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Hogan v. Colvin

United States District Court, W.D. New York

February 17, 2015

HAROLD D. HOGAN, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Harold D. Hogan ("Plaintiff"), represented by counsel, commenced this action challenging the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act") and supplemental security income ("SSI") under Title XVI of the Act. The Court has jurisdiction over this matter pursuant to 42 U.S.C. ยง 405(g).

II. Procedural Status

On April 15, 2010, Plaintiff filed a DIB application, alleging disability commencing October 13, 2008. T.115-26.[1] The claim was denied on September 8, 2010. On September 30, 2010, a hearing was held before administrative law judge David Z. Nisnewitz ("the ALJ") in Jamaica, New York. Plaintiff appeared pro se and testified, as did medical expert Charles M. Plotz, M.D., and vocational expert Andrew Pasternak. T.34-66. On December 22, 2010, the ALJ issued an unfavorable decision. T.17-33. Plaintiff filed a request for review which the Appeals Council denied on September 13, 2012, making the ALJ's decision the final decision of the Commissioner. This timely action followed.

III. Summary of the Administrative Transcript

A. Relevant Medical Evidence: Physical Impairments

Plaintiff treated at the Queens Long Island Medical Group, P.C. for a right knee impairment starting in March 31, 2010. See T.230-52, 346-462. Walter Yee, M.D. assessed hypertension and internal derangement of the right knee. T.241, 373, 394, 395, 397, 424, 429, 431, 436. Plaintiff was using a knee brace. Dr. Yee recommended physical therapy treatment and non-steroidal anti-inflammatory medications including diclofenac sodium (Voltaren). T.346, 373. An MRI dated April 23, 2010, showed a mild focal linear signal, mild cartilage degeneration, and a small Baker's cyst in Plaintiff's right knee. T.320, 410.

Samir Dutta, M.D., performed a consultative orthopedic examination of Plaintiff on August 6, 2010. T.285-90. Plaintiff arrived in a wheelchair, wearing a right knee brace, but he was able to stand and walk without both. T.286. Plaintiff declined to squat or walk on his heels and toes but was able to move on and off a chair and the examination table without difficulty. T.286. He weighed 348 pounds and was 5'9" tall. Dr. Dutta observed a loss of range of motion ("ROM") in Plaintiff's cervical spine, lumbar spine, hips, and shoulders, but the rest of Plaintiff's extremities all exhibited full ROM. Plaintiff's strength was full and he was negative for spasms, trigger points, muscle atrophy, sensory abnormalities, scoliosis, kyphosis, joint effusion, or joint instability. Hand and finger dexterity was intact and grip strength was full. Plaintiff stated that he was able to clean the house, shop, shower, bathe, dress, read, do laundry, and go out to different places. T.285. Dr. Dutta opined that Plaintiff had mild limitations in sitting and standing; and mild to moderate limitations in walking, bending, lifting, and carrying heavy weight on a continuous basis on the right side. T.287. Dr. Dutta also stated that Plaintiff's obesity was a medical issue which precluded normal ambulation and activity. T.287.

Dr. Plotz testified as a medical expert witness at the administrative hearing. According to Dr. Plotz, Plaintiff's main medical problem was his obesity; his right knee and back impairments were mild. T.49. Dr. Plotz stated that Plaintiff had no limitation in sitting; could stand and walk for 6 hours in an 8-hour workday; and could lift and carry at least 20 pounds. T.57.

B. Relevant Medical Evidence: Mental Impairments

VESID Panel Psychologist Dr. Gus C. Papapertrou conducted an evaluation of Plaintiff on February 10, 2006. See T.277-80. Plaintiff's affect was appropriate, and his general mood level was neutral. Although Plaintiff showed some impulsivity and covert anxiety, he did not reveal any formal thought disorder. Dr. Papapertrou administered several tests, including the Wechsler Adult Intelligence Scale-Third Edition. Plaintiff's verbal I.Q. was 87 (low average), his performance I.Q. was 99 (average), and his full scale I.Q. was 91 (average). In Dr. Papapertrou's opinion, Plaintiff had a learning disability in the verbal areas of cognitive functioning, and needed a "hands-on" vocation with a minimal arithmetic component. Plaintiff had expressed interest in building maintenance, locksmithing, and soldering, which were trades Dr. Papapertrou believed could be a good fit for him.

Dr. Michael Alexander conducted a consultative psychological examination of Plaintiff on August 6, 2010. T.281-84. Dr. Alexander noted that Plaintiff's speech, affect, mood, orientation, attention, concentration, memory, insight, and judgment were normal; and his thought processes were coherent and goal directed. He was able to count, perform simple calculations, do "serial 3s", identify and remember objects after 5 minutes, and recite 7 digits forward and 4 backwards. Dr. Alexander found no evidence of depressive or anxiety-related symptoms. T.281. Plaintiff was able to dress, bathe, and groom himself; read; manage money; use public transportation; and maintain relationships with friends and family. He was able to follow and understand simple directions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, make appropriate decisions, relate adequately with others, and appropriately deal with stress. Dr. Alexander stated that the "[r]esults of the examination do not appear to be consistent with any psychiatric problems, which would interfere with [his] his ability to function on a daily basis." T.283. Dr. Alexander did not diagnose Plaintiff as having any type of mental disorder, and stated that his prognosis was "good". T.284.

C. Vocational and Non-Medical Evidence

Plaintiff was 32-years-old as of the disability onset date, had graduated from high school, and could communicate in English. T.37. He had past relevant work as a carpenter and warehouse worker. T.38-39. Plaintiff testified that he lived with his mother, who was in poor health. He did the shopping for her and helped her around the house. He testified that he was able to shop, vacuum, sweep, do dishes, make beds, and carry up to two bags of groceries weighing up to 20 pounds. T.41. He estimated that he could stand for "[t]wenty minutes to [sic] more" and testified that sitting did not bother him. He estimated that he ...

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