United States District Court, S.D. New York
THERESA S. BROWN, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
L. CARTER, JR. United States District Judge.
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.
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. 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.
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
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.
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.
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.
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.Brown testified that she gets dizzy
sometimes and has had a difficult time maintaining proper
blood sugar levels. Id. at 32-33.
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
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
Medical Evidence in the Record
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.
Metropolitan Hospital Center
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. 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.
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
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.
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
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
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.
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 ...