United States District Court, S.D. New York
OPINION AND ORDER
E. Davison, U.S.M.J.
James Andrew Mitchell, Sr. ("Plaintiff, " or
"Claimant, ") brings this action pursuant to 42
U.S.C. § 405(g) challenging the decision of the
Commissioner of Social Security ("Defendant" or the
"Commissioner") denying Plaintiffs application for
disability insurance benefits. Dkt. 2. The matter is before
me pursuant to a Notice, Consent and Reference of a Civil
Action to a Magistrate Judge entered October 26, 2015. Dkt.
7. Presently before this Court is Defendant's motion for
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, Dkts. 10 (Defendant's
motion), and 11 (Defendant's memorandum of law).
Defendant's motion for judgment on the pleadings is
unopposed. Notably, the Court's June 10, 2016 scheduling
order warned the pro se Plaintiff as follows:
Plaintiff is cautioned that, unless he submits a response,
the Court will evaluate the case based on Defendant's
date, Plaintiff has not filed any opposition. For the reasons
set forth below Defendant's unopposed motion for judgment
on the pleadings is GRANTED.
following facts are taken from the administrative record
("R.") of the Social Security Administration, Dkt.
12, filed by Defendant in conjunction with the Answer on June
9, 2016. Dkt 13.
February 15, 2013, Plaintiff filed a Title XVI application
for Supplemental Security Income ("SSI"). R.
123-131. His application was denied. R. 61-64. Plaintiff
timely requested a hearing before an ALJ on April 26, 2013.
R. 65-70. On May 19, 2014, Plaintiff appeared before ALJ
James Kearns represented by counsel, David Levine. R. 28-50.
On July 30, 2014, the ALJ issued an unfavorable decision. R,
9-21. The ALJ's decision became the final decision when
the Appeals Council denied Plaintiff s request for review on
July 9, 2015. R. 1-7. Plaintiff timely filed this action on
August 20, 2015. Dkt. 2.
was bom on September 7, 1969. R. 51. In bis initial claim for
disability, dated January 28, 2013, Plaintiff noted that he
suffered from thyroid problems, hypoglycemia and hypocalcemia,
alleged that he had been disabled since October 1, 2012 (the
"Alleged Disability Onset Date"). R. 251. Plaintiff
has not worked since he was laid off of his job on January 1,
2008. R. 142.
administrative record contains various medical treatment
records. Dkt. 12. The following is a distillation of their
Plaintiffs Thyroid Condition
April 13, 2012, Dr. Walter Ralph, an otolaryngologist, noted
that Plaintiffs physical exam showed a large thyroid gland,
but that his primary complaint was difficulty breathing when
he leaned backwards. R. 288. Dr. Ralph found that Plaintiff
did not show any evidence of hyperthyroidism but decided to
order thyroid function studies to measure Plaintiffs thyroid
and rule out hypothyroidism or hyperthyroidism. R. 288. An
ultrasound of Plaintiff s thyroid dated June 5, 2012 showed
thyromegaly and bilateral nodules. R. 246.
Plaintiffs follow up visit with Dr. Ralph on September 14,
2012, Dr. Ralph noted that Plaintiffs thyroid ultrasound and
examination confirmed that Plaintiff had a massive thyroid
goiter but no evidence of hypothyroidism or hyperthyroidism.
R. 303. Following Dr. Ralph's recommendation, Plaintiff
had surgery to remove his thyroid on October 24, 2012. R.
214, 219-22, 305-07. The following day, Dr. Radoslav Toshkoff
conducted a neck exploration surgery to address Plaintiffs
neck swelling, difficulty swallowing, and shortness of breath
resulting from his thyroidectomy. R. 196, 308-13. Dr.
Toshkoff removed Plaintiff s neck hematoma, and sent
Plaintiff to the recovery room in stable condition. R, 196.
Plaintiff was discharged on October 26, 2012 and was advised
to follow up with Dr. Ralph in a couple months. R. 358.
December 6, 2012, Plaintiff followed up with Dr. Ralph to
discuss his condition post-thyroidectomy. R. 314. At that
appointment, Plaintiff complained of lethargy, numbness, and
tingling but noted that his breathing had improved since his
thyroid goiter was removed. R. 314-18, Dr, Ralph recommended
that Plaintiff obtain blood work and prescribed Plaintiff
calcitriol and calcium supplementation. R. 314-17. Two days
later, on December 8, 2012, after laboratory tests showed
abnormally low calcium levels, Plaintiff went to the
emergency room for intravenous calcium supplementation. R.
247, 319. The attending physician in the emergency room
reported that Plaintiff had full (5) muscle strength
throughout, had a normal gait, was neurologically intact, had
normal sensation, was fully oriented, and exhibited negative
Trousseau and Chvostek's signs. R. 320-21, 330. From
December 8, 2012 through December 10, 2012, Plaintiffs
calcium levels started at 5.5 mg/dL and rose to 8.0 mg/dL
with calcium supplementation. R. 247-53, 328-32. Plaintiff
signed out against medical advice on December 10, 2012 before
his goal calcium level of 8.5 mg/dL was reached. R. 332.
urgent care record from Bronx-Lebanon Iiospital showed that
Plaintiff was also treated for hypocalcemia a week later on
December 17, 2012 and December 18, 2012. R. 215-16, 223,
362-63, 372. On December 24, 2012, Plaintiff was again
admitted at Bronx-Lebanon Hospital for tingling in his upper
and lower extremities. R. 179. Upon admission, Plaintiff had
a calcium level of 6 mg/dL. R. 186, 263, 339-48. The
attending physician treated him for hypocalcemia with calcium
administered intravenously and orally. R. 179. Again,
Plaintiffs physical examination was unremarkable. He was
neurologically intact, had normal strength and sensation, and
a normal gait. R. 179, 198-99, 338. Plaintiffs total calcium
level ranged from 6.1 to 6.9 mg/dL. R. 181, 267, 270, 274,
276, 341-43. During his hospital admission, Plaintiff
consulted with Dr. Shivaji Kadam, an attending cardiologist.
R. 179. Plaintiffs electrocardiogram ("EKG") was
normal and showed normal mitral valve structure and function;
an aortic valve that was not well visualized; a tricuspid
aortic valve with focal thickening; a normal tricuspid valve
structure and function; a normal left atrium; concentric
remodeling of the left ventricle ("LV"), normal LV
ejection fraction, grade 1 diastolic dysfunction impaired,
and LV relaxation with normal filling pressure; a normal
right atrium; normal right ventricle structure and function;
normal pericardium without evidence of pericardial effusion;
insufficient tricuspid regurgitant ("TR") to assess
right ventricular systolic pressure ("RVSP");
normal great vessels size; and a pulmonic valve that was not
well visualized. R. 183, 199-204, 345-46, 352. The attending
physician diagnosed Plaintiff with symptomatic hypocalcemia,
now resolved, from post-surgical hypoparathyroidism from a
thyroidectomy in October 2012. R. 185, 347. The attending
physician questioned Plaintiffs adherence to his medication
regimen because Plaintiff failed to follow up with his
endocrinologist after he was last treated for hypocalcemia on
December 18, 2012. R. 185. The attending physician advised
Plaintiff to continue with 1 meg calcitriol daily, prescribed
calcium carbonate 1250, and increased Plaintiffs
levothyroxine dose to 150 meg daily. R. 185, 347.
December 28, 2012, Plaintiff saw Dr. Ralph to address his
complaints of heat and cold intolerance, fatigue, dry skin,
and bilateral intermittent cramps and numbness in the toes.
R. 240. Plaintiff listed his medications as magnesium
gluconate 500 mg; Levothyroid; hydrochlorothiazide;
calcitriol; and calcium carbonate. R. 241. Although Plaintiff
moved slowly, Dr. Ralph noted that his physical examination
was unremarkable, his reflexes were intact, and he showed no
Chovstek's sign. R. 241. Dr. Ralph recommended that
Plaintiff continue on his medication. R. 244.
January 31, 2013, Plaintiff saw Dr. Ralph for a follow up
visit. R. 238. Dr. Ralph noted that Plaintiff was recently
discharged from the hospital for control of extreme
hypocalcemia and that Plaintiff reported feeling much better,
complaining only of a minimal tingling sensation in his feet
and fingers. R. 238. Dr. Ralph reported that Plaintiffs last
calcium level, taken on December 28, 2012, was 8.5 mg/dL. R.
238, 277. His last thyroid stimulating hormone
("TSH") measured at 17.547, even though normal
values range from 0.4 - 4.0 milli-intemational units per
liter (mIU/L). R. 236, 238, 279. However, Plaintiffs TSH
levels were measured only days after a dosage adjustment so
Dr. Ralph recommended that Plaintiff get additional Woodwork
done that day. R. 236, 238, 279.
February 1, 2013, Plaintiff saw Dr. Sharon Kim, an
endocrinologist about fatigue, cold intolerance, and dry
skin. R. 233-37. Plaintiff listed his medications as
magnesium gluconate 500 mg; Levothyroid; hydrochlorothiazide;
calcitriol; and calcium carbonate. R. 234. Plaintiffs
physical examination was unremarkable aside from his high
blood pressure at 149/92 mm Hg. R. 234. For a normal reading,
blood pressure should show a top number that is lower than
120, and a bottom number that is lower than 80. His blood
work showed normal TSH levels at3.66mlU/L. R. 235. Plaintiff
s calcium level was 9.4 mg/dL. R. 235.
October 15, 2013, Plaintiff went to Bronx-Lebanon Hospital to
address his fever, weight fluctuation, headaches, loss of
appetite, unusual bruising and bleeding, skin problems,
stuffy nose, dry mouth, cough, shortness of breath, pain in
the chest, palpitations, constipations, loss of balance,
muscle weakness, paralysis of arms and legs, numbness or
tingling of arms and legs, swelling of ankles, and in other
joints. R. 360.
Plaintiffs Right Foot Growth
12, 2012, Plaintiff saw Dr. Aaron Glockenberg, a podiatrist,
for right foot pain. R. 289. Dr. Glockenberg noted that
Plaintiff had tenderness at the dorsal aspect of the 4th
interspace of the right foot associated with a nodular lesion
around 5mm in diameter. R. 290. Dr. Glockenberg ordered
x-rays, prescribed a foot cream, and recommended that
Plaintiff see Dr. Neal Blitz, a foot surgeon. R. 290. On June
1, 2011, Plaintiff had a magnetic resonance image
("MRI") of his right lower extremity to evaluate
the growth on his right foot. R. 205. The study showed a
complex cystic mass in the region dorsal to the 4th and 5th
metatarsophalangeal joints. R. 205. An earlier biopsy of the
right foot growth showed no malignant cells. R. 208.
8, 2011, Plaintiff saw Dr. Blitz for surgical consultation
for his right foot soft tissue mass. R. 365-66. Dr. Blitz
recommended surgical excision of the right foot soft tissue
mass. R. 365. In September 2011, a pathology report of the
right foot soft tissue mass showed epidermal inclusion cyst
with rupture. R. 209. On July 30, 2012, Plaintiff had surgery
to remove the soft tissue mass on his right foot. R. 291-301,
December 6, 2012, Plaintiff saw Dr. David Wong, a podiatrist,
to check up on his status post right removal of a skin lesion
on his right foot and underlying soft tissue mass. R. 315.
Dr. Wong noted that Plaintiffs wound was resolved and
indicated that Plaintiff required no further treatment. R.
March 31, 2014, Plaintiff saw Dr. Arlene Tieng, a
rheumatologist, for complaints of generalized pain, bilateral
knee and ankle swelling and numbness in the arms and legs
(although Plaintiff reported that the numbness improved with
activity). R. 357. Plaintiff told Dr. Tieng that that he saw
another rheumatologist in October 2013 who diagnosed him with
fibromyalgia tender points and prescribed coenzyme Q10, which
Plaintiff stated he never took. R. 357. He also stated that
he never tried physical therapy. R. 357. Again, Plaintiffs
physical exam was unremarkable - 5/5 motor strength of neck
flexor and all extremities with full muscle strength
throughout. R. 357. Plaintiff was able to stand up from the
chair without difficulties. R. 357. Dr. Tieng advised
Plaintiff to follow up in one month to assess if the coenzyme
Q10 medication helped his condition and suggested switching
statins, which could cause Plaintiffs myalgias. R. 357.
Bilateral leg pain
April 2014, Plaintiff consulted Dr. Hanasoge Girishkumar,
avascular surgeon, for bilateral leg pain, and spinal
stenosis in the lumbar spine with neurogenic claudication. R.
383. Plaintiff attended physical therapy from April 2014
through June 2014 for lower extremity strengthening. R.
Consultative Examination with Internist Dr. Sharon
met consultative examiner, Dr. Sharon Revan, an internist, on
April 10, 2013 and reported that he had been hypocalcemic
since October 2012 after he had a thyroidectomy. R. 281.
Plaintiff complained of bilateral leg swelling, cramps in his
calves and feet, tingling and cramping in his legs and arms,
fevers, swollen hands, joint pain, and dry mouth and that he
could not sit, walk, or stand for long due to cramping and
tingling since his thyroidectomy. R. 281. As a result of
these ailments, he reported that he is only able to sleep
about three to four hours a night and needs to use the
bathroom constantly at night. R. 281. Plaintiff reported that
his legs do not hurt when he lies down, but they do hurt when
he climbed stairs. R. 281.
examination, Dr. Revan observed that Plaintiff was hunched
over and limping on the right. R. 282. He could not walk on
his toes, but was able to walk on his heels, R. 282.
Plaintiff had a normal stance and could squat halfway while
holding on to something. R. 282, Dr. Revan indicated
Plaintiff was prescribed a cane and that it was medically
necessary. R. 282. Dr. Revan noted that Plaintiff did not
need help changing for the examination or getting on and off
the examination table. R. 282. Plaintiff was also able to
rise from a chair without difficulty. R. 282.
heart and respiratory examinations were normal. R. 283.
Plaintiffs cervical spine showed full range of motion. R.
283. His lumbal' spine had almost full range of motion
but he complained of back pain on palpation. R, 283.
Plaintiffs straight leg raise test was negative bilaterally.
R. 283. Plaintiff had full range of motion and full strength
in the upper and lower extremities, stable joints, no sensory
deficits, no muscle atrophy, and was neurologically intact.
R. 283. Plaintiff had intact hand and finger dexterity and
full grip strength bilaterally. R. 283. He had no cyanosis,
clubbing or edema in the extremities. R. 283. Dr. Revan
opined that Plaintiff had no limitation with the upper
extremities for fine and gross motor activity. R. 284. He had
mild-to-moderate limitations with climbing stairs, walking,
sitting, and standing due to his complaints of leg pain. R.
283, Dr. Revan stated that Plaintiff had no limitations with
laying down and he had mild-to-moderate limitations with
personal grooming and activities of daily living secondary to
leg edema. R. 284.
Plaintiffs Hearing Testimony
19, 2014, Plaintiff appeared before the ALJ for his
administrative hearing. R. 28-50. Plaintiff testified that he
dropped out of school in the tenth grade. R. 32. He is
married but has been separated for fifteen years. R. 32. He
has three daughters and a son. R. 32. He lives with his son
and his mother-in-law in Bronx, New York. R. 32. Plaintiff
testified that he takes public transportation to avoid
walking long distances. R. 32.
2000, he worked as a security guard focusing on "loss
prevention" at a clothing store. R. 32. In 2007,
Plaintiff worked for the City of New York Parks Department
cleaning the park. R. 32. In response to the ALJ's
questioning, Plaintiff explained that he had worked
infrequently because he had ignored his thyroid condition
until it "caught up with me." R. 33. He testified
that he cannot work because he is constantly tired and he
feels numbness in his legs. R. 34. Plaintiff testified that
he occasionally suffers from incontinence. R. 39. He
testified that he goes to his endocrinologist every two to
three months, his regular doctor once a month, his physical
therapist twice a ...