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Wearen v. Colvin

United States District Court, W.D. New York

March 10, 2015

STEVEN JOHN WEAREN, JR., Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Steven John Wearen, Jr. ("Wearen") brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income Benefits ("SSI"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 13).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 11). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Wearen's motion for judgment on the pleadings is denied.

BACKGROUND

I. Procedural Background

Wearen applied for SSI on July 14, 2010, alleging disability beginning on January 1, 2008, due to diabetes, high blood pressure, two bad knees, ankle problems and back problems. (Tr. 168-71, 187).[1] On September 10, 2010, the Social Security Administration denied Wearen's claim for benefits, finding that he was not disabled.[2] (Tr. 76). Wearen requested and was granted a hearing before Administrative Law Judge John P. Costello (the "ALJ"). (Tr. 116-18, 126-30). The ALJ conducted a hearing on November 28, 2011 in Rochester, New York. (Tr. 31-74). Wearen was represented at the hearing by his attorney Kelly Laga, Esq. (Tr. 31, 150). In a decision dated December 16, 2011, the ALJ found that Wearen was not disabled and was not entitled to benefits. (Tr. 19-26).

On February 15, 2013, the Appeals Council denied Wearen's request for review of the ALJ's decision. (Tr. 1-5). Wearen commenced this action on April 12, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[3]

A. Treatment Records

1. Culver Medical Group

Treatment records indicate that Wearen began treatment with Steven Scofield ("Scofield"), MD, and Sachin Shah ("Shah"), MD, [4] in April 2008. (Tr. 445-48). On April 10, 2008, he attended his first appointment with Shah. ( Id. ). According to the treatment notes, Wearen was previously treated at the Strong Memorial Health Pediatric Clinic. ( Id. ). The notes indicate that Wearen's main medical problems include morbid obesity, uncontrolled diabetes mellitus type 2, hypertension and left ventricular hypertrophy. ( Id. ). Wearen was first diagnosed with diabetes in approximately 2002, and he reported that he did not regularly check his blood glucose level. ( Id. ). According to Wearen, he walks approximately thirty minutes a day, approximately two to three times each week. ( Id. ). Treatment notes indicate that Wearen presented multiple cardiac risk factors and that his compliance with his hypertension medication regimen was inconsistent. ( Id. ).

Treatment notes also indicate that Wearen had a history of right knee pain stemming from a basketball injury. ( Id. ). According to the notes, the injury included cartilaginous defects, ligamentous injury and persistent knee effusion. ( Id. ). Wearen's knee was evaluated by an orthopedist in 2005. ( Id. ). He did not follow through on a subsequent referral to the orthopedist in 2007. ( Id. ).

Wearen also reported a history of marijuana abuse. ( Id. ). According to Wearen, he smoked approximately 5-10 "blunts" each day for the past approximately six years. ( Id. ). Wearen reported that he stopped smoking marijuana on April 2, 2008 and began a substance abuse program, which he attended three days a week. ( Id. ). Wearen reported that he lived with his grandmother, had dropped out of school in the tenth or eleventh grade, and worked a few days each week at his father's restaurant. ( Id. ). Treatment notes also indicate that Wearen previously had surgery on his right ankle. ( Id. ).

Examination notes indicate that Wearen's left knee was positive for effusion, mild crepitus with flexion and extension with full range of motion and no joint instability. (Tr. 447). Shah assessed chronic left knee pain stemming from an ACL tear in 2005, but noted that it was currently asymptomatic. ( Id. ). This left knee assessment is inconsistent with Wearen's report that he had injured his right knee in 2005, although it is consistent with the "active problems" list in the treatment notes indicating that the 2005 ACL tear was in his left knee. (Tr. 446-47). Shah also assessed morbid obesity, diabetes mellitus type 2, hypertension, left ventricular hypertrophy and marijuana abuse. (Tr. 446).

Shah opined that Wearen was "extremely high risk, " was not properly taking care of himself, and was "in grave danger of a myriad of complications in the near term." ( Id. ). Shah prescribed Metformin and Lisinopril and ordered blood work. ( Id. ). Shah also referred Wearen to an ophthalmologist and a podiatrist. ( Id. ).

Wearen returned for a follow-up visit with Shah on December 10, 2008. (Tr. 451-53). Wearen reported that he had gone to the gym every day during the summer, but had since reduced his frequency to two or three times a week in order to attend GED classes. ( Id. ). Wearen reported that he hoped to become a surgical technician or obtain his culinary arts certification. ( Id. ). Wearen reported that he used weights, swam, rode a bike and occasionally played basketball. ( Id. ). Wearen had lost approximately nine pounds since his last appointment in April and continued to attend a substance abuse treatment program. ( Id. ).

Shah opined that Wearen's December 2008 blood levels were much improved and recommended that Wearen continue taking Lantus, renewed his prescription for Lisinpril to manage his hypertension and referred him to a diabetic nutritionist. ( Id. ). (The treatment notes indicated that in June 2008 Wearen had been hospitalized due to hyperglycemia.) ( Id. ). On physical examination, Shah noted left knee effusion with mild crepitus with flexion/extension, but full range of motion and no joint instability. ( Id. ). Again, the treatment notes indicated a history of right knee pain stemming from a basketball injury, but the active problems list indicated that the injury was to the left knee. ( Id. ).

Wearen saw Shah again on February 12, 2009. (Tr. 459-61). Wearen reported that he continued to go to the gym two to three times a week, attended a substance abuse program and had taken the first day of the GED examination. ( Id. ). Wearen also reported that he was walking his dog approximately twenty to thirty minutes each day. ( Id. ). Wearen expressed interest in a referral for bariatric surgery. ( Id. ). Shah increased Wearen's Lantus dosage, noted that Wearen's blood pressure was at goal, referred Wearen to the bariatric surgery program and recommended that Wearen continue nutritional counseling for his diabetes. ( Id. ).

On September 8, 2009, Wearen attended another appointment with Shah and Scofield. (Tr. 462-64). During the appointment, Wearen reported that he goes to the gym approximately three times a month and that he walks to the bus daily. ( Id. ). Wearen reported that he had completed his GED and was hoping to start a course in order to become a surgical technician. ( Id. ). Wearen again expressed interest in a referral for bariatric surgery. ( Id. ). Treatment notes indicated that Wearen suffered from chronic left knee pain, which intermittently limited his ability to walk. ( Id. ). Upon examination, his left knee continued to display minimal effusion and mild crepitus with flexion/extension and full range of motion and no evidence of joint instability. ( Id. ). Shah and Scofield recommended that Wearen continue treatment with his endocrinologist, Dr. Rajamani, and monitor his blood glucose levels at least twice daily. ( Id. ). They also recommended that Wearen exercise at the gym more often and that he continue walking daily. ( Id. ).

Treatment records indicate that on December 9, 2009, Wearen attended an appointment with Benjamin Crane ("Crane"), MD, an otolaryngologist, to assess complaints of hearing loss in his right ear and tinnitus. (Tr. 469-71). After evaluation and examination, Crane recommended an MRI to rule out a cerebral pontine angle mass. ( Id. ). Crane advised that the tinnitus experienced by Wearen was both common and benign, and could be improved by eliminating dietary triggers. ( Id. ). On December 21, 2009, Wearen underwent an MRI of his head. ( Id. ). The radiologist opined that the results indicated a normal MRI of the brain with no evidence of CP angle mass lesion, but noted that the MRI demonstrated enlarged andenoids and left maxillary sinusitis. ( Id. ).

On April 22, 2010, Wearen attended another appointment with Shah. (Tr. 476-78). Wearen reported that he was regularly taking his medication, but rarely monitored his blood glucose levels. ( Id. ). Wearen was unable to explain his forty-six pound weight gain over the prior six months. ( Id. ). Shah advised Wearen to exercise more frequently, eat meals at regular intervals and monitor his blood glucose levels. ( Id. ).

On June 12, 2010, Wearen went to the Strong Memorial Hospital's Emergency Department complaining of low back pain. (Tr. 479-81). Wearen reported that he had injured his back the previous day bending over to pick up laundry. ( Id. ). Upon examination, tenderness was noted in the lumbosacral area upon palpation, although it did not radiate and Wearen was able to perform the straight leg raise to 90 degrees. ( Id. ). An x-ray of the lower lumbosacral spine revealed no acute disease. ( Id. ). Wearen was prescribed Percocet and Flexeril, which relieved his pain. ( Id. ).

On June 17, 2010, Wearen attended an appointment with Scofield complaining of continued back pain. (Tr. 482-85). According to Wearen, he had been experiencing back pain for the past week that was aggravated by prolonged sitting or standing. ( Id. ). Upon examination, Scofield noted mild to moderate tenderness to palpation across the lumbar spine and paraspinal area and a negative straight leg test. ( Id. ). According to Scofield, images of Wearen's lumbar spine demonstrated no evidence of fracture, dislocation or acute bony abnormality. ( Id. ). Scofield noted that although Wearen complained of some radicular symptoms, his examination did not suggest any neurological findings. ( Id. ). Scofield prescribed Naproxen, heat, and low back exercises. ( Id. ).

Wearen returned on June 22, 2010 for a health maintenance visit. (Tr. 491-95). Wearen reported that his lower back pain was improving with heat exercises and Naproxen. ( Id. ). Although he continued to experience positional discomfort, his back was much better. ( Id. ). Wearen had lost fifty-one pounds since April 2010. ( Id. ). According to Wearen, he was following a better diet, stopped drinking soda and was walking his dog approximately one hour every day. ( Id. ). Wearen reported that his left knee continued to affect him intermittently. ( Id. ). Wearen reported that he continued to abstain from marijuana and was scheduled to complete his substance abuse treatment program in September. ( Id. ). Upon examination, Wearen's left knee demonstrated large, chronic effusion with full range of motion, no crepitus and was positive for Lachman's but negative for McMurray's. ( Id. ). Scofield referred Wearen to an orthopedist to evaluate his knee for possible treatment. ( Id. ).

On July 22, 2010, Wearen attended an appointment with C. McCollister Evarts ("Evarts"), MD, at Strong Memorial Hospital for an assessment of his ongoing left knee pain. (Tr. 498-501). The treatment notes indicate that Wearen had treated at the same clinic in 2005 for his left knee, at which time Wearen had been diagnosed with a large ostcochondral defect on the lateral aspect of his femoral condyle, several loose bodies in the suprapatellar joint space, a complete ACL tear with an avulsion injury to the lateral aspect of the medial tibial plateau and a displaced medial meniscus tear suggestive of a grade I sprain of the MCL. ( Id. ). Wearen had been prescribed physical therapy and encouraged to treat with anti-inflammatory medications and activity modification. ( Id. ). In addition, Wearen had been told to follow-up in three weeks to discuss surgical options, but he never returned. ( Id. ).

During the July 2010 appointment, Wearen complained of left knee pain, intermittent swelling and mechanical symptoms, including locking, clicking and catching. ( Id. ). According to Wearen, he experiences knee-related difficulties when climbing stairs and during prolonged walking. ( Id. ). Wearen also reported that he can occasionally feel the loose body in his suprapatellar pouch and that he experiences pain with locking when the knee is extended and flexed. ( Id. ). Upon examination, Evarts noted mild effusion and a palpable loose body in the suprapatellar pouch, full range of ...


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