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Vlado v. Berryhill

United States District Court, E.D. New York

March 29, 2017

ERICA VLADO, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration Defendant.


          MARGO K. BRODIE, United States District Judge:

         Plaintiff Erica Vlado filed the above-captioned action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her claim for supplemental security income under the Social Security Act (the “SSA”). (Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that Administrative Law Judge Dina Loewy (the “ALJ”) erred by (1) failing to give controlling weight to the opinion of Plaintiff's treating physician, (2) failing to develop the record and (3) failing to credit Plaintiff's testimony. (Pl. Mot. for J. on the Pleadings (“Pl. Mot.”), Docket Entry No. 16; Pl. Mem. in Supp. of Pl. Mot. (“Pl. Mem.”), Docket Entry No. 17.) The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that the ALJ's decision was supported by substantial evidence. (Comm'r Cross-Mot. for J. on the Pleadings (“Comm'r Mot.”), Docket Entry No. 13; Comm'r Mem. in Supp. of Comm'r Mot. (“Comm'r Mem.”), Docket Entry No. 14.) For the reasons discussed below, the Court grants Plaintiff's motion for judgment on the pleadings, denies the Commissioner's cross-motion for judgment on the pleadings and remands the case for further proceedings consistent with this Memorandum and Order.

         I. Background

         Plaintiff is thirty-four years old. (Certified Admin. Record (“R.”) 154, Docket Entry No. 10.) Plaintiff does not have any children. (R. 40.) Plaintiff attended school until the fourth grade and then received private tutoring until the age of sixteen. (R. 178, 539.) Plaintiff has never been employed. (R. 178.)

         On May 30, 2012, Plaintiff applied for supplemental security income, alleging that she had been disabled since 1999 due to Crohn's disease, anxiety and depression. (R. 154, 174, 178.) A disability adjudicator initially denied her application on September 11, 2012, and Plaintiff requested a hearing before an administrative law judge (“ALJ”). (R. 65, 71, 122.) The ALJ held a hearing on June 12, 2014, and Plaintiff appeared via video with her non-attorney representative. (R. 35-56, 150.) By decision dated August 22, 2014, the ALJ denied Plaintiff's application, finding that she was not disabled. (R. 5-17.) Plaintiff sought review before the Appeals Council, which review was denied on December 18, 2015, making the ALJ's decision the Commissioner's final decision. (R. 1-3, 30.) Plaintiff filed a timely appeal with the Court.

         a. Hearing before the ALJ

         The ALJ held a hearing on Plaintiff's application on June 12, 2014, and heard testimony from Plaintiff and Cherie Plante, a vocational expert.[2] (R. 35-56.) Plaintiff appeared via video with her non-attorney representative and Plante appeared via telephone. (R. 38, 150.)

         i. Plaintiff's testimony

         Plaintiff testified as follows. At the time of the hearing, she was single and did not have any children. (R. 40.) Plaintiff and her mother lived together. (R. 40.) Her only source of income was public assistance. (R. 40.) Plaintiff was unemployed and has never held a job. (R. 41.) She attended public school until the fourth grade and had a private home-school tutor thereafter. (R. 40-41.) On an average day, she focused on adhering to her diet, taking her medication, completing errands that were “not very far away from home” and attending doctor's appointments. (R. 41.) She was able to cook, clean, shop for groceries and do laundry. (R. 42.) Her friends visited her at her home, and if she ventured outside or traveled to the mall, she had to “know where the nearest bathrooms” were. (R. 42.) She did not have any problems walking; she could stand for ten to fifteen minutes before she became dizzy; she could sit for three-to-four hours, unless she was “irritated” from using the restroom frequently and needed to lay down on her stomach; and she could lift five-to-ten pounds. (R. 47-49.)

         Plaintiff testified that she was disabled because her Crohn's disease caused her to visit the restroom repeatedly during the day, which in turn caused her fear and anxiety whenever she left home because she may have needed to find a restroom quickly and could find herself unable to access one. (R. 42-43.) She took Imodium and “Pepto-Bismol” tablets for relief, which reduced the frequency with which she had to use the restroom, but they did not alleviate the nausea. (R. 43-44.) She was only able to reduce the frequency of her need to use the restroom by not eating or drinking. (R. 44.) She did not eat before attending the hearing because she wanted to avoid having to use the restroom repeatedly. (R. 50-51.) In 2008, Plaintiff was hospitalized for dehydration, but she had not been hospitalized since then. (R. 44.) The same year, she also had surgery to remove “obstructions and [] blockages” in her colon and intestines. (R. 46-47.) Plaintiff had not been hospitalized for any obstructions since the surgery. (R. 46-47.) The surgeon also removed “all of the bile salts from [her] intestines, ” which removal resulted in Plaintiff having to visit the restroom frequently. (R. 51.)

         Plaintiff had a prescription for Humira, which her mother or sister administered by injection once a week. (R. 44-45.) She also had a prescription for Colestipol, which was for “the bile salts for the Crohn's.” (R. 46.) The side-effects of her medications were “extreme anemia, dizziness, nause[a] and headaches.” (R. 49-50.) As a result of her Crohn's disease, Plaintiff suffered from episodes of anemia. (R. 45.) Two weeks prior to the hearing, Plaintiff, for the first time, received an iron infusion due to anemia. (R. 45.) Plaintiff tried to control her Crohn's disease with a diet consisting of “clean foods” such as “chicken, ” “mashed potatoes, ” “yogurts with cultures” and “clean cereal, like Rice Krispies.” (R. 50.) She avoided foods such as “raw fruits and vegetables, ” “sweets, ” “soda, ” “spicy foods” and “peanuts.” (R. 50.)

         ii. Vocational expert testimony

         Before vocational expert Plante began her testimony, the ALJ informed her of Plaintiff's age, level of education and lack of prior work experience. (R. 52-53.) The ALJ then told Plante to assume the following:

a hypothetical claimant that can do medium work, never climbing ramps or stairs; never climbing ladders, ropes or scaffolds; frequently balancing, stooping, kneeling; occasionally crouching or crawling. . . . [W]orking in a facility where she is indoors and has access to a bathroom on the premises; work limited to simple/routine tasks; no fast-paced production requirements and no assembly line work.

(R. 54.) The ALJ asked Plante if “there are any jobs [such] hypothetical claimant could perform.” (R. 54) Plante testified that the hypothetical person could perform the job of a “dry-cleaner helper, ” “cleaner, industrial” and “cleaner II.” (R. 54.) If the hypothetical person would be “off task ten percent of the day, ” Plante opined that the same jobs would still be available. (R. 54.) But Plante opined that the jobs would not be available if the hypothetical person would be “off task [twenty] percent of the day.” (R. 54.)

         b. Medical evidence

          i. Mount Sinai Hospital Medical Center

          Plaintiff was diagnosed with Crohn's disease in 1999. (R. 272.) In 2008, she began receiving treatment at Mount Sinai Hospital Medical Center (the “Medical Center”).[3] (R. 343.) On July 14, 2008, Plaintiff visited the Medical Center complaining of pain on the right side of her abdomen. (R. 356-57.) The attending triage nurse believed that Plaintiff's pain was due to a complication resulting from her Crohn's disease. (R. 356.) The nurse recommended urgent treatment for Plaintiff. (R. 356.) After a computerized tomography (“CT”) scan, a radiologist observed that Plaintiff had an “extensive perianal fistula disease” and a “large multiloculated complex structure” in the right lower quadrant, which was closely associated with abnormal appearances in her bowel loops and the right side of her uterus. (R. 358.) The radiologist also observed that Plaintiff had an abscess related to Crohn's disease or a tubo-ovarian abscess. (R. 358.) Plaintiff was held at the Medical Center for further evaluation. (R. 359.)

         On July 22, 2008, physicians at the Medical Center performed an exploratory laparotomy, ileocolic resection, anterior resection, loop ileostomy, right salpingo-oophorectomy, left salpingtomy and cytstoscopy, and left ureteral stent placement to remove the abnormalities observed by the radiologist. (R. 349-50, 353-56.) On July 29, 2008, the Medical Center discharged Plaintiff with instructions to return for follow-up visits. (R. 351-52.)

         Plaintiff returned to the Medical Center on February 27, 2009, for a reversal of the loop ileostomy. (R. 347-48.) The Medical Center discharged Plaintiff one week later, on March 4, 2009. (R. 347.)

         ii. Dr. Kenneth Miller

          Plaintiff began treatment with Kenneth Miller, M.D., a gastroenterologist, on April 6, 2009. (R. 519.) Between April 6, 2009 and April 10, 2013, Plaintiff presented to Dr. Miller approximately bimonthly.[4] (R. 395-591.) During her visits with Dr. Miller, Plaintiff's reports of her symptoms and ailments predominantly were consistent, and included: stomach pain, diarrhea, irritation of the buttocks, nausea, fatigue, dizziness, shortness of breath and anxiety. (See, e.g., R. 395-96, 503-10, 569-70, 589.) Dr. Miller diagnosed Plaintiff with possible irritable bowel syndrome, Crohn's disease of the small bowel and colon, depression and anxiety, unspecified. (R. 396-97, 522, 590-91.) Dr. Miller prescribed Humira, Colestid and 6-MP to treat Plaintiff's Crohn's disease and the related symptoms, as well as Lexapro and Seroquel to treat Plaintiff's anxiety. (R. 397, 483, 508-09, 514, 569-71, 590-91.) Dr. Miller also recommended that Plaintiff take Pepcid as needed. (R. 397.) During visits with Dr. Miller in August of 2009, December of 2009 and May of 2011, Plaintiff reported that the prescribed medications improved her Crohn's disease and the related physical symptoms. (R. 494, 508-09, 512). In addition, during visits with Dr. Miller in October of 2011 and February of 2012, she reported that the prescribed medications improved her anxiety. (R. 478, 484-85.)

         While Plaintiff was under his care, Dr. Miller ordered colonoscopies and biopsies of Plaintiff's bowel and intestinal tract. (R. 448, 460-61, 472, 569.) The colonoscopies revealed a distal colonic surgical deformity; single polyp in the transverse colon; distal, ileocolic and ileolieal anastomosis; “a single ulcer just distal to the ileocolic anastomosis that was strictured” and could be passed only with a gastro-scope; scarred colonic mucosa; digitally dilated anal stricture; scared ileal mucosa; inflammatory pseudo polyps; deeply intubated terminal ileum; a stricture deep in the neo-terminal ileum that could not be traversed; mild cryptitis in the ileum; no active Crohn's in the ileum; and no mass lesions. (R. 448, 460-61, 472, 569.) Dr. Miller also ordered laboratory tests for Plaintiff in July of 2011, which revealed that Plaintiff had anemia.[5] (R. 491.)

         On December 1, 2011, and February 9, 2012, Dr. Miller wrote identical letters “to whom it may concern, ” stating:

[Erica Vlado] has been under my care for the past [three] years for the treatment of severe Crohn's disease. She has been unable to work due to her condition. Her condition leads to frequent trips to the bathroom, making travel difficult. She also gets severe abdominal pain at times due to adhesions and partial small bowel obstructions that occur unpredictably, and when they do, she is unable to do any task.

(R. 480-81.) On December 12, 2012, Dr. Miller completed a Physical Medical Assessment Form related to Plaintiff's application for supplemental security income. (R. 564-68.) Dr. Miller repeated the diagnoses he made previously. (R. 564-65.) In addition, Dr. Miller stated that: Plaintiff's prescribed medications decrease her symptoms; the side effects of the medications limit her activities; her conditions likely would last at least twelve months; her “flare-up[s]” force her to lie down due to “severe” pain; and she has an “ongoing” anxiety disorder. (R. 565-67.) Dr. Miller opined that Plaintiff could travel to work alone by bus or subway and her limitations would cause “good days and bad days.” (R. 566-67.) On July 5, 2013, Dr. Miller amended the form and opined that Plaintiff likely would miss four days of work per month due to her limitations. (R. 568.)

         iii. Consultative Examinations

         1. Dr. Chitoor Govindaraj

          On August 23, 2012, Chitoor Govindaraj, M.D., examined Plaintiff in connection with her application for supplemental security income. (R. 541-43.) Dr. Govindaraj reported no abnormal findings, and opined that “the patient is medically cleared [with] [n]o restriction [in] sitting, standing or walking or weight restriction.” (R. 542-43.) Dr. Govindaraj diagnosed Plaintiff with a history of Crohn's disease and stated that her “[o]verall medical prognosis is good.” (R. 543.)

         2. Dr. ...

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