability Determination referred Deno to Dr. Wassef, and Deno appeared with a legal assistant. Id. Deno reported three categories of symptoms. Deno's chief complaint was his constant, massive headaches, which he had been experiencing for six months or more. Id. Deno reported that the headaches felt like something was pulling at the back of his head and neck, and he attributed the headaches to his lower back pain. Id. Second, Deno said that he had a history of bleeding peptic ulcer, reporting that he continued to experience nausea, heartburn, and frequent vomiting. Id. Third, Deno reported sharp pain in his lower back, which he had experienced for three to four years. Id.

At this same appointment with Dr. Wassef, Deno reported that he did not smoke cigarettes, drink alcohol, or take street drugs. Id. at 471. He told the doctor that he lived alone and that he could not clean, do laundry, or shop because of his back pain. Id. Deno further stated that he was able to shower himself three times a week, bathe himself three times a week, and dress himself every day. Id. In his free time, he enjoyed watching television, listening to the radio, reading, and socializing with his friends. Id. At the time, Deno was on three medications: Prilosec, Famotidine, and Tramadol hydrochloride/APA. Id. at 470. Deno was supposed to be on B12 vitamin injections, though he did not have his vitamin B12 with him that day. Id.

Dr. Wassef made several assessments based on his examination. He observed that Deno had a normal gait, but that he seemed to experience discomfort during an examination of his heels, toes, and upper extremities, as well as when squatting. Id. at 471. Dr. Wassef noted that Deno did not use an assistive device, though Deno reported that Dr. Kilbourne had suggested that he use a cane. Id. The doctor's report states that Deno did not need assistance dressing himself or getting on and off the examination table. Id. at 471-72. Dr. Wassef saw scratch marks on Deno's legs, and observed three sets of scars in Deno's abdominal area due to past surgeries. Id. at 472. Following his examination, the doctor concluded that Deno's head, face, eyes, ears, nose, throat, neck, chest, lungs, heart, and abdomen were all normal. Id.

Page 539

Upon examination of Deno's musculoskeletal functioning, Dr. Wassef observed full flexion and extension, bilateral lateral flexion, and bilateral rotary extension, but noted that Deno's ability to flex and extend his lumbar spine was limited to a 70 degree movement. Id. at 473. Dr. Wassef also noted that Deno experienced discomfort during the examination of his thoracic and lumbar spine and his upper extremities. Id.

Dr. Wassef observed several positive indications of Deno's health. He reported that Deno had stable joints, full strength in his upper and lower extremities, and no swelling, effusion, heat, or redness. Id. The doctor further found that Deno had full hand and finger dexterity, as well as bilateral grip strength. Id. Dr. Wassef did not report any concerns about Deno's mental status, observing that Deno was dressed appropriately, maintained good eye contact, did not appear to have hallucinations or delusions, and denied suicidal ideation. Id. Based on his observations, Dr. Wassef concluded that Deno experienced discomfort in his lower back and mild to moderate limitations of flexion and extension movements of his lower back, though Dr. Wassef did not detect limitations of his hands, cervical spine, or either lower extremity. Id. at 474. Dr. Wassef recommended that Deno continue to follow up with Dr. Kilbourne and with the Spine Institute in Burlington, Vermont. Id.

On November 21, 2006, four months after Dr. Wassef's examination, Deno saw Dr. Kilbourne for a disability examination following a referral from the New Your State Office of Temporary and Disability Assistance Department of Disability Determinations. Id. at 495. Deno was accompanied by a paralegal from his attorney's office. Id. Deno described his history of stomach pain, reporting that he was unable to work due to repeated episodes of vomiting and abdominal pain. Id. He also reported heartburn and emesis, which Dr. Kilbourne noted he had never witnessed. Id. at 496. Deno also reported lower back pain when he sits down and stands up. Id. Dr. Kilbourne observed that Deno " does almost no work at this point in time, so it is difficult to ascertain just how much he could lift or whether he has any pain with lifting since he doesn't do any work at all." Id. Deno reported that he spends his time " pretty much lounging around the house and watching TV." Id.

Dr. Kilbourne noted that Deno had normal health in several respects. He also observed that Deno's gait and heel to toe walking appeared normal. Id. While walking, Deno did not display any imbalance or difficulties with his back. Id. Dr. Kilbourne noted that Deno was " tensing his abdomen quite a lot but when his gut relaxed his abdomen appeared to be soft in all areas." Id. On the subject of Deno's stomach pain, Dr. Kilbourne noted that Deno appeared to have chronic epigastric and abdominal pain that was most likely related to some mild adhesive disease. Id. at 497. Dr. Kilbourne described Deno as " thin but well nourished." Id. Summarizing his observations for the disability report, Dr. Kilbourne stated that:

It would be hard to imagine total disability regarding either of the above conditions [back pain and stomach pain]. There is little objective evidence to suggest any continuing problems with adhesions and the stomach problem appears to be [a] fairly normal remnant following sub total resection. . . . It appears [Deno] could do moderate work regarding his back and in the presence of lack of any ...

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