Hynes v. Astrue
| Decision Date | 26 June 2013 |
| Docket Number | No 12-CV-719 (JFB),12-CV-719 (JFB) |
| Parties | KENNETH HYNES, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Kenneth Hynes ("plaintiff" or "Hynes") brings this action, pursuant to 42 U.S.C. § 405(g) of the Social Security Act, challenging the decision of the Commissioner of Social Security ("Commissioner"), dated April 27, 2010, denying plaintiff's application for Disability Insurance Benefits ("DIB"). The Commissioner found that plaintiff was not disabled from September 11, 2001, the alleged onset date, through March 31, 2006, the date last insured. The Commissioner further found that, during the period of alleged disability, plaintiff's residual functional capacity allowed him to engage in the full range of light work, which existed in significant numbers in the national economy. The Commissioner now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings, alleging that the Administrative Law Judge ("ALJ") erred by failing to: (1) explain the weight given to the opinion of plaintiff's treating physician; (2) contact plaintiff's treating physician to clarify ambiguities in the record; (3) explain the rationale for the conclusion that plaintiff could perform light work; and (4) inform plaintiff of his right to counsel. Plaintiff also contends that the Appeals Council failed to consider additional evidence that plaintiff submitted upon appeal of the ALJ's determination.
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's cross-motion for judgment on the pleadings is denied but plaintiff's motion to remand is granted. Accordingly, the case is remanded to the ALJfor further proceedings consistent with this Memorandum and Order. Remand is warranted because the ALJ failed to: (1) explain why he was discounting the opinion of plaintiffs treating physician; (2) adequately develop the record; and (3) inform plaintiff of his right to counsel. In addition, remand is warranted because the Appeals Council failed to explain why it discounted the additional evidence plaintiff submitted from his treating physician.
The following summary of the relevant facts is based upon the administrative record ("AR") as developed by the ALJ. A more exhaustive recitation of the facts is contained in the parties' submissions to the Court and is not repeated herein.
Plaintiff was born in 1954 and has a high-school education. (AR at 58, 107.) Plaintiff was a heavy equipment operator and mechanic for approximately 35 years. (Id. at 36.) Subsequently, plaintiff was a payloader operator for approximately eight years. (Id. at 102.) From January 2001 to September 2001, plaintiff worked as a truck mechanic. (Id.) Plaintiff alleges that he became disabled on September 11, 2001. After plaintiff's alleged onset date, plaintiff started his own business as a handyman. (Id. at 40-41.) Plaintiff completed some small jobs, but he claims that the work was not steady and that he could not complete any significant jobs due to his disability. (Id. at 42.)
Dr. John O'Connor first examined plaintiff on December 13, 2002. (Id. at 380-81.) Dr. O'Connor noted plaintiffs medical history of diabetes mellitus, hyperlipidemia, and tobacco abuse. (Id. at 380.) Dr. O'Conner also assessed coronary artery disease. (Id. at 381.) During a follow-up visit on April 7, 2003, plaintiff complained of angina. (Id. at 379.)
Plaintiff underwent a carotid sonogram on April 17, 2003, which revealed mild atherosclerotic plaquing in the right and left carotid bulbs, but no significant stenosis. (Id. at 494.) The next day, plaintiff underwent an exercise stress test. After exercising for 10 minutes, plaintiff had to stop the test due to chest pain. However, the EKG response and the nuclear perfusion imaging were normal. (Id. at 499.) Dr. Mark Saporita, a cardiologist, evaluated plaintiff on April 22, 2003. He noted that plaintiff's cardiac examination showed no abnormalities and that the stress test revealed hypertensive blood pressure response to exercise and normal perfusion imaging. (Id. at 498.) Dr. Saporita assessed that plaintiff "probably" had "some element of coronary disease" and had multiple cardiac risk factors, but that he had a "relatively good prognosis" because there were no segmental defects and plaintiff was able to exercise for 10 minutes with a normal EKG response. (Id.)
On April 23, 2003, a CT scan revealed neural calcification of the aorta and iliac arteries, consistent with vascular sclerosis. (Id. at 469-70.) In addition, a May 1, 2003 chest x-ray revealed degenerative changes of the thoracic spine and no evidence of acute cardiopulmonary disease. (Id. at 471.)
During a follow-up appointment with Dr. O'Connor on May 6, 2003, plaintiff complained of fatigue and muscle aches, which Dr. O'Connor indicated might be related to Lipitor. (Id. at 378.)
On August 3, 2004, plaintiff experienced swelling of the tongue and Dr. O'Connor sentplaintiff to the emergency room. (Id. at 375, 377, 383-86.) The ER doctor determined that plaintiff had massive tongue edema due to the prescription medication Altace. (Id. at 386.) The ER doctor also noted previous diagnoses of hypertension and non-insulin dependent diabetes mellitus. (Id.) An electrocardiogram revealed normal sinus rhythm and a chest x-ray was normal. (Id. at 468, 507.)
A May 16, 2005 carotid artery sonogram revealed mild atherosclerotic thickening and plaquing in the left common carotid artery. (Id. at 506.) There was no evidence of flow obstruction in either carotid artery, and antegrade blood flow was demonstrated in both vertebral arteries. (Id.) An EKG performed on the same day was normal except for a mildly dilated right atrium. (Id. at 505.)
Plaintiff also experienced some degenerative changes of the lower cervical spine. A May 1, 2003 radiological study revealed degenerative changes of the thoracic spine. (Id. at 471.) This confirmed an MRI that plaintiff underwent on November 28, 1998. (Id. at 612.)
In February 2009, plaintiff suffered a series of strokes, which resulted in headaches and reduced vision. (Id. at 169-235, 250-78, 282-95.) Plaintiff had several follow up visits with Dr. O'Connor regarding his strokes. (Id. at 373.)
On February 13, 2009, Dr. Naim Abrar examined plaintiff regarding his type II diabetes. Plaintiff reported that he had diabetes for the past fourteen years. (Id. at 279.) Dr. Abrar noted that plaintiff might benefit from insulin therapy, and he prescribed oral medications and blood-sugar monitoring. (Id. at 280-81.)
On May 6, 2009, Dr. O'Connor completed a medical source statement at the request of the Commissioner. Dr. O'Connor stated that plaintiff had suffered two strokes, with current symptoms of partial loss of eyesight, numbness and weakness of the extremities, loss of balance, and forgetfulness. (Id. at 240.) Dr. O'Connor also noted that plaintiff suffered from fatigue, but that it was caused more by his stroke than his depression. (Id. at 242.) The statement also listed plaintiff's medical history as including diabetes, hypertension, high cholesterol, and coronary artery disease, and Dr. O'Connor noted that he had been treating plaintiff for those conditions since 2002. (Id. 241.) Dr. O'Connor concluded that plaintiff was completely disabled and could not perform any work-related activities, but did not specify when he believed plaintiff first became disabled. (Id. at 244.)
Dr. O'Connor also submitted a letter dated August 18, 2009. The letter states that plaintiff suffered four strokes in February and March 2009, causing short term memory loss, loss of vision and balance, and fatigue. Dr. O'Connor also noted that plaintiff had suffered from depression for several years, "but was in denial and refused treatment." (Id. at 354.)
Dr. Louis J. Avvento, who first saw plaintiff when he was hospitalized for a stroke in February 2009, completed a mental health medical source statement on June 4, 2009 at the request of the Commissioner. Dr. Avvento disclosed that he had a personal history with plaintiff because plaintiff's wife was his employee (id. at 301), but also that he had been plaintiff's physician for "many years" (id. at 310).1 Dr. Avvento noted that plaintiffhad a history of depression, mood swings, and withdrawal, but that plaintiff had refused to seek treatment. Dr. Avvento stated that depression was the primary cause of plaintiff's fatigue prior to the strokes. Dr. Avvento also noted that plaintiff was able to independently perform most activities of daily living, but could not drive or perform gainful employment in his field. (Id. at 300-05.)
Dr. Avvento submitted a second letter on March 4, 2010, stating that plaintiff's "history includes lengthy bouts of depression since 2001, initially declining medication but recently accepting treatment with some control of symptoms and improvement in the depressive events." (Id. at 365.)
At the request of the Commissioner, M. Graff, Ph.D., completed a psychiatric review technique form on July 7, 2009. Dr. Graff reviewed the medical evidence in the record, including the medical source statement of Dr. Avvento, and concluded that there was "insufficient evidence" to establish a medically determinable impairment prior to plaintiff's date last insured. (Id. at 331; see also id. at 343.)
At the March 11, 2010 hearing in front of the ALJ, plaintiff primarily testified regarding his depression. Plaintiff stated that, approximately three or four times a year, he "used to spend a month in bed" and would not "leave [his] room for a month." (Id. at 41.)...
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