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Downes v. Colvin

United States District Court, S.D. New York

July 22, 2015

RONALD A. DOWNES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JAMES L. COTT, Magistrate Judge.

Pro se Plaintiff Ronald A. Downes seeks judicial review of a final determination by the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") for the period between February 10, 2010 and November 14, 2011. The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the Commissioner's motion is denied, and the case is remanded for further proceedings.


A. Procedural History

Downes applied for DIB on July 7, 2011 and for SSI on July 15, 2011. Administrative Record ("R.") at 41, 98, 136-45, 146.[1] Downes claimed disability beginning on February 10, 2010 due to a collapsed lung, hypertension, and depression.[2] Id. at 150. On September 19, 2011, the Social Security Administration ("SSA") denied both of his applications. Id. at 42-47. On October 28, 2011, Downes filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id. at 48-52. Represented by counsel, Downes appeared at a hearing held before ALJ Zachary Weiss on December 19, 2012. Id. at 29-40. In a written decision dated January 17, 2013, the ALJ concluded that Downes was disabled beginning on November 15, 2011 due to a stroke, but found that he was not disabled prior to that date. Id. at 17-23. Downes sought review of the ALJ's decision on March 5, 2013, and the SSA Appeals Council denied review on July 2, 2014, rendering the ALJ's determination the Commissioner's final decision. Id. at 1-3, 11-12.

Downes timely commenced the current action on August 28, 2014, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3). See Complaint ("Compl.") (Dkt. No. 2). On February 23, 2015, the Commissioner filed her Answer (Dkt. No. 14) and moved for judgment on the pleadings pursuant to Rule 12(c). See Notice of Motion for Judgment on the Pleadings (Dkt. No. 15); Memorandum of Law in Support of Judgment on the Pleadings (Dkt. No. 16). Downes submitted no opposition to the motion. By letter dated May 28, 2015, however, Downes asked the Court to consider additional evidence in deciding the Commissioner's motion and enclosed a compact disc containing images of recent lung x-rays. (Dkt. No. 21). The Commissioner responded by letter dated June 17, 2015, arguing that Downes' submission did not support his claim of disability beginning in February 2010, and urged the Court to affirm the Commissioner's decision. (Dkt. No. 22).

B. The Administrative Record

1. Downes' Background

Downes, a Bronx resident, was 55 years old on the onset date of his alleged disability. R. at 146. Since April 1990, Downes had performed various jobs, working as an account executive, a sales representative, a project coordinator, a product demonstrator, a customer care representative, and a property inspector. Id. at 169-76. Prior to (and shortly after) his alleged disability onset date, he worked as a customer care representative for a pharmaceutical company from October 2009 to March 2010. Id. at 169, 171. Downes worked eight hours a day, five days a week. Id. at 171. He stopped working in March 2010 because he was laid off. Id. at 150, 196. From October 2010 to February 2011, Downes worked full-time as a property inspector. Id. at 169-70. During this period, he worked eight hours a day, five days a week, and earned four dollars per work order. Id. at 170. The record does not specify his total income. Id.

Downes' disability claims are based on a collapsed lung, hypertension, and depression. Id. at 150. With respect to symptoms related to his collapsed lung, Downes stated in a "Function Report" submitted to the SSA that he experienced shortness of breath when climbing stairs or walking on an incline. Id. at 165. On level ground, he needed to pace himself to walk one or two miles. Id. at 166. Downes could not lift in rapid succession and experienced uncomfortable pain in his abdomen when it rained or snowed due to lower atmospheric pressure. Id. at 160, 164. He reported that his depression caused him to stop engaging in activities he had enjoyed in the past, but most of the time he did not feel overwhelmed by stress. Id. at 164, 167.

In his submissions to the SSA, Downes described his daily activities. Id. at 160-64. He said that he cooked his own breakfast and handled chores such as laundry or cleaning his house. Id. at 160-62. He also performed volunteer work at a building, sweeping, mopping, pulling garbage, and separating recyclables. Id. at 160. Downes stated, however, that he was unable to engage in physical activities such as working out, riding a bicycle, or performing work that required walking. Id.

2. Medical Evidence

a. Treating Physicians

i. Dr. Harvey S. Weingarten's Treatment Notes

The record contains treatment notes from Dr. Harvey S. Weingarten, who saw Downes for regular checkups to monitor his hypertension since at least March 2009. Id. at 197. On February 11, 2010, Downes saw Dr. Weingarten after experiencing shortness of breath and chest pain the previous night. Id. Dr. Weingarten observed faint pulse, decreased air entry in Downes' left lung, and significant changes in his electrocardiogram impression from one performed in 2009. Id. Dr. Weingarten referred Downes to the emergency room, and he was hospitalized at Robert Wood Johnson Hospital from February 11 to February 18, 2010. Id. at 154, 197. The SSA made two attempts to obtain records from Downes' hospitalization at Robert Wood Johnson Hospital, but was unable to secure them. Id. at 261. According to subsequent treatment notes, Downes was diagnosed with a spontaneous pneumothorax at Robert Wood Johnson Hospital and underwent a VATS pleurodesis.[3] Id. at 196.

ii. Dr. T. M. Piparo's Treatment Notes

On February 24, 2010, Downes was seen by Dr. T. M. Piparo. Id. at 196. Dr. Piparo's treatment notes indicated that Downes had only minimal left-sided chest discomfort and numbness. Id. He also stopped taking the Percocet that had been prescribed at the hospital. Id. Dr. Piparo observed that his lungs were clear to auscultation.[4] Id.

On March 24, 2010, Downes saw Dr. Piparo for a follow-up on his blood pressure and to obtain referrals for chest x-rays and a pulmonology evaluation. Id. Upon physical examination, Dr. Piparo observed Downes' lungs to be clear and his heart rate and rhythm to be regular. Id. Downes denied any chest pain or headaches. Id. He missed his next scheduled appointment with Dr. Piparo on June 29, 2010. Id.

Downes saw Dr. Piparo again on July 29, 2010. Id. He denied experiencing chest pain, shortness of breath on exertion, headache, or dizziness. Id. However, Dr. Piparo noted that Downes' hypertension was poorly controlled and he was not compliant with his medication, diet, and exercise regimen. Id. Downes was prescribed new medications for hypertension. Id. at 195. He missed his next scheduled appointment on August 30, 2010. Id.

When Downes next visited Dr. Piparo on September 10, 2010, Downes denied experiencing headaches, weakness, chest pain, dyspnea (shortness of breath) on exertion, edema (swelling), or polydipsia or polyphagia (excessive thirst or hunger). Id. His chest was clear without any wheezing, rales, or rhonchi, and his heart sounds were normal. Id. There was no edema of his extremities, and his abdomen was soft and not tender or distended. Id. Downes was to continue on his hypertension medications. Id.

Almost a year later, on August 16, 2011, physician assistant Meredith Saulnier made a note that Downes had come in to have disability forms completed. Id. at 194. She noted that Downes had not been in the office for the past 11 months. Id. Downes attributed his disability to a collapsed lung in February 2010 and reported difficulty walking upstairs and shortness of breath with exertion or in humid weather. Id. He had run out of his hypertension medication one month earlier. Id. Downes also indicated that he had not recently had a pulmonary or cardiac evaluation due to insurance issues. Id. Upon physical examination, Saulnier noted hypertension and dyspnea upon exertion. Id. Nevertheless, she found that Downes' lungs were clear, his extremities were without edema, and his mood was appropriate. Id. She prescribed medication for hypertension. Id.

b. Consultative Examinations

i. Physical Examination by Dr. Vinod Thukral

On August 18, 2011, Dr. Vinod Thukral conducted a consultative internal medicine examination of Downes. Id. at 190-93. Downes reported that since experiencing a left pneumothorax in February 2010, he had intermittent shortness of breath after activities such as running, bicycling, and walking up hills. Id. at 190. However, he denied any cough, phlegm, fever, hemoptysis (coughing up blood), or any other symptoms related to pneumothorax. Id. Downes also reported that he suffered from depression since 2007, for which he took medication until 2008. Id. at 190. Since then, Downes said he was feeling fine and had not been on antidepressants for the last three years. Id. He also stated at the examination that he had a history of hypertension since 2007 and was currently on Metoprolol, but denied any complications from the condition. Id. at 191. Regarding his daily activities, Downes reported that he cooked and cleaned on a daily basis, did laundry once a week, and shopped once a month. Id. He also said that he watched TV, listened to the radio, read, and went out for walks in the park. Id.

Upon examination, Dr. Thukral found that Downes' lungs were clear to auscultation, his percussion and diaphragmatic motion were normal, and there were no abnormalities in his chest walls. Id. at 192. His blood pressure was 150/80, and he was asymptomatic with respect to hypertension. Id. at 191. His heart rhythm was regular. Id. at 192. Downes did not appear to be in acute distress, his gait and stance were normal, and he could fully squat. Id. His hand and finger dexterity was intact. Id. at 193. Upon mental status screening, Downes' affect was normal and he denied any suicidal ideation. Id. He was dressed appropriately, appeared oriented, maintained good eye contact, and there was no evidence of impaired judgment or memory. Id.

Dr. Thukral diagnosed Downes with "hypertension by history, depression by history, left pneumothorax by history, intermittent shortness of breath by history, and drug use by history." Id. at 193. He gave Downes a "fair" prognosis, and opined that he had no limitations to ...

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