Rhone v. Colvin
| Decision Date | 06 November 2014 |
| Docket Number | 13-CV-5766 (CM)(RLE) |
| Parties | WAYNE RHONE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro Se Plaintiff Wayne T. Rhone ("Rhone") commenced this action under the Social Security Act (the "Act"). 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for disability insurance benefits. On April 1, 2014, the Commissioner filed a motion to remand for further proceedings. (Def.'s Mem. of Law in Supp. of Comm'r's Mot. to Remand ("Def. Mot.") at 2.) In response, on April 7, 2014, Rhone filed a motion for judgment on the pleadings, asking the Court to overturn the final administrative decision with respect to a finding of disability and remand the case solely for a calculation of benefits. He argues that the record compels the conclusion that he is disabled and does not have the residual functional capacity to perform his past work. (Doc. No. 20; Pl.'s Aff. In Opp. to Mot. to Remand ("Pl. Mot.") at 1.) The Court agrees with both parties that the case should be remanded, but concludes that remand for the sole purpose of calculating benefits has not been demonstrated. For the reasons that follow, I recommend that Rhone's motion beGRANTED in part and DENIED in part, and that the case be REMANDED for further administrative proceedings.
II. BACKGROUND
On September 30, 2010, Rhone applied for Social Security Disability ("SSD") and Supplementary Security Income ("SSI") benefits, alleging disability since February 21, 2009. (See Tr. of Admin. Proceedings ("Tr.") at 81-84, 103.) The Social Security Administration ("SSA") initially denied Rhone's application on February 9, 2011, and on February 24, 2011, Rhone requested a hearing with an Administrative Law Judge ("ALJ"). (Id. at 22, 45-46, 49-54.) Rhone appeared and testified at a hearing before ALJ Wallace Tannenbaum on January 17, 2012. (Id. at 31-44.) The ALJ subsequently issued a decision on January 23, 2012, finding that Rhone was not disabled under the Act and was not entitled to disability insurance benefits. (Id. at 22-27.) The Appeals Council denied Rhone's request for review and the ALJ's decision became the Commissioner's final decision. (Id. at 1-4.) Rhone then filed this action.
Rhone was born on August 25, 1961. (Id. at 35.) He is single and has no children. He completed high school, and worked as an actor for more than twenty years. (Id. at 36.) Rhone worked briefly as a 311 telephone operator, a park enforcement officer, and a ticket sales agent. (Id. at 36-37.) He stopped working in February 2009 when he was laid off from his work as a 311 telephone operator. (Id. at 35, 37.) He applied for unemployment insurance benefits and received those benefits for six months or longer. (Id. at 37.) While Rhone was receiving unemployment benefits, he continued to look for work. (Id.) He is no longer seekingemployment because of depression, anxiety, and other conditions that were not specified during the hearing. (Id. at 38.)
At the time of the hearing, Rhone saw a psychiatrist once a week. (Id.) Although no longer actively looking for work as an actor, he testified that he would not rule out working as an actor if he were to be "discovered." (Tr. at 40.) He testified that he stopped smoking marijuana and taking other drugs around the time that he started psychiatric treatment. (Id.) A normal day for him is spent indoors. He is "a bit claustrophobic," and suffers from anxiety and paranoia in crowds. (Id. at 40-41.) According to Rhone, this was part of the reason that he was not able to keep his 311 telephone operator job. (Id. at 41.)
Rhone testified to not having any friends and only interacting with his neighbors in passing. (Id.) He does not see his family because they live in Connecticut and he never travels to see them. (Id. at 43.) Although he does not engage in any recreational activities, Rhone does all of his own housekeeping, cleaning, and cooking. (Id.)
Rhone's first visit to the Ryan Chelsea Center ("Ryan Center") was August 10, 2009. (Id. at 346.) He was diagnosed with hypertension and depression. (Id.) This was the same diagnosis on his next visit on September 23, 2009, but on that visit he also complained of wrist and arm pain. (Id. at 349.) On April 16, 2010, Rhone complained of right shoulder pain and left ankle pain. (Id. at 355.) He was diagnosed then with ankle pain, benign hypertension, and back pain. (Id.) On July 16, 2010, Rhone reported that the pain in his left ankle had persisted despite treatment. (Id. at 357.) He was diagnosed with Achilles tendinitis, in addition to a continuing case of hypertension. (Id.) On August 13, 2010, Rhone reported that he had been feelingdepressed and hopeless, with little interest in doing things. (Id. at 359.) In addition to his previous diagnoses of hypertension and tendinitis, he was also diagnosed with tobacco use disorder and hyperlipidemia.1 (Id. at 359.)
In October 2010, Rhone visited St. Luke's Roosevelt Hospital's ("St. Luke's") twice, both times complaining of toothache. (Id. at 210, 214.) On his second visit to the emergency room on October 15, 2010. Rhone was given a round of antibiotics as treatment. (Id. at 214.) On January 11, 2011, Rhone went to the Ryan Center still complaining of tooth pain. (Id. at 364.) The treating physician for that visit gave him a tentative diagnosis of gingivitis. (Id.) Rhone's next two visits to the Ryan Center, on April 29, and November 16, 2011, were both for refills on his prescriptions and did not result in any diagnoses beyond those for benign hypertension. (Id. at 366-68.)
Rhone was treated at Jewish Board of Family and Children's Services ("JBFCS") from 2008 to 2012. (Tr. at 219-303, 391-535.) He initially sought treatment with JBFCS on March 18, 2008, at which point he was diagnosed with anxiety, depression, and lack of impulse control because of an inability to control his worries. (Id. at 219.) He was also found to be at moderate risk of substance abuse. (Id. at 228.) Because of problems with his health insurance, Rhone did not return to JBFCS until August 31, 2009. (Id. at 242.) At that time, JBFCS staff diagnosed him with depression and anxiety, as well as substance control issues based on the fact that he had suffered a relapse after two years of sobriety. (Id. at 242-43.) JBFCS staff also diagnosed Rhone as having a low level of risk for suicide because of his passive thoughts of death. (Id. at 250.)
On September 11, 2009, JBFCS staff reiterated Rhone's diagnoses of depression, anxiety, and alcohol and cannabis abuse. (Id. at 417.) On October 5, JBFCS staff noted that "alcohol and marijuana use is a very serious factor at this time." (Id. at 413.) In a December 11 report, staff noted that Rhone had begun attending Alcoholics Anonymous ("AA") meetings, was able to explore the factors surrounding his sobriety, and was considering other types of addiction treatment. (Id. at 264.) JBFCS reports include a "risk assessment section" which invites staff to select one of four options - "elevated risk," "concern of risk," "low risk." and "minimal risk" - to describe a patient's status with a variety of health problems. Staff assessed Rhone's status with substance abuse on December 11 to be "concern of risk." (Id. at 265.)
In a March 12, 2010 report, staff indicated that Rhone had been sober since December 2009, and that he was attending AA meetings regularly and coping well with the associated social anxieties. (Id. at 272.) In a June 11, 2010 report, staff indicated that Rhone was sober but attending AA meetings irregularly, and his risk assessment was still "concern of risk." (Id. at 280-81.) Staff noted that Rhone needed to slow down because his Achilles tendinitis provoked feelings of anxiety and irritability. (Id. at 280.)
In the September 10, 2010 report, staff indicated that Rhone was still attending AA meetings irregularly and making good use of them to process his issues. (Id. at 288.) Staff also indicated that Rhone's tendinitis was remitting and. as a result, he reported less frustration. (Id.) Staff reported that Rhone was exhibiting less social anxiety and engaging in more social situations, which triggered feelings of anxiety for him. (Id.) In the December 10. 2010 report, staff indicated that, although Rhone was sober, he was no longer attending AA meetings. (Id. at 296.) Staff also stated that Rhone had experienced considerable social anxiety whenparticipating in a community-broadcasting project and that a recent severe dental infection had triggered an emotional response to pain for him. (Id.)
In the March 11. 2011 report, staff described Rhone as struggling with financial, occupational, and medical stressors. (Id. at 474.) Rhone needed a root canal, but was unable to afford it. (Id.) Rhone reported that he had relapsed to cope with his tooth pain, but that he had been sober since he acknowledged his relapse in a prior psychotherapy session. (Id.) In the June 10. 2011 report, staff noted that Rhone was maintaining his sobriety and had attended an addictions group, although he had stopped attending AA meetings because of social anxiety. (Id. at 482.) In the August 22. 2011 report, staff indicated that Rhone was sober but currently lacing housing trouble with the possibility of eviction. (Id. at 492.) In the November 1, 2011 report, Rhone's therapist. Andrea Levin. L.C.S.W.. noted that Rhone continued to face social anxiety. (Id. at 500.) In a February 2, 2012 report, staff indicated that Rhone's social anxiety and...
To continue reading
Request your trial