Champion v. Berryhill
| Decision Date | 14 September 2017 |
| Docket Number | 16-CV-4723 (AT) (RLE) |
| Parties | DAWN CHAMPION, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Dawn Champion ("Champion") commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g) and § 1383(c)(3), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for Social Security Disability ("SSD") and Supplemental Security Income ("SSI"). (Doc. No. 1.) On June 24, 2016, this case was referred to the undersigned for a Report and Recommendation. (Doc. No. 6.) On February 6, 2017, Champion moved for a judgment on the pleadings, asking the Court to reverse the final decision of the Commissioner, or, alternatively, remand the case for further proceedings. (Doc. Nos. 16, 17, Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl.'s Mem.").) Champion argues that the Administrative Law Judge ("ALJ") failed to (1) fully and fairly develop the record concerning Champion's mental health impairments; (2) consider new and material evidence submitted to the Appeals Council; and (3) properly consider Champion's credibility. (Id. at 12-18; Transcript of Administrative Proceedings ("Tr.") at 315-18.) On April 7, 2017, the Commissioner cross-moved for judgment on the pleadings, asking the Court to affirm the Commissioner's decision. (Doc. Nos. 18-19, Mem. of Law in Supp. of Def.'s Cross-Mot. for J. on the Pleadings ("Def.'s Mem.").) The Commissioner argues that the ALJ (1) satisfied his duty to develop the record; (2) properly found that Champion did not have a severe psychiatric impairment; (3) properly determined that Champion could perform a wide range of light work; (4) properly assessed Champion's credibility; and (5) properly determined that Champion was able to perform her past relevant work. (Id. at 15-22.) For the reasons set forth below, I recommend that Champion's motion be GRANTED, the Commissioner's cross-motion be DENIED, and the case be REMANDED to the Commissioner for further development of the record.
II. BACKGROUND
Champion applied for SSD benefits on September 19, 2012, and SSI benefits on September 26, 2012. (Tr. at 124-25.) She claimed a disability onset date of May 14, 2010. Id. Her application was denied on February 6, 2013, (Id. at 146-51), and on March 13, 2013, Champion requested a hearing before an ALJ. (Id. 166-70.) A hearing was held before ALJ Moises Penalver ("ALJ Penalver" or "the ALJ") on April 23, 2014, where Champion proceeded pro se. (Id. at 191-207.) The ALJ issued a decision on November 10, 2014, finding that Champion was not disabled within the meaning of the Act and was not entitled to disability benefits. (Id. at 30-48.) Champion retained counsel on December 23, 2014, and review by the Appeals Council was requested on January 5, 2015. (Id. at 23-26.) On May 9, 2016, the Appeals Council denied Champion's request for review and ALJ Penalver's decision became thefinal decision of the Commissioner. (Id. at 1.) Champion field this action on June 21, 2016. (Doc. No. 1.)
ALJ Penalver conducted a hearing on April 23, 2014. (Id. at 68.) At the time, Champion was forty-five and testified that she was homeless and "bouncing from place to place." (Id. at 68-69.) Champion testified that she was in a motor vehicle accident on April 1, 2003, during which she injured her lumbar spine, rotator cuff in her right shoulder, left shoulder, right and left knees, right ankle, and right wrist. (Id. at 78-80.)2 Champion underwent surgery for both knees, her left shoulder, her right ankle, and her right wrist but did not undergo surgery for her back or right shoulder because "it was just too much for me at that time to do all the surgery like that." (Id. at 79.) Champion testified that her disability began May 14, 2010,3 and that she was in another motor vehicle accident on December 9, 2010, during which she reinjured her lower back and left hand. (Id. at 78-80.)
Champion testified that she subsequently developed osteoarthritis in her back, knees, ankles, and right wrist, as well as chronic asthma, major depression, panic and anxiety attacks, and hypertension. (Id. at 81-89, 93-94.) Champion stated that she treats her asthma with a Ventolin pump two to three times per day and an albuterol nebulizer every four to six hours. (Id. at 82-83.) Champion also stated that she has had multiple emergency room visits for asthma, during which she was treated with a nebulizer and prednisone steroids. (Id. at 86.) As totreatment for major depression, Champion testified that she sees therapist Dr. Dowling "three times a week, or as often as I can." (Id. at 92.) As for her panic and anxiety attacks, Champion testified that she had had a mild heart attack in November 2012 that was later diagnosed as a panic attack. (Id. at 86.)
With regard to her daily activities, Champion testified that she can do her own laundry but that her daughter does her grocery shopping because Champion cannot bend down, reach up, or lift full grocery bags. (Id. at 102.) Additionally, Champion testified that she can only walk for two or three blocks, stand for approximately one hour, and sit for a maximum of ten minutes before her lower back starts to hurt. (Id. at 102-03.) Champion also testified that she is unable to attend church regularly, is unable to visit friends or relatives, and needs her daughter's assistance with light housework like sweeping, mopping, and vacuuming. (Id. at 104.)
Champion testified that her disability began when she was laid off in May 2010, and that she received unemployment benefits from June 2010, to March 2013. (Id. at 73-74.) Champion pursued a bachelor's degree from Boricua College full-time "after [she] came out of depression," between September 27, 2010, and June 7, 2013. (Id. at 76-77.) At the time of the hearing, Champion testified that she was a Security, Safety, and Support Aid for the mentally ill and substance abusers at Western United and that she worked the night shift full-time. (Id. at 71, 86-100.) She testified that her responsibilities included monitoring the building and the residents, distributing medication, walking the premises every half-hour, and handling incidents (more specifically, deescalating altercations), and writing incident reports. (Id. at 90, 96-101.) Champion testified that she reinjured her back while handling a physical altercation and that she has been missing "days [of work] for approximately one or two months" because of related back pain and asthma. (Id. at 70, 73, 99.)
(1) Dr. Aaron Fox, MD
Dr. Aaron Fox ("Dr. Fox") started treating Champion in the Fall of 2002. (Id. at 284.) On July 22, 2011, Champion met with Dr. Fox for a visit regarding her asthma and hypertension management. (Id. at 617, 774.) Dr. Fox observed glucose intolerance, eczema, and hypertension and recommended preventative health care for weight loss. (Id. at 619, 776.) He prescribed hydrocortisone for eczema. Id.
On November 2, 2011, Champion returned to Dr. Fox and reported back spasms and knee pain. (Id. at 609, 766.) Champion expressed concerns about osteoarthritis and requested x-rays. Id. Fox did not observe worrisome signs of osteoarthritis and prescribed Chlorthalidone for hypertension. Id. Champion had x-rays on November 9, 2011, which revealed minimal degenerative changes in her left knee. (Id. at 627.)
On March 21, 2012, Champion met with Dr. Fox with reports of worsening back pain, as well as left knee pain and severe left ankle pain. (Id. at 604-08.) Champion requested an MRI of her back, her left knee, and her left ankle. (Id. at 604.) Dr. Fox recommended physical therapy for Champion's back and diagnosed mild osteoarthritis in her left knee. (Id. at 606.) Dr. Fox recommended weight loss and exercise and referred Champion to an orthopedist to explore additional treatment options. (Id. at 606-607.) Dr. Fox also recommended avoiding chemicals in response to Champion's alopecia and healthy eating in response to Champion's hypertrophic cardiomyopathy. (Id. at 607.)
On October 3, 2012, Champion returned to Dr. Fox with complaints of worsening asthma, possibly as a consequence of stress; continuing back pain, although she admitted she hadnot been attending physical therapy; and ankle pain. (Tr. at 588-91.) She also reported pain in the hypothenar muscles of her right hand and wist. (Id. at 588.) Champion added that she was not sleeping, was suffering from a depressed mood and irritability, and was concerned that she would not be able to continue with school. Id. Dr. Fox diagnosed Champion with de Quervain's tenosynovitis of the right wrist and sent her for a Cortisol injection. (Id. at 590.) Dr. Fox continued to recommended physical therapy for her chronic lower back pain and referred her to Dr. Dowling for therapy for depression. (Id. at 590-91.) Champion underwent an MRI of her lower spine on October 8, 2012, which was significant for mild degenerative changes at the L2-L3, L3-L4, and L4-L5 levels. (Id. at 625-26.)
Champion returned to Dr. Fox on November 14, 2012, reporting that she had recently been hospitalized for myocardial infarction, though her stress-test had been negative. (Id. at 583-87, 745-49.) Dr. Fox indicated that Champion was being treated for coronary artery disease and hypertension and noted that Dr. Fox would consider increasing Champion's Lisinopril medication based on the results of her next blood pressure test. (Id. at 585-86, 747-48.) Dr. Fox noted that Champion was seeing Dr. Dowling for her depression and that she was reportedly feeling better. (Id. at 586, 748.)
Champion returned to Dr. Fox for a follow-up visit on December 12, 2012. (Id. at 576-82.) She reported left upper chest pain...
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