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Soto v. Colvin

United States District Court, S.D. New York

April 14, 2015

RAMON SOTO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

OPINION & ORDER

ANDREW J. PECK, Magistrate Judge.

Plaintiff Ramon Soto, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying him Social Security Supplemental Security Income and Disability Insurance Benefits (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 12: Comm'r Notice of Motion; Dkt. No. 19: Soto Notice of Motion.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 23.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is GRANTED and Soto's motion (Dkt. No. 19) is DENIED.

FACTS

Procedural Background

On June 10, 2010, Soto applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") alleging that he was disabled since November 15, 2009. (Dkt. No. 15: Administrative Record filed by the Comm'r ("R.") 195, 199.) Soto alleged disability due to a back injury, depression, high blood pressure and diabetes. (R. 238.) The Social Security Administration ("SSA") found that Soto was not disabled, and denied the application. (R. 111-16.) Soto requested an administrative hearing. (R. 118-19.)

Administrative Law Judge ("ALJ") Lucien A. Vecchio conducted a hearing on August 10, 2011 (R. 26-35) and on September 21, 2011, issued a written decision finding Soto not disabled (R. 90-102). On April 20, 2012, the Appeals Council vacated ALJ Vecchio's decision, and remanded the case for a new hearing (R. 106-09). ALJ Sheena Barr conducted a hearing on October 2, 2012 (R. 36-88), at which Soto appeared with non-attorney representative Victor Ferrer (R. 39). On December 19, 2012, ALJ Barr issued a written decision finding Soto not disabled. (R. 6-21.) ALJ Barr's decision became the Commissioner's final decision when the Appeals Council denied review on July 8, 2014. (R. 1-3.)

Non-Medical Evidence & Testimony

Soto, born on February 16, 1965, was forty-four years old at the alleged November 15, 2009 onset of his disability, and forty-seven on the date of his October 2, 2012 hearing. (R. 43, 195.) Soto was born in Puerto Rico and moved to the United States at age three. (R. 372.) He attended school through the tenth or eleventh grade. (R. 44.) Soto has "a little bit" of vocational training in custodial maintenance. (R. 45.)

Between May 1999 and July 2001, Soto worked as a stock clerk in a distribution center. (R. 272.) Between September 2002 and November 2004, Soto worked in the stock and maintenance departments of Modell's, a sporting goods store. (R. 49-50, 258.) At Modell's, Soto frequently lifted boxes weighing up to fifty pounds, but due to the onset of diabetes he "wasn't feeling too good, " and required assistance when doing so. (R. 50, 259.) Between February 2005 and June 2007, Soto worked as a stock clerk at Duane Reade. (R. 48, 258). Soto "had a problem" with his supervisor at Duane Reade, and they "got rid" of him. (R. 48.) Between April 2008 and October 2009, as part of a welfare program, Soto performed seasonal maintenance for New York City Parks and Recreation in Queens. (R. 47, 258, 272.) In November 2009, Soto worked in stock and maintenance at a clothing store for about three months. (R. 46-47.)

Soto lives with his mother in an elevator building in the Bronx. (R. 44, 247.) Soto dresses and bathes himself, although sometimes his mother helps him put on his socks. (R. 58, 248-49.) Soto performs household chores such as washing dishes, laundry and ironing. (R. 62-63, 250.) Soto is able to mop and sweep, but states that it hurts his back to do so. (R. 63.) Soto prepares meals two or three times a day, which takes about an hour. (R. 249.) Soto cooks his mother's breakfast (R. 60), but claims that he cannot cook for more than two people (R. 63). Soto leaves his apartment every day, and travels independently by foot, train or bus. (R. 250.) Soto shops for food and clothes when he has "enough money." (R. 251.) Soto reported that his ability to pay bills, handle a savings account and use a checkbook has not changed since the alleged onset of his disability. (R. 251.) Soto does not have many friends because he believes they bring problems. (R. 59.) Soto has difficulty interacting with authority figures, because he thinks that "someone's doing something" to him or "following" him. (R. 65.) Soto has served two prison terms, including for homicide. (R. 66, 68, 454-55.)

Soto sees a psychiatrist for depression every three months (R. 53), and testified that he receives counseling from a therapist at Bronx Lebanon Medical Center every other day (R. 53). Soto is a recovering heroin and cocaine addict (R. 422), and spends his days attending programs for drug addiction recovery (R. 61, 247, 252). Soto arrives at his first daily program at six or seven each morning to receive methadone treatment (R. 61-62), then attends programs at the YMCA and Citywise and returns home around three in the afternoon (R. 61-62). The programs are within walking distance of each other, and unless Soto has a doctors appointment he attends each of the three addiction recovery programs every day. (R. 61.) After his programs, Soto helps his mother with "whatever she needs." (R. 247.)

Soto reported that he has trouble remembering things, and stress and changes to his schedule elevate his blood pressure and cause him to be depressed. (R. 254.) Soto testified that he could lift about ten pounds, but would not be able to do so repeatedly. (R. 57.) Soto stated that he can stand for about half an hour, and sit for about an hour. (R. 56-57.) While Soto reported that he tries to walk "a lot"every day (R. 247), he testified that he is only able to walk half a block before he needs to stop and rest for five to ten minutes, and expects he will "need a cane very soon" (R. 56, 253). In his application for benefits, Soto reported that when he picks up his legs or stands for too long, it feels as if someone shot him in the back. (R. 249, 255.) Soto asserted that walking, sitting and standing cause pain that lasts for as long as he walks, sits or stands. (R. 52, 256.) Soto also indicated that he is unable to climb stairs, kneel, squat, reach or use his hands because his right foot, "back and legs will hurt... real bad." (R. 252.) Soto is prescribed 800 milligrams of Ibuprofren every six hours, but claims that the medication only alleviates his pain for two hours. (R. 256.) In addition to his other ailments, Soto testified that due to his high blood pressure he "faint[s] sometimes." (R. 52.)

Medical Evidence Before the ALJ

Lincoln Medical and Mental Health Center

On February 4, 1999, Soto was brought to the emergency room at Lincoln Medical and Mental Health Center after he swallowed "about 10 pills because he was feeling bad." (R. 386.) Soto reported that he was "very depressed" since his wife left, and felt like he wanted to die. (Id.) Attending psychiatrist Dr. Jorge Urbina diagnosed adjustment disorder, depressed mood and impulse control disorder. (R. 400-01.) Soto was prescribed Zoloft and discharged after about a week of inpatient treatment. (R. 400.)

On October 20, 2003, Soto was admitted to the Lincoln Medical psychiatry department. (R. 390.) He complained that he had "bouts of crying, anxiety, and sadness" that "resulted in his inability to hold a job.'" (R. 390.) Soto stated that he had stopped taking the Prozac he was prescribed, and instead self-medicated with heroin and marijuana. (Id.) At a follow-up psychiatric evaluation on October 22, 2003, attending psychiatrist Brunhild Kring diagnosed Soto with major depression and impulse control disorder, and noted that he had "no acute medical problems." (R. 397.) Dr. Kring assigned Soto a Global Assessment of Functioning ("GAF") score of 45. (Id.)[1]

On April 11, 2009, Dr. Michele Harper saw Soto after he slipped and injured his left knee and foot. (R. 328.) An x-ray of Soto's left foot indicated a "[q]uestionable fifth metatarsal base fracture." (R. 326.) An x-ray of Soto's left knee indicated "[s]mall suprapatellar joint effusion with mild tricompartmental degenerative osteoarthritis." (R. 310.)

Narco Freedom

Soto has been admitted to a methadone maintenance program at Narco Freedom, a substance abuse diagnostic and treatment center, since October 26, 2006. (R. 364.) As part of the program, Dr. Iean Denis conducted a physical examination of Soto on October 14, 2009. (R. 366-67.) The results of the examination were normal. (R. 367.) Dr. Denis' diagnoistic impressions were chronic opioid dependence, diabetes mellitus and hypertension. (R. 368.) Dr. Denis opined that it was appropriate for Soto to continue methadone treatment. (Id.)

Narco Freedom additionally conducted a mental status examination of Soto on October 14, 2009. (R. 366.) Soto's general appearance, dress, motor activity, speech, mood, content of thought, flow of thought, and interview behavior were normal. (Id.) Soto's concentration and insight were good, his memory was good/intact, his cognitive ability was intact, his affect appropriate and his judgment fair. (Id.) Soto was diagnosed with chronic opiate dependence, diabetes mellitus and hypertension. (Id.) Soto was assessed with a GAF score of 70-72. (Id.)[2]

Federation Employment and Guidance Service ("FEGS")

On October 16, 2009, Soto was evaluated by FEGS. (R. 405-37.) Soto reported that his daily activities were: "go on appointments, read, do chores, watch TV." (R. 425.) Soto reported that he had "difficulty of finding employment due to his legal history (2 counts of homicide)." (R. 436.) Soto reported having "unbearable pain" in both legs. (R. 433.) Dr. Fernando Diaz conducted a physical examination of Soto and found tenderness, swelling, hyperpigmentation and mild pitting edema[3] in Soto's legs. (R. 433.) Dr. Diaz diagnosed Soto with major depression disorder, diabetes mellitus, hypertension, obesity and opioid dependence. (R. 435.) Dr. Diaz noted that as to his depression, Soto had a "history of good response to treatment" but currently had "no regular psychiatric follow-up" and recommended psychiatric treatment with psychopharmacology and supportive psychotherapeutic intervention. (R. 436.) Dr. Diaz referred Soto to Dr. Leggett at Bronx Lebanon Hospital for psychiatric treatment. (R. 443.)

Bronx Lebanon

The medical evidence shows that after 2009, Soto was treated primarily at Bronx Lebanon. (R. 538-970.)

On March 31, 2009, Dr. Bhavna Balar saw Soto for an evaluation of rectal bleeding. (R. 680.) Dr. Balar noted that Soto was obese, weighing 260 pounds with a body mass index of 40. (R. 680.)

On May 4, 2009, Soto was seen at the emergency room for knee and leg pain from a fall three weeks prior. (R. 336-37, 682-83.) Soto rated the pain as a nine on a ten point scale and described the pain as "constant; sharp; stabbing." (R. 683.) Soto stated that the swelling in his knee had increased since his April 11, 2009 injury. (R. 336.) A review of Soto's symptoms demonstrated that muscle strength was 1/5 in his left leg and 3/5 in his right leg. (R. 345.) Ultrasound imaging and a doppler evaluation of Soto's venous structures showed no evidence of deep vein thrombosis ("DVT"), [4] but pitting edema again was noted on Soto's calves. (R. 357.) In his plan of care, Dr. Rubi Valerio noted that Soto had cellulitis[5] on a background of chronic venous stasis, [6] diabetes mellitus type two and hypertension. (R. 351.) Dr. Valerio further noted that DVT was "ruled out." (Id.)

On October 28, 2009, Soto saw Dr. Neal Blitz for a diabetic podiatric evaluation. (R. 651.) Soto complained of a painful callus, thick painful toenails and a rash on the bottom of his foot. (Id.) Dr. Blitz assessed diabetes mellitus, tinea pedis[7] and onychomycosis.[8] (Id.)

At a follow-up podiatric exam on March 1, 2010, Soto reported that the prescription topical cream he was given was "helping." (R. 658.) Dr. Jonathan Margolin assessed the same conditions as Dr. Blitz, with the addition of an ingrowing toenail. (Id.) Dr. Margolin noted that Soto's range of motion was intact, with full muscle power bilaterally. (Id.)

On March 7, 2010, Dr. Christopher Leggett, a psychologist, completed a Treating Physician's Wellness Plan Report for Soto. (R. 374-75.) Dr. Leggett diagnosed major depressive disorder. (R. 374.) Dr. Leggett's clinical findings were depressed mood and energy, anxiety and history of auditory hallucinations. (Id.) Dr. Leggett noted that Soto had been off his medication for one month, but showed significant improvement while on Cymbalta, Elavil, Abilify and Seroquel. (Id.) Dr. Leggett indicated that Soto was "temporarily" unemployable for three months. (R. 375.)

On July 12, 2010, at a follow-up podiatric exam, Soto complained that he had "more back pain and numbness in his feet." (R. 584.) Dr. Margolin noted that Soto had "some slight" erythema[9] but no edema. (Id.) Dr. Margolin's orthopedic evaluation indicated that Soto had an intact range of motion and full muscle power. (Id.) Dr. Margolin again assessed diabetes mellitus, tinea pedis, onychomycosis and an ingrowing toenail. (Id.) Dr. Margolin referred Soto to Dr. Auerbach for evaluation. (Id.)

Also on July 12, 2010, Dr. Irina Benyaminova treated Soto for back and leg pain. (R. 518.) Soto reported that the pain radiated to his left leg when he was sitting, standing and lying down. (Id.) Dr. Benyaminova noted that Soto was a smoker, and had diabetes mellitus and hypertension. (Id.)

On July 30, 2010, Soto saw Dr. Peter Lesniewski and complained of numbness in his legs and pain in his feet, which he stated was worse with walking. (R. 585.) Dr. Lesniewski noted that Soto was in "mild distress." (Id.) Dr. Lesniewski further noted that Soto had tenderness in the mid-foot joints, and that an x-ray confirmed an early Charcot joint.[10] (Id.) Dr. Lesniewski prescribed Gabapentin and recommended that Soto quit smoking. (Id.)

At an exam on August 20, 2010, Soto reported that he had difficulty walking, was getting "quite numb" and had pain with a "very, very annoying... burning sensation." (R. 590.) Dr. Lesniewski noted vascular changes for venous stasis in Soto's lower extremities, and prescribed Vicodin for pain. (Id.)

On August 26, 2010, Soto was seen at the emergency room with complaints of anxiety, restlessness, chest tightness, insomnia and mild shortness of breath. (R. 606, 608.) Soto reported that he had taken cocaine that morning (R. 607), and his toxicology screening was positive for cocaine and methadone (R. 612). Soto's discharge diagnosis was cocaine abuse. (Id.)

On October 29, 2010, Soto was seen at the emergency room with complaints of sweating, occasional rigors, coughing up sputum, left leg, foot and generalized body pain, and chronic pain in his left toe. (R. 617-18, 622.) Soto was admitted for treatment of pneumonia. (R. 624-39.) Soto was not in acute or respiratory distress, his cardiovascular rate was normal, and he was noted to be alert, oriented, and independent in his activities of daily living. (R. 621.) A review of Soto's symptoms indicated chills and a cough, but no arm, leg or back pain and no joint swelling. (R. 622.) Soto's diagnoses on admission were pneumonia, psychiatric hallucination, hypertension, drug dependency and uncontrolled diabetes. (R. 639.) Soto was discharged on November 2, 2010, without restrictions on lifting or returning to work. (R. 636-37.)

On March 21, 2011, Dr. Margolin in podiatry treated Soto. (R. 642-43.) Dr. Margolin again assessed diabetes mellitus, tinea pedis, onychomycosis and an ingrowing toenail. (R. 643.) Upon orthopedic evaluation, Soto's range of motion was intact and his muscle power was full bilaterally. (Id.) Dr. Margolin performed an aseptic debridement of Soto's toenails, and "reeducated" him about diabetic foot care. (Id.)

On May 10, 2011, Soto had an appointment with Dr. Leggett. (R. 581.) Soto reported seeing shadows, irritable mood, poor sleep and passive suicidal ideation. (Id.) Soto had been out of his psychiatric medication for two weeks. (Id.) Dr. Leggett noted that Soto needed to restart his existing medication regimen (Abilify, Effexor XR and Ambien), and prescribed Remeron as well. (Id.)

On May 19, 2011, Dr. Anele Slezinger treated Soto for pain in his lower extremities. (R. 700-02.) Soto rated the pain as moderate, and described it as continuous "stabbing needles." (R. 700.) Dr. Slezinger noted that Soto was obese and had diabetes mellitus. (Id.) Dr. Slezinger observed that Soto had bilateral erythema, not warm to palpation and no joint swelling. (R. 702.) Dr. Slezinger diagnosed neuropathy in diabetes[11] and diabetic peripheral vascular disease. (Id.) Dr. Slezinger prescribed Lyrica for pain, ordered an arterial doppler and a vascular consultation. (R. 701-02.)

On June 9, 2011, Dr. Hanasoge Girishkumar examined Soto and observed pitting edema on both lower extremities from below the knee to the ankle region. (R. 703.) Soto complained that he had pain, swelling and skin discoloration in his lower extremities for a year and a half. (Id.) Dr. Girishkumar observed that Soto had "no signs of dilation of veins, ulcers or heel ulcers." (Id.) Dr. Girishkumar diagnosed Soto with chronic venous insufficiency[12] and prescribed compression stockings. (Id.) At a follow-up examination on July 21, 2011, Dr. Girishkumar noted that Soto was compliant with wearing compression stockings and his swelling was "improved." (R. 707.)

On August 2, 2011, Soto had a psychiatric follow-up appointment with Dr. Leggett. (R. 711-13.) Soto reported that he was depressed and had poor sleep. (R. 711.) Dr. Leggett noted that Soto had been out of his medication for two months and needed to restart his regimen. (Id.)

On August 2, 2011, Dr. Slezinger saw Soto for a follow-up examination. (R. 708-11.) Dr. Slezinger observed swelling and "minimal pitting edema" in Soto's lower limbs. (R. 710.) Dr. Slezinger noted that Soto was "clinically improved, " and lowered his dosage of Norvasc to prevent further increase in his lower extremity swelling. (R. 709.) Dr. Slezinger ordered diabetes blood work and a nutrition referral for obesity. (R. 711.)

On August 23, 2011, upon physical examination, Dr. Slezinger observed "no pedal edema." (R. 715.) Dr. Slezinger adjusted Soto's diabetes medication, and again ordered a nutrition consultation. (R. 716.)

On September 15, 2011 Dr. Girushkumar noted that Soto was compliant with wearing compression stockings. (R. 716.) Dr. Girushkumar observed skin discoloration and pitting edema, but Soto's "swelling h[ad] improved." (Id.) Soto had no "dilation of veins, ulcers or heel ulcers." (Id.)

On October 25, 2011, Soto told Dr. Leggett that he was dissatisfied with his life, living arrangements and lack of social and vocational activity. (R. 722.) Dr. Leggett gave Soto a referral for supportive counseling to improve his social adjustment and vocational performance, and increased his Remeron dosage. (Id.)

On December 1, 2011, Soto was admitted to the emergency room for chest pain and hyperglycemia. (R. 916-18.) An echocardiogram showed normal sinus rhythm, left axis deviation, inferior infarct[13] and possible lateral ischemia.[14] (R. 923-24.) Soto was diagnosed with uncontrolled diabetes mellitus, tachycardia[15] and hypoxia.[16] (R. 914.)

On January 6, 2012, Dr. Slezinger treated Soto. (R. 538-41.) Upon physical examination, Dr. Slezinger noted that Soto had limited flexion, limited lateral left and right bend, and limited left and right rotation in his back. (R. 540.) Dr. Slezinger also observed "lower extremity skin changes secondary to venous insufficiency." (Id.) Dr. Slezinger opined that Soto's diabetes and blood pressure were "not under control." (R. 541.) Dr. Slezinger referred Soto to gastroenterology, ordered a home blood pressure monitor for him and advised that a nurse would visit him at home to assist with diabetes maintenance. (Id.)

On January 17, 2012, Soto had a psychiatric appointment with Dr. Leggett. (R. 542.) Soto reported residual mood swings, which Dr. Leggett opined were likely due to poor glycemic control. (Id.) Dr. Leggett noted that Soto "sustained benefit[s]" from his medication regimen, and reinforced his "efforts to improve glycemic control for optimal physical and mental health." (Id.) Dr. Leggett adjusted Soto's medication regimen due to changes in Medicaid. (Id.)

On February 13, 2012, Dr. Slezinger noted that Soto's glucose level and blood pressure were elevated, and prescribed insulin. (R. 544.) Soto complained of shortness of breath, and Dr. Slezinger referred him to the cardiology and pulmonary departments. (R. 546.) Dr. Slezinger again opined that Soto's diabetes and blood pressure were "not under control." (R. 547.)

On March 5, 2012, Dr. Slezinger treated Soto for complaints of mild intermittent pain in his lower left quadrant. (R. 547-50.) Soto described the pain as "cramping." (R. 548.) Dr. Slezinger increased Soto's diabetes medication and advised him to go to the emergency room if his pain increased or became constant. (R. 549.)

On June 5, 2012, Soto had a psychiatric appointment with Dr. Leggett. (R. 550-52.) Soto complained of "irritability, anxiety, poor sleep." (R. 550.) Dr. Leggett noted that Soto had been out of medication for one month "due to problems with Medicaid" and needed to restart his regimen. (Id.)

On June 20, 2012, Dr. Chidi Ogbanna at the podiatry clinic treated Soto. (R. 554-56.) Dr. Ogbanna assessed diabetes mellitus, onychomycosis, keratoderma, [17] bilateral flexible pes planus and xerosis.[18] (R. 556.) Dr. Ogbanna performed an asceptic nail debridement and sharp excisional debridement of keratoses. (Id.) Dr. Ogbanna instructed Soto to check his feet daily, provided orthotics and discussed diabetic foot care with him. (Id.)

On August 7, 2012, Dr. Leggett treated Soto. (R. 566-68.) Dr. Leggett noted that Soto was "stable at his psych baseline" and had "return[ed] early to get a letter stating that he can't work." (R. 566.) Dr. Leggett prescribed sleep medication, advised Soto to enroll in the FEGS WeCare program and declined to provide a letter stating that Soto was unable to work. (Id.)

Also on August 7, 2012, Soto saw Dr. Russell Perry. (R. 568-72.) Dr. Perry noted that Soto continued to complain of low back pain, but had not made an appointment for physical therapy. (R. 568.) Soto requested a letter stating that he was unable to work, and Dr. Perry advised that he could not write a letter unless Soto attempted physical therapy for his lumbago.[19] (R. 572.) Dr. Perry further indicated that Soto's glucose level was "much improved" on his new medication. (Id.) Dr. Perry observed: ...


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