Pappas v. Saul

• Decision Date: 06 November 2019
• Docket Number: 18 Civ. 576 (GWG)
• Citation: 414 F.Supp.3d 657
• Parties: Louis R. PAPPAS, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

414 F.Supp.3d 657

Louis R. PAPPAS, Plaintiff,

v.Andrew SAUL, Commissioner of Social Security, Defendant.

18 Civ. 576 (GWG)

United States District Court, S.D. New York.

Signed November 6, 2019

Ann Pegg Biddle, New York, NY, for Plaintiff.

Joseph Anthony Pantoja, U.S. Attorney's Office, New York, NY, for Defendant.

OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Louis R. Pappas brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner")¹ denying his claim for Disability Insurance 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 Pappas has opposed. For the reasons stated below, the Commissioner's motion is granted.

I. BACKGROUND

A. Procedural History

Pappas filed an application for a period of disability and Disability Insurance Benefits ("DIB") on May 8, 2014, alleging a disability onset date of April 1, 2013. See Certified Administrative Record, filed July 2, 2018 (Docket # 12) ("R."), at 33, 162.²

The Social Security Administration ("SSA") denied Pappas's application on July 2, 2014. R. 33, 96. Pappas requested a hearing before an administrative law judge ("ALJ") to review the denial. R. 102-07. A hearing before an ALJ occurred on February 25, 2016, R. 58-65, and a second hearing before the ALJ occurred on October 13, 2016, R. 68-86. In a written decision dated December 5, 2016, the ALJ found Pappas was not disabled within the meaning of the Act. R. 33-49. Pappas requested the Appeals Council review the ALJ's decision and that an extension of time be granted in which to present a written argument and/or evidence. R. 159-61. The request for an extension of time was granted, R. 25 - 26, and the Appeals Council acknowledged receipt of additional medical evidence from Pappas, R. 5, see R. 8-16, but on January 8, 2018, the Appeals Council denied Pappas's request for review of the ALJ's decision, R. 1-6. Pappas timely filed this action pro se on January 22, 2018.

The Commissioner moved for judgment on the pleadings in July 2018, and the matter was fully briefed as of November 2018.³ However, on February 8, 2019, the Urban Justice Center filed a notice of appearance as counsel for Pappas. Notice of Appearance, filed Feb. 8, 2019 (Docket # 20). Counsel also filed a letter requesting an amended briefing schedule and leave to re-file Pappas's cross-motion and accompanying memorandum. Letter from Ann P. Biddle, filed Feb. 8, 2019 (Docket # 21). Accordingly, the Court issued an Order: (1) deeming Pappas's previous filings to be withdrawn; and (2) ordering a new briefing schedule. Order, filed Feb. 8, 2019 (Docket # 22) ("February 8 Order").

Pappas filed his new cross-motion and memorandum, see Notice of Cross Motion for Remand for Further Proceedings, filed Apr. 8, 2019 (Docket # 23); Memorandum of Law in Support of Plaintiff's Cross Motion for Remand for Further Proceedings, filed Apr. 8, 2019 (Docket # 24) ("Pl. Mem."), and the Commissioner filed a reply, see Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Judgment on the Pleadings and in Further Support of the Commissioner's Motion for Judgment on the Pleadings, filed Apr. 30, 2019 (Docket # 26).

B. The Hearing Testimony

At his first hearing on February 25, 2016, Pappas chose to adjourn the proceeding so that he could attempt to obtain an attorney. R. 58-63.

At the second hearing on October 13, 2016, Pappas appeared again without an attorney, and the ALJ proceeded with the hearing despite Pappas's request to postpone. R. 68-70. Pappas testified that he was 50 years old, lived with his mother, and last worked a few years previously as an "indoor messenger," a position he held for 26 years. R. 71-72. The job involved delivering items ("small packages") between two office floors at a company in New Jersey. R. 72-73. Asked whether he could perform this job now in light of his health condition, Pappas replied that he would "[p]robably have a slight difficulty." R. 73. Pappas also testified to the rest of his daily activities. Pappas stated that while he can take the stairs in order to get to the subway platform and that he can ride the subway by himself, he always sits for the duration of his ride. R. 75-76. Additionally, Pappas stated: "I don't usually walk upstairs too many times," and that when he climbs the stairs he is "[a] little out of breath." R. 76. Pappas does go grocery shopping, but only with his mother, and she is the one who pushes the grocery cart. R. 77-78. As for exercise, Pappas takes "small walk[s]" to Henry Hudson Park, which is two blocks from his home. R. 76-77. He also walks in the park, usually for around a "half an hour." R. 77. Pappas was not able to answer questions from the ALJ about his capacity to lift certain weights. R. 78.

The ALJ next questioned medical expert Dr. Dorothy Kunstadt, a board certified cardiologist, who testified via telephone. R. 79-82.⁴ Dr. Kunstadt testified that Pappas had a "near catastrophic event" in 2015, which was "dissection of his ascending aorta." R. 80. However, the problem was "diagnosed promptly and surgically treated," and although he had resulting "complications," Pappas's "blood pressure came under control" and was since under "excellent control." R. 80. Accordingly, Dr. Kunstadt testified that Pappas would be "capable to do physical work but with restrictions," despite "some [supposed] deformity ... of his spine." R. 80. The ALJ asked Dr. Kunstadt whether there was "anything in the record objectively that would limit [Pappas's] ability to do [light work]." R. 80-81; see 20 C.F.R. § 404.1567(b). In answering "no," Dr. Kunstadt noted that there would be some restrictions on Pappas's ability to perform light work — that he could not lift 20 pounds frequently, and could not crouch or bend frequently, though he could do these things "occasionally." R. 81-82. Except to the extent Dr. Kunstadt briefly opened her remarks by mentioning that Pappas had been diagnosed with autism as a young man, there was no discussion between the ALJ and Dr. Kunstadt with respect to Pappas's alleged mental impairments. In fact, Dr. Kunstadt acknowledged: "That's not my domain." R. 79.

Finally, the ALJ questioned the vocational expert ("VE"), who also testified via telephone. R. 83. In response to the ALJ's questioning, the VE stated that Pappas's past relevant work of "indoor messenger" had a Dictionary of Occupational Titles ("DOT") code of 230.663-010, a "light strength," and a "specific vocational preparation" level of two. R. 84.⁵ The ALJ then posed the following question to the VE: "Hypothetical person of the claimant's educational, vocational background who is limited to simple task instruction jobs, and can do light work, the full range of light work with at the most occasional stooping, bending, crouching. Could ... he do this job?" R. 84. The VE responded that such an individual could do the indoor messenger job — her opinion being based on her "own professional experience." R. 84-85. After the ALJ briefly summarized the VE's answer for Pappas's benefit, Pappas stated that he did not have any questions for the VE. R. 85.

C. The Medical Evidence

The Commissioner and Pappas have both provided summaries of the medical evidence in the record. See Comm'r Mem. at 2-13; Pl. Mem. at 5-11. The summaries are substantially consistent with each other. In any event, the Court had directed the parties to specify any objections they had to the opposing party's summary of the record, see February 8 Order ¶ 3, and neither party has done so. Accordingly, the Court adopts both parties' 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 below.

D. The ALJ's Decision

The ALJ denied Pappas's DIB application on December 5, 2016. R. 49. First, the ALJ found that Pappas met the insured status requirements of the SSA though September 30, 2018. R. 35. Then, following the five-step test set forth in SSA regulations, the ALJ found at step one that Pappas had not engaged in "substantial gainful activity" during the time between his alleged disability onset date — April 1, 2013 — and the present (the "relevant period"). R. 35. At step two, the ALJ found that during the relevant period, Pappas suffered from "severe impairments" of "spinal disorder, cardiovascular disorder (history of dissecting aneurysm of the thoracoabdominal aorta status post aortic dissection repair and right lower extremity fasciotomy with vascular surgery, history of congestive heart failure ), hypertension and organic mental disorder." R. 35-36.

At step three, the ALJ found that none of Pappas'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 (the "listings"). R. 36-38. In reaching this conclusion, the ALJ gave particular attention to listings 1.00 (Musculoskeletal System), 4.00 (Cardiovascular System) and 12.00 (Mental Disorders). R. 36-38. The ALJ specifically analyzed whether the "paragraph B" criteria of the listings were met as to Pappas's organic mental disorder under listing 12.02.⁶ R. 36-38; see 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02. To meet those criteria, a claimant must show that their mental impairment (s) result in "at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration." R. 36; see 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02(B). "A marked limitation means more than moderate but less than extreme. Repeated episodes of decompensation, each of extended duration, means three...