Cook v. Colvin, 13-CV-1946 (TPG) (RLE)
| Decision Date | 14 August 2015 |
| Docket Number | 13-CV-1946 (TPG) (RLE) |
| Parties | ANTHONY KEITH COOK, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant. |
| Court | U.S. District Court — Southern District of New York |
On August 14, 2015, Magistrate Judge Ellis issued a Report and Recommendation recommending that plaintiff's motion for judgment on the pleadings be granted in part, and that the action be remanded for further administrative proceedings. Objections to that Report and Recommendation were due 14 days after each party was served with a copy of the Report and Recommendation. Having received no objections and finding Judge Ellis' decision to be correct and appropriate, the court hereby adopts the Report and Recommendation. Plaintiff's motion for judgment on the pleadings is granted in part.
The action is remanded for further administrative proceedings, consistent with the rationale and recommendation of Judge Ellis. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: New York, New York
September 2, 2015
/s/_________
THOMAS P. GRIESA
U.S. District Judge
Plaintiff Anthony Cook ("Cook") commenced this action under the Social Security Act ("Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits for the period after August 6, 2009. (Doc. No. 1.) The Commissioner found that Cook was disabled from August 1, 2008, through August 5, 2009, but that as of August 6, 2009, Cook had medically improved and was no longer disabled. (Doc. No. 8 at 63.) Cook was found ineligible for SSD and SSI benefits from August 6, 2009, through April 28, 2011, the date of the Administrative Law Judge's ("ALJ") decision. (Id. at 73.) Cook seeks reversal of the part of the Commissioner's decision finding that he had medically improved as of August 6, 2009, and was therefore ineligible for benefits after that date. (Doc. No. 12 at 7.)
On April 1, 2014, Cook filed a motion for judgment on the pleadings. (Doc. No. 11) He seeks a remand solely for calculation of benefits or, in the alternative, a remand for a new hearing and decision. (Doc. No. 11; Doc. No. 12 at 17.) Cook argues that the ALJ erred by: (1)finding Cook medically improved; (2) failing to follow the treating physician rule; (3) failing to properly evaluate Cook's credibility; and (4) relying on the Medical-Vocational Guidelines ("the Grids"). (Id. at 7, 12, 15.) The Commissioner filed a cross-motion for judgment on the pleadings on August 6, 2014. (Doc. No. 19.)
For the reasons that follow, I recommend that Cook's motion be GRANTED IN PART and that the case be REMANDED for further administrative proceedings.
Cook applied for SSD and SSI on July 5, and July 8, 2009, respectively, claiming disability because of Human Immunodeficiency Virus (HIV) since August 1, 2008. (Doc. No. 8 at 124, 131.) On August 20, 2009, the Social Security Administration denied both applications. (Id. at 78.) On August 25, 2009, Cook requested an administrative hearing. (Id. at 86.) On March 16, 2011, ALJ Robert C. Dorf held an administrative hearing; Cook attended, accompanied by a non-attorney representative. (Id. at 11.) The ALJ issued a partially favorable decision dated April 28, 2011, finding Cook disabled from August 1, 2008, the date of the onset of HIV, through August 5, 2009, the date of his consultative exam with Dr. Hamway. (Id. at 63.) The ALJ found, however, that after August 5, 2009, Cook had medically improved and was no longer disabled. (Id.) On May 20, 2011, Cook requested review of the unfavorable portion of the ALJ's decision. (Id. at 52.) The Appeals Council denied Cook's request for review on September 5, 2012, making the ALJ's decision the Commissioner's final decision. (Id. at 5.) Cook filed this action on March 22, 2013. (Doc. No. 1.)
Anthony Cook was born on February 26, 1972, and was thirty-nine years old at the time of the hearing. (Doc. No. 8 at 15.) Cook resides in Manhattan, New York, with his girlfriend and four children aged sixteen, fifteen, thirteen, and twelve. (Id. at 15-16.) After graduating from high school he worked as a licensed security officer and fireguard for at least three different organizations. (Id. at 17-19.)
In 2009, Cook was diagnosed with HIV and began taking anti-retroviral medication twice daily. (Doc. No. 8 at 24, 32.) As a side effect of his medication, he feels "a lot" of fatigue, chronic diarrhea, vomiting, and chest pain and needs to sleep for four to six hours after taking medications. (Id. at 32-33, 35-36.) Other side effects of medication include blurry vision and inability to concentrate. (Id. at 27-28.) At the time of the hearing, Cook had gained "some weight" and weighed 137 pounds. (Id. at 15.) His CD4 count1 was 200 and his viral load2 was "under control." (Id. at 15-16.)
Because of his medication-induced fatigue, Cook spends most of his time at home but cannot help his children with their homework assignments. (Doc. No. 8 at 16.) Instead, his children help him do laundry and shopping. (Id. at 32.) Moreover, Cook can walk five blocks if he moves slowly and can climb only three flights of stairs without chest pains. (Id. at 16, 35.)
Cook's strength is not "where it used to be." (Doc. No. 8 at 34.) As a result of his condition, he can lift under 10 pounds "on a good day," but not on a bad day. (Id. at 23.) WhenCook was a security officer, he had to stand most of the time and carry more than ten pounds. (Id. at 18.) He worked in security for one month in 2010, but "due to [his]...medical status," he often felt "sick on the job," had to "run to the bathroom" frequently, would "get nauseous," and would "throw up." (Id. at 21.) Cook feels that the mixture of medications he takes creates stomach complications that would make sedentary work difficult if he did not have access to specific foods. (Id. at 36.) Otherwise, he would have to run "back and forth" between his post and the bathroom. (Id. at 37.)
Dr. Bioh has been Cook's treating physician since 2002. (Doc. No. 8-2 at 31.) Cook visits Dr. Bioh every six to eight weeks. (Doc. No. 8-3 at 3.) By the hearing date, Dr. Bioh had compiled treatment notes and had written letters summarizing Cook's health. (Doc. No. 8-2 at 31; Doc. No. 8-3.)
On August 28, 2008, Cook was experiencing gradual weight loss, general malaise and fatigue, abdominal pain, and variable appetite. (Doc. No. 8-3 at 4.) Dr. Bioh diagnosed Cook with abnormal weight loss. (Id.) He ordered laboratory tests to identify gastrointestinal diseases. (Id.)
On September 19, 2008, Cook reported a mild upper respiratory infection, improved malaise and fatigue symptoms, abdominal and dyspepsia symptoms, watery bowel movements,nausea and vomiting. (Doc. No. 8-3 at 5.) Dr. Bioh diagnosed Cook with GERD (acid reflux).3 (Id.)
On December 31, 2008, Dr. Bioh observed fever symptoms including a sore throat and cough producing sputum. (Doc. No. 8-3 at 6.) Dr. Bioh diagnosed Cook with pharyngitis4 and GERD and prescribed Z-Pak and Nexium. (Id.)
On February 17, 2009, Cook complained of sudden onset abdominal pain, lightheadedness, fever, and watery stools. (Doc. No. 8-3 at 7.) Dr. Bioh diagnosed Cook with GERD and continued prescribing Nexium. (Id.)
On April 21, 2009, Cook complained of a sore throat, difficulty swallowing, and pain while eating. (Doc. No. 8-3 at 8.) Dr. Bioh diagnosed Cook with thrush and leukopenia5 and he prescribed Diflucan. (Id.) He also ordered a second HIV test "for confirmation." (Id.)
On May 15, 2009, Cook complained of poor appetite, variable weight, shortness of breath, and palpitations. (Doc. No. 8-3 at 9.) He weighed 146 pounds with his clothes on. (Id.) Dr. Bioh diagnosed Cook with leukopenia and GERD and called for more laboratory tests to check Cook's T-cell count and viral load. (Id.)
On May 21, 2009, Cook complained of poor appetite, chest pains, and diarrhea and weighed 140 pounds. (Doc. No. 8-3 at 10.) Dr. Bioh diagnosed Cook with HIV/AIDS for the first time. (Id.) He prescribed azithromycin. (Id.)
Cook visited Dr. Bioh on June 1, June 3, and June 10, 2009. (Doc. No. 8-3 at 11-13.) At these visits, Dr. Bioh diagnosed Cook with HIV, thrush (candidiasis),6 and neutropenia.7 (Id. at 11-13.)
On July 8, 2009, Dr. Bioh completed Form SSA-4814-F5, "Medical Report on Adult with Allegation of Human Immunodeficiency Virus (HIV) Infection." (Doc. No. 8-2 at 2.) Dr. Bioh diagnosed Cook with HIV as confirmed by laboratory testing and reported candidiasis and HIV wasting syndrome.8 (Id. at 3.) Dr. Bioh also found blood-related abnormalities of anemia9 and granulocytopenia.10 (Id. at 3.)
Cook visited Dr. Bioh on July 16, 2009, complaining of diarrhea for two days, watery stools, chest pains, and variable appetite. (Doc. No. 8-3 at 14.) Dr. Bioh diagnosed Cook with diarrhea, irritable bowel syndrome (IBS),11 and HIV. (Id.)
On July 21, 2009, Cook reported improved gastrointestinal symptoms, variable activity, malaise and fatigue, and persistent insomnia. (Doc. No. 8-3 at 15.) Dr. Bioh diagnosed Cook with HIV, insomnia, and dyspepsia. (Id.)
On August 12, 2009, Cook had no new complaints. (Doc. No. 8-3 at 16.) Dr. Bioh diagnosed edema12 and synovitis.13 Dr. Bioh ordered laboratory testing to check Cook's T-cell count and viral load and noted that he would be monitoring Cook's weight. (Id.)
In a letter dated September 24, 2009, Dr. Bioh testified that he diagnosed Cook with HIV/AIDS in May 2009. (Doc. No. 8-2 at 31.) Cook's condition caused him to suffer severe neutropenia, anemia, HIV wasting syndrome, and thrush. (Id.) He was also receiving treatment for unrelated conditions: irritable bowel syndrome (IBS)...
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