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Brito v. Colvin

United States District Court, W.D. New York

March 31, 2015

JAMES CHRISTOPHER BRITO, JR., Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff James Christopher Brito, Jr. ("Brito") 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 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 complies with applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Brito's motion for judgment on the pleadings is denied.

BACKGROUND

I. Procedural Background

Brito protectively filed for SSI/DIB on July 15, 2010, alleging disability beginning on June 7, 2010, as a result of left femur, knee and ankle problems. (Tr. 207, 221-22).[1] On November 10, 2010, the Social Security Administration denied both of Brito's claims for benefits, finding that he was not disabled.[2] (Tr. 104-05). Brito requested and was granted a hearing before Administrative Law Judge Mary Joan McNamara (the "ALJ"). (Tr. 114-15, 144-48). The ALJ conducted a hearing on November 18, 2011. (Tr. 52-103). Brito was represented at the hearing by his attorney, Jason Espinosa, Esq. (Tr. 52, 186). In a decision dated December 30, 2011, the ALJ found that Brito was not disabled and was not entitled to benefits. (Tr. 36-48).

On July 25, 2013, the Appeals Council denied Brito's request for review of the ALJ's decision. (Tr. 5-11). In the denial, the Appeals Council indicated that it had considered additional treatment records submitted by Brito, including school records, treatment records from Strong Internal Medicine, and records from Genesee Mental Health Center, but determined that the additional records did not provide a basis for changing the ALJ's decision. (Tr. 6). Brito commenced this action on September 17, 2013, seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[3]

A. Treatment Records

1. Strong Memorial Hospital - Emergency Department

Treatment notes indicate that Brito presented to the Emergency Department at Strong Memorial Hospital ("Strong") on January 4, 2003 with a stab wound in his right posterior shoulder. (Tr. 266, 277). Surgery was performed on Brito's shoulder, he was admitted to the hospital, provided Keflex and Vicodin and ultimately discharged. (Id. ).

On March 15, 2008, Brito was evaluated at Strong after an assault. (Tr. 279). The treatment notes indicate that he had suffered trauma to his head and was intoxicated. (Id. ). Images were taken of Brito's head and chest. (Tr. 279-80). The head CT demonstrated no significant intracranial abnormality. (Id. ). The chest x-ray demonstrated a bone fragment near the inferior aspect of the glenoid. (Id. ).

2. University of Rochester Medical Center-Department of Orthopedics

Treatment notes indicate that on January 29, 2005, Brito visited Strong's Emergency Department complaining of pain in his left ankle after slipping on ice. (Tr. 315-16). He reported that he was able to bear weight and ambulate after his fall, but was experiencing persistent ankle pain. (Id. ). Brito was evaluated by John P. Goldblatt ("Goldblatt"), MD, who opined that radiographs of the ankle demonstrated an oblique spiral-type proximal fibula fracture. (Id. ). Goldblatt placed Brito's ankle in a splint and recommended that he return for syndesmosis screw fixation surgery to repair his ankle. (Id. ).

Treatment notes indicate that on February 1, 2005, Michael Maloney ("Maloney"), MD, a surgeon in the Orthopedics Department of the University of Rochester Medical Center ("URMC") performed surgery on Brito. (Tr. 317). According to the treatment notes, surgery was recommended based upon a preoperative diagnosis of a fibula fracture. (Id. ).

On February 17, 2005, Brito attended a post-operative appointment with Goldblatt. (Tr. 313-14). Upon examination, Goldblatt noted that Brito did not appear to be in acute distress and that his cast demonstrated a moderate amount of wear on the bottom despite the fact that he had been advised to avoid bearing weight with that leg. (Id. ). Goldblatt opined that Brito's wounds were clean, dry and minimally tender with mild swelling at the surgical wound site. (Id. ). Goldblatt reviewed x-rays taken of his ankle and indicated that they demonstrated that the two ankle screws were intact with a symmetric left ankle mortise. (Id. ). According to Goldblatt, the x-rays demonstrated that the proximal fibula fracture had not changed in alignment. (Id. ).

Goldblatt placed a leg cast on Brito's left leg and instructed him to forego any weight-bearing on his left leg. (Id. ). Goldblatt indicated that he should be excused from work until he was out of his cast and able to bear weight. (Id. ).

Brito was seen again by Goldblatt on April 7, 2005. (Tr. 311-12). Goldblatt recounted Brito's medical history, indicating that he had undergone surgery for a syndesmotic injury of the left ankle and an associated high fibula fracture. (Id. ). Goldblatt removed his cast and opined that his incisions were clean, dry and intact. (Id. ). According to Goldblatt, there was mild tenderness over the incision site, but no tenderness over the proximal fibula fracture and no significant swelling. (Id. ). A neurological examination of the left lower extremity was normal. (Id. ). Goldblatt reviewed x-rays taken that day and opined that the position of the screws had not changed and the mortise appeared acceptable. (Id. ). Additionally, Goldblatt noted evidence of healing of the proximal fibula fracture. (Id. ).

Goldblatt opined that the proximal fibula fracture was healed, and he transitioned Brito into a high-tied walking boot and recommended progressive weight-bearing as tolerated. (Id. ). Goldblatt recommended a follow-up appointment in three weeks. (Id. ). According to Goldblatt, if Brito were able to ambulate without crutches at that time, Goldblatt would consider transitioning him to a lace-up ankle brace and would discuss his return to work. (Id. ).

Brito returned for an appointment with Goldblatt on April 28, 2005. (Tr. 309-10). According to Goldblatt, Brito complained of tenderness to palpation over the skin where the screws had been placed and over his ankle lateral malleolus distally. (Id. ). He reported pain upon bearing weight and noted that he had not attempted to bear weight without the brace. (Id. ). Upon examination, Goldblatt noted no swelling, but significant tenderness to very light touch over the skin. (Id. ). According to Goldblatt, Brito's motor and sensory examinations were within normal limits. (Id. ).

Goldblatt reviewed a contemporaneous x-ray of Brito's ankle, which demonstrated that the mortise was intact and that the screws had not moved. (Id. ). Goldblatt recommended that Brito continue to bear weight using the fracture walker boot and attend physical therapy. (Id. ). Goldblatt expressed concern that Brito was at risk for developing an early reflex sympathetic dystrophy-type phenomenon and recommended that he frequently rub the area. (Id. ).

On June 9, 2005, Brito had another appointment with Goldblatt. (Tr. 307-08). Brito reported that he had been bearing weight on his left leg in his fracture boot and continued to experience pain along the lateral ankle over the screw heads. (Id. ). Upon examination, Goldblatt noted that Brito did not appear to be in acute distress and that his left lower extremity appeared benign with no significant swelling or malleoli over the percutaneous pin sites. (Id. ). According to Goldblatt, there was no pain with dorsiflexion and plantar flexion of the ankle. (Id. ). Goldblatt opined that the ankle was stable and that Brito was neurovascularly intact. (Id. ). According to Goldblatt, the hypersensitivity of Brito's skin was in a diffuse area around the lateral malleoli. (Id. ). X-rays revealed that the screws were intact and did not appear to have moved. (Id. ).

Goldblatt cleared Brito to bear weight as tolerated and instructed him to wean himself from the fracture boot. (Id. ). Goldblatt completed disability forms indicating that Brito continued to be disabled with restrictions until his next appointment. (Id. ). Goldblatt prescribed physical therapy to assist with weight-bearing. (Id. ). Goldblatt noted that, from an orthopedic standpoint, Brito was stable and he would consider referring Brito to a pain clinic if the pain persisted. (Id. ).

On July 21, 2005, Brito returned for a follow-up appointment and was seen by Lucien M. Rouse ("Rouse"). (Tr. 305-06). He reported that he continued to bear weight on his left leg as tolerated and continued to intermittently wear the fracture walking boot. (Id. ). Brito complained of "excruciating pain" directly along the lateral ankle, over the screw heads, but reported that the pain had somewhat diminished since his last visit. (Id. ). Upon examination, Rouse noted that the incisions on Brito's left leg appeared benign without swelling or erythema. (Id. ). Brito continued to demonstrate tenderness over the screw sites, but had no pain upon flexion and was neurovascularly intact. (Id. ).

Rouse cleared Brito to return to work but restricted his standing and walking to approximately eight hours. (Id. ). Rouse also provided him with a prescription for physical therapy and instructed him to follow-up in six weeks. (Id. ). Rouse informed Brito that if his pain did not subside by his next appointment, he would be referred to the pain clinic. (Id. ). Rouse also discussed the option of removing the ankle screws if Brito's pain did not resolve. (Id. ).

3. Strong Internal Medicine

On November 4, 2010, Brito attended an appointment with Matthew Wolfe ("Wolfe"), MD, a resident in Strong's Internal Practice Department.[4] (Tr. 459-60). According to the treatment notes, the purpose of the appointment was to establish primary care for Brito, who reported that he had not been treated by a primary care physician for the past five years. (Id. ). Brito complained of worsening leg and knee pain. (Id. ). He reported that his knee pain was worse with activity, particularly ascending stairs. (Id. ). He also reported minimal right hip pain. (Id. ). According to Brito, he obtained minor relief through the use of acetaminophen and ibuprofen. (Id. ). Brito reported that he was unemployed and attending an alcohol abuse program. (Id. ). Upon examination, Wolfe noted no clubbing, cyanosis or edema in Brito's extremities and assessed no crepitus, effusion or erythema in Brito's knees, although he noted that the left knee was tender to palpation. (Id. ).

Wolfe assessed hypertension, osteoarthritis and alcohol abuse in remission. (Id. ). He prescribed Amlodipine for the hypertension and Meloxicam for Brito's knee pain, which he suspected was due to osteoarthritis. (Id. ). He also recommended a trial of physical therapy. (Id. ).

Brito attended a follow-up appointment with Wolfe on January 12, 2011.[5] (Tr. 461-62). Brito reported that his left leg pain was marginally better since taking Meloxicam, but that he had not been to physical therapy. (Id. ). He reported that he experienced most of his pain in his left leg and bilateral knees during ambulation. (Id. ). Brito requested a referral to Genesee Mental Health Center ("GMHC"). (Id. ). He reported that he had previously received treatment there and wanted to return. (Id. ).

Upon examination, Wolfe noted no clubbing, cyanosis or edema in Brito's extremities and assessed no effusion or erythema in Brito's knees, although he noted crepitus in his knees bilaterally with flexion and extension. (Id. ). Wolfe increased the Meloxicam dosage and recommended physical therapy and acetaminophen as needed. (Id. ). Wolfe indicated that he would consider an orthopedic referral if Brito's pain did not improve with medication and physical therapy. (Id. ). Wolfe opined that Brito's hypertension was better controlled and recommended a weight loss program. (Id. ).

On March 17, 2011, Brito returned for another appointment with Wolfe.[6] (Tr. 463-64). Brito reported that he had been receiving treatment at GMHC and attending AA and was happy with his progress. (Id. ). He anticipated starting a medication regimen prescribed by GMHC to address his depression and assist his sleep. (Id. ). He also reported continued left hip and ankle pain. (Id. ). He had not attended physical therapy, but had been exercising at the YMCA, including swimming in the pool. (Id. ).

Wolfe opined that Brito's hypertension was controlled and recommended that Brito continue to receive treatment at GMHC and to attend AA. (Id. ). With respect to Brito's osteoarthritis, Wolfe recommended weight loss, physical therapy and continued exercise. (Id. ). Wolfe increased the Meloxicam dosage and provided him with stronger acetaminophen to use as needed. (Id. ).

Brito returned for a follow-up appointment with Wolfe on May 12, 2011.[7] (Tr. 465-66). Brito reported that he was exercising more regularly, continued to go to the gym and was using his bicycle for transportation. (Id. ). He continued to attend AA and had not consumed alcohol, and his behavioral counseling was helpful. (Id. ). He reported continued knee pain and requested additional medication. (Id. ). Brito indicated that he had not attended physical therapy. (Id. ). Wolfe noted that Brito's hypertension was uncontrolled and increased the Amlodipine dosage. (Id. ). He encouraged Brito to continue his efforts to lose weight, attend physical therapy and continue his current pain medication regimen. (Id. ).

On October 20, 2011, Brito attended an appointment with Christopher Montgomery ("Montgomery"), MD, at Strong.[8] (Tr. 467-68). Brito reported that he continued to attend AA meetings twice a week and to abstain from alcohol. (Id. ). He anticipated attending an occupational rehabilitation program and continuing to receive behavioral health treatment. (Id. ). Brito continued to experience leg pain and was taking Nambutone daily and sometimes used Tylenol. (Id. ).

Montgomery opined that Brito's hypertension was well-controlled. (Id. ). Montgomery recommended that he continue with his current pain medication regimen and encouraged him to participate in an active lifestyle and to lose weight. (Id. ). Brito reported that he was compliant with his blood-pressure regimen and that he rode his bicycle regularly and maintained a healthy diet. (Id. ).

4. Strong Recovery Chemical Dependency

Treatment records indicate that Brito attended an intake assessment at Strong Recovery Chemical Dependency ("Strong Recovery") on August 4, 2010. (Tr. 449-55). The records suggest that Brito met with Karen Hospers ("Hospers"), MS, CASAC, and Gloria Baciewicz ("Baciewicz"), MD. (Id. ). Brito was on probation for a 2004 DWI charge and had previously completed outpatient treatment in 2006, following which he had abstained for six months from the use of any mood-altering substances. (Id. ). Brito was doing well on probation, but reported relapsing to alcohol use when "things go wrong." (Id. ). Brito reported that his alcohol consumption had recently increased due to the death of his mother, and he was seeking assistance before his drinking got "out of hand." (Id. ).

Brito reported that he lived alone and relied on the Department of Health and Human Services ("DHS") for financial support, noting that DHS encouraged him to apply for SSI/DIB benefits due to his leg problems. (Id. ). Brito was married in 2007, but separated in 2008 and was not currently in a significant relationship. (Id. ). Brito reported that he spent his days riding his bicycle and staying in his house. (Id. ). Brito reported that he was placed in foster care as a child due to his mother's physical abuse. (Id. ). Brito's mother died in April 2010, and his nephew was shot and killed in July 2010. (Id. ).

Brito reported that he had completed the twelfth grade and was unemployed. (Id. ). His last employment was in an automobile repair shop, but he was terminated due to his inability to perform at the required pace. (Id. ). According to Brito, he was unable to maintain pace due to his leg problems. (Id. ). He continued to experience pain in his leg after he broke his ankle and femur during a fall in 2005. (Id. ). According to Brito, he began consuming alcohol as a teenager and continues to drink during hard times. (Id. ). Brito reported that he currently was drinking approximately six wine coolers a day. (Id. ).

Upon examination, Brito presented as well-groomed with direct eye contact, normal speech, cooperative attitude, intact thought processes, normal perception, full orientation, good concentration, intact memory, average intelligence, moderately-impaired judgment and poor impulse control. (Id. ). Brito was diagnosed as having alcohol dependence with physiological dependence and was assessed a Global Assessment of Functioning ("GAF") of 55. (Id. ). He was referred to an intensive treatment program at Strong Recovery, and inpatient treatment was determined to be unnecessary. (Id. ).

On August 10, 2010, Brito attended an admission session at Strong Recovery. (Tr. 456). On October 6, 2010, Brito was discharged from the program. (Tr. 457-58). The treatment notes indicate that Brito met with his primary therapist for an initial session on August 24, 2010 and began intensive group treatment on August 30, 2010. (Id. ). He attended the following two sessions, but cancelled two consecutive sessions thereafter. (Id. ). According to the notes, Brito's therapist cautioned him about his absences. (Id. ). Brito continued to deny the extent of his alcohol use and resisted change. (Id. ). Brito attended some additional sessions, but missed four consecutive sessions between September 27, 2010 and October 4, 2010. (Id. ). He was thereafter discharged from treatment, and the notes reflect that he achieved none of his treatment goals as a result of his non-compliance with program rules. (Id. ).

5. Restart Substance Abuse Services

On October 18, 2010, Brito was referred for outpatient services at Restart Substance Abuse Services ("Restart"). (Tr. 477). Brito reported that he was legally obligated to complete a substance treatment program by his probation officer and DHS. (Id. ). Brito had recently been enrolled in the Strong Recovery outpatient program but had been discharged due to absences. (Id. ). According to Brito, he had been absent because he needed to care for his ill wife. (Id. ). The treatment notes indicate that Brito was forty-four years old and married. (Id. ). Brito reported that he had previously completed an outpatient rehabilitation program in 2008 but had later relapsed. (Id. ).

Brito denied mental health issues and indicated that he was motivated to become sober and explore a healthier way of living. (Id. ). He was admitted into treatment and scheduled for a medical screen on October 27, 2010. (Id. ).

Brito's treatment progress was evaluated on September 20, 2011. (Tr. 470-76). The review notes indicate that Brito had successfully refrained from consuming alcohol since December 2010. Brito reported that his relationship with his wife had improved, he had established a primary care physician and he continued to receive mental health treatment through GMHC. (Id. ).

6. GMHC

Treatment records indicate that Brito attended a pre-admission screening at GMHC on February 7, 2011. (Tr. 397-99). Brito reported that he lived alone, was unemployed and had lost his previous job at an automotive repair shop because he was not able to perform the physical requirements of the job due to pain in his ankle, hip and knees. (Id. ). His mother and nephew had recently passed away, and he reported increased symptoms of depression, which caused him to consume more alcohol. (Id. ). He reported that he was currently attending substance abuse treatment at Restart approximately three times a week. (Id. ). Brito reported a history of alcohol abuse and stated that he had last consumed alcohol the previous day. (Id. ). He also reported that he was financially dependent on DHS and had applied for SSI/DIB. (Id. ).

In February and March 2011, Brito completed the pre-admission screening process at GMHC after meeting twice with his primary therapist, Amanda Rudd ("Rudd"), LMSW. (Tr. 400-08). During those appointments, Brito complained of negative ruminations, headaches and sleeplessness, and Rudd noted that he demonstrated racing thoughts, negative ruminations and a depressed mood. (Id. ). Brito reported that he had difficulty sleeping due to racing thoughts and physical pain. (Id. ). The treatment notes also note that Brito was "coming here to strengthen [his] [SSI/DIB] application." (Id. ).

Brito had been separated from his wife for the past three years. (Id. ). He reported that he had been enrolled in special education classes during high school and had obtained his GED when he was incarcerated at the age of eighteen. (Id. ). Brito reportedly enjoyed riding his bicycle, "doing physical things" and caring for his dog. (Id. ). Brito reported a lengthy work history, including his most recent employment at an automotive repair shop. (Id. ). The position was obtained through a temporary agency and lasted only four months. (Id. ). He stated that because of his physical impairments, he was only able to work odd jobs and could not maintain consistent employment. (Id. ).

Upon examination, Brito presented as well-groomed and cooperative, with slow speech, organized thought processes, goal-directed thought content, depressed mood, flat affect, full orientation, intact memory, good insight, fair judgment, good concentration and fair impulse control. (Id. ). Rudd diagnosed Brito with adjustment disorder with depression, alcohol abuse and bereavement, and assessed a GAF of 58. (Id. ). Brito was admitted into treatment and attended another session with Rudd on March 30, 2011. (Id. ). During that appointment, Brito reported trouble sleeping and increased stress. (Id. ).

On April 4, 2011, Brito met with Lewis Mehi-Madrona ("Madrona"), MD, for a medication evaluation. (Tr. 410-11). Brito reported a history of high blood pressure, arthritis, chronic pain, trouble sleeping and sometimes hearing "things." (Id. ). He requested medication to aid his sleep. (Id. ). Madrona prescribed Mirtazapine (Remeron). (Id. ). Later that month, on April 18, 2011, Brito attended a medication evaluation with Monika Quistorf ("Quistorf"), a nurse practitioner. (Id. ). Brito reported that Remeron had provided relief. (Id. ). He also denied depressive symptoms and reported that his sleep was somewhat improved. (Id. ). Brito missed an appointment with Rudd on April 21, 2011. (Tr. 417).

In May 2011, Brito attended two appointments with Rudd. (Tr. 418, 420). During those appointments, Brito continued to exhibit depressed mood, racing thoughts and negative ruminations. (Id. ). Despite this, Rudd indicated that he was calm, cooperative, and demonstrated good eye contact, logical and goal-directed thoughts, appropriate affect, fair insight, intact memory and full orientation. (Id. ). He reported that his sleep had improved and he continued to make progress in ...


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