Albino v. Berryhill
| Decision Date | 29 May 2019 |
| Docket Number | 18 Civ. 6514 (LGS)(HBP) |
| Parties | ONIELL ALBINO, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB"). Plaintiff has moved for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure1 and the Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) ofthe Federal Rules of Civil Procedure (D.I. 19). For the reasons set forth below, I respectfully recommend that plaintiff's motion be granted and the Commissioner's motion be denied.
On November 17, 2014, plaintiff filed an application for DIB, alleging that he became disabled on October 3, 2013 due to moyamoya disease,3 strokes, seizures and a shoulder injury (Tr. 10, 85, 187, 223). After his application for benefits was initially denied on March 13, 2015, he requested, and was granted, a hearing before an administrative law judge ("ALJ") (Tr. 84, 104-06, 114).
On January 19, 2017, plaintiff and his attorney appeared before ALJ David Suna for a hearing via video conference, at which plaintiff, a vocational expert and a medical expert testified (Tr. 42-83). On June 11, 2017, the ALJ issued his decision finding that plaintiff was not disabled (Tr. 10-30). This decision became the final decision of the Commissioner on May 22, 2018 when the Appeals Council denied plaintiff's request for review (Tr. 1-6). Plaintiff timely commenced this action on July 19, 2018 seeking review of the Commissioner's decision (Complaint, dated July 19, 2018 (D.I. 1) ("Compl.")).
Plaintiff was born on March 8, 1967 and was 47 years old at the time he filed his application for DIB (Tr. 85). Plaintiff is married and lives with his wife and one his three adult children in a fourth floor walk-up apartment in the Bronx (Tr. 63-64, 230). Plaintiff has a tenth grade education and never received his GED (Tr. 65, 71).
Plaintiff worked as a truck driver and a porter for Anheuser Busch from March 1996 until October 3, 2013 -- the alleged onset date of his disability (Tr. 65, 214, 222-23). Plaintiff stated in his "Disability Report," dated December 30, 2014, that this position required him to climb stairs and to lift kegs or cases of beer frequently (Tr. 224). He further statedthat this position frequently required him to walk, stand, climb, stoop, handle large objects and lift objects that weighed 50 pounds or more (Tr. 224). Plaintiff testified that he stopped working because of pain in his left shoulder; however, a review of the medical also reveals that plaintiff suffered a transient ischemic attack ("TIA")4 on October 2, 2013, which required him to be hospitalized until October 4, 2013 (Tr. 66). Plaintiff also reported to one of his doctors that he had been "let go" from his job on the date of this attack and believed it contributed to the attack (Tr. 448).
In his "Function Report", dated January 13, 2015, plaintiff stated that his daily activities included reading, watching television and socializing with friends (Tr. 231, 234-35). Plaintiff further stated that he was able to bathe and groom himself, wash dishes, pay his bills, make his bed and fold laundry, but he sometimes had difficultly getting dressed and was unable to drive, cook or go out by himself (Tr. 231-34). Plaintiff further claimed that he was unable to bend, lift objects orsit or stand for prolonged periods of time (Tr. 234). He also stated that he was able to follow and understand directions, but sometimes felt confused, lost or frustrated (Tr. 237).
a. Dr. Lee Trosterman
Plaintiff visited Dr. Lee Trosterman, a physiatrist, on July 2, 2013 complaining of left shoulder pain after he injured his shoulder while lifting a case of beer at work (Tr. 310). Plaintiff described his pain as an eight out of ten in severity and described it as burning, sharp, aching and throbbing (Tr. 310).
Dr. Trosterman noted swelling, tenderness and severely restricted rotation in plaintiff's left arm (Tr. 311). Dr. Trosterman diagnosed plaintiff with a torn rotator cuff and joint pain (Tr. 311). Dr. Trosterman recommended that an MRI study be conducted of plaintiff's left shoulder and that he remain on light work duty for three weeks (Tr. 311).
Plaintiff underwent this MRI on July 24, 2013, which revealed mild to moderate shoulder tendinitis5 and bursitis6 (Tr. 309).
Plaintiff visited Dr. Trosterman again on August 2, 2013 and reported left shoulder pain that was radiating into his left arm (Tr. 312). Plaintiff described this pain as a nine out of ten (Tr. 312). Dr. Trosterman noted swelling, tenderness and severely restricted rotation in plaintiff's left arm (Tr. 312). Dr. Trosterman continued to diagnose plaintiff with a torn rotator cuff and joint pain, and recommended pain medications, therapeutic exercises and hot cold packs (Tr. 312).
Plaintiff suffered a TIA on October 2, 2013 and was admitted to Montefiore Medical Center for two days for tests andtreatment (Tr. 591-641). Plaintiff reported that he noticed his right leg was dragging on the floor while he was attempting to walk from his bedroom to his living room (Tr. 613). He was also unable to move his right arm or the right side of his face, and his wife noticed that his speech became slurred (Tr. 613). These symptoms lasted for approximately 15 minutes (Tr. 613).
Plaintiff underwent an MRI study of his brain and a magnetic resonance angiography ("MRA")7 study of his head and neck upon his arrival to the Montefiore emergency room (Tr. 627-28). These tests were interpreted by Dr. Jesse Baer, Montefiore's emergency room physician, who opined that plaintiff's head and neck MRAs were normal and that his brain MRI revealed subcortical white matter bilaterally, indicating possible watershed ischemia,8 but not an acute stroke (Tr. 627). However, Dr. Daniel Antoniello, a neurologist at Montefiore, reviewed the studies on October 3, 2013 and opined that plain-tiff's head MRA revealed moyamoya disease and his brain MRI revealed that he had experienced an acute stroke (Tr. 620). Dr. Antoniello recommended that plaintiff follow up with him within the next week (Tr. 620).
Plaintiff was discharged on October 4, 2013 and instructed to stop smoking, start a healthy diet regimen and follow up with Dr. Antoniello for further testing (Tr. 594). After his discharge, plaintiff primarily sought treatment at Montefiore from Dr. Antoniello and Dr. David S. Gordon, a neurosurgeon, for his neurological symptoms, and from Dr. Riaz Rahman, an internist, for his primary care needs.
Plaintiff returned to Montefiore for a neurological consultation with Dr. Gordon on October 10, 2013 (Tr. 574). Plaintiff reported no further ischemic symptoms since he was discharged on October 4, 2013 (Tr. 574). Dr. Gordon also noted that plaintiff suffered from high blood pressure, high cholesterol, morbid obesity9 and asthma (Tr. 574-75). Plaintiff was alert and oriented during his examination and exhibited intact memory and language (Tr. 576). His physical and neurological examinations were normal, except for some weakness in his leftshoulder (Tr. 576). Dr. Gordon diagnosed plaintiff with moyamoya disease and ordered a cerebral angiography10 (Tr. 577).
Plaintiff was also examined by Dr. Antoniello on October 10, 2013 (Tr. 468). Plaintiff was alert and oriented during his examination and exhibited intact memory and language (Tr. 469). His physical and neurological examinations were normal (Tr. 469). Dr. Antoniello agreed with Dr. Gordon's moyamoya disease diagnosis (Tr. 469).
Plaintiff underwent his cerebral angiography on October 16, 2013, which confirmed Dr. Gordon's and Dr. Antoniello's diagnosis of bilateral moyamoya disease (Tr. 580).
Plaintiff also visited Dr. Rahman on October 16, 2013 and did not report any pain or symptoms (Tr. 457-58). Plaintiff was alert and oriented during his examination and exhibited full range of motion in his arms and legs (Tr. 458). His mood, affect, attention span and concentration were all normal (Tr. 458). Dr. Rahman noted that plaintiff was a smoker, had high cholesterol, had high blood pressure and had experienced a stroke earlier in the month (Tr. 458-59). Dr. Rahman reviewed plain-tiff's medications and advised him to maintain a healthy diet (Tr. 459).
Plaintiff visited Dr. Rahman again on November 25, 2013 and reported a mild headache (Tr. 450). Dr. Rahman performed a depression screening on plaintiff, and plaintiff reported that in the past two weeks he felt depressed twice, had trouble falling asleep once and had an abnormal appetite three times, but did not experience a lack of interest in things, fatigue, low self esteem, trouble concentrating or suicidal thoughts (Tr. 450-51). Plaintiff further reported that he was not having difficulty taking care of things at home or getting along with others (Tr. 451). Plaintiff was alert and oriented during his examination and exhibited full range of motion in his arms and legs (Tr. 451-52). His mood, affect, attention span and concentration were all normal (Tr. 451-52). Dr. Rahman diagnosed plaintiff with a headache (Tr. 452).
Plaintiff underwent a SPECT brain scan11 on December 6, 2013, which revealed no regional blood flow changes (Tr. 569). Based on these results, Dr. Gordon was reluctant to recommendrevascularization surgery,12 but ordered a new MRI to assess any new...
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