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Oquendo v. Commissioner of Social Security

United States District Court, S.D. New York

July 6, 2018




          SARAH NETBURN United States Magistrate Judge.

         Sarkis Marquez Oquendo seeks judicial review of the Commissioner of Social Security's denial of his application for disability insurance benefits under the Social Security Act. 42 U.S.C. § 405(g). Oquendo claims that his impairments prevent him from working in any capacity. These impairments include degenerative disc disease of the lumbar and cervical spine, bilateral osteoarthritis of the knees, fibromyalgia, left rotator cuff tendonitis, and status post sprained left ankle.

         An Administrative Law Judge (“ALJ”) determined that the medical evidence did not support Oquendo's account of the severity of his symptoms. The ALJ gave significant weight to two consulting physicians' opinions of Oquendo's physical and mental condition. He gave moderate weight to the opinion of a reviewing expert, whose opinion was consistent with a finding that Oquendo's impairments did not meet the Listings but underestimated the severity of his symptoms. He gave another reviewing expert's opinion great weight because it was consistent with the record. The ALJ gave little weight to the opinions of the treating physician and two treating nurse practitioners because their opinions were inconsistent with the rest of the record. The ALJ found that Oquendo partially retained the residual functional capacity for light work, which was insufficient to perform his past work as a cleaner, but that jobs existed in significant numbers in the national economy that he could perform. The parties each move for judgment on the pleadings.


         I. The Administrative Record

         On April 10, 2013, Oquendo filed a Title XVI application for supplemental security income. See 20 C.F.R. § 416. On July 15, 2013, the agency denied his application, and Oquendo requested a hearing. On July 22, 2014, Oquendo appeared with counsel at a hearing before ALJ Zachary Weiss. On August 27, 2015, Oquendo appeared with counsel at a supplemental hearing before the ALJ. On January 15, 2016, the ALJ issued a decision, finding that Oquendo was not disabled. Oquendo appealed the decision, and on May 3, 2017, the Appeals Council denied his appeal.

         A. Plaintiff's Statements to the Social Security Administration

         In his initial application documents, Oquendo alleged that he was disabled due to problems with his swollen feet, asthma, Hepatitis C, fatigue, a fractured right arm, and anxiety. AR 279. On May 16, 2018, Oquendo submitted a function report to the SSA. AR 286-297. He stated that his pain and anxiety prevent him from sleeping. AR 288. He further claimed that he has trouble putting on his shoes due to the swelling and that getting in and out of a bathtub causes him severe foot pain. AR 288.

         Describing his daily activities, Oquendo stated that nobody prepares his food and that he eats very little. AR 289. He does not cook or prepare his own meals because he does not know how. AR 286. He claimed that he sends someone else to do his cleaning and laundry because there are days when it is hard for him to move due to back and foot pain. AR 289. He stated that he goes outside for appointments but does not otherwise go out because of the pain. AR 289. He claimed that he does not go out alone because he could fall or forget the address. AR 289. He shops at the supermarket and clothing stores and goes to church but only when necessary and does not spend much time doing so. AR 290-91. His hobbies include watching TV and listening to music. AR 290. He is not as active as he once was due to the pain in his feet and body. AR 290. Oquendo talks on the phone when someone calls him. AR 291. He claims that his social activities have changed because he is not able to move from the pain. AR 291. He claimed that he cannot lift objects because he has a fractured hand. AR 291. He stated that he cannot stand or walk for a long time due to foot pain. AR 291. He claimed that he cannot sit, kneel, squat, reach, or use his hands due to the pain and that it takes him a long time to use the stairs. AR 292. He can see, hear, and talk without any problem. AR 292. He claims that he uses a cane. AR 292. Oquendo claimed that a doctor prescribed his cane and a medication that he drinks. AR 293. He stated that he uses the cane to walk far but can only go two blocks without resting for ten minutes due to the pain. AR 293. He wrote that he sometimes finishes what he starts and can follow spoken and written instructions. AR 293. Oquendo does not have trouble getting along with people in authority. AR 293. He stated that changes in his schedule depress him and that he has to write everything down because does not remember anything. AR 294. He stated that he uses “the pump and singular” to treat his asthma and that he has attacks frequently. AR 294. He wrote that the attacks are triggered by the cold and heat, and have gotten worse over time. AR 294. He described his attacks as chest tightening and lack of breath. AR 295.

         Oquendo stated that he began to suffer from anxiety five or six years before applying for disability benefits. AR 295. When he is anxious, he claims that he feels like someone is following him and he gets depressed. AR 295. His anxiety attacks include fear, rapid heartbeat, shortness of breath, the need to flee, sweating, and confusion. AR 295. When an attack is oncoming, he states, he cannot remain still or be around others without becoming afraid. AR 295. He claims that his anxiety attacks happen three times a week for six to seven minutes at a time. AR 296. He states that he cannot travel by himself and cannot shop or drive during an attack. AR 296. His physician, Dr. Rodrigues, treats him with trazadone and Klonopin. AR 296. Due to the anxiety, Oquendo gets uncomfortable when socializing with others. AR 296.

         B. Medical History Before Alleged Disability Onset Date

         1. Mental Health Conditions

         On January 11, 2012, NP Jean L. Painson assessed Oquendo with major depressive disorder with psychosis, antisocial personality disorder, and a GAF score of 50. AR 356-57. She prescribed him Wellbutrin and trazadone. AR 357. From January to August 2012, Oquendo took medications including Wellbutrin, trazadone, Abilify, and Risperdal. AR 358. Oquendo told NP Painson that he heard voices calling his name on the subway and at night, but denied suicidal or homicidal ideation. AR 403.

         2. Physical Conditions

         In 2011 and 2012, Oquendo attended appointments for Suboxone management at Neighborhood & Family Health Center (“NFHC”). AR 374-406. In October 2011, exams showed that Oquendo suffered from wheezing, rhinorrhea, and bilateral leg edema. AR 892-93. On November 1, 2011, Oquendo complained of having leg pain for three years. AR 406-07. On November 13, 2011, Oquendo presented with a right hand fracture from a work accident and was referred to orthopedics. AR 403. A November 28, 2011 echocardiogram showed mild to moderate mitral and tricuspid insufficiency, but a Doppler ultrasound showed no significant carotid stenosis. AR 440-441. An abdominal and retroperitoneal ultrasound taken on the same date showed a left renal cyst. AR 442. On December 19, 2011, back at NFHC, Oquendo complained of shortness of breath, urinary frequency, reduced visual acuity, and right leg edema. AR 416. An exam showed a right arm cast, bilateral wheezing, full dentures, and edema in his legs. AR 417.

         A January 27, 2012, examination showed pain in his right hand to palpation but otherwise unremarkable findings, including 5/5 strength. AR 634-36. On March 28, 2012, Oquendo complained of shortness of breath and edema in his legs. AR 383-384. On May 14, 2012, Oquendo complained that his asthma gave him a cough and prevented him from sleeping four nights a week. AR 379. An exam showed hot erythematous skin with pitting edema and swelling on the right foot and ankle. AR 378. On July 27, 2012, Oquendo complained of lower extremity swelling and inflammation and exams showing edema and redness in his legs. AR 368-69. He was assessed with vascular insufficiency, asthma, and benign prostatic hyperplasia, and was referred to counseling and told to wear compression stockings and elevate his legs regularly. AR 369. On January 4, 2013, Oquendo was diagnosed with tinea pedis. AR 566.

         C. Mental Health Conditions After Alleged Disability Onset Date

         1. NP Jean L. Painson

         On June 5, 2013, Oquendo saw NP Painson at an agency called New Beginnings. AR 668-69.[1] Oquendo reported crying spells, mood swings, irritability, nightmares, frustration, startled reactions, poor concentration, poor memory, delusion of persecution, explosive temperament, paranoia, isolation, and auditory hallucinations. AR 668-69, 689-90. He explained that his brother's murder 12 years earlier led to his severe depression and paranoia, as well as his increased incidence of anxiety and panic attacks, which are triggered by large crowds of people. AR 689. He reported that he was assaulted in an attempt to steal his neck chain, which contributed to his delusion. AR 689. He reported a history of drug abuse but was in remission over three years. AR 689. A mental status exam showed that his appearance and speech were normal, his mood was depressed with congruent affect, he had poor serial 7s, mildly impaired short-term memory, and an average fund of knowledge. AR 689. NP Painson assessed his judgment, insight, and impulse control as poor due to his collective 19 years in prison for drug sales and armed robbery. AR 689. She diagnosed Oquendo with schizoaffective disorder, PTSD, polysubstance dependence, heroin/opioid dependency, and antisocial personality disorder. AR 690. She assessed Oquendo's GAF score as 55 with a past year GAF score of 60. AR 690. NP Painson prescribed Zoloft, Risperdal, and trazadone, and recommended verbal therapy. AR 690.

         On June 19, 2013, Oquendo reported a depressed mood, anxiety, and irritability, but denied poor appetite, insomnia, or side effects from his medications. AR 670. A mental status exam showed that he appeared his stated age, had normal rate and volume of speech, his mood was “neutral, ” his affect was appropriate and congruent, and his thinking was coherent, linear, and goal-directed. AR 670. He denies auditory or visual hallucinations and NP Painson found no evidence of perceptual disturbances. AR 670. She found that Oquendo showed good judgment and insight. AR 670. She increased his Zoloft and Risperdal dosage and continued his trazadone prescription and verbal therapy. AR 670. An examination on July 17, 2013, had largely the same findings, but with intermittent depressive mood and anxiety. AR 671. On August 8, 2013, NP Painson recorded that Oquendo complained of a depressed mood, poor appetite, and difficulty falling asleep. AR 672. On September 13, 2013, Oquendo reported that he had increased episodes of anxiety and depressed mood and that he got nervous on the bus and train for no reason. On October 11, 2013, Oquendo reported that he had continued unexplained depressed mood, poor appetite, and increased anxiety for no reason. AR 674. NP Painson's mental status examination showed normal findings other than an anxious mood. AR 674. On November 8, 2013, Oquendo reported dry mouth and dizziness as side effects to his medication, but denied mood disturbances. AR 675. He also reported intermittent auditory hallucinations; the mental status examination otherwise displayed normal findings. AR 675. On December 9, 2013, Oquendo did not report any increased anxiety or depressed mood, but instead reported that he was sleeping very well. AR 677.

         On January 9, 2014, Oquendo reported to NP Painson that he no longer took Remeron because it made him very sleepy in the morning. AR 678. He also complained of auditory hallucinations and difficulty sleeping and stress related to unstable housing and employment. AR 678. On February 20, 2014, Oquendo reported that his thought process was very slow and that he was using a cane due to his left knee surgery, as well as auditory hallucinations. AR 681. On April 1, 2014, Oquendo reported no side effects from his medications, but intermittent anxiety and increased paranoia before bed. AR 682. He did not report having a depressed mood or any difficulty sleeping. AR 682. On May 7, 2014, Oquendo did not report any side effects from his medication, increased anxiety, depressed mood, or difficulty sleeping. AR 683. On June 11, 2014, Oquendo reported that he had only been feeling depressed fewer than five times per month. AR 685. Oquendo complained of intermittent anxiety for no reason, but that his medication had helped. AR 685. On July 9, 2014, Oquendo reported feeling well and psychiatrically stable, denying any instances of depressed mood or increased levels of anxiety. AR 687. On August 6, 2014, Oquendo reported that he was stable on his current medications, but had missed several verbal therapy appointments. AR 1082. On September 10, 2014, Oquendo reported intermittent sadness due to the death of a cousin, feeling stable on his current medication, and no increased level of anxiety, poor appetite, or fragmented speech. AR 1083. On October 8, 2014, Oquendo stated that he felt very anxious, mostly in the morning, partially due to the need to find a new apartment. AR 1084. He reported that he continued to take his medication, though Zyprexa made him nauseous, and he had no trouble sleeping. AR 1084. On November 5, 2014, Oquendo reported feeling very tired and slow, and “very heavy” when he takes Buspar. AR 1085. Oquendo stated that he had mild intermittent anxiety but felt stable overall, sleeping well and denying any depressed mood. AR 185. On December 3, 2014, Oquendo reported intermittent sadness and irritability due to a pending closure of his Medicaid benefits, but remained compliant with his medication regimen. AR 1086. On December 31, 2014, Oquendo reported intermittent anxiety and preoccupation with his sick father in Puerto Rico, but no depressed mood, irritability, or poor appetite. AR 1087.

         On January 28, 2015, Oquendo remained compliant with his medication regimen and denied any negative effects. AR 1088. He reported poor appetite, but no depressed mood, anxiety, or difficulty sleeping. AR 1088. On February 24, 2015, Oquendo reported remaining compliant with his medication regimen, but felt mildly anxious due to an upcoming move. AR 1089. His mental status exam showed normal findings other than the mildly anxious mood. AR 1089. On June 10, 2015, Oquendo reported no depressed mood or difficulty sleeping but intermittent anxiety and irritability and that he has always been scared to go out. AR 1090. His mental status examination showed normal findings other than an irritated mood. AR 1090. On July 8, 2015, Oquendo reported intermittent mood disturbances, but denies difficulty sleeping and had good appetite. AR 1091.

         At each of these appointments, unless otherwise noted, NP Painson found that Oquendo's mental status examination was normal with a euthymic, good, or calm mood.

         On June 17, 2014, NP Painson completed an impairment questionnaire. AR 542-46. He noted that Oquendo had received services for over a year for schizoaffective disorder and antisocial personality disorder. AR 542. He assessed Oquendo's current GAF score as 55, but that the highest score in the past year had been 60. AR 542. He noted that Oquendo suffered from poor memory, sleep disturbance, personality change, mood disturbance, emotional lability, anhedonia, feelings of guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation or attempts, perceptual disturbances, social withdrawal or isolation, blunt, flat, or inappropriate affect, decreased energy, intrusive recollections of traumatic experience, generalized persistent anxiety, and hostility and irritability. AR 543.

         NP Painson assessed Oquendo with marked loss in his ability to interact with the public, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes, use public transportation, or set realistic goals or make plans independently of others. AR 543. He assessed Oquendo with moderate loss in his ability to ask simply questions or request assistance, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, respond appropriately to changes in a routine work setting, be aware of normal hazards and take appropriate precautions, and travel in unfamiliar places. AR 543.

         NP Painson found that Oquendo was extremely restricted in his activities of daily living and moderately restricted in maintaining social functioning. AR 543. He also found that Oquendo had deficiencies of concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner. AR 543. He noted that Oquendo's impairments would cause him to miss work more than three times per month. AR 544. He further noted that Oquendo's impairments meant that he had extreme loss in his ability to complete a work day or workweek without interruptions from psychologically based symptoms. AR 545. He also noted that Oquendo had marked and moderate losses in a number of other work-related activities. AR 545.

         2. Licensed Medical Social Worker (“LMSW”) Josephine Servin

         On December 27, 2013, Oquendo attended a verbal therapy session with LMSW Servin. AR 679. He reported stress due to unstable housing and the end of his unemployment benefits. AR 679. On June 2, 2014, Oquendo attended another verbal therapy session with LMSW Servin. AR 684. Oquendo explained that he was stressed about his SSI decision. AR 684.

         D. Physical Conditions After Alleged Disability Onset Date

         1. NFHC Notes & NP Fisher Opinion

         In May 2013, Oquendo returned to NFHC for a series of appointments for suboxone treatments. AR 604-613. At his appointments, Oquendo described a past medical history of asthma, GERD, opiate dependence, tobacco dependence, BPH, leg pain, schizophrenia, and bipolar disorder. AR 604. He had depressed circles in his legs. AR 609, 613. He had 5/5 strength, but he noted tightness and tenderness, including upon light and deep palpation. AR 609. At an appointment in the end of May, Oquendo complained of decreased hearing in his right ear, dry and itchy skin, chest tightness, ...

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