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Quintana v. Colvin

United States District Court, S.D. New York

February 27, 2017

JESUS QUINTANA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

          OPINION AND ORDER

          HENRY PITMAN United States Magistrate Judge

         I. Introduction

         Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") and disability insurance benefits ("DIB"). Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items ("D.I.") 19, 25). Both parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c) (D.I. 12). For the reasons set forth below, plaintiff's motion is denied and the Commissioner's motion is granted.

         II. Facts[1]

         A. Procedural Background

         In plaintiff's applications for SSI and DIB he alleged that he became disabled on July 19, 2011 due to asthma, [2] allergies and eczema[3] (Tr. 82, 156-62, 182-83). Plaintiff later amended his applications to claim that he was also disabled due to sleep apnea[4] and a right knee impairment (Tr. 26). The claims were initially denied by the Social Security Administration on September 20, 2012 (Tr. 82-88). Plaintiff requested a hearing, and an Administrative Law Judge ("ALJ") conducted a video hearing on December 23, 2013 during which plaintiff, who was represented by an attorney, testified on his own behalf (Tr. 42-73). On May 14, 2014, the ALJ issued a decision finding that plaintiff was not disabled (Tr. 24-34). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on June 18, 2015 (Tr. 1-3).

         B. Social Background

         Plaintiff was born in 1972 and was 39 years old at his alleged onset date (Tr. 178). Plaintiff completed the eleventh grade and was trained as an auto mechanic (Tr. 183). Plaintiff worked as a mechanic's assistant for a sanitation company from 1989 to 1998 (Tr. 66, 229-30). Plaintiff subsequently worked as a sales associate for a beer company from 1998 through his alleged onset date in 2011 (Tr. 229). The latter job involved driving a truck to deliver cases of beer and beer displays and setting up the displays (Tr. 66-67, 183, 231).

         In documentation dated August 31, 2012, plaintiff reported to the Social Security Administration ("SSA") that he lived in an apartment with his parents (Tr. 190). Plaintiff stated that he was able to shower, iron his clothes, repair holes in the walls and put away laundry (Tr. 191-93). Plaintiff went outside every day, usually to the park, and would walk at a slow pace, so as to not "over exert" himself (Tr. 191, 193, 195). According to plaintiff, he could walk three blocks before needing to take a rest (Tr. 197), and would lose his breath climbing stairs (Tr. 196, 193, 196). Plaintiff stated that, at his previous job, lifting cases of beer frequently caused shortness of breath that was so severe that he needed to sit down (Tr. 195). Plaintiff indicated that his social life had not changed as a result of his medical condition and that he went to the movies, went fishing and visited his children (Tr. 195).

         C. Medical Background[5]

         1. Dr. Rajesh Patel

         The record contains treatment notes from family-medicine practitioner Dr. Rajesh Patel prior to plaintiff's alleged onset date. Plaintiff saw Dr. Patel on May 2, 2008 and his chief complaint during that visit was an asthma attack which had lasted for three days (Tr. 255-56). The medical history indicates that plaintiff had asthma since 2007 and allergic rhinitis[6] since 1985 (Tr. 255). Dr. Patel diagnosed plaintiff with "unspecified asthma without mention of status asthmaticus, "[7]which was "chronic controlled, " and "contact dermatitis and other eczema, " which was also "chronic controlled" (Tr. 255-56). Dr. Patel prescribed Lidex cream, Singulair, Benadryl and an albuterol inhaler[8] (Tr. 256).

         2. Treatment at Medinova Physicians

         a. Treatment Prior to Alleged Onset Date

         Plaintiff was seen by Dr. Vijay Alla at Medinova Physicians ("Medinova") on January 7, 2010, complaining of a rash on his face, itching all over his body and swollen eyes (Tr. 366). During that visit, plaintiff stated that he had no shortness of breath when at rest, but that he did experience shortness of breath upon exertion (Tr. 366). Plaintiff reported that his shortness of breath improved when he rested or used his inhaler (Tr. 366). Plaintiff also reported that he had a history of snoring and that he fell asleep at the wheel of his car, but also reported that his breathing problems did not wake him up at night (Tr. 366). Dr. Alla found pigmented lesions on plaintiff's face and hands (Tr. 366). He diagnosed plaintiff with a rash and another nonspecific skin eruption and prescribed Elidel cream, Temovate cream and Pataday solution (Tr. 367).

         Dr. Alla also found that plaintiff had decreased breath sounds bilaterally, but no wheezing, rhonchi[9] or rales[10] (Tr. 366). Dr. Alla also diagnosed plaintiff with "bronchial asthma without mention of status asthmaticus" or acute exacerbation (Tr. 366). Dr. Alla continued plaintiff on Singulair and also prescribed Symbicort and Ventolin inhalers (Tr. 367).

         Plaintiff saw Dr. Alla again on January 21, 2010, for a follow-up visit (Tr. 364). Dr. Alla found that plaintiff's respiration was clear bilaterally, and that plaintiff had no wheezing, rhonchi or rales (Tr. 364). Plaintiff complained of blurred vision and a rash, and Dr. Alla continued plaintiff's prescription of Elidel cream for his rash and continued plaintiff on Singulair, Symbicort, albuterol and Ventolin for his asthma (Tr. 364-65).

         b. Treatment After Alleged Onset Date

         Plaintiff returned to Dr. Alla on June 7, 2013 for a physical examination (Tr. 300). Plaintiff complained of having sharp pain in his right knee that he rated as 7 out of 10 (Tr. 300). Plaintiff reported that the pain had lasted for a "long time on and off" (Tr. 300). Dr. Alla's notes indicate that plaintiff had no limitation in motion and no trouble walking (Tr. 301). Dr. Alla prescribed Naprosyn tablets for plaintiff's knee pain and ordered an x-ray and a magnetic resonance imaging ("MRI") scan (Tr. 301).

         During the June 7 visit, plaintiff reported to Dr. Alla that he had no shortness of breath (Tr. 300). Dr. Alla examined plaintiff and found that plaintiff's respiration was clear bilaterally and that there was no wheezing (Tr. 300). Dr. Alla assessed that plaintiff had "bronchial asthma without mention of status asthmaticus or acute exacerbation" (Tr. 301). Dr. Alla prescribed albuterol, Ventolin and Singulair (Tr. 301).

         On the same date, plaintiff had an x-ray taken of his right knee at Madison Avenue Radiology Center (Tr. 305). The x-ray showed that there was lateral subluxation at the tibia and a joint effusion[11] indicating internal derangement (Tr. 305). No fractures, dislocations or bone lesions were observed (Tr. 305). The radiologist recommended that plaintiff have a MRI scan of the right knee (Tr. 305).

         On June 27, 2013, plaintiff underwent an MRI examination of his right knee (Tr. 319). The MRI showed that plaintiff had a full-thickness displaced tear of the lateral meniscus[12]with a meniscal fragment about the lateral joint line, a non-displaced two centimeter tear of the posterior horn medial meniscus, with a moderate grade medial collateral ligament sprain (Tr. 319).

         Plaintiff was seen again at Medinova on August 1, 2013, by registered physician's assistant ("RPA") Anna Litvin, to discuss the results of his x-ray and MRI exams (Tr. 297). RPA Litvin found that plaintiff's respiration was clear bilaterally, with no wheezing (Tr. 297). Plaintiff was again assessed as suffering from "bronchial asthma without mention of status asthmaticus or acute exacerbation" (Tr. 297). Plaintiff was referred to a pulmonologist for his asthma and for an orthopedic evaluation (Tr. 297-98).

         On August 26, 2013, plaintiff was seen by Dr. Alla to obtain medical clearance prior to undergoing a right knee arthroscopy[13] (Tr. 293). During this visit, plaintiff denied having any shortness of breath either at rest or with exertion (Tr. 297). Plaintiff also reported that he had not taken his asthma medication for several days (Tr. 295). Dr. Alla's examination of plaintiff was consistent with his prior examinations; he found no shortness of breath, cough or wheezing (Tr. 294).

         Plaintiff was again seen by RPA Litvin on September 17, 2013, for a refill of his medications (Tr. 291). Plaintiff stated that he could walk a "good number of blocks without any problems, " and that he had right knee pain, but "no pain in the legs" (Tr. 291). The record of that visit indicates that plaintiff was in a good general state of health and that he was able to do his usual activities (Tr. 291). His respiratory examination was again negative for coughing, shortness of breath or wheezing (Tr. 291). Plaintiff's assessment and medications remained unchanged from his prior visits (Tr. 292).

         3. Dermatologist Dr. Hyun-Soo Lee

         On December 21, 2013, plaintiff was examined by Dr. Hyun-Soo Lee, a dermatologist (Tr. 378). Dr. Lee's notes indicate that plaintiff had numerous erythematous[14] papules and plaque on his cheeks, neck and body (Tr. 375). Dr. Lee diagnosed plaintiff with severe atopic dermatitis and prescribed medications to treat his skin condition (Tr. 378).

         4. Consulting Examiner Dr. Elizama Montalvo

         At the request of SSA's Division of Disability Determination, consulting family-medicine physician Dr. Elizama Montalvo examined plaintiff on September 10, 2012 (Tr. 283-86). Plaintiff told Dr. Montalvo that he had a history of eczema, allergic rhinitis and asthma and that he had been hospitalized for two weeks in 2006 because of his asthma (Tr. 283). Plaintiff reported that his last asthma attack was on July 18, 2012 (Tr. 283). Plaintiff also reported that he could only walk for three blocks without having breathing problems and that he would then have to stop and use his inhaler (Tr. 283). Plaintiff also stated that he needed to use his inhaler when climbing the three flights of stairs to his apartment (Tr. 283).[15] Plaintiff stated that he was prescribed albuterol, Claritin, a Ventolin inhaler, Benadryl, Singulair and Betamethasone cream (Tr. 283).

         Dr. Montalvo examined plaintiff and found that plaintiff weighed 236 pounds, his gait and stance were normal and that he did not need an assistive device to walk (Tr. 284-285). Plaintiff could walk on his heels and toes without difficulty and squat fully (Tr. 285). Plaintiff rose from a chair without difficulty and needed no help changing or getting on and off the examination table (Tr. 285). Plaintiff had full range of motion in his cervical spine, shoulders, elbows, forearms, wrists, fingers, hips, knees and ankles (Tr. 284). Plaintiff's joints were stable and nontender, and plaintiff had no redness, heat, swelling or effusion (Tr. 284). Plaintiff had full (5 out of 5) strength in all extremities, with no sensory deficits (Tr. 284).

         Dr. Montalvo also examined plaintiff's chest and lungs and stated that

[h]e has poor effort. Difficulty to expand his diameter, but I did not hear any wheezing. Percussion[16] normal. No significant chest wall abnormality. Normal diaphragmatic[[17] motion.

         (Tr. 284).

         Dr. Montalvo observed that plaintiff had hyperkeratosis[18] on his upper extremities, face, neck and the back of his knees and that his skin was very dry, with scaling and oozing (Tr. 286).

         Dr. Montalvo diagnosed plaintiff with asthma, allergic rhinitis and severe eczema (Tr. 284). Dr. Montalvo determined that plaintiff had moderate limitations in walking and climbing stairs and that plaintiff should avoid dust, environmental pollutants and smoke (Tr. 284).

         5. Plaintiff's Knee Surgery and Follow-Up Treatment

         On August 21, 2013, plaintiff saw orthopedic surgeon Dr. Neofitos Stefanides (Tr. 315). Plaintiff told Dr. Stefanides that he had been experiencing right knee pain since he had tripped a year before and that the pain had been getting progressively worse and adversely affecting the activities of daily living (Tr. 315). Plaintiff reported that his pain at the time of his examination was 8 out of 10, with periods of worsening pain (Tr. 315). Plaintiff stated that Motrin and Tylenol provided mild pain relief (Tr. 315). Plaintiff could walk without an assistive device (Tr. 315). During this visit, plaintiff denied any coughing, wheezing, chest pain or shortness of breath (Tr. 315).

         Dr. Stefanides examined plaintiff and found that plaintiff had an antalgic[19] gait and that plaintiff could kneel and squat with a moderate amount of difficulty (Tr. 315). Plaintiff had positive medial and lateral joint tenderness (Tr. 315). Dr. Stefanides also found mild effusion (Tr. 315). Plaintiff's range of motion in his right knee was "0-140 without crepitus"[20] and his strength was 4 out of 5 due to pain (Tr. 315). Dr. Stefanides recommended arthroscopic surgery on plaintiff's right knee (Tr. 316).

         There are no records concerning the surgery in the administrative record. However, Dr. Stefanides' medical records indicate that on September 30, 2013, he saw plaintiff for the first post-operative visit (Tr. 313). Plaintiff reported that he was doing well and had mild pain that was well controlled with medication (Tr. 313). Plaintiff did not have any shortness of breath or wheezing (Tr. 313). Dr. Stefanides examined plaintiff and found that he did not have any tenderness at the medial and lateral joint lines and that there was no effusion (Tr. 313). Plaintiff's right knee strength was 5 out of 5 and his range of motion was 0-140 without crepitus (Tr. 313). He had a mildly antalgic gait and had difficulty squatting (Tr. 313). Dr. Stefanides prescribed physical therapy three times a week for 4 weeks (Tr. 314, 363).

         Plaintiff began physical therapy on October 8, 2013 (Tr. 362). Physical therapist Howard Krebaum noted that plaintiff rated his pain as 10 out of 10 (Tr. 362). Krebaum found that plaintiff's right knee strength was 3 out of 5, that plaintiff was limited by pain and that plaintiff needed an assistive device to walk (Tr. 362). Krebaum also noted that plaintiff's right knee extension was -5 degrees and that his flexion was tight at 95 degrees (Tr. 362). Plaintiff attended physical therapy on October 10, October 22, October 29, November 5, November 19 and November 21, 2013 (Tr. 356-61).

         Plaintiff had a second postoperative visit with Dr. Stefanides on October 21, 2013 (Tr. 311). Plaintiff reported during that visit that he was doing better and that the surgery had reduced his pain by 20% (Tr. 311). Plaintiff stated that he continued to walk with a cane (Tr. 311). Plaintiff also indicated that he was performing his home exercise program as instructed and continuing with his physical therapy regularly (Tr. 311). Plaintiff denied experiencing any shortness of breath or wheezing (Tr. 311).

         At the October 21 examination of plaintiff's right knee, Dr. Stefanides found that plaintiff had a range of motion of "5-110 with moderate amount of crepitus" (Tr. 311). His strength was 4 out of 5 due to pain (Tr. 311). Dr. Stefanides observed that plaintiff's knee had a mild varus deformity with moderate effusion (Tr. 311). Plaintiff had an antalgic gait and plaintiff could kneel and squat with a moderate amount of difficulty (Tr. 311). Palpation revealed tenderness at the medial and lateral joint lines and at the patellofemoral joint (Tr. 311).

         On October 25, 2013, approximately a month after plaintiff's arthroscopic surgery, Dr. Stefanides completed a Lower Extremities Impairment Questionnaire (Tr. 345-52). Dr. Stefanides reported that plaintiff experienced constant right knee pain after prolonged standing, walking or climbing of stairs (Tr. 347). Dr. Stefanides opined that plaintiff could sit for a total of four hours and stand/walk for a total of up to one hour in an eight hour workday, needed to avoid wet conditions, temperature extremes, humidity and heights and could not kneel (Tr 346-52). Dr. Stefanides opined that plaintiff's symptoms were frequently so severe that he would be absent from work more than three times a month (Tr. 351). Dr. Stefanides stated that he did not know whether plaintiff's impairments would last at least twelve months (Tr. 350). Dr. Stefanides opined that plaintiff could initiate and sustain walking with the assistance of a cane (Tr. 347). Dr. Stefanides further indicated that plaintiff could carry out the activities of daily living independently without assistance, including traveling from his house to appointments, preparing meals and bathing and dressing (Tr. 348). Dr. Stefanides stated that plaintiff's pain was completely relieved by medication without any unacceptable side effects (Tr. 348).

         On November 21, 2013, plaintiff's physical therapist sent a report to Dr. Stefanides, indicating that after five sessions treating his right knee, plaintiff had full extension and strength of 3 out of 5 (Tr. 354-55). However, plaintiff's self-reported lower extremity functional scale ("LEFS") was 7 (Tr. 354-55).[21]

         Plaintiff returned to Dr. Stefanides on December 2, 2013, complaining of pain in his knee that worsened at night and when he stood or walked for prolonged periods (Tr. 403). Plaintiff reported that Percocet relieved the pain (Tr. 403). Plaintiff indicated that he had also experienced some relief from the pain after receiving an injection at his last doctor's visit, but that the relief was short lived (Tr. 403). Dr. Stefanides's notes indicate that there had been no change in plaintiff's symptoms since his last visit. Dr. Stefanides advised plaintiff to lose weight and prescribed physical therapy and Orthovisc injections (Tr. 403).

         Plaintiff saw Dr. Stefanides again on January 6, 2014, for his first Orthovisc injection (Tr. 405). Dr. Stefanides' notes of the visit indicate that plaintiff continued to walk with a cane but that physical therapy was helping to alleviate his pain (Tr. 405). Plaintiff denied experiencing any shortness of breath or wheezing (Tr. 405). Upon examination, Dr. Stefanides found that plaintiff had an antalgic gait and that kneeling and squatting were accomplished with a moderate degree of difficulty (Tr. 405). Dr. Stefanides observed that the right knee had a mild varus deformity with moderate effusion (Tr. 405). Plaintiff's right knee strength was limited to 4 out of 5 due to pain and the range of motion in this knee was 5 to 110 with a moderate amount of crepitus (Tr. 405). Palpation again revealed tenderness at the medial and lateral joint lines and at the patellofemoral joint, but without effusion (Tr. 405).

         Dr. Stefanides referred plaintiff to Dr. Yakov Perper at Universal Pain Management who examined plaintiff on January 8, 2014 (Tr. 400). Plaintiff told Dr. Perper that he had numbness, tingling and weakness in his right knee and that his knee would give way (Tr. 400). Plaintiff also stated that he had a sharp pain in his knee that improved with elevation and rest, but that standing made the pain worse (Tr. 400). Plaintiff reported that he was taking Percocet for pain and that the Orthovisc injections he had received from Dr. Stefanides also provided some relief (Tr. 400). Plaintiff denied experiencing fatigue (Tr. 400). In his physical examination, Dr. Perper determined that plaintiff was not in acute distress (Tr. 401). Plaintiff's right knee appeared normal and without swelling or effusion (Tr. 401). The knee and the lateral joint line were tender to palpation (Tr. 401). Dr. Perper's testing revealed decreased range of motion in the right knee (Tr. 401). Dr. Perper prescribed Mobic and continued plaintiff on Percocet (Tr. 401).

         On January 13, 2014, plaintiff returned to Dr. Stefanides for another Orthovisc injection (Tr. 407). Plaintiff reported that his knee pain had improved since his first injection (Tr. 407). Dr. Stefanides examined plaintiff's right knee and found that plaintiff had mild varus deformity in his knee, but no atrophy, ecchymosis[22] or swelling (Tr. 407). Plaintiff's right knee strength had improved to 5 out of 5, and Dr. Stefanides found no effusion or crepitus (Tr. 400). Plaintiff's range of motion in his right knee was 0 to 110 degrees with pain at the end of flexion (Tr. 407). Palpation again revealed tenderness at the medial aspect of the proximal tibia and at the adjoining joint line (Tr. 407). Plaintiff denied having shortness of breath or wheezing (Tr. 407).

         On January 20, 2014, plaintiff received a third Orthovisc injection (Tr. 409). At this visit, plaintiff reported that his knee pain had improved since the second Orthovisc injection (Tr. 409). Dr. Stefanides's clinical findings were similar to those made at plaintiff's January 13, 2014 visit (Tr. 409).

         At plaintiff's follow-up visit on February 17, 2014, Dr. Stefanides found that plaintiff's right knee showed "definite improvement with no new problems or positive findings" (Tr. 411). Dr. Stefanides's notes indicate that plaintiff had experienced "significant [pain] relief" after receiving a course of three Orthovisc injections (Tr. 409).

         On February 21, 2014, plaintiff returned to Dr. Perper (Tr. 398). Dr. Perper's findings were the same as with plaintiff's prior visit to his office (Tr. 398). Dr. Perper continued plaintiff's Percocet prescription for an additional 30 days, but discontinued the Mobic (Tr. 399).

         6. Pulmonologist ...


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