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Carr v. Commissioner of Social Security

United States District Court, S.D. New York

May 11, 2017

KEVIN CARR, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          JAMES C. FRANCIS, IV UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE VERNON S. BRODERICK, U.S.D.J.:

         The plaintiff, Kevin Carr, brings this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a determination of the Commissioner of Social Security (the "Commissioner") finding that he is not entitled to Supplemental Security Income ("SSI") or disability insurance benefits ("DIB"). The parties have submitted cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the plaintiff's motion be granted, the Commissioner's motion be denied, and the case be remanded to the Social Security Administration for further administrative proceedings.

         Background

         A. Personal and Vocational History

         The plaintiff was born on September 13, 1958, and completed high school. (Administrative Record ("R.") at 185, 215). He worked as a meat packer from April 2004 until June 2011. (R. at 216). For a few months at the end of 2012, he worked as a construction worker. (R. at 216). Mr. Carr was fifty-four years old when he filed an application for DIB on April 8, 2013, and an application for SSI on May 2, 2013. (R. at 183-200). In his DIB application, he claimed he became unable to work on June 1, 2011 (R. at 185); in his SSI application he claimed a disability onset date of January 1, 2013 (R. at 192). Mr. Carr asserted that the following conditions limited his ability to work: bipolar disorder, anxiety, depression, asthma, high blood pressure, back pain, gastroesophageal reflux disease (“GERD”), and marcoglobulinemia.[1] (R. at 214). At the time of his applications, Mr. Carr was divorced and living in a shelter. (R. at 192, 224).

         He completed a Function Report in connection with his application for benefits on May 20, 2013. (R. at 224-32). He asserted that medications interfered with his sleep and that he could “sometimes” dress himself and shave. (R. at 225-26). He was able to bathe, feed himself, shop for food, and use the toilet. (R. at 225-26, 228). He reported leaving the shelter in which he lived each day to walk to his appointments (including monthly appointments with health care providers and weekly visits to food pantries), but stated that panic attacks kept him from “go[ing] places or on trains.” (R. at 227-29). He could not lift things, walk “too far, ” stand or sit “too long, ” kneel, squat, or climb stairs because of his back pain and his asthma. (R. at 229-30). When he walked, he could travel for two blocks and then required a thirty-minute rest. (R. at 231). He also reported problems paying attention and remembering things. (R. at 231-32).

         B. Medical Evidence

         1. Physical Impairments

         Mr. Carr began seeking monthly treatment for low back pain at La Casa de Salud in June 2012, which continued at least until October 2014. (R. at 449). He had a physical therapy evaluation on December 17, 2012, at All Med Medical and Rehabilitation Center. (R. at 324-26).[2] He rated his lower back pain at an eight on a scale of one to ten. (R. at 325). His lumbosacral spine had a range of motion of ninety degrees flexion and twenty degrees extension. (R. at 325). He had numbness in both thighs and some spasms. (R. at 325). His endurance was poor, his standing balance and ambulation were fair, and his seated balance was good. (R. at 325). On a straight leg raise test, he complained of pain or tightness on the right side at thirty degrees. (R. at 325). It appears that he returned for physical therapy four times within the next few weeks and reported reduced pain and tenderness. (R. at 322-23).

         Dr. Marilee Mescon conducted a consultative medical examination on June 17, 2013. (R. at 342). Mr. Carr claimed a history of GERD and of cocaine and heroin use. (R. at 342). He described a back injury that occurred while lifting weights, and back pain of between seven and nine on a scale of one to ten. (R. at 344). He asserted that he could cook, clean, do laundry, shop, shower, bathe, and dress. (R. at 342). His blood pressure was 140/80. (R. at 342). Mr. Carr's gait and stance were normal; he could walk on heels and toes, as well as squat. (R. at 342). Although he used a cane, it was not necessary for ambulation. (R. at 342). His skin, lymph nodes, head, face, eyes, ears, nose, throat, neck, chest, lungs, and heart were normal, but there was a reducible umbilical hernia in the abdomen. (R. at 343). Mr. Carr had full ranges of motion in his lumbar and cervical spine. (R. at 343). Supine active straight leg raise test was zero to forty degrees; seated was zero to ninety degrees. (R. at 343). There were limitations in his hip rotation. (R. at 343). Dr. Mescon found no limitations in Mr. Carr's ability to sit, stand, climb, push, pull, or carry. (R. at 345). She recommended that he avoid environmental contaminants because of a history of asthma, and have his blood pressure reassessed by his physician. (R. at 345).

         On July 17, 2013, Mr. Carr saw Jon Sepinski, a physician assistant, complaining of lower back pain that was aggravated by bending and lifting, and alleviated by injections, pain medications, and physical therapy.[3] (R. at 452). Mr. Sepinski recorded lumbar spasm and paraspinal tenderness. (R. at 453). Pain relieving medications, including a topical cream, were prescribed. (R. at 453). Mr. Carr returned for a visit on August 14, 2013, complaining of intermittent lower back pain of moderate to severe intensity, which was aggravated by “daily activities, ” bending, lifting, sitting, and standing, and, as before, alleviated by injections, medication, and therapy. (R. at 450). Again, Mr. Sepinski recorded a lumbar spasm and paraspinal tenderness, and, again, pain relieving medications were prescribed. (R. at 450). Mr. Carr stopped receiving cortisone injections in September 2013, because the pain management provider at La Casa de Salud left. (R. at 449).

         On July 17, 2014, Dr. Cindy Grubin performed a physical examination of Mr. Carr for a social services organization known as FEGS. (R. at 397-417). She noted episodic sharp lower back pain of moderate severity, but found no exertional, respirational, or environmental limitations. (R. at 409-12).

         Nurse Practitioner Carline Lamour Ocean filled out a Medical Source Statement on September 29, 2014. (R. at 441-47). She noted that Mr. Carr had attended monthly thirty-minute appointments geared to managing his chronic lower back pain. (R. at 441). In addition to lower back pain, she diagnosed bulging discs at L4/L5 and L5/S1, and she noted resulting tenderness and reduced range of motion in his lower back. (R. at 441). Nurse Practitioner Ocean opined that Mr. Carr's pain often interfered with his attention and concentration and that he was moderately limited in his ability to deal with stress. (R. at 442). She assessed him as being able to sit up to fifteen minutes at a time with a fifteen minute interval of standing and walking about, but he could not sit for more than one hour in an eight-hour day. (R. at 442-43). Mr. Carr could stand or walk about for thirty minutes at a time with a thirty minute break to recline or lie down, but he could not stand or walk about for more than one hour in an eight-hour day. (R. at 443-44). In addition, in an eight-hour day, Mr. Carr's pain would necessitate rest in addition to normal rest and meal breaks. (R. at 444). His ability to lift and carry one to five pounds was unrestricted, as was his fingering ability. (R. at 445-46). He could frequently lift and carry six to ten pounds, balance, engage in forward and backward flexion of the neck, and rotate his neck to the right and to the left. (R. at 445-46). He could occasionally lift eleven to twenty pounds, stoop, reach, and handle. (R. at 444-45). He could never lift twenty-one to fifty pounds. (R. at 444). The nurse practitioner estimated that Mr. Carr's condition would result in his absence from work more than three times per month. (R. at 447). His condition had persisted since October 2013. (R. at 447).

         2. Psychiatric Impairments

         In January 2013, FEGS evaluated Mr. Carr in connection with his public assistance case. (R. at 384; Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings (“Def. Memo.”) at 6 & n.4). Mr. Carr reported anxiety and a history of drug use and hearing voices. (R. at 385, 397). He also stated that he had been receiving psychiatric treatment from Dr. Carl St.-Preux at La Casa de Salud. (R. at 397).

         The first medical record from Dr. St.-Preux is a Wellness Plan Report dated February 12, 2013.[4] (R. at 432-33). It appears to reflect two diagnoses: the first is anxiety disorder and the second is illegible. (R. at 432). Dr. St.-Preux found Mr. Carr alert, cooperative, oriented, well-groomed, coherent, of neutral mood, and displaying good judgment. (R. at 432). He reported no delusions or suicidal or homicidal ideation. (R. at 432). Dr. St.-Preux listed Mr. Carr's medications as Klonopin, Paxil, and Ambien. (R. at 432). He opined that Mr. Carr's condition made him unable to work for at least twelve months. (R. at 433).

         On April 16, 2013, Dr. St.-Preux completed a psychiatric and psychosocial impairment questionnaire after examining Mr. Carr. (R. at 328-35). He diagnosed “Bipolar disorder Manic/Panic disorder” and assigned a GAF score of seventy.[5] (R. at 328). He identified a number of symptoms from a checklist: poor memory, appetite disturbance with weight change, perceptual disturbances, sleep disturbance, personality change, mood disturbance, emotional lability, delusions or hallucinations, manic syndrome, recurrent panic attacks, psychomotor agitation or retardation, persistent irrational fears, paranoia or inappropriate suspiciousness, generalized persistent anxiety, feelings of guilt or worthlessness, difficulty thinking or concentrating, hostility and irritability, and suicidal ideation or attempts. (R. at 329). The primary symptoms were depressed mood, anxiety, paranoia, elation, labile affect, hallucinations, and delusions. (R. at 330). The most frequent were panic attacks, hallucinations, and paranoia. (R. at 330).

         According to Dr. St.-Preux, Mr. Carr was markedly limited in all areas of understanding and memory; all areas of sustained concentration and persistence; most areas of social interaction (he was moderately limited in the ability to ask simple questions or request assistance and the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness); and most areas of adaptation (he was moderately limited in the ability to travel to unfamiliar places or use public transportation). (R. at 331-33). Dr. St.-Preux also opined that Mr. Carr experienced episodes of deterioration or decompensation which would exacerbate his symptoms or cause him to withdraw from work situations. (R. at 333). Mr. Carr treated his symptoms (which were expected to last at least twelve months) with Seroquel, Paxil, Klonopin, and Ambien. (R. at 333-34).

         Finally, Dr. St.-Preux wrote that Mr. Carr's anxiety and panic disorder exacerbated his lower back pain, that he was unable to work because of his “severe psychiatric condition, ” and that his condition would require him to be absent from work more than three times per month.[6] (R. at 334-35).

         Psychologist David Mahony performed a consultative psychiatric evaluation on June 17, 2013. (R. at 350-53). Mr. Carr reported symptoms of depression including depressed mood, hopelessness, irritability, social withdrawal, and a history of suicidal ideation, but he “was unable to clarify any symptoms of mania, indicating he does not have bipolar disorder.” (R. at 350). He also reported feeling scared and hearing voices telling him to “hurt somebody.” (R. at 350-51). Dr. Mahony noted “cognitive defects secondary to his psychiatric symptoms, including short-term memory deficits, difficulty learning new material, and executive functioning deficits.” (R. at 351). Upon examination, Dr. Mahony found Mr. Carr acceptably groomed, with appropriate eye contact and normal posture and motor behavior. (R. at 351). Speech and thought processes were normal, but he had a depressed affect, dysthymic mood, and “mildly impaired” sensorium. (R. at 351-52). He was not fully oriented. (R. at 352). His attention and concentration were impaired, as were his recent and remote memory skills. (R. at 352). His cognitive functioning was below average, with a limited general fund of information, and his insight was poor. (R. at 352). His judgment was appropriate. (R. at 352).

         Dr. Mahony found that Mr. Carr could follow simple directions, perform simple tasks independently, maintain attention and concentration, and maintain a regular schedule. (R. at 352). There were mild limitations in his ability to relate to others and deal with stress. (R. at 352). He had marked limitations learning new tasks, performing complex tasks, and making appropriate decisions. (R. at 352). Dr. Mahony asserted that Mr. Carr's symptoms would interfere with his ability to function on a daily basis. (R. at 353). He diagnosed moderate major depressive disorder of atypical type, and he also stated, “Rule out substance induced, persisting dementia.” (R. at 353). He noted that Mr. Carr's substance abuse status was “current[ly] [] unknown.” (R. at 353). Dr. Mahony recommended continued psychiatric treatment, a neurological exam, and confirmation of his ...


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