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Capron v. Colvin

United States District Court, W.D. New York

June 25, 2015

CARL CAPRON, Plaintiff.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Mark M. McDonald, Esq. for the Plaintiff, Geneva, New York.

Andreea Laura Lechleitner, Esq. Social Security Administration for the Defendant, Office of General Counsel New York, New York.

Kathryn L. Smith, A.U.S.A. Office of the United States Attorney Rochester, New York.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Carl Capron ("Plaintiff") for Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") disability benefits. Now before the Court is Plaintiff's motion (Docket No. [#9]) for judgment on the pleadings and Defendant's cross-motion [#11] for judgment on the pleadings. Plaintiff's application is denied and Defendant's application is granted.


At the time of the hearing Plaintiff, who was 41 years of age, had graduated from high school and worked at various jobs, including that of "mixer" at a food processing plant, "mold operator, " "press operator" and machine operator at multiple factories, and "propane tank reconditioner" at a gas company. (189). Plaintiff's longest period of employment at the same job was six years, when he worked at a turkey farm. (287).


On December 5, 2011 Plaintiff applied for both SSDI and SSI benefits, claiming to be disabled due to "bipolar disorder, mania and depression." (34). Later, Plaintiff expanded his claim to include problems with his hands and elbows, specifically, "arthritis in both hands and tendinitis in both elbows." (34-35, 38). Plaintiff claimed that he became unable to work on June 20, 2010. (155).[1]

As part of his application, Plaintiff described his activities of daily living. For example, on December 22, 2011, Plaintiff, who was living with his parents at the time, due to a court order preventing him from living with his long-time live-in girlfriend, indicated that he had no problem with his own personal care (196), was able to cook his own meals (197-198), and could do laundry, "mowing and some gardening, " "some cleaning, " "simple household repairs" and shopping. (198-199). Plaintiff stated that he spent his days visiting with family, watching television, reading, playing video games, gardening and attending medical appointments and meetings of Alcoholics Anonymous and Narcotics Anonymous. (199-200). Plaintiff indicated, though, that it was difficult to do work requiring steady hands because his hands shake, apparently as a side-effect of his Lithium medication. (198). Plaintiff also reported that he believes he has a short attention span. (200, 202). However, Plaintiff indicated that he could follow oral and written instructions, and had no problem getting along with "bosses" or other authority figures. (202). In February 2012, Plaintiff reported that he was again living with a girlfriend (362). At that time, Plaintiff also reported that his daily activities included cooking, cleaning, laundry, shopping once per week, and providing childcare for his daughter on weekends. (367-368).

In connection with Plaintiff's application, the Commissioner, through the New York State Division of Disability Determinations ("DDD"), obtained medical records from the treatment providers that Plaintiff identified. See, Disability Worksheet (191-193, 390-398) & Exhibits 1F-10F. For example, the Commissioner obtained records (311-360) from Auburn Memorial Hospital ("Auburn Memorial") in Auburn, New York, where Plaintiff previously resided, records from Plaintiff's primary care physician after Plaintiff moved to Lyons New York, (255-261), treatment records from Plaintiff's mental health therapist (269-299) and records from Plaintiff's arm surgeon (262-268), as well as reports from a consultative psychiatric evaluation by psychologist Rachelle Hansen, Psy.D ("Hansen") (300-304, 362-366) and a consultative orthopedic examination by Harbinder Toor, M.D. ("Toor"). (367-371).

Plaintiff's aforementioned records from Auburn Memorial primarily pertain to three separate medical issues: 1) an in-patient admission in April 2010 after he became intoxicated and suicidal; 2) a complaint of chest and arm pain; and 3) in-patient treatment following a suicidal gesture in July 2010 and the treatment of his underlying depression. (315). The Court will discuss each of these issues in turn.

On April 13, 2010, Plaintiff was referred to Auburn Memorial's ER by the Auburn Police Department, due to the fact that he was intoxicated, agitated, depressed and suicidal. (344-360). Plaintiff reportedly indicated that he had "run out" of psychiatric medications two days earlier and had "been drinking in place of meds." (347). At the time of admission, on April 13th at approximately 10:30 p.m., Plaintiff was intoxicated, depressed, suicidal, angry and hallucinating. (351). By the following morning, Plaintiff's mental status was much improved. Specifically, on April 14, 2010 at 10:15 a.m., Plaintiff was fully oriented and cooperative, his memory was intact, his affect and thought process were within normal limits, he was not hallucinating and he denied feeling suicidal. (347). However, Plaintiff's insight, judgment and impulse control were poor. (348). Plaintiff also felt "stressed" over his personal relationships (his girlfriend was undergoing "extensive treatment for cocaine") and employment (he was recently laid off from work). (349).

In June 2010, Plaintiff returned to Auburn Memorial complaining primarily of pain in his chest, though he also indicated that his left arm sometimes felt numb. (331). Plaintiff's mental state at that time was apparently unremarkable. (334). Medical staff performed a variety of tests, but it t does not appear that they found a particular reason for Plaintiff's chest pain.

Plaintiff returned to Auburn Memorial's ER in July 2010, following a suicidal gesture in which he consumed alchohol and over-the-counter medications (Excedrin and cold tablets). (286). Upon admission to the hospital, doctors described Plaintiff as having "a history of depression and possibly cycling mood disorder as well as alcohol dependence." (318). Plaintiff indicated that prior to his impulsive overdose, "he had actually been doing fairly well in treatment of his depression with Zoloft, " that he had stopped taking that medication when he lost medicaid coverage due to the fact that his income had increased. (318). Similarly, Plaintiff stated that he had been taking Seroquel, which was "quite good for his anxiety and depression, " but had stopped taking it due to the cost. (318). Plaintiff added, though, that even when he was taking Zoloft he still had some "depressive symptoms." (318). The results of a mental status exam performed at the time of admission to the hospital were essentially unremarkable, although his "mood was dysphoric at times" when talking about his family problems, and his judgment and insight were "partial." (319). On July 19, 2010, David Strickland, M.D. reported the results of Plaintiff's mental status examination, in pertinent part, as follows:

He is alert. He is oriented, pleasant, cooperative, well dressed and well groomed. Psychomotor activity is unremarkable. No tardive dyskinesia [involuntary movements]. No tremor. He is certainly not intoxicated. His speech is unremarkable. Thoughts are logical and linear. Thought content is reality-based. His mood is stated as much better.' His affect is euthymic. He denies adamantly any suicidal ideation or intent. His judgment and insight appear improved at this time, though I sometimes think he underestimates the power of alcohol in his illness. He is not psychotic. His cognitive function, attention span and fund of knowledge are unremarkable.... I would say if he remains abstinent from alcohol, continues with therapy and responds well to the combined psychiatric medication [Lithium and Celexa] and psychotherapy approach, he should do well. However, certainly, if he goes back to drinking or abusing substances of any kind, his prognosis will be poor due to his history of impulsive behaviors.


As mentioned earlier, the Commissioner also obtained records from Plaintiff's primary care physician in Lyons, New York (Exhibit 1F), Effat Jehan, M.D. ("Jehan"), which cover the period of late 2010 to early 2011. Such records refer cursorily to Plaintiff's history of bipolar disorder and to the purported suicide attempt in July 2010. (255). The records also indicate that Plaintiff takes psychiatric medications including Lithium and Trazodone. (256). Otherwise, the records pertain mainly Plaintiff's complaints of pain/numbness in his hands and left elbow. On September 22, 2010, Plaintiff had his initial visit with Jehan, at which time he was complaining of hand pain. The results of Jehan's examination of Plaintiff were normal, and he ordered routine testing such as a lipid panel. (261). On October 20, 2010, Plaintiff reportedly told Jehan that "his hand pain is a lot better." (260). Jehan observed that Plaintiff's lab test results were "ok, " except that his Vitamin D level was low. (260). On January 4, 2011, Jehan reported that Plaintiff was complaining of pain in his left elbow, which he had been experiencing for "the past three months." (259). Jehan's impression was "lateral epicondylitis" of the left elbow, for which he prescribed Naproxen (Aleve) as needed. (259). On March 1, 2011, Jehan reported that Plaintiff was complaining of bilateral heel pain, dry skin and boils on his thigh and back. (258). Otherwise, Plaintiff's physical examination was normal.

The Commissioner also obtained records from Plaintiff's orthopedic surgeon, Daniel Alexander, M.D. ("Alexander"), who provided a medical source statement dated January 5, 2012. (Exhibit 2F). Alexander indicated that Plaintiff had left lateral epicondylitis and "bilateral cubital/carpal" tunnel syndrome, about which Plaintiff was complaining of numbness and tingling of the hands. (262). Alexander indicated that Plaintiff was receiving injections and physical therapy, and that "improvement [was] expected." (263). Alexander stated that despite Plaintiff's complaints, he had "no limitations" on his ability to lift and carry, stand and/or walk, sit, and push and/or pull. (265-266). Alexander further stated that Plaintiff had no postural or manipulative restrictions. (266). Alexander stated, though, that he could not "provide a medical opinion regarding [Plaintiff's] ability to do work-related activities." (266). Plaintiff contends that such statement is contradictory, but the Court disagrees. In that regard, viewing Alexander's report as a whole, including his unambiguous statements that Plaintiff had "no limitations" in the foregoing areas, and also due to the fact that Plaintiff was not working at the time, the Court understands Alexander's statement about "work-related activities" to mean only that he was not expressing any opinion about Plaintiff's ability to perform any particular work-related tasks that would involve activities other than those about which he had already given an opinion. In support of that view, the Court notes that Alexander later reiterated that Plaintiff could go "back to work without restrictions." (495).

The Commissioner also obtained records from Plaintiff's mental health therapy provider, Wayne Behavioral Health Network ("Wayne Behavioral"), which apparently cover the period between August 4, 2010 and November 1, 2011. (Exhibit 3F). Plaintiff began treating with Wayne Behavioral in August 2010, following the purported suicide attempt in July 2010, after which he had moved from Auburn to Lyons to live with his parents. (286). Plaintiff reported that the overdose incident arose because he was distraught over the fact that Child Protective Services ("CPS") had determined that he could no longer reside with his girlfriend, their daughter, or the girlfriend's son, because years earlier a court had issued a restraining order against him that was still in effect, preventing him from having contact with his girlfriend, even though he and his girlfriend had been living together despite the order of protection. (286). Plaintiff indicated that he was attempting to address his substance-abuse problem through treatment, so that he could retain custody of his daughter. (286). Plaintiff further indicated that in 2009, he had attended college full-time, but quit to care for his daughter due to his girlfriend's drug addiction. (294) ("He has been linked to VESID and was going to college full-time last year but he had to quit to care for the kids as GF was using."). Upon examination, Ronald Biviano, M.D. ("Biviano") reported that Plaintiff was alert and oriented and had logical thoughts, average intelligence, good memory, and fair judgment and insight. (289). Biviano added, though, that Plaintiff claimed to feel "aggravated, " depressed and easily agitated, and displayed a "reactive" affect. (289). Biviano made the following observations, in pertinent part:

The client is referred for treatment after a lethal [sic] suicide attempt taking multiple pills. He feels depressed, poor sleep, decreased appetite with 8 pound weight loss since July 15, 2010, he reports that he is easily agitated. He stated he does not want to be around people at all not even in stores.... Currently he is stressed by separation from his ex-girlfriend and her son, he is not working and is staying with his parents.... He seems to be overwhelmed by his current life circumstances. He does report symptoms that are in line with Bipolar illness and is being treated with medication [Lithium] for [that] illness.... He was previously prescribed Zoloft and Seroquel but lost ability to pay for them when his income increased too much and he lost medicaid. He will follow up in 4 weeks.

(291). Biviano further indicated that when Plaintiff was abusing alcohol he had "the potential to be impulsive." (289).

Between March 4, 2011 and August 31, 2011, Plaintiff did not receive treatment from Wayne Behavioral, because he was incarcerated in the Cayuga County Jail due to the fact that he apparently violated the aforementioned order of protection. (272-274, 276). However, on September 15, 2011, Plaintiff returned to Wayne Behavioral for treatment. On October 12, 2011, James Arena LCSW ("Arena") reported that Plaintiff was seeking treatment for "ongoing depression/bi-polar/anger issues." (276). Arena noted that Plaintiff was taking the medications Celexa and Lithium. (277). Arena further reported that Plaintiff was unemployed and not seeking work, and listed the following reasons why Plaintiff had left his last job: "low pay, crisis and drug addiction by patient and his female partner." (282). Arena conducted a mental status exam and reported that Plaintiff had a flat affect, anxious mood, focused thoughts, intact orientation and memory, good insight and poor judgment. (284). Arena gave Plaintiff a GAF score of 61, observing that Plaintiff had a depressed mood, mild insomnia, some difficulty with social functioning, some difficulty with school/occupational functioning and some meaningful relationships. (285). Arena additionally reported that Plaintiff was compliant with his medications and generally had "psychiatric stability, " though he occasionally relapsed and used alcohol. (273).

As mentioned earlier, the Commissioner also had Plaintiff examined by consultative psychologist Dr. Hansen, on February 16, 2012. (362-366). Plaintiff reportedly told Hansen that he stopped working in 2010 "due to a breakdown" (362), though the record contains no record of such a breakdown, or of any particular event that preceded Plaintiff's cessation of work.[2] Plaintiff reported to Hansen a variety of depression-and anxiety-related symptoms. Upon examination, Hansen found that Plaintiff's affect was "depressed and anxious" and his mood was "dysthymic, " but otherwise his mental state was essentially normal. More specifically, Hansen reported that Plaintiff's thought processes were coherent and goal-directed, he was oriented to person, place and time, his attention, concentration and memory were intact, his cognitive functioning was average, and his insight and judgment were fair. (363-364). Hansen's medical source statement was as follows:

The claimant is capable of following and understanding simple directions and instructions. The claimant can perform simple tasks independently. The claimant is able to maintain a regular schedule. The claimant is cognitively able to learn new tasks. The claimant may have difficulty performing complex tasks independently. The claimant has some difficulty making appropriate decisions. The claimant has difficulty relating adequately with others. The claimant does not deal appropriately with stress. The claimant's difficulties appear to be caused by his psychiatric diagnosis. The results of the present evaluation appear to be consistent with psychiatric problems, and this may significantly interfere with [his] ability to function on a daily basis.

(365). Hansen's prognosis was "guarded, " "given [Plaintiff's] extensive psychiatric difficulties." (366).

The Commissioner also had Plaintiff examined by consultative orthopedic examiner Dr. Toor, on February 16, 2012. (367-371). Toor's report is based on a physical examination of Plaintiff and Toor's review of an x-ray of Plaintiff's left arm. Toor reported that Plaintiff's "chief complaint" was pain in his right arm, resulting from a fracture of his right wrist in 2010. Plaintiff reported that he had numbness and tingling in his right hand, as well as difficulty "grasping, holding, pushing, pulling, lifting, and reaching with the right arm." (367). Toor examined Plaintiff's spine and upper and lower extremities, and reported normal findings except with regard to Plaintiff's right arm. As to that, Toor reported that Plaintiff "has mild to moderate limitations with pushing, pulling, lifting, reaching, grasping, holding, writing, tying shoelaces, zipping a zipper, buttoning a button, manipulating a coin, or holding objects with the right arm/right hand[.]" (369). Toor observed no such limitations with regard to Plaintiff's left hand/arm, and instead reported full range of motion and strength in the left hand/arm. (369).

The Commissioner also obtained a Psychiatric Review Technique (372-385) and Mental Residual Functional Capacity Assessment (386-389) from non-treating nonexamining state agency psychologist E. Kamin ("Kamin").[3] On the Mental RFC form, Kamin indicated that Plaintiff was only "moderately" limited with regard to understanding and remembering detailed instructions, carrying out detailed instructions, working in close proximity with others without being distracted by them, completing a normal workday and workweek without interruptions from his symptoms, interacting appropriately with the general public, getting along with co-workers and traveling in unfamiliar places or using public transportation. (386-387). Overall, Kamin concluded that Plaintiff "retains the ability to perform entry level work with limited contact with people." (388).[4]

Based upon the foregoing evidence, on March 14, 2012, the Commissioner denied Plaintiff's application for SSDI and SSI benefits. (73-86). The Commissioner determined that despite Plaintiff's physical and mental problems he was still capable of performing less than a full range of light work, with "limitations in pushing/pulling, reaching and handling & fingering with [his right] arm/hand, and [having] limited contact with people."(75).

On or about May 16, 2012, Plaintiff appealed, and the Commissioner scheduled a hearing before an ALJ for October 16, 2012. Meanwhile, on July 25, 2012, Plaintiff notified the Commissioner that he had retained an attorney. (112) ("Appointment of Representative"). Approximately two months later, on September 21, 2012, Plaintiff's attorney wrote to the Commissioner and requested an adjournment of the hearing. In that regard, Plaintiff's attorney maintained that Plaintiff's "SSA form-1696 and fee agreement [which Plaintiff and his attorney had signed on July 25, 2012, ] were not processed until 9/20/12, " which had prevented him from "fully review[ing] and develop[ing] [Plaintiff's] file." (117). As to that point, it is the Court's understanding that the attorney did not have the ability view Plaintiff's electronic claim folder prior to the processing of Plaintiff's SSA form-1696 by ...

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