McClinton v. Colvin

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
PartiesCHARLENE McCLINTON, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Docket Number13cv8904 (CM)(MHD)
Decision Date02 September 2015

CHARLENE McCLINTON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

13cv8904 (CM)(MHD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 2, 2015


REPORT & RECOMMENDATION

TO THE HONORABLE COLLEEN MCMAHON, U.S.D.J.:

Plaintiff Charlene McClinton filed this lawsuit pursuant to section 1614(a)(3)(A) of the Social Security Act, as amended, 42 U.S.C. § 1614(a)(3)(A) ("the Act"), to challenge a final decision of the Social Security Administration ("SSA") denying her application for Supplemental Security Income benefits ("SSI") under the Act. Plaintiff and the Commissioner ("defendant") have cross-moved for judgment on the pleadings.

For the reasons that follow, we recommend that the case be remanded for development of the record and a new determination of whether plaintiff is disabled.

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BACKGROUND

I. Procedural History

Ms. McClinton1 filed an application for SSI benefits on August 22, 2008,2 claiming that she had become disabled on April 22, 2008. (Admin. R. Tr. ("Tr.") 289-90.)3 Plaintiff based her application on the claim that she suffered from a variety of physical and psychiatric maladies. (Id.).

The SSA denied her application initially on November 3, 2008. (Tr. 139-43). She then requested an evidentiary hearing (see Tr. 151-52), which was conducted on December 3, 2009 before Administrative Law Judge ("ALJ") Cameron Elliot. (Tr. 101-15). In a decision dated December 10, 2009, the ALJ found plaintiff to be not disabled. (Id. at 119-28). The Appeals Council granted Ms. McClinton's request for review of the ALJ's decision on

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March 30, 2011, vacating and remanding the case for further proceedings. (Id. at 132-36). In particular, the Appeals Council required the ALJ to do the following on remand: 1) evaluate plaintiff's obesity in accordance with SSR 02-1p, 2) evaluate plaintiff's mental impairments according to the technique described in 20 C.F.R. § 416.920a, 3) give further consideration to plaintiff's maximum residual capacity during the entire period at issue, and 4) obtain evidence form a vocational expert to clarify the effect of the assessed limitation on her vocational capacity. (Tr. 134).

ALJ Paul A. Heyman held three subsequent hearings, on September 22, 2011, April 5, 2012, and June 6, 2012. (Id. at 12). Ms. McClinton was represented by counsel at each of these hearings. (Id. at 31, 49, 64, 202). On July 13, 2012, the ALJ issued his decision finding Ms. McClinton to be not disabled. (Id. at 12-25). The Appeals Council denied Ms. McClinton's request for review of the ALJ's decision on November 13, 2013, making the Commissioner's determination final. (Id. at 1-5).

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II. The Pertinent Record

A. Plaintiff's Submissions and Testimony at the Hearings

1. Submissions

In her initial application, Ms. McClinton indicated that she was born on April 23, 1967. (Tr. 118). As described by the SSA, Ms. McClinton indicated that she suffered from depression, anxiety, dysthymic disorder,4 spondylosis5 in her lumbar6 spine, knee pain, dyspnea7 on exertion, and an eating disorder. (Id. at 308). She reported that she was unable to climb stairs, bend, crouch, carry, or lift; that it took her about 15-30 minutes to walk two blocks because she continually had to stop; that it took her 15 minutes to stand up after urinating, and that she had trouble sleeping due to the pain. (Id.). Additionally, she reported that the various pain medications that she had taken either had not been effective, or had been effective but caused drowsiness. (Id.).

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2. Hearing Testimony

At the September 22, 2011 hearing, Ms. McClinton testified that she was married and had three children, ages one, seventeen, and twenty. (Tr. 69, 80). She specified that the one-year old and twenty-year old lived with her, with the older daughter helping her care for the baby. (Id. at 80-81). She testified that her formal education had ended in ninth grade, that she did not have a driver's license, and that she last worked in 2007, at a cosmetics factory, assembling lipstick and lipstick holders. (Id. at 69-70). She said that she left the job after she developed back problems and could not handle the exertion required, for instance, to walk up the steps. (Id. at 70).

a. Pain Allegations

Ms. McClinton specified that she had pain "in the lower part of [her] back" as well as in both of her knees. (Tr. 76, 86). She testified that her back pain had worsened after she underwent surgeries in the fall of 2010. (Id. at 71-73). During this period, she reported, she had lost approximately 75 pounds, arriving at her current weight of 149 pounds, from her previous weight of 225 pounds in 2010. (Id. at 69, 71-72). She further explained that she had lost the weight because she "was sick . .

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. [she] kept getting sick back-to-back. [She] couldn't eat anything." (Id. at 97).

In explaining her back pain, she testified that an MRI showed that there was a lumbar disc bulge that was "twisting." (Id. at 95). As for her knee pain, she explained that doctors had categorized it as arthritis, partially caused by a pre-existing condition of being born with bowed legs. (Id. at 89, 92, 94). She noted that she had had an operation on her knees shortly after she was born but had not had additional knee surgery since then. (Id. at 93). She further explained that her knees were painful, causing "aches in the kneecaps when it like rains or something and [she] catch[es] a lot of cramps and everything in [her] legs." (Id.).

Ms. McClinton testified that she had undergone pelvic-abscess and hernia operations in September, October, and November 2010, at Bronx-Lebanon Hospital Center under the care of Dr. Leburitz.8 (Id. at 71-73). After the operations, she received follow-up treatment at Bronx-Lebanon Hospital related to the surgeries. (Id. at 71-73). She also testified that, aside

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from the surgeries performed at Bronx-Lebanon, she had been receiving primary care from North General Hospital and Treatment and Diagnostic Center ("North General") since 2006 and was continuing that treatment relationship at the time of the September 2011 hearing. (Id. at 73-74).9 She identified Dr. Dimitri Alvarez10 as her current treating physician at North General and the one who prescribed a pain medication and muscle relaxant for her. (Id. at 74-75). She testified that despite the medication she cannot do any activities because she has "excruciating pain." (Id. at 76). She showed the ALJ a back brace she was wearing for lower-back pain and testified that Dr. Winston Lee at the Columbus Rehabilitation Center11 had been

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coordinating her care for her back pain. (Tr. 77-78). Ms. McClinton explained at the hearing that she currently wore a back brace, and had been doing so for the past two weeks. (Id. at 90). She also testified that, twice a week for the past eight weeks, she had been receiving physical therapy for her lower back under Dr. Lee's supervision -- including exercise bikes, massage, and weights -- and that Dr. Lee had prescribed a pain medicine, Naprosyn. (Id. at 76-78, 87-88).12 The ALJ also noted during the hearing that Ms. McClinton was currently taking ten milligrams of Cyclobenzaprine13 and fifteen milligrams of Diclofenac,14 in addition to the Naprosyn. (Id. at 88).

Ms. McClinton further testified that she had not undergone back or knee surgery to address the pain. (Id. at 86-87).

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Similarly, she had not received epidural shots or injections since the birth of her youngest daughter.15 (Id. at 86). Ms. McClinton explained that when she was pregnant, she had stopped taking some of her prescribed medication, but that she was due to restart the medication the following week. (Id. at 85, 87).16 She testified that she "couldn't go until after the baby turned a year, so they can give me my medication back, so I can get back on my medication." (Id. at 84).

Regarding the severity of her pain and the limitations that it imposed on her, Ms. McClinton stated that she could not stand up, and when she tries, her "body just locks and stiffens and I get a burning sensation. . . . I can't bend at all. I just lay in my bed and I try to play with my baby. I can't even do that." (Tr. 91). Her adult daughter assists with care of the baby. (Id. at 80-81). She testified that the back brace "helps a little. . . . Without it I can't walk or tie my shoe." (Id. at 90). She also noted that taking the subway was not possible for her because it required more standing than she could tolerate. (Id. at 82). She testified that she liked to read newspapers and books, notably novels, as her principal hobby. (Id. at 81).

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At the June 6, 2012 hearing, the ALJ asked Ms. McClinton additional questions regarding her pain and her weight loss. Ms. McClinton testified that despite having maintained her significant weight loss for a year at that point, her back pain was worse than before the weight loss. (Tr. 43-44).

b. Mental Health Issues

Regarding her mental status, Ms. McClinton stated that "[r]ight now I'm depressed from my mom's [death] and I'm still going through it and stuff, so that's why I'm now back and...

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