Hollaway v. Colvin, 14 Civ. 5165 (RA)(HBP)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPITMAN, United States Magistrate Judge
PartiesCARL A. HOLLAWAY, Plaintiff, v. CAROLYN W. COLVIN, ACTING, Commissioner of Social Security, Defendant.
Decision Date08 January 2016
Docket Number14 Civ. 5165 (RA)(HBP)

CARL A. HOLLAWAY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING,
Commissioner of Social Security, Defendant.

14 Civ. 5165 (RA)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 8, 2016


REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge:

TO THE HONORABLE RONNIE ABRAMS, United States District Judge,

I. Introduction

Plaintiff Carl A. Hollaway 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 applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The Commissioner and plaintiff have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

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For the reasons set forth below, I respectfully recommend that the Commissioner's motion (Docket Item ("D.I.") 19) be granted and the plaintiff's cross-motion (D.I. 22) be denied.

II. Facts1

A. Procedural Background

Plaintiff filed an application for SSI and DIB on January 19, 2011, alleging that he had been disabled since August 31, 2010 (Tr.2 148-65). With the assistance of his attorney, plaintiff completed a written report in connection with his claim for benefits, which was submitted on February 15, 2011 (Tr. 169-82). Plaintiff claimed he was disabled due to "spinal cord disease" (Tr. 170). He reported that, among other things, he used the internet, prepared meals daily, did laundry, and swept and mopped floors (Tr. 175, 177). Plaintiff also reported that he could shop for up to an hour at a time and could walk and use public transportation (Tr. 178). Plaintiff reported that he avoided leaving his home and engaging with others due to the side effects from his medication (Tr. 175). He reported that even

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though all physical activity caused him pain, he could walk without limitation and without needing to stop and rest (Tr. 180). Plaintiff reported that he had no hobbies or interests (Tr. 179).

On April 4, 2011, the Social Security Administration ("SSA") denied both of plaintiff's applications, finding that he was not disabled (Tr. 4-8, 13-25, 53-59, 62-76). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 77). ALJ Curt Marceille conducted a hearing by video conference on September 24, 2012 (Tr. 29-51). The ALJ reviewed the claim de novo and, in a decision dated October 23, 2012, determined that plaintiff was not disabled within the meaning of the Act for the period from January 19, 2011 through the date of the decision (Tr. 13-25). The ALJ's decision became the Commissioner's final decision on April 24, 2014 when the Appeals Council denied plaintiff's request for review (Tr. 4-8). Plaintiff commenced this action on July 3, 2014 seeking review of the Commissioner's decision.

B. Plaintiff's Social Background

Plaintiff was born on January 6, 1965 and was 46 years old at the time of his application (Tr. 148, 150). Plaintiff

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attended school through eleventh grade and subsequently earned a general education diploma (Tr. 41). Plaintiff reported that he had last worked in August 2010, parking and unloading cars (Tr. 171). During the two months that he worked in 2010, plaintiff earned $795 (Tr. 40, 171, 160). From 1983 through 1996, plaintiff had reported earnings in four separate years totaling $4,154.57 (Tr. 159-60). Plaintiff had no reported earnings from 1997 through 2009 because he was incarcerated during that time (Tr. 40, 45). Plaintiff reported that his parents are deceased, that he is single and that he has one son (Tr. 235). Plaintiff also reported that he lives with friends and that his aunt and cousin assist him at home (Tr. 39, 175)

C. Plaintiff's Medical Background

Although plaintiff alleged that he was disabled as of August 31, 2010, the period under review runs from the date of plaintiff's application on January 19, 2011 through the issuance of the Commissioner's final decision. See 20 C.F.R. § 416.330; 20 C.F.R. § 416.335. Nevertheless, consistent with 20 C.F.R. § 416.912(d), the ALJ considered plaintiff's complete medical history to determine whether plaintiff had been disabled within the meaning of the SSA since the date of his application on

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January 19, 2011. Plaintiff's counsel confirmed that the record before the ALJ was complete and allowed for a full and fair consideration of plaintiff's claim of disability (Tr. 16, 204, 206).

1. Visits to Beth Israel between January 4, 2011 and January 19, 2011

On January 4, 2011, plaintiff sought treatment at the emergency room of Beth Israel Medical Center ("Beth Israel") for complaints of back pain (Tr. 224). The primary diagnosis was "spinal cord disease" with an "additional" diagnosis of "cauda equina syndrome" (Tr. 224).3 Plaintiff left the emergency room against medical advice, and was advised to follow up in three days with a neurosurgeon, Dr. Allen Maniker (Tr. 224, 227).

On January 5, plaintiff returned to Beth Israel for a magnetic resonance image ("MRI") of his lumbar spine. The MRI

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revealed, at the T2 level,4 a 1.4 x .9 x .9 cm rounded intramedullary5 lesion that likely corresponded to an epidermoid6 questionable bilateral spondylolysis7 at the L5 level8 and a very mild concentric disc bulge at L4-L5, with minimal foraminal9 narrowing (Tr. 219-20). The MRI report noted that "[t]hese findings are concerning for an intramedullary neoplasm of glial

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origin" (Tr. 22).10 The MRI revealed no disc herniation (Tr. 219-20).11

Plaintiff returned to the emergency room of Beth Israel on January 18, 2011. The sole diagnosis on this date was "spinal cord disease," and plaintiff received four referrals; he was referred to a Dr. Donna Finkelstein, again to Dr. Maniker, to a Pain & Palliative Care Center, and to "Family Practice- Phillips" (Tr. 223).

2. Medical Treatment and Examination between January 19,2011 and April 4, 2011

Between the date of his application (January 19, 2011) and the date of the initial denial of his application for SSI and DIB (April 4, 2011), plaintiff continued to visit Beth Israel and was also evaluated by two consulting physicians.

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a. Visits to Beth Israel

Plaintiff returned to Beth Israel on January 31, 2011, complaining of back pain that radiated to his neck, legs and arms (Tr. 217-18). Dr. M. Felsen observed that plaintiff was in no acute distress (Tr. 217). Plaintiff had no lower extremity edema12 or tenderness, but reported low back pain with heel walking, on extension of the quadriceps muscle and during hip flexion (Tr. 217). Dr. Felsen reported that there was spinal tenderness with palpation13 of the thoracic vertebra (Tr. 217). Dr. Felsen's assessment was back pain, and he referred plaintiff for pain management and a spinal evaluation and told plaintiff to return to the clinic in two weeks (Tr. 217). He also prescribed Percocet and, at plaintiff's request, a multivitamin infusion (Tr. 217).

Plaintiff returned to Beth Israel almost two months later on March 23, 2011 and was seen by nurse practitioner ("NP") Kunimi Togashi-Ehresmann (Tr. 264-66). Plaintiff told Togashi-Ehresmann that he had worked in Pennsylvania until he was

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laid off from his job (Tr. 264). He further noted that he returned to Pennsylvania because his "disability lawyer is there" (Tr. 264). Plaintiff also reported that he had been prescribed the opiate medication oxycodone by his primary care physician with a dose of 10 mg every six hours, but that he was taking thirteen to fourteen tablets per day (Tr. 264) ("His [primary care physician] prescribed oxycodone 10mg 1 tab q6hrs, however, he is taking 13-14 tabs per day.").14 Plaintiff reported that his pain was manageable when he is on the medication, but, when he was not taking his medication, the pain was a ten on a scale of one to ten (Tr. 264). Plaintiff claimed that a scheduled neurosurgery for his back condition had been delayed due to a change in insurance carriers; he also stated that he had an April 5, 2011 appointment with a neurosurgeon (Tr. 264). NP Togashi-Ehresmann noted that plaintiff had previously used diludid and morphine sulfate for pain (Tr. 264).

On examination, NP Togashi-Ehresmann observed that plaintiff was in no acute distress and had normal muscle tone (Tr. 265). NP Togashi-Ehresmann noted that there was tenderness on palpation of the T11-L1 disc space, but there was no evidence

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of muscle spasm (Tr. 265). NP Togashi-Ehresmann further observed that plaintiff had full motor strength in his upper extremities; however, she was unable to test plaintiff's lower extremities fully due to plaintiff's complaints of pain (Tr. 265). NP Togashi-Ehresmann's assessment was back pain, and "thoracic/lumber [sic] radiculitis"15 (Tr. 265). She prescribed oxycodone 30mg for plaintiff, but advised him to take no more than four pills per day (Tr. 265). She also advised plaintiff to follow up with a neurosurgeon and to return to the clinic in one month (Tr. 265).

b. Consulting Examination: Physical Residual Functional Capacity Assessment

At the request of agency adjudicator, W. Cooley, plaintiff met with an independent physical examiner prior to the issuance of the initial decision on his application (Tr. 20, 229-33). Ira Rubenfeld, M.D. examined plaintiff in March of 2011 (Tr. 228-36).16 Plaintiff complained of radiating back pain and

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stated that he was to undergo surgery for what he characterized as a tumor on his spine (Tr. 234). He reported that he took oxycodone three times each day, which helped him (Tr. 234-35). Plaintiff told Dr. Rubenfeld that he was not able to sit up, move or walk but that he was able to perform the activities of daily living such as dressing, showering, cooking and shopping (Tr. 234). Plaintiff also complained of intermittent urinary incontinence (Tr. 234).

Dr. Rubenfeld reported that plaintiff's range of motion, gait and station were all normal (Tr....

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