Lau v. Comm'r of Soc. Sec.
| Decision Date | 22 October 2018 |
| Docket Number | 17 Civ. 8564 (GWG) |
| Parties | Victor F. LAU, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Victor F. Lau, New York, NY, pro se.
Joseph Anthony Pantoja, Susan D. Baird, U.S. Attorney's Office, New York, NY, for Defendant.
Plaintiff Victor Lau, proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability benefits under the Social Security Act (the "Act"). The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which Lau has opposed.1 For the reasons stated below, the Commissioner's motion is granted.
Lau applied for Disability Insurance Benefits ("DIB") on August 1, 2014, alleging a disability onset date of May 1, 2012. See Certified Administrative Record, filed Apr. 9, 2018 (Docket # 16) ("R."), 9, 68, 142. The Social Security Administration ("SSA") denied Lau's application for DIB on October 14, 2014. R. 9, 77-81. Lau requested a hearing before an administrative law judge ("ALJ") to review the denial, R. 83-85, which occurred on September 8, 2016, R. 28-66. In a written decision dated September 23, 2016, the ALJ found that Lau was not disabled between May 1, 2012 — his alleged disability onset date — and December 31, 2014 — his date last insured.2 R. 9-16. Lau requested that the Appeals Council review the ALJ's decision, R. 137-40, 236, but on October 18, 2017, the Appeals Council denied Lau's request, R. 1-5. That made the ALJ's decision the final decision of the Commissioner. R. 1. Lau timely filed this action on November 2, 2017. See Complaint, dated Nov. 2, 2017 (Docket # 2).
Lau was represented by non-attorney representative Jerry Adler at the hearing before the ALJ. R. 30. Also present and testifying were two medical experts, Dr. Osvaldo Fulco and Dr. Sharon Grand, and a vocational expert ("VE"), Michele Erbacher. R. 30.
Lau testified that prior to the onset of his allegedly disabling conditions he had worked consistently for at least ten years as a computer programmer and systems engineer at various companies, having completed a bachelor's degree in China. R. 33-37. His last job in computer programming was at Blue Cross Blue Shield, which laid him off in May 2009 when the company outsourced its programming work to India. R. 34-35.
Lau explained that he developed a persistent and heavy cough
after he was laid off, which he feared was a sign of lung cancer, R. 38-39, but might have been lung damage "related to the 9/11 attack," R. 41, 47-48. He said the cough caused insomnia and at one time he went six straight months without sleep. R. 40. Otherwise, Lau did not attribute any physical limitations to the cough. R. 38-40. To treat his cough, Lau said his doctor recommended that he use "asthma spray" and prescribed antibiotics. R. 41. His doctor also recommended surgery, which Lau declined. R. 41. Lau also testified to having high blood pressure for which he takes an alpha beta blocker. R. 42.
Lau also talked at length about his psychiatric treatment. He explained that he first saw a psychiatrist "at the beginning of 2015," when the Human Resources Administration referred him to "several psychiatrists" after he applied for Medicaid. R. 42. Thereafter, he saw various psychiatrists with some consistency. R. 42-44, 46-47. One psychiatrist, whom he saw for his insomnia, told him that his insomnia was "a severe mental problem ... close to bipolar," for which the doctor prescribed him Seroquel
. R. 40. Lau was also prescribed Haldol. R. 43. Lau explained that he was anxious about "everything," including people following him. R. 47. He thought the government had been following him since he "joined the Occupy Wall Street in 2011," and feared that the government would "disappear" him as it had done to others. R. 48-49.
Lau testified that he lived in a homeless shelter where he had his own room but shared common living spaces with the other residents. R. 32-33. Because of the limited facilities at the shelter, he does not cook or clean. R. 44. For recreation, he walks in the park when it is warm and otherwise stays at the shelter "watch[ing] some games and watch[ing] some movies [and] TV," though he struggles to concentrate. R. 45. Because he "sometimes just lose[s] [his] mind in the library," he will "fall asleep" and be kicked out by a librarian. R. 46. He does not see friends or relatives. R. 45. As for transportation, Lau said that he rarely uses public transportation because he "just feel[s] unsafe" since "[a] lot of people [have been] pushed out on the track," R. 45; rather, he drives and owns a car, R. 44-45.
Dr. Grand, identified as a "mental health medical expert," R. 12, testified that the record supports Lau's diagnosis for "schizophrenia
, paranoid type and a hoarding disorder." R. 50-51. In her view, Lau's schizophrenia met listing 12.03, because Lau reported persistent delusions and paranoia, was unable to maintain a residence, was hoarding in his room at the shelter, and had marked difficulties in maintaining social functioning. R. 51-52. Dr. Grand believed Lau met the listing as far back as January 2015, but no earlier because "[i]t's not documented clearly." R. 52-53. "It seems likely" that it started before January 2015, she testified, but said she could not speak to any functional limitations before January 2015 because of the lack of documentation. R. 53.
Dr. Fulco, a medical doctor who reviewed Lau's records, testified that Lau may have developed "reactive airway disease" after working at Ground Zero for about two months after 9/11. R. 55. "[T]he evidence is sufficient ... to establish th[is] diagnosis," which he explained is "classic of individuals that were exposed to the dust, fumes, and chemicals in very, very high concentration that occurred [at] Ground Zero." R. 56. As a result of this disease, the "bronchial [tubes] become extremely sensitive to any kind of inhalants," often causing a cough
"so severe that it may interfere with the ability to complete ... an eight-hour day." R. 56. But he noted "that is my opinion on this," because the record did not contain a test, usually called methacholine provocation, which would confirm the diagnosis. R. 56. He contended that the various chest x-rays which reported normal results were "not inconsistent with [his] opinion that the claimant has reactive airway disease" and that as a result of this disease, Lau could not work "even going back to 2012." R. 57. This opinion was based on Lau's consistent self-reporting of a heavy cough. R. 58.
The ALJ asked VE Verbacher to consider whether a person of Lau's age, education, and work history who is "limited to the performance of medium work" and who could not be exposed to "pulmonary irritants" could perform Lau's past work as a programmer. R. 63. Verbacher said such a person would have difficulty finding suitable jobs. R. 64. But if such person could "occasionally" be exposed to pulmonary irritants, then that person would be able to perform Lau's past work. R. 64.
Both Lau and the Commissioner have provided summaries of the medical evidence in the record. See Pl. Mem. at 2-6; Comm'r Mem. at 5-14. While the Commissioner's summary is more detailed, Lau's summary is substantially consistent with it. Accordingly, the Court adopts Lau's and the Commissioner's summaries of the medical evidence as accurate and complete for purposes of the issues raised in this suit. We discuss the medical evidence pertinent to the adjudication of this case in section III below.3
The ALJ denied Lau's application for DIB on September 23, 2016. R. 6-16. Following the five-step test set forth in SSA regulations, the ALJ found at step one that Lau had not engaged in "substantial gainful activity" during the time between his alleged disability onset date — May 1, 2012 — and his date last insured — December 31, 2014 (the "Relevant Period"). R. 11. At step two, the ALJ found through the date last insured that Lau suffered from the "severe impairments" of "restrictive airway disease and hypertension
." R. 11. Because the record contained "insufficient evidence prior to [Lau's] date last insured documenting significant functional limitations arising from his mental impairments," the ALJ concluded that Lau did not suffer from a severe mental impairment during the Relevant Period. R. 11-12.
At step three, the ALJ found that none of Lau's severe impairments singly or in combination met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart p, Appendix 1. R. 13. The ALJ gave "particular attention ... to listings 3.02 and 4.01," which address "chronic pulmonary insufficiency" and "impairments of the cardiovascular system," respectively. R. 13. Having found that Lau could not meet listings 3.02 and 4.01, the ALJ next assessed Lau's residual functional capacity ("RFC"). R. 13. The ALJ found that Lau, through the date last insured, had the RFC "to perform medium work ... with additional restrictions insofar as he could have no more than occasional exposure to pulmonary irritants, dust, odors, fumes, and extremes of heat and cold." R. 13. In making this assessment, the ALJ reviewed the medical record, including the opinions of all consulting, examining, and treating medical sources; and Lau's testimony, finding Lau's testimony "not entirely consistent with the medical evidence and other evidence in the record." R. 14. At step four, the ALJ found that Lau could return to his prior work as "a program analyst for web applications." R. 16. Since he could perform his prior work, the ALJ concluded that Lau was not disabled within the meaning of the Act during the Relevant Period. R. 16.
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