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Clark v. Colvin

United States District Court, W.D. New York

March 30, 2015

ALLEN STEVEN CLARK, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Allen Steven Clark ("Clark") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his applications for Supplemental Security Income Benefits and Disability Insurance Benefits ("SSI/DIB"). 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 Clark's motion for judgment on the pleadings is denied.

BACKGROUND

I. Procedural Background

Clark applied for SSI and DIB on April 15, 2011, alleging disability beginning on January 17, 2009, due to asthma and chronic obstructive pulmonary disease ("COPD"). (Tr. 170, 174).[1] On June 15, 2011, the Social Security Administration denied Clark's claim for benefits, finding that he was not disabled. (Tr. 90-91). Clark requested and was granted a hearing before Administrative Law Lawrence Levey (the "ALJ"). (Tr. 40, 100-01, 107-13). The ALJ conducted a hearing on July 19, 2012. (Tr. 40-83). In a decision dated August 24, 2012, the ALJ found that Clark was not disabled and was not entitled to benefits. (Tr. 11-19).

On October 15, 2013, the Appeals Council denied Clark's request for review of the ALJ's decision. (Tr. 1-7). In the denial, the Appeals Council declined to consider an employability assessment from Jose R. Canario ("Canario"), MD, that postdates the ALJ's determination. (Tr. 2). Clark commenced this action on November 25, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[2]

A. Treatment Records

1. Mercy Medical Center

Treatment notes indicate that Clark was admitted to Mercy Medical Center on August 11, 2003 through the Emergency Department. (Tr. 250-65). According to the notes, Clark arrived at the Emergency Department complaining of shortness of breath. ( Id. ). He reported that he had a history of asthma, did not regularly see a physician, smoked approximately a pack of cigarettes a day, and used an Albuterol inhaler, but had recently run out. ( Id. ). Clark reported that he worked as a garage door installer and denied environmental exposure to fumes or dust. ( Id. ). According to Clark, he had begun experiencing shortness of breath three days earlier. ( Id. ). He was assessed with asthma exacerbation and was administered breathing treatments and intravenous steroids without improvement. ( Id. ). An examination of his lungs revealed some scattered rhonchi and wheezing. ( Id. ). A chest x-ray revealed no infiltrate or acute cardiopulmonary process. ( Id. ). Clark was admitted and given intravenous steroids and nebulizer treatments. ( Id. ). He was provided a regimen of tapering oral steroids and inhaled bronchodilators and was encouraged to stop smoking and to establish primary care. ( Id. ). He was discharged the following day. ( Id. ).

2. Moses Taylor Hospital

Treatment records indicate that Clark went to the Emergency Department at Moses Taylor Hospital on October 17, 2006 complaining of decreased sleep and appetite. (Tr. 266-78). According to Clark, he had not slept more than four or five hours a night for the previous few days. ( Id. ). A physical examination was unremarkable, and the evaluator opined that Clark appeared to be primarily concerned with being able to smoke and obtaining a note for work. ( Id. ).

A spirometry test was performed to assess Clark's pulmonary function. ( Id. ). The spirometry revealed a pattern of moderate air flow obstruction. ( Id. ). Clark was administered a bronchodilator, which resulted in significant improvement, although there was incomplete improvement in the FEV1. ( Id. ). The treatment notes indicate that Clark was a heavy smoker and might be developing emphysema. ( Id. ).

3. Ajay Shetty, MD

On September 9, 2008, Clark attended an appointment with Ajay Shetty ("Shetty"), MD, for a pulmonary consultation. (Tr. 279-86). The treatment notes indicate that Clark had been diagnosed with bronchial asthma as a child. ( Id. ). According to Shetty, Clark's asthma appeared to have worsened during the previous three years. ( Id. ). Clark reported that his worsening symptoms might have been due to his occupational exposure to zinc dust. ( Id. ). He reported that he had been to the emergency room twice during 2007 and suffered from shortness of breath, cough with mucoid sputum and wheezing. ( Id. ). According to Clark, his symptoms were worse at night and triggered by perfumes, aerosols and steam. ( Id. ). He reported that he treated his symptoms with a nebulizer and an Albuterol inhaler that he used approximately fifteen times a day. ( Id. ). Clark reported that he had also been prescribed Advair, but indicated that it did not alleviate his symptoms and was too expensive. ( Id. ). According to Clark, he had been smoking approximately one and one-half packs of cigarettes a day for the previous seventeen years. ( Id. ).

Upon examination, a HEENT exam showed erythema of the posterior pharynx and nasal mucosa. ( Id. ). Clark had no cervical lymphadenopathy, his lungs were clear, and his heart sounds were regular. ( Id. ). A chest x-ray demonstrated "hyperaeration" suggestive of bronchial asthma, but no evidence of acute pulmonary disease. ( Id. ). His lungs, heart, trachea, mediastinum, hila and apices were normal, but there was a posterior blunting of the left costophrenic angle of unknown significance. ( Id. ).

Pulmonary Functioning Tests demonstrated a significant reduction in the FEV1 (to 58% of predicted) and a reduced FEV1/FVC ratio of 57%. ( Id. ). According to Shetty, there was significant improvement in FEV1with a bronchodilator. ( Id. ). Clark's lung capacity and diffusion capacity were both normal. ( Id. ). Shetty assessed that Clark suffered from bronchial asthma and probable occupational exposure. ( Id. ). According to Shetty, Clark appeared to be developing COPD due to his cigarette smoking. ( Id. ). Shetty prescribed an inhaled steroid and asked him to follow-up in three months.

4. FLH Medical, PC

Treatment notes indicate that Clark began receiving treatment from Jose R. Canario ("Canario"), MD, at FLH Medical, PC, on March 9, 2011. (Tr. 298-302). During the appointment, Clark reported that he had not seen a doctor since 2008. ( Id. ). Clark reported a history of asthma and a previous COPD diagnosis. ( Id. ). According to Clark, he experienced shortness of breath during short walks, but was able to ascend a flight of stairs without becoming dyspneic. ( Id. ). Clark reported that he had previously been hospitalized twice for asthma exacerbation, but had not been intubated or admitted to the ICU. ( Id. ). According to Clark, he used an Albuterol inhaler approximately three times a day, drank approximately six beers a day, and smoked approximately one pack of cigarettes a day, which he had been doing since he was fifteen years old. ( Id. ). Clark denied decreased energy, fever, sleep disorder, night sweats, cough, sleep apnea, wheezing or weight change. ( Id. ). Clark lived with his mother and was unemployed. ( Id. ).

Upon examination, Canario noted normal respiration rate, markedly decreased airflow and expiratory wheezes over the lungs bilaterally. ( Id. ). Canario conducted a spirometry test, which demonstrated a moderate obstructive process. ( Id. ). The results demonstrated reduced FEV1 (to 77% of predicted) and a reduced FEV1/FVC ratio of 65%. ( Id. ). Canario assessed COPD and prescribed Advair, Prednisone, Tessalon and Wellbutrin. ( Id. ). Canario advised Clark to stop smoking and to return in one month. ( Id. ).

Clark returned for an appointment with Canario on May 9, 2011. (Tr. 303-04). He reported that he continued to smoke, but had decreased his consumption to less than a pack a day. ( Id. ). Clark continued to use Advair Diskus, Proventil and Wellbutrin. ( Id. ). Canario advised Clark to continue to take Wellbutrin, which Canario credited for Clark's decreased desire for cigarettes. ( Id. ). Clark continued to complain of COPD symptoms, including cough and shortness of breath with moderate activity. ( Id. ). Upon examination, Canario noted mildly decreased airflow. ( Id. ). According to Canario, Clark continued to suffer from a cough and occasional shortness of breath, but was much better since he had begun taking Advair and Proventil. ( Id. ). Lab work demonstrated that his lipid panel was slightly elevated, and Canario prescribed Crestor. ( Id. ). Canario advised Clark to diet and exercise. ( Id. ).

On July 28, 2011, Clark returned for another appointment with Canario. (Tr. 305-06). During the appointment, Clark presented with a persistent cough and reported difficulty breathing that did not always resolve despite the use of his inhaler. ( Id. ). He also reported "rattly" breathing. ( Id. ). In addition, he reported shortness of breath with minimal activity and continued smoking, although at a level of less than a pack a day. ( Id. ). According to Clark, he had not been sleeping well due to his decreased ability to breathe. ( Id. ). Upon examination, Canario noted normal respiration rate, an oxygen saturation of 96%, mildly decreased airflow, moderate expiratory rhonchi and mild expiratory wheezes over both lungs. ( Id. ). Canario noted that Clark had significantly improved after a Duoneb treatment. ( Id. ). Clark informed Canario that he was attempting to apply for disability due to his respiratory issues. ( Id. ). Canario referred Clark to a pulmonologist for further evaluation and treatment. ( Id. ). Canario also recommended a sleep test to determine whether oxygen at night might improve his sleep. ( Id. ). Canario provided a nebulizer and a prescription for Duoneb to be used as needed for shortness of breath. ( Id. ). Canario again counseled Clark on smoking cessation. ( Id. ).

Clark returned for a follow-up appointment with Canario on August 29, 2011. (Tr. 307-08). Clark reported that he had stopped taking Crestor after seeing a television commercial that concerned him. ( Id. ). Additionally, he had run out of his prescription for Bupropion (Wellbutrin) and had decreased his smoking to less than half a pack a day. ( Id. ). Clark had failed to obtain lab work as previously directed. ( Id. ). Clark denied decreased energy, fever, sleep disorder, night sweats or weight change and described his health as generally good. ( Id. ). He reported continued cough and shortness of breath with moderate activity. ( Id. ). Upon examination, Canario noted normal respiration rate and mildly decreased airflow. ( Id. ). Clark's lungs were clear anteriorly, posteriorly and laterally. ( Id. ). Canario encouraged Clark to continue to see his pulmonologist, to take the Crestor as prescribed, to continue taking Wellbutrin and to diet. ( Id. ).

Clark returned for a follow-up appointment with Canario on September 1, 2011. (Tr. 309-10). During the appointment, he continued to complain of shortness of breath, cough, dyspnea and wheezing. ( Id. ). Clark reported that he was currently applying for disability and had undergone an overnight oximetry, although it had malfunctioned. ( Id. ). On examination, Clark's respiration was normal, he had moderately decreased airflow and mild expiratory and inspiratory wheezes over his lungs bilaterally. ( Id. ). Canario encouraged Clark to continue to take his medications and to continue his treatment with his pulmonologist. ( Id. ).

On February 2, 2012, Clark attended an appointment with Canario and indicated that he was feeling mildly worse than his previous appointment. (Tr. 325-27). Clark reported that his symptoms had worsened since his last visit, he had recently been exposed to illness, and he did not have any sleep disturbance. ( Id. ). He reported that his symptoms were aggravated by exposure to cigarette smoke and cold temperatures, anxiety, climbing stairs and walking. ( Id. ). Clark reported that his symptoms were alleviated by the use of a bronchodilator, rest, and refraining from smoking. ( Id. ). He denied any other symptoms and described his general health as fair. ( Id. ). Clark continued to smoke approximately half a pack of cigarettes daily and reported moderate alcohol use. ( Id. ).

Upon examination, Clark appeared older than his age, chronically ill, weak and fatigued. ( Id. ). According to Canario, Clark appeared to be in mild to moderate respiratory distress with labored respiration. ( Id. ). Canario noted mild interostal retraction, increased AP diameter, chest expansion bilaterally, moderately decreased airflow, diminished breath sounds, dry inspiratory rales, coarse inspiratory rhonchi and mild expiratory wheezes. ( Id. ). Canario assessed a COPD exacerbation and prescribed Azithromycin and Daliresp and advised Clark to follow-up with his pulmonologist. ( Id. ).

Clark attended another appointment with Canario on July 11, 2012. (Tr. 331-33). During the appointment, Clark reported an asthma attack that had occurred three days earlier. ( Id. ). According to Clark, he had awakened during the night with acute shortness of breath and was able to control his breathing only after using his nebulizer twice. ( Id. ). Clark reported that since that time he had been using his nebulizer and other inhalers daily. ( Id. ). According to Clark, the heat and humidity was aggravating his breathing, and he was better when he was inside with air conditioning. ( Id. ). Clark also complained of right knee pain. ( Id. ).

According to Canario, Clark's lab work demonstrated that he was generally within normal limits except for an elevated lipid profile. ( Id. ). Clark continued to smoke approximately half a pack of cigarettes a day, and his alcohol consumption was moderate. ( Id. ). Upon examination, Canario noted that Clark appeared mildly ill and well-developed. ( Id. ). Clark's respirations were regular, shallow and labored, and he had mild intercostal retraction, moderate mid expiratory wheezing, expiratory rhonchi with no rales and mildly decreased airflow. ( Id. ). Canario assessed an asthma exacerbation, prescribed Prednisone and advised Clark to continue taking his asthma medications and to follow-up with his pulmonologist. ( Id. ).

Canario noted that Clark's knee was mildly swollen with limited range of motion. ( Id. ). Canario ordered an x-ray and instructed Clark to continue taking anti-inflammatories, and rest, ice and elevate his leg. ( Id. ).

5. Michael C. Kallay, MD - Pulmonary Disease

On September 21, 2011, Clark attended an appointment with Michael C. Kallay ("Kallay"), MD, a pulmonologist. (Tr. 311-21). Clark reported that he had previously been evaluated by a pulmonologist, but was unable to report the results of the evaluation. ( Id. ). He reported that he treated his COPD with Advair, a nebulizer and Proair as needed. ( Id. ). He indicated that he continued to smoke approximately five cigarettes a day and had been smoking regularly for twenty years. ( Id. ). According to Clark, he had recently been prescribed Wellbutrin. ( Id. ).

Upon examination, Kallay noted markedly diminished breath sounds that were hyperresonant to percussion. ( Id. ). A spirometry test demonstrated a severe airway obstruction with an FEV1 at 57% of predicted and an FVC at 89% of predicted. ( Id. ). Kallay assessed that Clark suffered from severe obstructive lung disease and emphasized the need for Clark to stop smoking as soon as possible. ( Id. ). According to Kallay, Clark appeared to have chronic asthma and was relatively young to develop COPD, although both features could be present with an alph-1 antitrypsin deficiency; he indicated that he could not determine whether the disease would be reversible. ( Id. ).

Kallay counseled Clark at length about smoking cessation and ordered blood work to determine whether Clark suffered from alpha-1 antitrypsin deficiency. ( Id. ). Kallay also requested a RAST study to determine whether Clark's symptoms were aggravated by common allergens. ( Id. ). Kallay also ordered a chest radiograph and PFT's. ( Id. ).

The chest radiograph demonstrated clear lungs and that the cardiomediastinal silhouette was unremarkable. ( Id. ). The results of the RAST demonstrated that Clark was sensitive to cat and house dust. ( Id. ). The pulmonary function test, performed on October 21, 2011, demonstrated moderately reduced FEV1 (at 63% of predicted) and a reduced FEV1/FVC ratio of 51% with a 26% improvement in FEVI after a bronchodilator was administered. ( Id. ). Kallay noted that the lung volumes demonstrated some air ...


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