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Mitchell v. Berryhill

United States District Court, S.D. New York

June 7, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Defendant.


          Paul E. Davison, U.S.M.J.


         Plaintiff 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 submissions alone.

         Dkt. 15.

         To date, Plaintiff has not filed any opposition. For the reasons set forth below Defendant's unopposed motion for judgment on the pleadings is GRANTED.


         The 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.

         A. Application History

         On 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.

         Plaintiff 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[2] and hypocalcemia, [3] and 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.

         B. Medical History

         The administrative record contains various medical treatment records. Dkt. 12. The following is a distillation of their relevant points.

         1. Plaintiffs Thyroid Condition

         On 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.[4] R. 288. An ultrasound of Plaintiff s thyroid dated June 5, 2012 showed thyromegaly[5] and bilateral nodules. R. 246.

         At 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.

         On 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.

         An 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.

         On 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.

         On 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.

         On 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.

         On 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.

         2. Plaintiffs Right Foot Growth

         On May 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.

         On June 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, 369.

         On 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. 315.

         3. Fibromyalgia

         On 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.

         4. Bilateral leg pain

         In 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. 384-86.

         5. Consultative Examination with Internist Dr. Sharon Revan

         Plaintiff 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.

         On 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.

         Plaintiffs 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.

         C. Plaintiffs Hearing Testimony

         On May 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.

         In 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 ...

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