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Brett P. v. Commissioner of Social Security

United States District Court, N.D. New York

January 8, 2020

BRETT P., Plaintiff,

          Josephine Gottesman Dennis Kenny Law Counsel for Plaintiff

          Joshua L. Kershner Social Security Administration Office of Regional General Counsel - Region II Counsel for Defendant




         Plaintiff Brett P. filed this action under 42 U.S.C. § 405(g) and 1383(c)(3), challenging the denial of his application for Social Security Disability (“SSD”) insurance benefits. (Dkt. No. 1). The parties' briefs are presently before the Court. (Dkt. Nos. 11, 18). After carefully reviewing the administrative record, (Dkt. No. 8), and considering the parties' arguments, the Court reverses the denial decision and remands for further proceedings consistent with this Order.


         A. Procedural History

         Plaintiff applied for disability benefits in May 2015, alleging that he had been disabled since August 1, 2013. (R. 11). Plaintiff claims he is disabled due to Stickler syndrome, hearing loss, irritable bowel syndrome, and depression. (R. 507). The Social Security Administration (“SSA”) denied Plaintiff's application on August 20, 2015. (R. 364-79). Plaintiff appealed that determination and requested a hearing before an Administrative Law Judge (“ALJ”). (R. 394-95). The hearing was held on August 2, 2017 before ALJ Asad M. Ba-Yunus. (R. 274-355). At this hearing, Plaintiff appeared and testified, as did a Vocational Expert (“VE”). (Id.). On October 20, 2017, the ALJ issued a decision finding that Plaintiff was not disabled. (R. 11-21). Plaintiff's subsequent request for review by the Appeals Council was denied on October 2, 2018. (R. 1-7). Plaintiff then commenced this action on November 30, 2018. (Dkt. No. 1).

         B. Plaintiff's Background and Testimony

         Plaintiff was born in 1983. (R. 19). He graduated from high school and went on to study piano and psychology in college. (R. 19, 309-10). Plaintiff attended graduate school for a year and a half where he studied vocational rehabilitation. (R. 1319). Plaintiff was unable to complete the program due to his medical conditions. (R. 294-95).

         Plaintiff testified that in 2007-2008 he started to get tendinopathies all over his body, including his hands, which made using a computer difficult. (R. 299-301). Plaintiff testified that he also started experiencing pain in his neck, arms, and groin. (R. 301-02). Plaintiff became frustrated when his doctors were unable to diagnose his condition. (R. 301). Plaintiff testified that he would start jobs but then would be forced to quit or be fired as a result of the pain caused while performing his job duties. (R. 304). He stated that he became “horribly depressed because I couldn't figure out what was wrong with me.” (R. 310). Plaintiff was ultimately diagnosed with a connective tissue disorder associated with Stickler syndrome. (R. 309).

         To treat his chronic pain, Plaintiff received prolotherapy injections to stimulate his connective tissue and strengthen his joints. (R. 311). These injections allowed him to continue his education and attend graduate school for a brief time. (R. 292, 311). While he was interning during his graduate studies, Plaintiff's tendinopathies worsened and affected his hands, shoulders, and the back of his neck. (R. 312-13). Plaintiff testified that his pain symptoms, along with fatigue and exhaustion, forced him to quit the internship and withdraw from doing anything because he was immobile and he was afraid of hurting himself. (Id.). He continued with the prolotherapy injections and was prescribed Fentanyl and Hydrocodone, but his condition continued to worsen. (R. 316). Plaintiff testified that he has tried various pain medicines but has been unable to achieve relief. (Id.)

         Plaintiff asserts that his nervous system was impaired causing “brain zaps, ” shortness of breath, sweating with the smallest amount of heat, nausea, increased sensitivity to light and sound. (R. 316-17). Plaintiff reported the he underwent a surgical procedure that further worsened his condition. (R. 318). He testified that after his surgery he suffered from an increasing number of flare-ups and his relationship with his parents deteriorated due to his growing dependence on them. (R. 321-22). Plaintiff claims that his parents “had [him] committed” to Albany Medical Center. (R. 318-19).

         Plaintiff stated that when he was released from Albany Medical Center, he went to live in a motel. (R. 322). Plaintiff testified that he continues to have chronic pain and that he has difficulty focusing when people speak to him. (R. 322-23). He estimated he would have to stop to rest after walking sixty to seventy yards. (R. 324). Plaintiff stated that repetitive use of his hands continues to cause pain. (Id.). He stated that he can only drive short distances in a car. (R. 325). Plaintiff said he must set aside twelve hours each day to sleep because he cannot sleep for extended periods of time and wakes up “exhausted, feeling like [you] just ran a marathon when [you] just had 10 hours of sleep.” (Id.). Plaintiff asserts that his prescribed medication has resulted in weight gain, dizziness, and memory problems. (R. 325-26).

         Plaintiff reported that he lived with his parents for some time, but recently moved into an apartment. (R. 288). Plaintiff stated that his parents prepare most of his meals because repetitive motions such as chopping and stirring cause him pain. (R. 526). Plaintiff stated that he has no problems with personal care. (R. 524). He said he can “only lift light items” and must “limit standing because of sciatic pain.” (R. 529). He reported that “sitting too long can cause sciatica” and that he “can climb stairs but not frequently.” (Id.). Plaintiff stated that he spends his days reading, watching television, and listening to music. (R. 527). Plaintiff uses hearing aids, contact lenses, and hand splints. (R. 530). He reported that he has no problems getting along with others and noted that stress or changes in schedule can cause him difficulty completing tasks. (R. 530-31).

         C. Medical Evidence of Disability

         Plaintiff's disability claim stems from complaints of widespread joint pain, mobility issues, chronic and severe neck pain, muscle spasms, constant fatigue, sensorineural hearing loss, irritable bowel syndrome, spine problems, and leg and foot issues. (Dkt. No. 11, p. 13). He also reports suffering from anxiety, depression, agitation, impaired attention span, sleep problems, and suicidal ideation. (Id.). Plaintiff claims that he has struggled with these conditions since 2008 and has received treatment from a number of medical providers.

         1. Hearing Loss

         Plaintiff began receiving treatment for ear and hearing problems in 2008, which led to multiple surgeries for tympanostomy between 2011 and 2015. (See generally R. 747-887). Plaintiff has worn hearing aids since 2008. (R. 749). In 2013, test results showed chronic bilateral sensorineural hearing loss that was “moderate to severe” in the right ear and “mild to moderately severe” in the left ear. (R. 846).

         2. Chronic Pain

         a. Dr. Mikhail Strut

         In November 2013, Plaintiff presented to Dr. Mikhail Strut for treatment of his chronic pain symptoms. (R. 918-20). Plaintiff reported that he had generalized pain throughout his body for many years and had previously been treated with prolotherapy by another doctor. (R. 918). Plaintiff reported that his current pain was a six on a ten-point scale but noted that it typically ranged anywhere between a five and a ten. (Id.). Dr. Strut diagnosed Plaintiff with: chronic cervical spine pain; cervical ligamentous dysfunction; cervical muscle spasm; cervical enthesopathy; cranio-cervical headaches; lumbar enthesopathy; lumbar muscle spasms; sacroiliitis; and chronic lumbar pain. (R. 919). Over the next several years, Dr. Strut treated Plaintiff's pain symptoms with prolotherapy injections throughout his body. (See generally R. 889-928). Dr. Strut's treatment records frequently note Plaintiff's depressed mood and flat affect. (See e.g., R. 899, 912, 921).

         b. Dr. Howard Philip Levy

         In April 2015, Plaintiff was seen by Dr. Howard Philip Levy at Johns Hopkins Medical Center for a genetic evaluation for Ehlers Danlos syndrome and Stickler syndrome. (R. 930- 35). Dr. Levy diagnosed Plaintiff with Stickler syndrome based on “[h]is personal and family history of sensorineural hearing loss and high myopia, combined with his flat facial profile, very high/narrow palate, submucous cleft palate, and aches [and] pains . . . .” (R. 933). With regard to Plaintiff's pain symptoms, Dr. Levy wrote that “pain is a common problem in Stickler syndrome, ” and noted that “there is no simple solution.” (Id.). Dr. Levy then listed a number of recommendations that Plaintiff should follow, including: (1) avoidance of high-impact activity and resistance exercise; (2) improvement of joint stability by increasing muscle tone through low resistance exercise like walking, swimming, and yoga; (3) recognizing and not exceeding current physical limitations by minimizing resistance and avoiding excess repetition; and (4) attending physical therapy. (R. 934). Dr. Levy also diagnosed Plaintiff with asthma and congenital bilateral sensorineural hearing loss. (Id.).

         c. Dr. Manish Saha

         In May 2015, Plaintiff presented to Dr. Manish Saha complaining of continued joint pain. (R. 1687-91). Dr. Saha noted that Plaintiff was in graduate school but had recently taken medical leave due to difficulties with pain and an inability to stay on top of his schoolwork. (R. 1689). Dr. Saha confirmed Plaintiff's Stickler syndrome diagnosis and also diagnosed Plaintiff with depression. (R. 1689-90). Plaintiff saw Dr. Saha again in June and July of 2015 for treatment of his pain symptoms. (R. 1678-86). Dr. Saha noted that “there is no treatment for [Stickler syndrome] other than ongoing therapy and managing symptoms.” (R. 1681). Dr. Saha prescribed a Fentanyl patch and a neck brace to help with Plaintiff's neck pain. (R. 1685).

         Plaintiff continued to see Dr. Saha through March 2017 for his pain-related symptoms. (R. 1911-61). The medical records show that Plaintiff consistently complained of generalized pain symptoms and that he continued to experience fatigue and difficulty sleeping. (See e.g., R. 1911, 1914, 1931-32). Dr. Saha saw Plaintiff for a preoperative visit on March 13, 2017. (R. 1959-61). Plaintiff underwent surgery for a spinal fusion surgery on March 28, 2017. (R. 1973-41). After the operation, Plaintiff continued to complain of the same symptoms he had prior to the surgery. (R. 1983-84). Doctors determined that Plaintiff might also benefit from additional surgery to fuse other areas of his spine. (Id.).

         d. Dr. Ernest Enzien

         In June 2016, Plaintiff was seen by Dr. Ernest Enzien for his primary care. (R. 1764- 67). Dr. Enzien reported that Plaintiff suffered from Stickler syndrome, depression and anxiety and noted that his prognosis was “guarded.” (R. 1764). Plaintiff suffered from pain in all of his joints that worsened for no apparent reason. (Id.). Plaintiff reported that his pain was generally a six or seven on a ten-point scale. (Id.). Dr. Enzien noted that Plaintiff's condition would be expected to last more than twelve months and that Plaintiff's depression and anxiety were affecting his physical condition. (Id.). Dr. Enzien noted that Plaintiff suffered from muscle weakness and chronic pain and fatigue. (R. 1765). He also determined that Plaintiff had ‚Äúsignificant limitations‚ÄĚ with reaching, handling, and fingering. (R. 1766). Dr. Enzien also found Plaintiff's condition would cause him to be off-task for at least 25 percent of the ...

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