Alston v. Colvin
| Decision Date | 03 September 2015 |
| Docket Number | 14-CV-0244(JS) |
| Parties | WILLIS ALSTON, JR., Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiff:
Rezwanul Islam, Esq.
Nassau/Suffolk Law Services
Committee, Inc.
1 Helen Keller Way, 5th Floor
Hempstead, NY 11550
For Defendant:
Robert W. Schumacher, II, Esq.
United States Attorney's Office
Eastern District Of New York
610 Federal Plaza
Central Islip, NY 11722
Plaintiff Willis Alston Jr. ("Plaintiff") brings this action pursuant to Section 405(g) of the Social Securities Act, 42 U.S.C. § 405(g), challenging the Commissioner of Social Security's (the "Commissioner") denial of his application for disability insurance benefits. Presently before the Court are Plaintiff's and the Commissioner's cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Docket Entries 12, 15.) For the following reasons, the Commissioner's motion is GRANTED and Plaintiff's motion is DENIED.
On April 14, 2011, Plaintiff filed for social security disability benefits, claiming disability since September 4, 2009. (R. 182.) Plaintiff attributed his disability to human immunodeficiency virus ("HIV") and "hip and ankle problems." (R. 186.) After his application was denied on June 27, 2011, (R. 46-49), Plaintiff requested a hearing before an administrative law judge, (R. 57). A hearing took place on April 19, 2012 before Administrative Law Judge Seymour Rayner (the "ALJ"). (R. 26-45.) Plaintiff was represented by counsel at the hearing and was the only witness to testify. (R. 26-45.)
On May 15, 2012, the ALJ issued a decision finding that Plaintiff is not disabled. (R. 8-19.) On June 13, 2012, Plaintiff sought review of the ALJ's decision by the Appeals Council. (R. 7.) On November 20, 2013 the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (R. 1.)
Plaintiff then commenced this action on January 13, 2014. The Commissioner and Plaintiff filed cross-motions for judgment on the pleadings on December 15, 2014 and February 18,2015, respectively. (Docket Entries 12, 15.) The motions are fully briefed and are currently pending before the Court.
Plaintiff was born on June 3, 1965. He completed one year of college. (R. 187.) He currently resides in a hotel by himself. (R. 32, 163.)
From 1993 to 2006, Plaintiff worked as a sheet metal worker. (R. 173, 187.) Plaintiff testified that he suffered from swollen ankles and hip pain and would ignore the pain while working. (R. 35.) However, Plaintiff further testified that the reason he stopped working as a sheet metal worker was because "there [was not] enough work." (R. 33.)
From 2007 to 2009, Plaintiff worked as a school bus driver. (R. 173, 187.) When asked if he would take a bus-driving job if one opened, Plaintiff testified that he would not want to take the risks associated with HIV and the children's germs. (R. 35.) Plaintiff also worked as a warehouse worker from October 2008 to March 2009. (R. 173, 252.)
Plaintiff completed an Adult Function Report on December 20, 2010, (R. 163-170), stating that he had no problems with personal care and performed all household chores, including cleaning, laundry, and household repairs, (R. 164-66). His hobbies include reading, watching television, playing sports, andlistening to rap music. (R. 167.) He travels by public transportation or by walking. (R. 164-66.)
Plaintiff completed another Adult Function Report on May 24, 2011. (R. 194-202.) The report is generally consistent with the initial report, except with the added statements that he prepares meals for himself daily, (R. 196), and that he experiences swelling and pain in his ankle and hip when standing for more than two hours at a time or walking long distances, (R. 199-200). Plaintiff also stated that he shops for food and basic needs once or twice a week for one hour. (R. 198.)
At the administrative hearing, Plaintiff testified that he has not had any procedures for his hips or ankles, such as X-rays or MRIs, because it was "something [he] ignored" and "accepted." (R. 38-39.) He also testified that he does not walk with a cane because he does not "want [anyone] to know" about the pain. (R. 39.) He stated that fatigue has sometimes been a problem for him. (R. 40.) Plaintiff also testified that if he walks over a mile or two, he has to "have a seat for a second" before he continues. (R. 41.) He further stated that after working for a whole day he would "definitely [be] in pain" and would "definitely [be] stiff." (R. 41.) When asked what he has done to deal with the hip and ankle pain, Plaintiff replied that when he was employed, he would keep his leg up all night. (R. 43-44.) He stated that now, the need to elevate his leg has lessenedand the pain is not as extreme as it was when he was working because he is not constantly standing, moving, or lifting. (R. 44.) He testified that when he walks to the library and store, which is a distance of about five miles, he would feel the pain and have to "put [his leg] up for a second" to rest it. (R. 44.)
On August 9, 2009, Plaintiff visited the Nassau University Medical Center (the "NUMC"), complaining of fever, weakness, cough, and generalized aches and pains. (R. 281.) Plaintiff was diagnosed with "HIV/AIDS" four months earlier, but was not taking any medication. (R. 281.) Plaintiff was emaciated; he weighed 135 pounds, down from 250 pounds five years earlier. (R. 283.) According to the NUMC's physical examination notes, Plaintiff had oral thrush, mild joint swelling in his knees and elbows, an earache, a headache, dysphagia, and pneumonia. (R. 282-84.) He was prescribed Tylenol, Bactrim, Fluconazole, and Levaquin. (R. 284.)
On August 17, 2009, an X-ray of Plaintiff's chest revealed that his pneumonia resolved and that there was no evidence of acute pulmonary disease. (R. 336.) On August 21, 2009, Plaintiff stated that he was feeling better and wanted to be discharged. (R. 289.) Plaintiff was advised to start HIV medications, (R. 289), and was discharged that day, (R. 290).
Thereafter, Plaintiff regularly visited the NUMC for HIV care between September 21, 2009 and January 26, 2012. (See R. 300-13, 348-70, 394-99, 427-59.) According to the NUMC's treatment and progress notes, Plaintiff's HIV symptoms steadily improved his over this time. On September 21, 2009, Plaintiff was again diagnosed with oral thrush, and his weight loss was noted. (R. 394.) In the treatment notes for this visit, there is a notation "PCP??," which stands for pneumocystis pneumonia, but no definitive diagnosis. (R. 394.) By October 14, 2009, Plaintiff's oral thrush had resolved and his weight had risen to 146 pounds. (R. 310-11.) At the time, his CD4 count was seven and his viral load was 986,417.2 (R. 310.) On December 9, 2009, Plaintiff's CD4 count rose to seventeen, and he weighed 189 pounds. (R. 308.) During the December 9th visit, Plaintiff reported numbness/tingling in his toes. (R. 308.)
On January 6, 2010, Plaintiff returned to the NUMC. (R. 312.) The notes for this visit contain a notation that one of Plaintiff's "active problems" was pneumocystis pneumonia ("PCP").3 (R. 312.) However, the notes also state that Plaintiff's lungs were clear. (R. 312.) Plaintiff was treated with PCP prophylaxes.4 (R. 312.) On May 5, 2010, Plaintiff reported a "dry cough," but his lungs were clear and he was gaining weight, weighing 203 pounds at the time. (R. 365-66.) By June 2, 2010, Plaintiff's CD4 count was 399 and his viral load was less than forty-eight.5 (R. 363.) He again reported numbness/tingling in his feet. (R. 363.) By September 29, 2010, Plaintiff weighed 219 pounds, his CD4 count was 519, and his viral load still was less than forty-eight. (R. 359.) By December 8, 2010, Plaintiff's weight increased to 248 pounds. (R. 356.) By March 24, 2011, Plaintiff's weight increased to 257 pounds, and he began complaining about bilateral hip pain. (R. 352.)
Plaintiff indicated concern about asbestos exposure on April 4, 2011 and reported a cough. (R. 350.) An X-ray of Plaintiff's chest was taken the same day. (R. 336.) The X-ray revealed that Plaintiff's pneumonia in 2009 was "resolved" and that there was "[n]o evidence of acute pulmonary disease." (R. 336.) On May 11, 2011 Plaintiff reported numbness in his feet again. (R. 348.) On June 15, 2011, Plaintiff again reported numbness and a cough. (R. 430.) During this visit, Plaintiff reported right ankle pain aggravated by standing and walking. (R. 432.) On June 22, 2011 Plaintiff again reported the pain. (R. 434.) Advil was listed as an alleviating factor. (R. 434.) At a follow up visit on August 4, 2011, no pain was reported. (R. 437.) On October 27, 2011, Plaintiff reported left heel pain that had been present for five months. (R. 440.)
On January 4, 2011, Ammaji Manyam, M.D., examined Plaintiff for the Social Security Administration. (R. 314-17.) Dr. Manyam noted that Plaintiff had been HIV positive since 2009 and presently was not claiming any physical disabilities. (R. 314.) Plaintiff's medications included Norvir, Prezista, Bactrim, Azithromycin, and Truvada. (R. 314.) Plaintiff appeared to be in no acute distress. (R. 315.) Gait and stance were normal, squat full, and Plaintiff could walk on his heels and toes without difficulty. (R. 315.) Plaintiff did not need an assistive device or help changing for the exam or getting on and off the exam table.(R. 315.) Plaintiff was also able to rise from the chair without difficulty. (R. 315.) Strength of five out of five was noted in the upper and lower extremities. (R. 316.) Dr. Manyam reported that Plaintiff had no limitations to physical activity. (R. 316.)
On June 21, 2011, Iqbal Teli, M.D., also examined Plaintiff for the Social...
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