United States District Court, E.D. New York
OPINION AND ORDER
L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE
November 10, 2011, Theodore Drake (“Plaintiff”)
filed an application for Supplemental Security Income
(“SSI”) benefits under the Social Security Act,
alleging disability beginning May 1, 2007. See
Certified Administrative Record (“R.”), Dkt.
Entry Nos. 10-11 at 60. Plaintiff's application was
denied on December 3, 2011 (Id. at 61), and he
timely requested a hearing before an Administrative Law Judge
(“ALJ”) (Id. at 84-88). On June 18,
2013, Plaintiff appeared pro se before ALJ Edward H.
Hein. Id. at 45-59. The ALJ adjourned the hearing so
that Plaintiff could attempt to obtain counsel and additional
medical records supporting his claims. See Id. at
51. On October 10, 2013, the ALJ continued the hearing, and
Plaintiff, who failed to take any steps to obtain counsel,
testified pro se. Id. at 20-43. On August
8, 2014, the ALJ issued a decision finding that Plaintiff was
not disabled. Id. at 6-19. On July 21, 2015, the
ALJ's decision became final when the Appeals Council
denied Plaintiff's request for review. Id. at
1-3, 198, 308-309.
September 23, 2015, Plaintiff filed this appeal seeking
judicial review of the Commissioner's denial of benefits
pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c)(3). See Compl. at ¶ 1. The Commissioner
of Social Security (“Commissioner” or
“Defendant”) moved for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c). See Mem. of Law in
Supp. of Def.'s Mot. for J. on the Pleadings
(“Def.'s. Mem.”), Dkt. Entry No. 22.
Plaintiff filed a brief opposition to Defendant's motion,
consisting only of a “Disability Impairment
Questionnaire” and a tenant occupancy form.
See Pl.'s Opp'n to Def.'s Mot. for J. on
the Pleadings (“Pl.'s Opp'n”), Dkt. Entry
No. 23. For the reasons set forth below, the
Commissioner's motion is granted and the instant appeal
Non-Medical and Self-Reported Evidence
was born in 1965 and was 48 years old when the ALJ issued his
decision. R. at 126. Plaintiff has an eleventh grade
education, and speaks, writes, and reads English.
Id. at 146. Plaintiff worked for a shipping company
in 1983 and 1984, and also as a furniture store stock clerk
in 1987, but has not worked “on the books” since
1987. See Id. at 28-32, 126. In May 2007, Plaintiff
was diagnosed with heart and lung conditions. Id. at
disability report dated November 28, 2011, Plaintiff reported
that he was five feet eleven inches tall and weighed 160
pounds. Id. at 147. He reported that he stopped
working on December 30, 1987 “[b]ecause of [his]
condition(s) and other reasons, ” including that the
“store [employing him had] closed.” Id.
Though Plaintiff stopped working in 1987, he reports that his
conditions became severe enough to prevent him from working
beginning on May 1, 2007. Id. The disability report
lists six medical conditions from which Plaintiff suffers: a
heart condition, lung problems, shortness of breath,
hypertension, numbness in the hands, and high cholesterol.
function report dated December 12, 2011 notes that he lives
in an apartment with his family. Id. at 162.
Plaintiff reports no issues with personal care, and he does
not care for anyone else or any animals in the home.
Id. at 163-64. Plaintiff's family prepares his
meals because he is “not good at it, ” but he
will “try” to prepare meals if he has to.
Id. at 164. Plaintiff cleans and does household
repairs, but needs help with these things if he gets tired or
experiences shortness of breath. Id. at 165, 172.
Plaintiff reports going outside “almost every day,
” except when he is “not feeling too good.”
Id. at 165. He walks, rides in the car, or uses
public transportation to get around, and he is able to go out
of the house alone. Id. Plaintiff does not have a
driver's license. Id. at 166. Plaintiff reports
being able to count change, but he is unable to pay bills or
handle a savings account, though these inabilities existed
before the onset of his alleged disabilities. Id.
Plaintiff's hobbies include watching television, which he
does when he is tired and needs to rest. Id. He
reports that he does not “go out much or socialize,
” though he has no problems doing so, and he includes
socializing and walking as daily activities. Id. at
terms of physical limitations, Plaintiff reports that he
cannot lift things like he used to because he experiences
shortness of breath and feels as if he will pass out.
Id. at 167. He also cannot stand as long as he used
to be able to stand, nor can he walk as far as he used to be
able to “unless [he] take[s] [his] time.”
Id. at 167-68. Plaintiff reports that he can walk
approximately two blocks before having to rest for
approximately five minutes before continuing. Id. at
169. Plaintiff can climb approximately two flights of stairs
before having to rest, and reports feeling lightheaded and
experiencing blurred vision when standing up from kneeling
and squatting. Id. at 168. He reports no problems
reaching as long as he is not reaching too high or for too
long, though he reports cramps and numbness in his hands, and
that his hands sometimes “lock up.” Id.
Plaintiff has no trouble with authority figures and no
difficulty following written or spoken instructions or paying
attention. Id. at 169. He reports no trouble
remembering things. Id. at 170. Plaintiff takes
medication for his conditions, including folic acid, Lipitor,
Lisinopril, Metoprolol, and Thiamine. Id. at 181.
Medical Evidence before the ALJ
medical records cover the period from 2007 through 2013 and
consist of progress notes from his treating physicians,
Sawsan Al-Izzi, M.D., Joseph Abboud, M.D., and other staff
doctors at Brooklyn Hospital, as well as results from an
echocardiogram, exercise stress test, cardiac
catheterization, EKG, and pulmonary function test. See
Id. at 199-223, 229-31, 233-87.
earliest record is an April 2007 pre-operative evaluation for
general anesthesia performed at Brooklyn Hospital,
where he presented with a history of gastritis,
hypercholesterolemia, and left ventricular hypertrophy
(“LVH”). Id. at 200. Plaintiff was not
suffering from shortness of breath, chest pain, or
respiratory distress, and his doctor requested an
electrocardiogram (“EKG” or “ECG”).
Id. The EKG was abnormal, showing sinus bradycardia,
voltage criteria for left ventricular hypertrophy, and early
repolarization. Id. at 219.
2007, Plaintiff returned to Brooklyn Hospital with complaints
of shortness of breath when going up stairs and walking for
more than two blocks. Id. at 203. Plaintiff's
lungs were clear to auscultation and percussion, and his
physical examination findings were unremarkable.
Id.The doctor noted Plaintiff had chronic gastritis,
a history of alcohol abuse, hypercholesterolemia, and
Plaintiff smoked up to one pack of cigarettes per day.
Id. The doctor noted that Plaintiff “needs to
stop drinking” and that “smoking cessation [was]
explained.” Id. He recommended a stress test,
which was negative for myocardial ischemia. Id. at
returned to Brooklyn Hospital on June 13, 2007. Id.
at 201. The doctor noted that Plaintiff was “still
drinking, ” and Plaintiff had LVH and a decreased
ejection fraction rate. Id. The doctor scheduled a
cardiology consultation for June 22, 2007 regarding a cardiac
catheterization. Id. On July 11, 2007, Plaintiff
again returned to Brooklyn hospital, and his doctor noted
that Plaintiff was still considering cardiac catheterization.
Id. at 202.
October 2007, Plaintiff received a cardiac catheterization.
Id. at 204, 221-22. He returned to Brooklyn Hospital
in November 2007 for the results of the procedure, which
showed normal coronary arteries, mild left ventricular
dysfunction, and an ejection fraction rate of 45%.
Id. Plaintiff then underwent an echocardiogram in
May 2009, which revealed normal findings, with the exception
of mild mitral and tricuspid regurgitation. Id. at
223. The echocardiogram showed an ejection fraction rate of
59%. Id. Plaintiff again underwent EKG testing in
August 2009, which again showed sinus bradycardia, voltage
criteria for LVH, early repolarization, and abnormal results.
Id. at 218. During this period from 2007 to 2009,
Plaintiff attended several follow-up medical appointments
where his doctors noted unremarkable physical examination
findings and unchanged diagnoses. See Id. at 205-11,
February 2011, Plaintiff underwent a third EKG, which was
unchanged from his previous EKG in August 2009. Id.
at 217. Plaintiff received a chest x-ray in February 2012
that showed no acute pulmonary disease. Id. at 281.
In September 2012, as a result of Plaintiff's chronic
complaints of memory loss, Plaintiff underwent a computerized
tomography (“CT”) scan of his head, which
revealed no intracranial hemorrhage or acute pathology.
Id. at 283.
returned to Brooklyn Hospital on June 3, 2013. Id.
at 258-63. Dr. Al-Izzi again noted that Plaintiff had a
history of hypertension, non-ischemic cardiomyopathy
(alcoholic), chronic gastritis, and hypercholesterolemia.
Id. at 259. The doctor noted that Plaintiff's
hypertension was controlled, his non-ischemic cardiomyopathy
(alcoholic) was “stable and asymptomatic, ” and
requested a follow up in three months. Id. at
August 12, 2013, Plaintiff saw Dr. Abboud, a cardiologist,
for a follow up and for complaints of difficulty breathing
after walking three to four blocks and dizziness and heart
palpitations. Id. at 274-75. Dr. Abboud noted that
Plaintiff was complying with his prescriptions, but was still
including salt in his diet against medical advice.
Id. at 275. A detailed exam showed no respiratory
distress or chest pain, and normal musculoskeletal findings.
Id. at 276-77. Dr. Abboud ordered that the Plaintiff
continue his prescribed treatment. Id. at 280.
had follow up appointments at Brooklyn Hospital with Dr.
Al-Izzi on September 3, 2013 (Id. at 249-57) and
October 11, 2013 (Id. at 234-48), and Dr. Abboud on
November 18, 2013 (Id. at 264-71), and
Plaintiff's physical examination findings continued to be
unremarkable with regular heart rate and rhythm, normal joint
range of motion and no swelling or decreased strength, and
clear lungs with no difficulty breathing.
Kropsky, M.D., performed a consultative examination of
Plaintiff on January 5, 2012. Id. at 224. Dr.
Kropsky noted that Plaintiff reported suffering from
shortness of breath after walking four to five blocks or
climbing one flight of stairs and experiencing
lightheadedness and dizziness. Id. Dr. Kropsky also
noted that Plaintiff reported having an abnormal cardiac
rhythm, but that Plaintiff had no specific cardiac diagnosis.
Id. Plaintiff told Dr. Kropsky that he experiences
chest pain and has had hypertension since 2007, though
Plaintiff's hypertension is controlled with medication.
Id. Plaintiff reported occasional pain in both of
his ankles from previous fractures, and having the left ankle
repaired with screws and plates. Id. The ankle pain
limits Plaintiff's ability to walk for prolonged periods.
Id. Plaintiff also reported to Dr. Kropsky that his
right hand occasionally “locks” and he has
periodic numbness in both hands. Id. At the time of
the examination, Plaintiff was smoking approximately one pack
of cigarettes and drinking a six pack of beer and two shots
of liquor each day. Id. at 225. However, Plaintiff
was able to perform all tasks of ...