United States District Court, S.D. New York
REPORT AND RECOMMENDATION
C. FRANCIS, IV UNITED STATES MAGISTRATE JUDGE
HONORABLE VERNON S. BRODERICK, U.S.D.J.:
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
Personal and Vocational History
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. (R. at 214). At the time of his
applications, Mr. Carr was divorced and living in a shelter.
(R. at 192, 224).
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).
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). 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.
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).
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. (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
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).
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).
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).
first medical record from Dr. St.-Preux is a Wellness Plan
Report dated February 12, 2013. (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).
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. (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
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).
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. (R. at 334-35).
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).
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 ...