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Brown v. Colvin

United States District Court, S.D. New York

August 31, 2017

THERESA S. BROWN, Plaintiff,


          ANDREW L. CARTER, JR. United States District Judge.

         Plaintiff Theresa S. Brown brings this action to reverse a final decision of Defendant Carolyn W. Colvin, then the Acting Commissioner of Social Security (the "Commissioner"), that Brown was not entitled to Supplemental Security Income benefits or disability insurance benefits. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the Commissioner's motion is denied, Brown's motion is granted, and the matter is remanded for further proceedings.


         I. Procedural History

         Brown filed an application for Supplemental Security Income benefits ("SSI") and disability insurance benefits ("DIB") on September 23, 2014, alleging that her disability began on October 4, 2010. R. at 121-36.[1] The Social Security Administration initially denied her applications on October 28, 2014. Id. at 63-70. On Brown's request, a hearing was held on November 5, 2015, before Administrative Law Judge Michael Friedman (the "ALJ"). Id. at 25-41, 73-74. The ALJ denied Brown's application by decision dated November 19, 2015, finding that she was not disabled during the relevant period. Id. at 11-24. Brown requested a review of the ALJ's decision by the Appeals Council. Id. at 10. On March 14, 2016, the Appeals Council denied her request for review, rendering the ALJ's decision the final decision of the Commissioner. Id. at 1-6.

         Brown commenced this action on April 29, 2016, seeking judicial review of the Commissioner's decision under 42 U.S.C. § 405(g). ECF No. 1. After the Commissioner filed her answer and the administrative record, Brown moved for judgment on the pleadings. ECF Nos. 11 (Motion), 12 ("Pl's Memo."). The Commissioner cross-moved for judgment on the pleadings on December 13, 2016. ECF Nos. 14 (Motion), 15 ("Def s Memo."). Brown did not file a reply brief, and the Court considers the motions fully submitted.

         II. Factual Background

         A. Brown's Background

         Brown was born on February 2, 1953, and was 61 years old at the time she applied for disability benefits. R. at 121. Brown completed high school in 1971, which is her highest level of education, and has never completed any specialized job, trade, or vocational school. Id. at 164. In a disability report compiled for her benefits applications, Brown reported that she could speak and understand English, as well as read and write English. Id. at 162.

         Brown worked from August 1999 to June 2014 as a childcare provider for children ages six months to six years old. Id. at 28-29, 164. Brown watched the children at her home for approximately ten hours each day, five days per week. Id. At first, she watched six children, but eventually, that number decreased to two children. Id. at 28-29. Brown reported that she stopped working in June 2014 "[d]ue to health problems." Id. at 29. Marion Greene, a vocational expert who testified during Brown's administrative hearing, characterized Brown's occupation as a childcare worker as a "medium exertional level" and "SVP 3." Id. at 40-41.

         At the time of her hearing before the ALJ on November 5, 2015, Brown testified that she lived in an apartment with her daughter. Id. at 28. She further testified that she went grocery shopping two times each week and could "probably" lift grocery bags that weighed between five and ten pounds. Id. at 34-35. She also stated that she tried to clean her apartment occasionally. Id. at 35. Brown confirmed that spent most of her time on the couch watching television or napping because "there's nothing else that [she] can do." Id. at 35-37. However, she still prepared her own meals. Id. at 35.

         Brown's application for DIB and SSI was based on her hyperlipidemia, asthma, hypertension, diabetes mellitus, and hip pain resulting from "bursitis vs osteoarthritis." Id. at 163. During her hearing before the ALJ, she testified that she was diagnosed with diabetes approximately ten years earlier, and took three different medications in an attempt to control it. Id. at 32. She testified that her A1C was 11.8, but that it had decreased to 10.1. Id. at 32.[2]Brown testified that she gets dizzy sometimes and has had a difficult time maintaining proper blood sugar levels. Id. at 32-33.

         She also explained that she has coronary artery disease, describing her diagnosis as involving "three blocked arteries." Id. at 30. She said she experiences shortness of breath and chest pain, but she manages the chest pain with Isosorbide and Tramadol, the latter of which "puts [her] to sleep." Id. at 30-31. Brown testified that she had not had any corrective procedures on her heart because her doctors believed her diabetes would make a procedure too dangerous. Id. at 31. In particular, they wanted her A1C to be 7.0. Id. at 32.

         With regard to her physical abilities, Brown testified that she could stand for ten to 20 minutes and could remain sitting for approximately one hour, indicating that she is slow moving once she stands up from sitting for that length of time. Id. at 33. Further, she said she could walk one and a half blocks without stopping to catch her breath. She noted that her left hip bursitis also requires her to take breaks when walking. Id. at 33-34. The medication she takes for her chest pain also serves as a pain killer for her hip. Id. at 34. When asked, Brown stated that she began going to physical therapy for her hip on a daily basis in June 2015. Id. at 39. The physical therapist told her that physical therapy was futile because she needed surgery. Id. at 39. Similar, to her ability to undergo a cardiac procedure, Brown believed that hip surgery would not be possible because of her diabetes. Id.

         B. Medical Evidence in the Record

         The medical evidence in the record primarily consists of treatment notes from Metropolitan Hospital Center ("MHC") and Mt. Sinai Hospital. Brown was treated by various physicians and other healthcare providers in the emergency departments and outpatient clinics at each hospital. There are records from MHC between September 21, 2012 and August 23, 2013. The records from Mt. Sinai are dated between May 9, 2013 and October 9, 2015.

         1. Metropolitan Hospital Center

         The first record from MHC reflects that Brown went to the emergency room on September 21, 2012. Id. at 202-04. She was brought to the emergency room in handcuffs by the police after experiencing dyspnea (labored breathing), and appeared upset and crying. The doctor determined she experienced asthma exacerbation. Brown returned to the MHC emergency room four days later complaining of pain in her wrist and shoulders and exhibiting a cough. Id. at 205-07. The wrist pain was reportedly from the handcuffs used by the police on September 21. On examination, Brown's neck was not tender, but she was found to have a decreased range of motion. The doctor also noted that Brown had decreased breathing sounds and rales.[3] Notes from a visit at MHC the following month do not reflect any continued neck or wrist soreness. Id. at 326-28. However, the doctor did note that Brown had osteoarthrosis and reported pain in her hip and pelvis. The doctor further noted that Brown's asthma was stable, but her diabetes and hypertension were uncontrolled and not regularly medicated.

         Brown returned to MHC on November 14, 2012, primarily to address her diabetes mellitus and hypertension. Id. at 329-31. Blood tests revealed that Brown's blood sugar levels were elevated, but the notes also reflect that Brown had not taken her medication for two months prior to the blood test. She was prescribed a new diabetes medication and directed to have more blood tests in advance of her next appointment. In response to Brown's elevated liver enzymes, she had an abdominal sonogram performed in December 2012, which showed no acute abnormalities. Id. at 332.

         Brown returned to MHC on January 9, 2013 for a diabetes "check, " complaining of excessive thirst and urination, lightheadedness, and blurry vision. Id. at 333-37. Brown had not been taking her newly-prescribed diabetes medication, stating that it made her dizzy. In the notes, Brown's self-management of her diabetes is described as uncontrolled, and the doctor stated that he advised her regarding compliance with her medication regimen and the importance of diet for diabetes management. Brown was diagnosed with uncontrolled diabetes and unspecified, essential hypertension. The notes reflect that Brown did not have any edema. She was directed to return to the diabetes clinic at MHC in one week for a follow-up visit.

         At this follow up appointment on January 16, 2013, Brown reported occasional pain in her left flank and lumbar area. Id. at 338-41. She described the pain as a dull ache, and rated her pain as a seven on a ten-point scale. Examination confirmed mild tenderness in her left lumbar spine and left flank, which the examining physician believed was "probably musculoskeletal." Brown also stated that she had exertional chest pain, which was relieved by rest. As to her diabetes, Brown's blood sugar and other test numbers were improving due to her renewed compliance with her medication regime. She was again directed to return to the diabetes clinic at MHC for a follow-up appointment in two weeks.

         During a visit on February 20, 2013, Brown's diabetes and hypertension remained uncontrolled, although it is not clear whether Brown had been compliant with her medication regimen. Id. at 223-27, 344-48. The notes reflect diagnoses of diabetes and osteoarthrosis, although Brown had a normal range of motion in her joints and no tenderness. The doctors directed Brown to return to the diabetes clinic in two months.

         In March 2013, Brown had a myocardial perfusion scan and EKG stress test performed at MHC to determine whether she had coronary artery disease. Both tests were normal. Id. at 245-47, 349-56. Brown returned to MHC on March 13, 2013 for a follow-up appointment. Id. at 357-60. During this appointment, she also reported that she had been experiencing cervical spine tenderness for approximately one month. Brown also expressed discomfort in her foot, resulting from her diabetes and an ingrown toenail. Therefore, on referral, Brown saw a podiatrist at MHC two weeks later. Id. at 361-63. Brown complained of pain and burning in her feet. The podiatrist diagnosed her with neuralgia, neuritis, and radiculitis, secondary to her diabetes.

         Brown returned to MHC the following month, on April 17, 2013, for what appears to be a regular diabetes check-up and an x-ray of her feet. Id. at 218-22, 244, 364-69. The x-ray showed plantar spurs in both feet. Id. at 244, 364. MHC notes from her appointment indicate that Brown's diabetes and hypertension continued to improve, but remained uncontrolled because Brown still was not in ...

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