Pickering v. Colvin
| Decision Date | 10 February 2016 |
| Docket Number | 14-CV-6902 (RLE) |
| Parties | HARVEY E. PICKERING, Plaintiff, v. CAROLYN W. COLVIN, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Harvey Pickering ("Pickering") commenced this action under 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 (the "Commissioner") denying his application for Supplemental Security Income ("SSI") benefits. Pursuant to 28 U.S.C. § 636(c), the Parties have consented to the jurisdiction of the undersigned. (Doc. No. 9.)
Before the Court are the Parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Doc. Nos. 16 and 18.) Pickering raises two issues: (1) the ALJ failed to accord adequate weight to the opinion of the treating physician; and (2) the ALJ failed to properly consider the side effects of Pickering's medications. (Plaintiff's Memorandum of Law in Support ("Pl. Mem.") at i.) The Commissioner argues that substantial evidence of record supports the finding that Pickering was not disabled under the Act during the period at issue,1 and asks the Court to affirm the Commissioner's decision. (Defendant's Memorandum of Law in Support ("Def. Mem.") at 1.) For the reasons that follow, Pickering'smotion is GRANTED, the Commissioner's cross-motion is DENIED, and the case is REMANDED for further proceedings before the Social Security Administration.
Pickering applied for SSI benefits on July 13, 2011, alleging disability beginning on February 23, 2011, because of asthma, obesity, schizoaffective disorder, depression, anxiety, partial amputation of the left second toe, and left arm fracture with internal pin fixation. (Complaint, Doc. No. 1, at 1-2; See also Transcript of Administrative Proceedings ("Tr.") at 34-43.) The Social Security Administration ("SSA") initially denied Pickering's application on October 12, 2011, and on December 19, 2011, Pickering filed a written request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 60-65, 69.) Pickering's request was granted and, on April 9, 2013, he appeared and testified via video teleconference at a hearing before ALJ Sheena Barr. (Tr. at 28-50.) In a decision dated June 28, 2013, the ALJ found that Pickering was not disabled and was not eligible for SSI benefits. (Tr. at 21.) Pickering requested a review by the Appeals Council on July 24, 2013. (Tr. at 7.) On July 9, 2014, the Appeals Council denied Pickering's request and the ALJ's decision became the Commissioner's final decision. (Tr. at 1-6.) Pickering filed this Complaint on August 25, 2014.
Pickering was born in New York City on June 17, 1963. (Tr. at 138.) He is five feet, eight inches tall and weighs 185 pounds. (Tr. at 156.) Pickering is a high school graduate who completed two years of college in 1993, where he earned an associate's degree and received specialized training as an airplane mechanic. (Tr. at 156-57.) Pickering also worked as anassembler in a retail store until June 1, 1993, when he had to stop working because of his mental and physical impairments. (Tr. at 156.) Pickering has not worked since that time. (Id.)
In December 2010, Pickering began seeing Dr. Nasreen Kader, a psychiatrist, who diagnosed him with depression and anxiety, and listed clinical findings of "depressed mood," "lack of motivation," "extreme anxiety," "insomnia," and "poor concentration." (Tr. at 519; 308.) At the ALJ hearing, Pickering testified that he sees Dr. Kader once a month for therapy and medication management, and that he has been receiving psychiatric treatment solely from Dr. Kader since their first meeting in 2010. (Tr. at 35.) He also testified that the medications prescribed by Dr. Kader help to alleviate his anxiety, but also sometimes cause dizziness, nervousness, difficulty concentrating, and paranoia. (Tr. at 35-36.) In addition to Dr. Kader's diagnoses of depression and anxiety, Pickering testified that he also suffers from asthma and joint pain. (Tr. at 37-40.)
At the hearing, Pickering testified that he has been suffering from asthma for "several years" and was hospitalized for the condition "several times." (Tr. at 37.) He testified that the asthma makes it hard to breathe, and that he can only walk about five or six blocks before losing his breath, at which point he requires a pump from an asthma inhaler to continue walking. (Id.) He also testified that he has been taking three asthma medications as part of his treatment. (Id.)
Pickering stated that he broke his left arm in a motorcycle accident a "couple years ago" and, because of the irregular nature of the break, physicians "had to put 11 plates and 19 screws to hold it together." (Tr. at 40.) As a result, he suffers from constant joint pain, especially "when the weather changes," but was advised not to have the screws surgically removed. (Tr. at 40-41.) Because of the discomfort in his left arm, Pickering testified that he can lift "maybe two pounds, or three pounds, or something like that." (Tr. at 41.) Pickering also testified that he hadhis left toe amputated following another motorcycle accident "a couple years" prior to the hearing. (Id.) Although he is able to walk "okay." he stated that he has "a lot of rain" when doing so. (Tr. at 42.) Pickering testified that he can walk about five or six blocks before needing to "take the pressure off his foot, and that he feels sharp pain at times similar to "being electrically shocked." (Id.) He also stated that he can stand for fifteen to twenty minutes before needing to sit down, and that he does not suffer from any back problems. (Tr. at 42-43.)
At the hearing, ALJ Barr asked Pickering about an August 2011 visit to a consultative examiner for the SSA, where he allegedly disclosed that he had used cocaine a few months prior to the examination. (Tr. at 43, 214.) Pickering denied having ever made the remark, stating: "I never said no such thing." (Tr. at 44.) Pickering also testified that he had used cocaine as a teenager, but was no longer using and had not used the drug since he was "like 18 years old, 19 years old." (Tr. at 43.)
ALJ Barr next turned to vocational expert Rocco Meola ("Meola"), who testified about Pickering's ability to adjust to certain kinds of work, based on the evidence in record. (Tr. at 45.) The ALJ asked Meola about a hypothetical individual of Pickering's age, education and work experience, who could do light work, and was limited to: (1) unskilled, low stress work, that required no more than occasional decision-making; (2) no more than occasional interaction with co-workers, supervisors, and the general public; (3) no more than occasional climbing; and, (4) no concentrated exposure to dust, fumes or odors. (Tr. at 45-46.) Meola testified that "with those limitations in the hypothetical, there [were] jobs that one [could] do." (Tr. at 46.) He went on to testify that the types of work consistent with the hypothetical would be jobs such as a labeler, a produce weigher, and an assembler. (Id.) Meola also testified that if the hypotheticalindividual was off-task, or distracted, for up to fifteen percent (15%) of the workday, he would be able to perform the identified jobs. (Tr. at 48-49.)
Prior to applying for disability benefits, Pickering received medical treatment at the Jacobi Medical Center at least six times. (Tr. at 219-37.) Records from the Center show that on several visits, Pickering denied any complaints. He was also regularly described as alert and oriented in all spheres. (Tr. at 219, 222, 224-28.)
On October 22, 2010, Pickering saw Dr. Anthony Greenridge, a physician at Bronx Lebanon Hospital ("Bronx Lebanon"), in connection with his application for the New York City Human Resources Administration ("HRA") public assistance program. (Tr. at 358-62, 450-53, 487-88.) The physical examination, which included chest, extremities, reflexes, sensation, motor system, and neurological examination, was normal throughout. (Tr. at 358-59.) Dr. Greenridge diagnosed Pickering with depression, anxiety, asthma, and stated that Pickering had "left forearm repair" and second left toe amputation because of a motorcycle accident. (Tr. at 361.) Dr. Greenridge assessed that Pickering was restricted to walking up to three hours per day, and to a low-stress work environment without exposure to dust. (Tr. at 359-60.)
Pickering also saw Dr. Jorge Kirschstein at Bronx Lebanon in connection with his public assistance application. (Tr. at 370-74, 524-32.) While a mental status examination revealed depressed mood and constricted affect,2 Dr. Kirschstein noted that Pickering was calm and cooperative, with normal speech and neat appearance, as well as logical form of thought andnormal thought content. (Tr. at 372.) Dr. Kirschstein, however, assessed that Pickering's ability to persist was severely impaired, and that his anilities to follow work rules, accent supervision, deal with the public, relate to co-workers, adapt to change, and adapt to stressful situations were all moderately impaired. (Tr. at 372-73.) Dr. Kirschstein diagnosed Pickering with major depressive disorder and anxiety disorder, and recommended that he be monitored for alcohol abuse. (Id.) Through HRA, Pickering was supplied with an application for SSI benefits, and was referred to Dr. Nasreen Kader for treatment. (Tr. at 426-27.)
Dr. Kader, a psychiatric specialist, examined Pickering on December 11, 2010, and continued to treat Pickering for his mental health conditions. (Tr. at 519, 308-09.) On February 23, 2011, Dr. Kader completed a form for HRA, listing diagnoses of depression and anxiety, in addition to her clinical findings of depressed mood, lack of motivation,...
To continue reading
Request your trial