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Paredes v. Commissioner of Social Security

United States District Court, S.D. New York

May 19, 2017

DAVID PAREDES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          BARBARA MOSES United States Magistrate Judge.

         Plaintiff David Paredes 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 determination of the Commissioner of Social Security (the Commissioner) denying his application for Social Security Disability Insurance benefits (DIB) and Supplemental Security Income (SSI).[1] Paredes moves pursuant to Fed.R.Civ.P. 12(c) for an order reversing the Commissioner's decision or remanding for further proceedings; the Commissioner cross-moves pursuant to Fed.R.Civ.P. 12(c) for an order affirming her decision. The parties have consented to this Court's jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the plaintiffs motion is GRANTED and the case will be REMANDED to the Commissioner for further proceedings.

         I. BACKGROUND

         A. Procedural

         Background

         Paredes applied for disability insurance benefits on March 7, 2013, alleging that he became disabled on February 23, 2013. See Cert. Tr. of Record of Proceedings (Dkt. Nos. 13 through 13-8) at 90, 103 (hereinafter "R.").[2] The application was denied on May 24, 2013. (R. 118-25.) Thereafter, Paredes requested a hearing before an administrative law judge (ALJ) (R. 126-28), and on June 25, 2014, he appeared, without counsel, before ALJ Seth Grossman. Plaintiffs nephew, Estalio Delasantos, also appeared and testified at the 2014 hearing. (R. 53-58.) On March 25, 2015, Paredes appeared again, without counsel, for a supplemental hearing before ALJ Grossman. (R. 19, 60-89.) Bernard Gussoff, M.D., and Raymond Cestar, a vocational expert, also appeared and testified at the 2015 hearing. (R. 60-89.)

         After the 2015 hearing, Paredes underwent a consultative psychiatric evaluation. On September 9, 2015, the ALJ issued a decision finding that Paredes was not disabled within the meaning of the Act. (R. 13-29.) That decision became final on January 5, 2016, when the Appeals Council denied Paredes's request for review. (R. 1-4.) This action followed.

         B. Personal Background

         Paredes was born on April 23, 1975 in the Dominican Republic. (R 116, 65.) He came to the United States when he was ten or eleven years old. (R. 65.) Paredes completed "some" community college (R. 42, 65), and worked continuously from September 1998 to June 2012 as a security guard and a cleaner. (R. 42, 64-65, 85, 237.) He was married for three years, but separated from his wife shortly before applying for disability insurance benefits in 2013. (See R. 72, 415, 442.)

         "SSI benefits, however, are available without regard to a claimant's employment history." Singleton v. Colvin, 2015 WL 1514612, at *13 (S.D.N.Y. Mar. 31, 2015) (citing Casson v. Astrue, 2012 WL 28300, at *1 (N.D.N.Y. Jan. 5, 2012)). Consequently, the Court must consider whether the ALJ's determination that Paredes was not disabled between February 23, 2013 (his alleged onset date) and September 9, 2015 (when the ALJ issued his decision) "is legally correct and supported by substantial evidence." Id.

         I.PRE-HEARING EVIDENCE

         A. Pre-Application Evidence

         Paredes was diagnosed with bipolar disorder at some point in his twenties. (See R. 590 (age 20); R. 415 (age 26).) He has been treated at the Adult Outpatient Clinic at Bronx-Lebanon Hospital Center (BLHC) since October 5, 2011. (R. 590.) Psychiatric treatment notes from 2012 indicate that Paredes had "stable baseline functioning" when he was compliant with his medications. (R. 299.) However, he took his medications "inconsistently." (R. 319.) Paredes has been hospitalized in psychiatric units at least four times, including twice in February 2013, as described below. (R. 590.)

         Five days prior to his alleged onset date, on February 18, 2013, Paredes called Emergency Medical Services (EMS), which took him to BLHC, where he reported to staff that he had been "hearing voices" for five days, had been noncompliant with his medications for "a couple of months, " and had stopped seeing his psychiatrist the previous October. (R. 306, 411, 415.) He explained that he was stressed because he had separated from his wife (R. 415), and "realized he needs to get back on his medications." (R. 411.) At one point, Paredes attempted to walk out of the Emergency Department, and was thereafter "sedated for protection and placed on constant observation." (R. 423.) He was discharged the following day, with a Global Assessment of Functioning (GAF) score of 55. (R. 412.)[3]

         An unsigned treatment note dated February 21, 2013 reveals that Paredes "shared distress over his wife leaving him about three months ago, around the time he stopped taking medications and became 'too loud.'" (R. 306.) During the February 21 appointment, Paredes acknowledged that he needed medication. Id. However, two days later, on February 23, 2013, Paredes's family called EMS, which took Paredes back to BLHC. (R. 341, 383, 592.) His family reported that Paredes had not taken his medications since his February 18-19 hospitalization, that he was unable to sleep, "talks a lot without making much sense" and was acting "recklessly and inappropriately." (R. 341, 383.) For example, he cut all the cables and wires in the apartment he shared with his brother, gave a television to a stranger, and gave his bank card PIN to "almost anyone he recently encountered." (R. 341, 383.) The symptoms had begun "gradually over the last few days and weeks" and, though "intermittent, " were "noticed daily since onset." (R. 383-84.) Paredes told staff at BLHC that he did not know why his brother called EMS. (R. 341, 383.)

         Paredes remained at BLHC for approximately two weeks, until March 8, 2013, during which time he became medication-compliant and "stable." (R. 333, 377.) Upon discharge, Paredes was calm and cooperative, with a normal mood, appropriate affect, and normal speech. (R. 333, 377.) He reported no hallucinations or delusions, his thought process was logical, and his attention, concentration, cognition, memory, insight, and judgment were all intact. (R. 333, 377.) His GAF score was assessed at 60. (R. 337.)

         Because Paredes told BLHC staff that he was non-compliant with his medication due to insufficient funds (R. 333), meetings were held with his family and a social worker to discuss applying for Medicaid, SSI, and public assistance. Id. On March 7, 2013, the day before he was discharged, Paredes applied for disability insurance benefits.

         B. Post-Application Evidence

         On March 11, 2013, Paredes met with Damaries Smith, a social worker at BLHC. (R. 307-08.) Paredes reported his recent hospitalization and acknowledged that he decompensated because he stopped taking his medications: Risperdal (the brand name for risperidone, an antipsychotic used to treat schizophrenia and bipolar disorder), and Depakote (the brand name for valproic acid, an anticonvulsant used to treat seizures and bipolar disorder). (R. 307.) Paredes was "slightly on edge" during the meeting, but cooperative, and the mental status examination findings were unremarkable. (R. 307.)

         On March 20, 2013, Paredes saw Jose Lopez, M.D. at BLHC. (R. 351-56.) Dr. Lopez referred Paredes for a renal consultation (R. 354-55), and on March 26, 2013, Paredes saw Dr. Molham Abdulsamad, M.D. a nephrologist at BLHC. (R 348-50.) Paredes reported nocturia (frequent urination at night), which can be a symptom of Chronic Kidney Disease (CKD), but no dysuria (painful urination), hematuria (blood in the urine), or other changes in urination. (R. 348.) Dr. Abdulsamad ordered a renal biopsy. (R. 350.)

         On April 2, 2013, Paredes underwent a renal biopsy. (R. 358-75.) The results showed immunoglobulin A (IgA) nephropathy.[4] In addition, a blood test revealed a Blood Urea Nitrogen (BUN) level of 27 mg/dL, above the laboratory's normal reference range of 8 to 26 mg/gL. (R. 359, 366.)[5] On April 4, 2013, Paredes was diagnosed with CKD, Stage IV (severe). (R. 368, 407-410, 444-47.)

         Shortly thereafter, on April 16, 2013, Paredes saw Dr. Marina Zilpert, a psychiatric resident at BLHC. (R. 442.)[6] Paredes reported that he was taking his medications and not experiencing any mental health symptoms. Id. His judgment was mildly impaired, but his mood was "better, " his attention and concentration were "intact, " memory was "grossly intact, " and other findings were generally unremarkable. Id. Paredes reported support from his family and his wife, who visited him but did not live with him. Id.

         On April 17, 2013, Paredes presented to Kalpana Uday, M.D., a nephrologist at BLHC, with CKD Stage IV with Proteinuria (excess proteins in the urine). (R. 437-39.) Paredes reported that he felt fine and had experienced no changes in his symptoms. (R. 437.) His BUN level remained at 27 mg/dL; his creatinine levels (another measure of kidney function) were also elevated, at 2.7 mg/dL (R. 359-68, 764)[7]; and his "problem list" included nephropathy IgA, chronic nephritis, proteinuria, dyslipidemia (elevated levels of cholesterol and/or triglycerides), CKD Stage IV, prediabetes, bipolar disorder, and hypertension. (R. 437.) Dr. Uday referred Paredes for a pre-transplant evaluation. (R. 439.)

         On May 9, 2013, state agency psychologist Dr. T. Harding reviewed the evidence then in the record and concluded, among other things, that Paredes was able to understand and follow simple instructions, be attentive and concentrate for two-hour intervals, interact appropriately with peers and supervisors, and adapt to routine workplace changes. (R. 99.)

         On May 16, 2013, Paredes reported to Dr. Zilpert, the psychiatric resident, that his mother had come to stay with him; that he was taking his medications regularly; and that his functioning and mood were stable. (R. 761.) His mental status examination findings were generally unremarkable, and his medications were continued. (R. 761-62.)

         C. Post-Denial Evidence

         Between May 31, 2013 and June 13, 2013, Paredes was evaluated by the Federation Employment and Guidance Service (FEGS).[8] The results of the evaluation are contained in a FEGS Biopsychosocial Report (BPS Report), which reflects that Paredes was capable of washing dishes and clothes, sweeping, mopping, vacuuming, watching television, making beds, shopping for groceries, cooking, reading, socializing, getting dressed, bathing, grooming, and using the toilet. (R. 551-52, 735-36.) On May 31, 2013, FEGS physician Cindy Grubin, M.D. found that, although he was calm and cooperative, Paredes had a somewhat constricted mood and affect. (R. 524, 534, 741.) Dr. Grubin did not assess any physical restrictions, but she indicated that Paredes could be around only a limited number of people, and referred Paredes for a psychiatry examination. (R. 526, 528, 743, 745.) Thereafter, FEGS psychiatrist Jorge Kirschtein, M.D. examined Paredes and found that he had a depressed mood and constricted affect, but was neat, calm, and cooperative, and exhibited normal speech, a logical thought process, and normal thought content. (R. 520.) Dr. Kirschtein assessed "severe" limitations in Paredes's ability to follow work rules and relate to coworkers, and "moderate" limitations in his ability to accept supervision, deal with the public, maintain attention, and adapt to changes and stressful situations. (R. 520.) Dr. Kirschtein assigned Paredes a GAF score of 50. (R. 521.)

         On June 5, 2013, Paredes saw Dr. Anele Slezinger and Dr. Kerone Thomas, a resident at BLHC, for CKD treatment. (R. 767-71.) According to the treatment notes, Paredes's BUN level had decreased to 23 mg/dL; his creatinine level remained at 2.7 mg/dL; and his estimated glomerular filtration rate (eGFR), which is another measure of kidney function, was 21.02 mL/min/1.73m2, which is well below the normal range. (R. 769-70.)[9]

         On June 11, 2013, Paredes saw Ketki Shah, M.D., a psychiatrist, and reported feeling "ok." (R. 772-73.) He was taking his medications regularly and denied any side effects. (R. 772.) Dr. Shah found Paredes's affect was constricted, but his mood was "all right" and the mental status examination findings were otherwise unremarkable. Id. Dr. Shah also noted that Paredes was "stable" and "at baseline level of functioning, " and continued his medications. (R. 773.) Dr. Shah noted that Paredes had brought papers to be filled out in connection with his social security application. However, Paredes insisted on seeing Dr. Zilpert for the paperwork, and she was unavailable. Id.[10]

         On October 8, 2013, Paredes underwent surgery to construct a fistula (an access for dialysis) in his left forearm. (R. 842-43.) However, as described below, Paredes needed to have the procedure repeated on February 18, 2014. (R. 795, 841, 845-59.)

         On December 9, 2013, Paredes reported to Dr. Lilla Danilov, a psychiatric resident at BLHC, that he took his medications regularly with no side effects, lived in a one-bedroom apartment, had a girlfriend, and was looking for a "new job" in a pharmacy. (R. 789.) His mood was "fine" and other mental status findings were unremarkable. Id. His medications were continued. (R. 790.)

         On January 13, 2014, Dr. Danilov noted that Paredes missed his last appointment because "his work schedule had changed." (R 795-96, 832-33.) Paredes appeared for his appointment on January 13, 2014, however, and was "compliant" and "stable." (R. 795.)

         On January 15, 2014, Paredes saw Hanasoge Girishkumar, M.D., in connection with his CKD. (R. 844.) Paredes reported no unusual dysuria, nor any urinary urgency or frequency. (R. 844.) In the "history" section of his notes, Dr. Girishkumar noted that Paredes's kidney function was deteriorating and that he might need dialysis in the near future. (R. 844.) Dr. Girishkumar discussed the need for an "AV [arterio venous] access procedure" on Paredes's left arm and explained the risks and benefits of the procedure to the patient. Id. On February 18, 2014, Dr. Girishkumar performed the procedure without complications, leaving Paredes with an AV fistula in his left arm. (R. 845-59.)

         On March 13, 2014, Dr. Danilov noted that Paredes "continues to work with a truck company and is looking for a job as a pharm technician." (R. 836.)

         On April 30, 2014, Dr. Uday wrote an unaddressed letter, stating that "[t]his letter is given at Mr. David Paredes's request. He has chronic kidney disease stage 4, he is not yet on dialysis. He has an arterio venous fistula done in left upper arm in preparation for dialysis. He attends primary care and renal transplant program. Please assist him. Contact me if you [have] any questions." (R. 591.)

         On May 8, 2014, in a letter addressed to "Whom It May Concern, " Dr. Danilov reported that Paredes was diagnosed with bipolar disorder at age 20 and had been a patient at BLHC's Department of Psychiatry - Adult Outpatient Clinic since October 5, 2011, where he was seen by a psychiatrist at the clinic every two months. (R. 590.) Dr. Danilov noted that Paredes had been hospitalized in psychiatric units four times, most recently from February to March 2013. Id. In a second letter addressed to "Whom It May Concern, " dated May 28, 2014, Dr. Danilov noted substantially the same information, adding that Paredes's psychiatric diagnosis was bipolar disorder. (R. 589.)

         On June 6, 2014, Edward Brown, M.D., a cardiologist, wrote a letter to Dr. Uday, who had referred Paredes for evaluation prior to renal transplantation. (R. 587.) Dr. Brown reported that an EKG showed left ventricular hypertrophy, that a stress test was normal, and that, "[r]egarding anesthesia and transplant surgery, his risk for a perioperative cardiovascular event is low, and no special precautions are indicated." Id.

         On February 18, 2015, Dr. Uday reported, in a letter addressed to "Whom It May Concern, " that Paredes had high blood pressure and CKD and was being followed at the Mount Sinai renal transplant program. (R. 810.) Dr. Uday's treatment notes show that as of January 15, 2015, Paredes's BUN was back to 27 mg/dL, his creatinine level was up to 3.4 mg/dL, and his eGFR was down to 16.03 ml/min/l .73m2. (R. 812.)

         On February 24, 2015, treatment notes authored by orthopedist Ashley Simela, M.D., and written primarily in Spanish, show that Paredes was given cyclobenzaprine for back pain. (R. 805.) His health issues are described in the notes as "Degeneration of intervertebral disc of lumbar region, " with an onset date of February 24, 2015. Id.

         II. HEARINGS

         A. June 25, 2014 Hearing

         At the June 25, 2014 hearing, Paredes testified that he was 39 years old, finished three years of community college, and previously worked as a security guard and a cleaner. (R. 41-42.) He stated that he was not employed but that he walked daily for exercise, at a normal pace, for approximately 20-30 minutes. (R. 46-47.)

         In response to the ALJ's question whether he was capable of working, Paredes replied, "Not right now because I have a lot of back pains." (R. 42.) The ALJ asked if the pain was caused by his kidney and Paredes said, "The kidney, yeah. And it's difficult for me to stand because I used to do a lot of standing, a lot of walking." (R. 43.) The ALJ asked if Paredes would be able to do a sitting job and he replied, "It is difficult for me sitting down as well because of the back pain." Id. The ALJ asked if Paredes could do security work at a desk and Paredes said he could not because of his back pain; he testified that he could sit for only ten or fifteen minutes and that his feet would hurt and swell because of his kidney disease. (R. 44.)

         Paredes further testified that he was "almost getting dialysis" and that he was on a kidney transplant waiting list with a "five to six year" wait. (R. 44.)

         Paredes testified that he had been hospitalized several times because of his bipolar disorder. (R. 48-49.) The ALJ asked about his last hospitalization and Paredes replied, "I stopped taking the medication ... I was drinking also. When I stop taking my medication, I drink a lot. I hang out a lot. That's the main reason. I totally forgot about the medication. I curse people, I scream, I do a lot of crazy thing [sic]. I hang out too much, stuff like that." (R. 50.) At one point, the ALJ commented, "You seem pretty normal today." (R. 49.) Paredes responded, "Yeah, I'm fine. I'm taking medication .... when I don't take my medication, I end up in the hospital." (R. 49.) The ALJ then asked, "When you take the medication, and again, this is an important question, so think before you answer. Is the bipolar under control when you take your medication?" (R. 49-50.) Paredes replied, "Yes." (R. 50.) The ALJ continued, "Completely under control?" Id. Paredes again replied, "Yes." Id.

         The ALJ then commented, "we're probably going to have another hearing because I need a medical expert to interpret these tests." (R. 51.) The ALJ also stated that he would update the medical records and send Paredes for consultative psychiatric and internal medicine examinations. (R. 52.) The ALJ then took testimony from Delasantos, Paredes's 24-year-old nephew, who testified that he used to live with Paredes. (R. 53.) Delasantos explained that Paredes is "more or less" okay when he is taking his medications but "went crazy" when he stopped. Id. In response to the ALJ's question whether Paredes is tired during the day, Delasantos replied, "In situations he's on the floor saying that his back hurt." (R. 54.) He continued, "He's always in the house. If he come out [sic], he only comes out for an hour or so. He's always tired, his back hurting." Id.

         The ALJ then asked Paredes if he gets tired a lot. Paredes replied that he is "always very" tired, and that his fatigue would interfere with his ability to concentrate on a job. (R. 54.) Paredes added that his ability to concentrate would also be affected by his frequent urination, impaired vision, and painful, swollen feet. Id. The transcript reflects that, at one point during the forty-minute hearing, Paredes asked to be excused to use the restroom. (R. 48.)

         The ALJ concluded by telling Paredes, "I have a good idea of what's going on. I'm sending you out to this doctor. I want to update your records. It's very possible I could resolve this in your favor without another hearing. If I can, I will. If not, we'll have a hearing with a doctor her [sic] and we'll do what we have to do, okay? ... Sometimes it's just easier and better with a doctor here because it has to be done based upon evidence, not just what I think. You have to have the proof there, but it's a ...


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