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Gonzalez v. Colvin

United States District Court, S.D. New York

April 1, 2015



SARAH NETBURN, Magistrate Judge.

Pro se plaintiff Frank Gonzalez brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking judicial review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (collectively, "disability benefits"). The Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Because I find that the decision of the administrative law judge ("All") is supported by substantial evidence and does not contain legal error requiring remand, the Commissioner's motion for judgment on the pleadings is GRANTED, and the case is dismissed with prejudice.


Gonzalez first applied for DIB in 2005, and his application was denied in May 2007. On February 1, 2010, Gonzalez again filed an application for DIB, and on February 18, 2010, he filed an application for SSI, alleging a disability onset date of August 1, 1997, due to HIV, neuropathy, lower back pain, and Hepatitis C. On April 18, 2011, Gonzalez appeared pro se for a hearing before ALJ Curtis Axelsen. On July 29, 2011, the ALJ denied Gonzalez's application, finding him not disabled under the Act. On November 1, 2011, the Appeals Council granted Gonzalez's request for review, vacated the ALJ's decision "under the substantial evidence provision" of the Act, and remanded the case for further proceedings. (AR 77.) The Appeals Council's remand was based on their findings that (1) the ALJ's decision was "unclear regarding the claimant's residual functional capacity" ("RFC") because the RFC contained no mental limitations despite the ALJ's finding that Gonzalez had the severe mental impairment of depression, and (2) Gonzalez's mental limitations required a vocational expert's testimony on how Gonzalez's impairment affects his occupational base, but the ALJ failed to consult a vocational expert.

Accordingly, on January 18, 2012, Gonzalez appeared pro se for his second hearing, this time before ALJ Zachary Weiss. After the hearing, the ALJ sought the expertise of vocational expert Raymond E. Cestar via interrogatories. On November 30, 2012, the ALJ denied Gonzalez's application, finding him not disabled under the Act. On June 17, 2014, the Appeals Council denied Gonzalez's request for review, thereby rendering the Commissioner's decision final.

On August 6, 2014, Gonzalez filed this action challenging the denial of his application for disability benefits. On December 23, 2014, the Commissioner filed a motion for judgment on the pleadings, with supporting memorandum of law. On January 5, 2015, the Court issued an Order directing Gonzalez to file a response by January 22, 2015, and the Commissioner to file a reply, if any, by February 5, 2015. On January 20, 2015, Gonzalez filed an affirmation in opposition to the Commissioner's motion for judgment on the pleadings. The Commissioner filed no reply, and the matter is considered fully briefed.


The following facts are taken from the administrative record.

Gonzalez was born on August 24, 1962, and married his wife Cynthia Gonzalez on February 14, 2002. On a Disability Report - Adult - Form SSA - 3368, dated February 18, 2010, Gonzalez informed the interviewer that they live at 2728 Kingsbridge Terrace, Apt. 1, Bronx, New York, 10463. Gonzalez suffers from HIV, neuropathy, lower back pain and Hepatitis C. He takes Dronabinol for weight gain, Hydrocodone with APAP for pain, a multivitamin, Norvir and Reyatz for HIV, aid Zolpidem for sleep.

Gonzalez indicated that he completed the 10th grade. From 1996 to 1998, he received inventory at a recycling plant, for which he used machines, tools, and equipment but did not use technical knowledge or skills. He did "writing, complete reports, or perform any duties like this, " but did not supervise others. (AR 160-61.) He lifted cases of cans and bottles frequently, the heaviest of which weighed 20 to 25 pounds. He stopped working on November 1, 1998.

Gonzalez completed a New York State Office of Temporary Disability Assistance Division of Disability Determination Form on March 10, 2010. Gonzalez reported that he was released from prison in December 2009, after which he attended daily group meetings at the Osborne Association and reported to parole once a week. He goes outside every day and does not have a driver's license. He is able to walk two blocks before he needs to stop, rests for five to ten minutes, and then continue. His hobbies and interest include reading, watching TV, and spending ti me with his wife, members of his support group, and a few friends. He does not have problems getting along with family, friends, or neighbors.

He reported that he can follow spoken and written instructions, finish what he starts, does not have problems paying attention, but does have trouble remembering things. He does not need help taking care of his hair, feeding himself, using the toilet, or grooming, and does not need reminders to take medicine. He is able to manage his own savings account and use a checkbook. He is able to bath himself but his leg pain prevents him from bending over at times. He described having "stabbing" pain in both of his legs and that he can no longer lift items or stand for long periods of time. (AR 170, 175.) He usually eats at fast food restaurants due to his "inability to stand for long periods of time." (Id.) If he does prepare a meal, it takes two hours because he has to rest and take breaks. He cannot perform house or yard work that requires heavy lifting or standing for long periods of time. Due to his medical conditions, he indicated that he is no longer able to work, exercise or be mobile in the way he used to be. He takes medication to help him sleep.

I. Relevant Medical History

A. New York State Department of Correctional Services

Medical records from 2009, when Gonzalez was incarcerated at the Wallkill and Queensboro Correctional Facilities, indicate that Gonzalez has HIV, Hepatitis C, for which he refused prescriptions, and neuropathy; all are chronic conditions. He was able to self-administer drugs, walk without assistance, live alone, and exhibited appropriate behavior. X-rays showed that Gonzalez's heart and lungs appeared normal, and that he had mild scoliosis. On September 6, 2009, Gonzalez's CD4 count was 510, and on December 21, 2009, it was 526.[1]

B. Treating Physicians

1. Dr. Michael Pierce, Internal Medicine

After his release from prison, Gonzalez was treated at All Med Medical and Rehabilitation of New York ("All Med") from January 2010 through January 2012. On January 21, 2010, All Med diagnosed Gonzalez with HIV, HIV neuropathy, HIV wasting syndrome, [2] HCV confection, [3] oral thrush, and opioid dependence in remission.[4] Gonzalez measured five feet four inches tall and weighed 149 pounds. He denied having depressive symptoms or anhedonia but described having insomnia. He complained of chronic lower back pain and a poor appetite.

The All Med report indicates that Gonzalez was born on March 26, 1962, and was 47 years old at the time. All Med determined that he had been the victim of domestic violence between ages 11-12. He had been married to his wife for eight years, was literate, and had completed a 10th grade education. He last used heroin in 2006, used cocaine for 20 years, and had never participated in a drug rehabilitation program. He was diagnosed with HIV in 1997, and stopped working the same year due to "LE pain." (AR 293.) All Med offered Gonzalez treatment for his Hepatitis C confection but he refused it. All Med advised him to stop smoking and to attend adherence counseling, provided him with HIV patient education, reviewed his prescriptions, and recommended consultations with mental health, dental, and ophthalmology practitioners.

On February 25, 2010, Gonzalez returned to All Med and was seen by internist Dr. Michael Pierce. Dr. Pierce found that Gonzalez had been 100% adherent for the past three days with his HIV medication regime, and that his CD4 count was 419. Dr. Pierce found that Gonzalez had HIV neuropathy and was "virologically unstable, " SO placed him on a new ARV regimen, including Atripla. At his next April 8, 2010 appointment, Gonzalez reported being 0% Atripla adherent over the past three days and weighed 137 pounds. He described feeling "stressed out" over his medications and that "there are too many pills." (AR 343.) His CD4 count was 419, and Dr. Pierce placed him on a new regimen requiring only one dose daily. On April 28, 2010, Gonzalez was seen by Dr. Edward Fruitman at All Med. Gonzalez complained of severe insomnia, and Dr. Fruitman modified his Ambien prescription.

On May 4, 2010, Gonzalez reported being 100% Atripl a adherent in the past three days and had gained weight. He described having sleep disturbances and a recent increase in anxiety. Dr. Pierce noted that the ARV regimen had been successfully initiated and Gonzalez was tolerating it well. At his June 4 and July 8, 2010 appointments, Gonzalez's condition was unchanged. On August 9, 2010, his condition was unchanged except that his CD4 count had dropped to 234. On September 7, 2010, Gonzalez reported that he was 33% Atripl a adherent over the past three days and complained of a low appetite. His CD4 count was 234. On October 8, 2010, Gonzalez reported being 100% Atripla adherent, and his condition was otherwise unchanged.

On October 22, 2010, Gonzalez had gained six pounds, was 100% Atripla adherent, and complained of lower back and bilateral leg pain that his current pain medication was not helping. His CD4 count remained at 234. Dr. Pierce gave Gonzalez a testosterone shot. On November 3, 2010, Gonzales reported that he was 100% Atripla adherent, he was eating well with the help of his Marinol prescription, but he was not sleeping well and requested more Ambien. He reported that he saw an ophthal mologist three months ago, planned to see a dentist, and had missed his psychiatrist appointment but would reschedule. He reported that he was still smoking and was not ready to stop because his wife smokes. His CD4 count was 273. On November 9, 2010, Gonzalez's condition was largely unchanged, but he received another testosterone shot, and Dr. Pierce diagnosed Gonzalez with hypogonadism. Gonzalez missed his psychiatry appointment again and planned to reschedule. At his appointments on November 30 and December 28, 2010, his conditions were unchanged.

On January 24, 2011, Gonzalez reported that he was 100% Atripla adherent in the past three days, his appetite was improving, and he was sleeping "so-so." (AR 326.) He reported having seen a dentist and ophthalmologist. On February 24, 2011, his condition was unchanged except that his CD4 count was 285. On March 24, 2011, he complained of flu-like symptoms. He reported that his appetite was improving, Ambien was "helping somewhat" with sleep, and he was "feeling ok overall." (AR 324.) He was 100% Atripla adherent over the past three days, and his CD4 count was 289.

On April 24, 2011, Gonzalez reported that he was 100% Atripla adherent, had a good appetite, and although Ambien helped him to fall asleep, he still woke up several times during the night. He complained of lower back pain that had been more intense over the past four weeks and mild tenderness of his lower back paravertebral muscle, on his left side, when he walks. On May 25, 2011, Gonzalez resisted having lab work done and admitted that he had not been taking Atripla and could do better with adherence. Otherwise, he reported eating well, sleeping better with Ambien, and "feeling well overall" on the Remeron prescribed by the psychiatrist. (AR 321.) On June 24, 2011, Gonzalez complained of having "fairly intense" pain and reported that he went to the Bronx Lebanon Hospital Emergency Room on June 19, 2011. (AR 320.) There he learned he had a shingles rash, and he was admitted for one day due to fever.

On July 28, 2011, Gonzalez's shingles had resolved, but he had residual pain and scarring from it. He reported being Atripla adherent and his CD4 count was 248. Otherwise, he reported feeling well overall, eating well, and sleeping better. Dr. Pierce noted that Gonzalez should continue taking Atripla for HIV and needs additional adherence counseling, "[illegible]" for Hepatitis C, Flexeril for chronic pain, Ambien for insomnia, and Remeron for depression. (AR 319.) On August 26, 2011, Gonzalez complained of chronic pain in both feet, which he described as 6/10. His CD4 count was 221. Treatment notes from his visit on September 22, 2011 are largely illegible.

On November 3, 2011, Gonzalez reported being 0% Atripla adherent in the past three days, that he had a good appetite, and that his sleep had decreased. His CD4 count was 221 and he weighed 144 pounds. Gonzalez again refused serology collection. His medications were listed as Ambien, FlexeriI, Oxandrol one, and Percocet.[5] On December 6, 2011, Gonzalez weighed 152 pounds and reported having a good appetite. Otherwise, his condition was unchanged: his CD4 count was 221 and he was still "virologically unstable." (AR 311-13.)

On January 3, 2012, Gonzalez weighed 155 pounds and reported that his appetite was good and he was gaining weight. He said his sleep was fair, and Dr. Pierce recommended that he follow-up with a psychiatrist. Dr. Pierce noted that Gonzalez was "HIV stable." (AR 308-09.)

2. Dr. Kingsley Nwokeji, Psychiatry

On May 13, 2011 through February 16, 2012, Gonzalez saw psychiatrist Dr. Kingsley Nwokeji at Clay Avenue Health Center. At his May 13, 2011 visit, the reason for his visit was listed as: depression, poor sleep, appetite, and anhedonia a. He denied suicidal and homicidalideation. He explained that when he gets angry, he walks to feel better. His appearance was appropriate, he was oriented to three spheres, his speech was clear, and his behavior was unremarkable. His memory was intact, his attitude was cooperative, and his insight, judgment, and impulse control were good. His affect was constricted and his intellect was average. His self-respect on was realistic and his thought processes were logical. Dr. Nwokeii diagnosed him with a Mood Disorder (296.90) and a Global Assessment of Functioning ("GAF") of 40.[6]

On June 24, 2011, Dr. Nwokeji reported that Gonzalez had enjoyed minimal improvements in his depression and that he was compliant with his medication. His condition was largely unchanged but had slightly improved: Dr. Nwokeji noted that Gonzalez's mood was euthymic. Dr. Nwokeji noted a GAF of 40. On July 22 and September 1, 2011, Gonzalez's condition was largely unchanged. On December 1, 2011, Gonzalez's condition was the same, but Dr. Nwokeji noted that Gonzalez had enjoyed moderate improvement in response to his depression medication. On January 19 and February 16, 2012, Gonzalez presented similarly but Xanax was prescribed in addition to Remeron.

C. Consultative Physicians

1. Dr. Dipti Joshi, Internal Medicine

On March 17, 2010, Gonzalez saw consultative examiner Dr. Dipti Joshi at Industrial Medicine Associates, P.C. in the Bronx for an internal medical exam. Dr. Joshi reported that Gonzalez has a history of HIV, which was diagnosed in 1997, had a CD4 count of 400, aid his only reported symptom was loss of appetite. Gonzalez reported that he has had neuropathy in his lower extremities since 1999. He described the pain as 5/10, very sharp, better with medication, and worse with standing and walking. He described his lower back pain as 7/10, sharp and radiating, better with medication, and worse when lying down. He has had depression and insomnia since 2006, but has no homicidal or suicidal ideations. Gonzalez has Hepatitis C but denied symptoms, did not have cirrhosis, and declined treatment. He used heroin but stopped in 2005 and does not consume alcohol. He smokes ten cigarettes per day.

Gonzalez reported that he lives with his wife. He does cleaning and laundry once a week but has trouble cooking because of the pain in his lower extremities. He showers, bathes, and dresses himself daily. He watches TV, ...

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