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Bush v. Colvin

United States District Court, S.D. New York

February 10, 2017

DAVID BUSH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Lorna G. Schofield, United States District Judge

         Plaintiff David Bush filed this action against the acting Commissioner (the “Commissioner”) of the Social Security Administration (the “SSA”) on March 19, 2015, seeking review of the final decision of an Administrative Law Judge (“ALJ”) denying him benefits under the Social Security Act (the “Act”). Before the Court is a Report and Recommendation of Magistrate Judge Debra Freeman (the “Report”), recommending that the Court grant Plaintiff's motion for judgment on the pleadings and deny the Commissioner's cross-motion for judgment on the pleadings. The Commissioner objected to the Report. For the following reasons, the recommendation to grant Plaintiff's motion is adopted, the case is remanded to the SSA and the Commissioner's motion is denied.

         I. BACKGROUND

         The following facts are taken from the administrative record and the parties' submissions.

         Plaintiff claims disability based on a number of health issues, including stroke, hypertension, heart failure, pervasive vascular disease, diminished dexterity, diminished eyesight, diminished kidney function, and an aneurism. Plaintiff alleges that he has been disabled since December 28, 2011, and seeks both disability insurance (“SSDI”) benefits and Supplemental Security Income (“SSI”) benefits under the Act.

         A. Plaintiff's Initial Application for Benefits

         Plaintiff applied for SSDI benefits on March 9, 2012, and applied for SSI benefits on April 2, 2012. His claims were denied on August 2, 2012, and Plaintiff requested an administrative hearing before an ALJ. A hearing was held on June 14, 2013, to determine whether Plaintiff is disabled within the meaning of the Act. Plaintiff appeared at the hearing, represented by an attorney.

         At the hearing, Plaintiff amended his onset date from November 7, 2011, to December 28, 2011. Plaintiff testified that since December 2011, he had worked only a few days painting fences. He testified that after his stroke, he was completely blind for a period, and now suffers from bouts of double vision, has trouble focusing, and has much greater difficulty seeing in the dark than in the light. He testified that he does not watch television or use a computer because of his eyesight and difficulty focusing. He previously worked as an installer of truck accessories, a cell phone salesman, an RV technician, a car alarm installer, and a generator technician. He completed ninth or tenth grade and does not have a GED. He also testified that he suffers from shortness of breath and chest pain upon exertion. Although he shops for food once a month for approximately 20 to 30 minutes, he noted that he has difficulty walking for longer periods and spends most of his time sitting. Plaintiff testified that he can usually lift a gallon of milk without symptoms, but his doing so often depends on whether he has taken his medication.

         Plaintiff was the only witness at the hearing. No vocational expert testified about what jobs Plaintiff can or cannot perform in light of his limitations.

         On September 20, 2013, the ALJ found that Plaintiff is not disabled. In making that determination, the ALJ conducted a five-step sequential analysis used by the SSA in determining disability. 20 C.F.R. §§ 404.1520; 416.920. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date of his disability. At step two, the ALJ found that Plaintiff suffers from the following severe impairments: pulmonary valve disorder; coronary artery disease, status post multiple stenting; “status-post questionable CVA;” peripheral arterial disease; renovascular hypertensive disease with bilateral renal stent placement; chronic kidney disease due to hypertension and atherosclerosis, status-post stage III acute renal failure; migraine headaches, and obesity. The ALJ also determined that Plaintiff's alleged mental impairment and diplopia (double vision) resulted in minimal, if any, limitations on Plaintiff's ability to perform basic work-related physical and mental activities, and were therefore non-severe.

         At step three, the ALJ found that Plaintiff's impairments do not meet or equal a listed impairment, which would, without more, qualify him as disabled. The ALJ then examined Plaintiff's residual functional capacity and found that Plaintiff has residual functional capacity to perform light work, except for work at unprotected heights. At step four, based on his residual functional capacity, the ALJ found that Plaintiff is unable to perform his past relevant work as an auto parts/car alarm installer/salesperson. At step five, based on his age, education, work experience, and residual functional capacity, the ALJ determined that there are jobs that exist in significant numbers in the national economy that the claimant can perform, and he is therefore not disabled within the meaning of the Act. The ALJ denied Plaintiff's claims.

         In reaching his conclusions at step two that Plaintiff's visual impairment is non-severe, the ALJ discussed the notes of Mandes Kates, M.D., a treating ophthalmologist and Elena Kaznatcheeva, M.D., a neurologist, and the opinion of Thien Huynh, M.D., who performed an ophthalmologic consultative evaluation.

         In reaching his conclusions at step four regarding Plaintiff's residual functioning, the ALJ relied partly on Plaintiff's medical records and findings of doctors. The ALJ considered the treating source opinion of Dr. Obligado, a nephrologist. Obligado opined that Plaintiff's ability to lift and carry was limited to lifting 20 pounds occasionally; his ability to stand and/or walk was limited to up to two hours per day; his ability to sit was not limited; and his ability to push and/or pull was limited. The questionnaire that Obligado filled out for the New York State Office of Temporary and Disability Assistance was sparse -- some questions were left unanswered and others had minimal answers. The ALJ accepted Obligado's opinion only with regard to Plaintiff's ability to lift and carry and sit because his exams “fail to support the standing and walking limitation.” Dr. Rehan Khan, a consulting physician, opined that Plaintiff's hand and finger dexterity were intact, but grip strength was 4/5 in the right upper extremity. He also opined that Plaintiff had no gross physical limitations for sitting, standing or walking, or use of the right upper extremity, and no limits for bending, kneeling, climbing, or squatting, but that Plaintiff should avoid activities of moderate or greater exertion. Khan also found a moderate limitation for fine visual acuity. Finding Khan's opinion “vague” regarding carrying and lifting, the ALJ determined that State Agency medical consultants P.S. Seitzman, M.D., and Judith Bodnar's, M.D., opinions “very persuasive” because they were more specific. Seitzman and Bodnar -- who did not physically examine Plaintiff -- opined that the Plaintiff had residual functional capacity to perform a full range of light work. Dr. Thien Huynh, a consulting ophthalmologist, examined Plaintiff in July 2012. Huynh concluded that his clinical exam was “essentially normal with no findings seen that would suggest poor vision in the right eye.” Huynh cautioned that “it is possible that he suffered macular infarction of the right eye from the hypertensive episode, ” and recommended a retinal consult for a fluorescein angiogram and a strabismus.

         The ALJ also cited six reasons for doubting the credibility of Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms. Among these, the ALJ notes that Plaintiff had not had any recent surgery or cardiac catheterization and received treatment that is essentially “routine and/or conservative in nature, ” such as medication and lifestyle modification. The ALJ also noted that the record does not contain any opinions from treating or examining physicians ...

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