United States District Court, W.D. New York
DECISION & ORDER
FRANK P. GERACI, Jr., District Judge.
Angelo Medori ("Plaintiff"), by his attorney, Richard A. Goldberg, Esq., 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. §§ 405(g) and 1383(c)(3).
Before the Court, currently, are the Motions for Judgment on the Pleadings filed by both parties pursuant to Federal Rules of Civil Procedure 12(c). ECF Nos. 11, 12. For the reasons set forth herein below, I find that the final decision of the Commissioner is supported by substantial evidence within the record and accords with applicable legal standards. Therefore, I grant the Commissioner's Motion for Judgment on the Pleadings, deny Plaintiff's Motion for Judgment on the Pleadings, and order that the Complaint be dismissed.
A. Procedural History
Plaintiff filed an application for SSI on March 31, 2010, alleging that he was disabled, and his disability began on October 1, 2009. R. 137-41. The Social Security Administrator denied his application for benefits on July 7, 2010 and, on November 30, 2011, Administrative Law Judge Brian Kane ("ALJ") determined, following a hearing held on October 13, 2011 at which Plaintiff appeared with his attorney and testified, that Plaintiff had not been under a disability since the date the application was filed. R. 6-16. Thereafter, on June 7, 2013, the Appeals Council affirmed the decision of the ALJ, and the decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to assume jurisdiction. R. 1-3. Subsequently, on August 7, 2013, Plaintiff timely commenced this action in the United States District Court for the Western District of New York seeking review of the Commissioner's decision (ECF No. 1) and, on August 22, 2013, by his attorney, filed an Amended Complaint (ECF No. 5).
B. Factual Background
Plaintiff, born on April 27, 1961, was 48 years old at the time he protectively applied for SSI benefits and had reached age 50 at the time of the administrative hearing. R. 23-24. While he dropped out of high school in the middle of the tenth grade, subsequently, in 1979, he obtained a GED. R. 34-35.
Plaintiff testified that he last worked in August 2010 at a side painting job; he stopped working because he finished the job. R. 30-33. Plaintiff testified that after he suffered a stroke in 2008 or 2009, he had trouble getting work and new customers; he moved in with his mother a couple of years ago. R. 32-33. During the 1990s he worked as a mason's helper/laborer, but worked full-time as a painter since the mid-1990s. R. 33. Regarding the effects from the stroke, Plaintiff testified that he had memory problems consisting of putting something down and forgetting where he put it two minutes later. R. 34.
Plaintiff testified that painting jobs required lifting ladders weighing more than 10 pounds, and planks. R. 31, 35. He stated that since the stroke, he also had difficulty with hand coordination - occasionally dropping objects, such as a thrown football. R. 35, 43. Plaintiff described the medications he took as a result of the stroke, and heart condition, but stated he was not taking any medication now because he could not afford it, having no insurance, and having been rejected by Medicaid based upon some issue, he believed, related to his divorce. R. 36-39. Plaintiff stated that he last applied for Medicaid two months ago. R. 36-37. He had not gone to a doctor since 2010, so as to avoid more debt. R. 38.
Plaintiff described the medications being taken when he was under medical care as: Lipitor for cholesterol; Atenolol for high blood pressure following a double bypass for legs and aorta 20 years ago; Plavix as a blood thinner after his stroke; Clobetasol and Propionate ointments for psoriasis: and Metformin, which he felt no longer needed, due to losing weight, for diabetes. R. 39-40. To his knowledge, he did not have any side effects from taking these medications. R. 48.
As for daily activities, Plaintiff testified he watched a lot of T.V., and did a little reading; showered; cooked; and tried to mow the lawn, a chore which required stopping due to blood circulation in his legs, a 25-year problem. R. 41, 56-57. Plaintiff acknowledged that, even while working as a painter, he had these circulation problems, and if he looked up at the ceiling, he would get dizzy. R. 42. He described pain in his leg from walking, and chest pain which occurred sometimes at night and for which he took self-prescribed aspirin. R. 42. He described the chest pain as being more on his right side and occurring when he did something physical like heavy lifting such as moving an old-fashioned T.V. R. 43.
Plaintiff testified to his belief that he would not have any problem carrying a gallon of milk, but offered no estimate as to how far he could carry a 20 pound bag of potatoes; depending on how far he had to go, he would not have a problem carrying around and balancing a six foot high step ladder with six steps, but could only do so for a couple of steps due to loss of strength from aging. R. 44-46. His painting jobs required moving a ladder around the house three or four times, e.g., for prepping, priming, painting, something he did not feel he could do anymore to anybody's satisfaction, and carrying a couple of five gallon cans of paint. R. 46-47. Painting also involved using a brush or roller for priming, and engaging in repetitive motions using a disc sander for scraping. R. 47.
Plaintiff stated that by his choice, he lost 100 pounds after he first had his stroke in 2008, reducing his weight of 245 down to about 145, now. R. 48-49. He wanted to see a doctor about the weight loss, and a physical, but didn't have the cash. R. 49. Plaintiff also testified that, currently, he smoked a pack of cigarettes a day, starting to smoke again after the "double-by-pass" in his leg and the stroke. Id.
He acknowledged being in substance abuse treatment at Conifer for two months, having been court-mandated there following his misdemeanor conviction of possession of a controlled substance, cocaine, for which he was sentenced to three years of probation. R. 50-52, 54. His 82-year-old mother did the cleaning, but Plaintiff cooked their meals, did his own laundry, and drove to a friend's maybe once a month. R. 56-57. He did not exercise. R. 57. Both arteries in his neck are clogged, causing dizziness, if he looked up too long. R. 59.
Julie Andrews, Vocational Expert ("VE"), testified that an assumed individual of Plaintiff's age on the date of onset, with a GED education, and the ability to perform a range of light work with the additional limitations of having to avoid reaching overhead, above the shoulder bilaterally, and capable of jobs requiring three or four steps, would not be able to do the past relevant work of a painter, which was a skilled position with medium exertion. R. 62. Such individual would, however, be able to work as a counter clerk, an unskilled position with light exertion (166, 232 national positions and 1, 310 regional positions); a small product assembler, also unskilled with light exertion (307, 082 national positions and 2, 810 regional positions); and order clerk position, unskilled with sedentary exertion (255, 000 national positions and 425 regional positions). R. 63-64.
Based upon Plaintiff's testimony that he was in substance abuse treatment at Conifer Park, the ALJ held the administrative record open until October 27, 2011 in order to receive the relevant treatment records. R. 52-53, 72-73. Plaintiff's memorandum of law setting forth any legal arguments regarding significance of Plaintiff's age in the disability determination, as well as any medical background and records to support any "allegations of the ability to limit it to sedentary work" was to be received by this date, as well. R. 74-75.
C. Medical Evidence
A Strong Memorial Hospital ("SMH") clinic note shows that Plaintiff was seen by his primary care physician, Dr. Judith Allen, on December 6, 2006. Plaintiff reported feeling well and staying active, with no chest pains or shortness of breath, no dyspnea upon exertion, and no leg pain with exertion. R. 205. Dr. Allen performed a physical examination and assessed Plaintiff's hypertension "under decent control, " with medication; an increased cholesterol level requiring follow up; and peripheral ...