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Drake v. Commissioner of Social Security

United States District Court, E.D. New York

March 29, 2018

THEODORE DRAKE, pro se, Plaintiff,



         On 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.[1] 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.

         On 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 is dismissed.

         BACKGROUND [2]

         A. Non-Medical and Self-Reported Evidence

         Plaintiff was born in 1965 and was 48 years old when the ALJ issued his decision.[3] 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 126

         In a 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. Id.

         Plaintiff's 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 167, 172.

         In 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.

         B. Medical Evidence before the ALJ

         1. Brooklyn Hospital

         Plaintiff's 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.

         Plaintiff's earliest record is an April 2007 pre-operative evaluation for general anesthesia performed at Brooklyn Hospital, [4] 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.

         In May 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 203, 220.

         Plaintiff 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.

         In 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, 213-16.

         In 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.

         Plaintiff 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 261-62.

         On 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.

         Plaintiff 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.

         2. Consultative Examination

         Benjamin 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 ...

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