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Harrington v. Colvin

United States District Court, N.D. New York

February 25, 2015


Olinsky Law Group, HOWARD D. OLINSKY, ESQ., Syracuse, New York, Counsel for Plaintiff.

OFFICE OF GENERAL COUNSEL, VERNON NORWOOD, ESQ., Social Security Administration, Region II, New York, New York, Counsel for Defendant.



This matter was referred to the undersigned for report and recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, it is recommended that the matter be remanded to the Commissioner for further proceedings consistent with the findings set forth below.


Plaintiff is fifty years old. (Dkt. No. 8-3 at 2.[1]) He completed tenth grade in special education classes. (Dkt. 8-2 at 40.) Plaintiff last worked as a garbage picker in 2009. Id. at 40-41. Prior to that, he worked in a cotton factory making cotton for furniture. Id. at 41. He had also worked at a factory making wood for caskets, packaged gun boxes for Remington Arms, and loaded and unloaded trucks. Id. at 42-43. He also held jobs as a dishwasher and maintenance staff. Id. at 43-44. On January 10, 2011, Plaintiff suffered from an acute myocardial infarction. (Dkt. No. 8-7 at 2.) Plaintiff alleges disability due to heart disease and kidney mass since December 28, 2010. (Dkt. No. at 8-4 at 6.)

Plaintiff applied for disability insurance benefits and Supplemental Security Income ("SSI") on January 26, 2011.[2] (Dkt. No. 8-5 at 13, 20.) The application was denied on May 25, 2011. (Dkt. No. 8-4 at 2.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 2. The hearing was held on February 10, 2012. (Dkt. No. 8-2 at 62.) The ALJ adjourned the hearing to allow Plaintiff to retain counsel. Id. at 62-74. Plaintiff retained counsel and appeared at the hearing held on May 11, 2012. Id. at 35. On June 18, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. Id. at 11-19. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on August 5, 2013. Id. at 2. Plaintiff commenced this action on October 2, 2013. (Dkt. No. 1.)


In February 2011, Plaintiff was referred to Dr. Menzies for his cardiology concerns and to Dr. Bermejo for his kidney mass. (Dkt. No. 8-7 at 26.) On February 16, 2011, Plaintiff met with Dr. Berjemo. Id. at 29-30. After discussing various treatment and diagnostic options, they agreed to watch Plaintiff's kidney mass after considering Plaintiff's history of cardiopulmonary arrest and acute myocardial infarction six weeks ago. Id. at 30. In a letter submitted after Plaintiff's hearing, Dr. Bermejo stated that Plaintiff had a left renal mass in January 2011 after suffering a cardiopulmonary arrest. Id. at 74.

On March 22, 2011, Dr. Dennis M. Noia, a consultative psychiatric examiner, assessed Plaintiff. (Dkt. No. 8-7 at 37-40.) Dr. Noia determined that Plaintiff's "attention and concentration was intact. He was able to do counting, but could not do simple calculations or serial 3s because of poor arithmetic skills." Id. at 39. Dr. Noia also reported that Plaintiff's "recent and remote memory skills were mildly impaired." Id. Dr. Noia found that Plaintiff's "intellectual functioning is estimated to be in the borderline range. His general fund of information appears to be somewhat limited." Id. Plaintiff told Dr. Noia that he can "dress, bathe, and groom himself with assistance. He reports that since his heart attach [sic], he does not he can [sic] cook and prepare food, do general cleaning, laundry, shopping, manage money, drive, or use public transportation." Id. Dr. Noia opined that Plaintiff "appears to be capable of understanding and following simple instructions and directions[, ]... performing simple and some complex tasks with supervision and independently[, ]... and maintaining attention and concentration for tasks." Id. He also "appears to be capable of learning new tasks[, ]... making appropriate decisions[, ]... relat[ing] to and interact[ing] moderately well with others[, and]... dealing with stress." Id. Plaintiff may need "assistance managing money due to poor arithmetic skills." Id. at 40. Dr. Noia reported that no psychiatric recommendations were necessary at that time. Id.

On March 22, 2011, Plaintiff underwent an internal medicine examination with consultative examiner, Dr. Kalyani Ganesh. (Dkt. No. 8-7 at 41-44.) Dr. Ganesh reported that Plaintiff did not have any "gross limitation to sitting, standing, and walking. He has a moderate-to-severe limitation lifting, carrying, pushing, and pulling secondary to coronary artery disease and abdominal surgery." Id. at 44.

On April 15, 2011, Plaintiff had a follow-up visit with Dr. Michael W. Kelberman at Central New York Cardiology. (Dkt. No. 8-7 at 46-47.) Dr. Kelberman reported that Plaintiff had made a "good recovery" from his heart attack and that he was doing "relatively well." Id. at 46. Plaintiff told Dr. Kelberman that he experiences occasional chest pain occurring both at rest and with exertion. Id. Plaintiff also reported some mild shortness of breath. Id. Plaintiff's medications included aspirin 325 mg daily, potassium 20 mEq per day, bisoprolol 5 mg twice a day, ramipril 2.5 mg daily, and Effient 10 mg daily. Dr. Kelberman's impression was that Plaintiff "has had a traumatic recovery.... He has had some recurrent symptoms...." Id.

On December 27, 2011, Plaintiff went to Little Falls Hospital for chest pain. (Dkt. No. 8-7 at 71-73.) Plaintiff had a follow-up visit at Central New York Cardiology with Lisa C. Anweiler, an Adult Nurse Practitioner, and Dr. Hugh C. MacIsaac. Id. at 75-76. They reported that Plaintiff "does exercise on a daily basis by walking. He does have some fatigue but not anything worse with his last visit with us." Id. at 75. They further reported that Plaintiff was "stable from a cardiovascular standpoint." Id. at 76. Plaintiff was told to continue taking his medication and walking. Id.


A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A) (2006). In addition, the plaintiff's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or ...

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