Diaz v. Comm'r of Soc. Sec.

• Decision Date: 13 March 2015
• Docket Number: 13-CV-7282 (JMF) (RLE)
• Parties: WILSON DIAZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Southern District of New York

WILSON DIAZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

13-CV-7282 (JMF) (RLE)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 13, 2015

REPORT AND RECOMMENDATION

To the HONORABLE JESSE M. FURMAN, U.S.D.J.

I. INTRODUCTION

Plaintiff Wilson Diaz commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for disability benefits. Diaz argued in his October 15, 2013 Complaint that the administrative law judge ("ALJ") failed to properly evaluate the opinion of his treating psychiatrist and failed to properly develop the record as to his intellectual functioning. Diaz asks the Court to modify the Commissioner's final decision of September 11, 2013, to grant him maximum monthly Supplemental Security Income Benefits or, in the alternative, to remand for further administrative proceedings and reconsideration of the evidence. The Commissioner answered Diaz's Complaint on May 23, 2014, and filed a Motion for Judgment on the Pleadings on October 28, 2014. Diaz did not file a response.

For the reasons that follow, I recommend that the Commissioner's motion be GRANTED and the Complaint DISMISSED.

II. BACKGROUND

A. Procedural History

Diaz filed an application for supplemental security income on January 18, 2011. The claim was denied by the Social Security Administration on May 6, 2011. (Trial Transcript("Tr.") at 87.) Diaz requested a hearing before an Administrative Law Judge ("ALJ") on June 24, 2011 (Tr. at 95-97.), and that hearing was held before ALJ Mark Solomon on April 27, 2012. (Tr. at 46-68.) A supplemental hearing was held before ALJ Solomon on June 26, 2012. (Tr. at 36-45.) ALJ Solomon issued his decision on July 11, 2012, finding that Diaz was not disabled under § 1614(a)(3)(A) of the Social Security Act. (Tr. at 30.) Diaz requested review of the decision by the Appeals Council on August 29, 2012. (Tr. at 16-17.) The Appeals Council denied review on September 1, 2013 (Tr. at 1-4.), and Diaz filed this action on October 15, 2013.

B. The ALJ Hearing

1. Diaz's Testimony

Diaz appeared at a hearing before ALJ Mark Solomon on April 27, 2012. Also present were Diaz's attorney, Ryan Peterson, and Dr. Gerald Belchick, a vocational expert.

Diaz was born on November 10, 1969, making him forty-two years old at the time of the hearing. (Tr. at 51.) He graduated from a special education elementary school, but did not finish high school, does not possess an equivalency diploma and, at the time of his testimony, was not enrolled in any vocational or educational programs. (Tr. at 51-52.) It is unclear when Diaz last worked, but it was no later than 2004. He was at one time a laborer engaged primarily in loading and unloading trucks. (Tr. at 53-54.) His employment ended with a layoff. (Tr. at 54.)

During the summer of 2000, Diaz was diagnosed with Hepatitis C. (Id.) He currently takes vitamins to treat the Hepatitis C, meets with a psychiatrist every month, and sees a therapist weekly. (Tr. at 55-56.) Although he has a history of alcohol and cocaine use, prior to the date of his testimony, Diaz did not use cocaine for one year and did not use alcohol for three months. (Tr. at 55.) He was arrested during 2011 on an open container charge. (Id.)

Diaz is able to travel using public transportation, but relies on his mother's assistance to map out his trips, and sometimes relies on strangers to tell him when he has arrived at his stop. (Tr. at 56.) Diaz lives with his mother and her husband, and can dress, bathe and feed himself. (Tr. at 57.) He is able to shop alone if close to his home, but sometimes requires the assistance of a friend or his brother. (Id.) He has no difficulty using his hands and arms, but his legs occasionally get "shaky" and "weak." (Id.) Diaz's leg issues make it difficult for him to walk and he cannot remain standing for more than an hour. (Id.) He experiences back pain at least once every hour and cannot remain seated for more than two or three hours at a time. (Tr. at 58.)

Diaz enjoys collecting comic books and is a visual artist who draws on a daily basis. (Tr. at 58-59.) He helps his mother around the house, and on the day of his testimony, had a girlfriend within walking distance of his home with whom he spent his weekends. (Tr. at 59.)

Diaz takes medication for auditory hallucinations and it makes him drowsy. He also takes sleeping pills. (Tr. at 60.) Diaz has a duodenal ulcer that causes him pain every ten to twenty minutes. His pain is worsened by physical exertion. He also loses his breath rapidly upon exertion because of poor blood circulation. (Id.)

Diaz enjoys watching television, especially animated comedies, and enjoys laughing and pursuing his artistic interests. (Tr. at 61.) In the year prior to the administrative hearing, Diaz was hospitalized because of a heart condition. (Tr. at 61-62.) At the time of his testimony, Diaz had been recently prescribed two new medications, but was too afraid to take them. (Tr. at 62.)

2. Vocational Expert's Testimony

Following Diaz's testimony, the ALJ examined vocational expert Dr. Gerald Belchick. However, Dr. Belchick's testimony was subsequently found to be inaccurate, and a new vocational expert, Helene Feldman, was examined on June 26, 2012.

Feldman testified that, if Diaz's residual functional capacity ("RFC") restricted him to light work only, then he would be unable to do his past relevant work. (Tr. at 39.) However, if Diaz could perform light work, and was able to remember, understand, carry out simple instructions, make simple work-related decisions, maintain attention and concentration, and maintain a regular schedule, he could be a successful mailroom clerk, laundry bagger or messenger. (Tr. at 41.)

Feldman testified that there would be no job Diaz could perform if he could not maintain a schedule unsupervised, work in coordination or in proximity with others without being distracted, make simple, work-related decisions, complete a normal workday, accept instruction and respond appropriately to supervisors, adapt to the workplace or interact with others. (Tr. at 42.) Additionally, if Diaz were likely to be absent three days per month, Feldman testified that he would be unable to find and maintain gainful employment. (Tr. at 43.)

3. Medical Evidence Presented

a. Dr. Luiza Guseynov

Diaz first visited Dr. Luiza Guseynov on January 28, 2010, complaining of chest pain and shortness of breath. (Tr. at 460-64.) Dr. Guseynov diagnosed Diaz with chest pain, hypertension, pure hypercholesterolemia,¹ alcohol abuse, anemia, and tobacco-use disorder. She prescribed medication, referred Diaz to a cardiologist, and told him to stop smoking. On February 24, 2010, Dr. Guseynov diagnosed Diaz as suffering from Hepatitis C and hypertrigliyceridemia.² (Tr. at 456-57.)

On June 28, 2010, Dr. Guseynov diagnosed Diaz with hyperkalemia.³ (Tr. at 449-50.) On December 6, 2010, she added hyperlipidemia⁴ and hypothyroidism.⁵ (Tr. at 445-46.) On January 8, 2011, she found Diaz was suffering from glucose intolerance. Diaz last saw Dr. Guseynov on December 20, 2011, when he complained of chest pain and shortness of breath, which was substantiated on examination.

Dr. Guseynov completed a "physician's report on disability due to physical impairment" for Diaz on December 21, 2011, diagnosing Diaz with hypertension, hyperlipidemia, alcohol abuse, GERD,⁶ glucose intolerance, peptic ulcer disease, and depression. (Tr. at 723.) Dr. Guseynov stated that Diaz's condition could be expected to last at least twelve months, and that his ulcer and GERD caused or could cause epigastric⁷ pain. (Tr. at 724.)

b. Federation of Employment and Guidance Service ("FEGS")

Diaz visited FEGS for biopsychosocial assessments on April 23, 2009, and July 16, 2010. (Tr. at 296-312, 313-38.) In both sessions, he reported that he could speak English, but varied in his reports about his abilities to read and write. (Tr. at 297, 314.) Diaz reported in 2010 that he was treating his alcohol abuse in an out-patient program. (Tr. at 322.) He reported auditory hallucinations; feeling down, depressed and hopeless on most days; having little pleasure or interest in doing things; having trouble falling asleep; feeling tired; having low self-esteem; and having trouble concentrating. (Tr. at 323-24.) FEGS diagnosed Diaz with lower extremity pain, depression and auditory hallucinations. (Tr. at 324, 337-38.)

c. Dr. Luis Gonzalez

Dr. Luis Gonzalez began treating Diaz on November 19, 2010, and diagnosed him with depression. Dr. Gonzalez found that Diaz would be unable to work for at least twelve months. (Tr. at 592, 690-91.) On November 4, 2011, after about one year of treatment, he diagnosed Diaz with major depressive disorder and anxiety, and recommended treatment with medication. (Tr. at 568-89.)

Dr. Gonzalez completed a "report for claim of disability due to mental impairment" for Diaz on January 6, 2012, where he indicated the same diagnoses of major depressive disorder and anxiety. (Tr. at 554-61.) He noted that Diaz's primary symptoms included sadness, poor appetite, poor sleep, low energy, forgetfulness and poor social interaction. (Tr. at 555.) Dr. Gonzalez found that Diaz was markedly limited in his abilities to:

1) remember locations and work-like procedures;

2) understand and remember short and simple instructions;

3) understand and remember detailed instructions;

4) maintain attention and concentration for extended periods;

5) perform activities within a regular schedule, maintain regular attendance, and be punctual within customary tolerances;

6) sustain an ordinary routine without supervision;

7) work in coordination with or in proximity to others without being distracted by them;

8) make simple work-related decisions that are commensurate with the functions of unskilled work;

9) routinely complete a normal workday without interruptions from psychologically-based

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