Riddick v. Comm'r of Soc. Sec.

Decision Date29 February 2016
Docket Number14-CV-8453 (RLE)
CourtU.S. District Court — Southern District of New York

RONALD L. ELLIS, United States Magistrate Judge:

Plaintiff Marc Riddick ("Riddick") commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 406(g) and/or 42 U.S.C. § 1383(c)(3), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for Social Security Disability ("SSD") and Supplemental Security Income ("SSI"). Riddick argues that the decision of the Administrative Law Judge ("ALJ") was erroneous and not based on substantial evidence. On January 1, 2015, the Parties consented to the jurisdiction of the undersigned for all proceedings pursuant 28 U.S.C. § 636(c). On May 18, 2015, the Commissioner moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asking the Court to affirm the Commissioner's decision and dismiss the Complaint. (Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def.'s Mem.").) On August 18, 2015, Riddick cross-moved for judgment on the pleadings, seeking remand of this action to the Commissioner for additional proceedings. (Mem. of Law in Supp. of Pl.'s Cross-Mot. for J. on the Pleadings ("Pl.'s Mem.").) For the reasons set forth below, the Commissioner's motion is DENIED, Riddick's motion is GRANTED, and the case is REMANDED to the Commissioner for further development of the record.


A. Procedural History

On March 3, 2013, Riddick applied for SSD and SSI. (Tr. of Admin. Proceedings ("Tr.") at 70-82.) He claimed a disability onset date of March 23, 2011. (Id. at 96.) His application was denied on May 3, 2013. (Id. at 58.) Riddick appeared before ALJ Michael Dominic Cofresi ("ALJ Cofresi" or "the ALJ") on December 11, 2013, without representation. (Id. at 23, 25.) The ALJ issued a decision on January 21, 2014, finding that Riddick was not disabled within the meaning of the Act and was not entitled to disability benefits. (Id. at 6.) Review by the Appeals Counsel was automatically requested on January 22, 2014. (Id. at 5.) On September 14, 2014, the Appeals Counsel denied Riddick's request for review and ALJ Cofresi's decision became the Commissioner's final decision. (Id. at 1.) Riddick, now represented by counsel, filed this action on October 21, 2014. (Doc. No. 1.)

B. ALJ Hearing and Decision
1. Administrative Hearing Testimony and Other Sworn Statements

ALJ Cofresi conducted a fourteen-minute hearing on December 11, 2013. (Tr. at 25, 39.) On the date of the hearing, Riddick was 49 years old and had a high school diploma. (Id. at 35.) He resided at Phoenix House, where he had been living and participating in a residential drug treatment program for the previous fifteen months. (Id. at 26.) Riddick explained that he had previously used drugs and was addicted to alcohol but that he had not used drugs in the previous three years. (Id. at 27.) He had also stopped drinking since he had been living in Phoenix House, although he had used alcohol once, three months earlier. (Id. at 27-28.) Until 2009, he had worked as a garbage collector for a private sanitation company, where he would routinely lift objects weighing more than one hundred pounds. (Id. at 31, 98.) He lost that job when his employer "lost the contract" under which he was employed. (Id. at 31.) Riddick collectedunemployment benefits until around April 27, 2013, when he began working part time as a cook at Key Food Supermarket. (Id. at 28.), Riddick explained, however, that he has a "hip ailment" and has become "immune" to his pain medication, and as a result is in constant pain whether he is sitting, standing, or sleeping. (Id. at 36.)

On his disability application, completed in March 2013, Riddick listed "right hip replacement" as a condition that limited his ability to work. (Id. at 96.) At the hearing, he testified that he had been to the Hospital for Special Surgery on November 20, 2013, and had asked a doctor about "a hip replacement." (Id. at 31-32.) Citing Riddick's age and condition, the doctor advised against hip replacement. (Id. at 32) Riddick testified that he was in constant pain when sitting, standing, and lying down, and that he would experience a sharp pain in his hip when bending. (Id. at 36.) He indicated that "[e]very day [he is] in pain." (Id. at 38.) His doctor proscribed Mobic to manage the pain but Riddick testified that he had become "immune" to the medication "as time progress[ed]." (Id. at 33.) He acknowledged nevertheless that he had done "some damage to [his] body" with "work, drugs, and stuff." (Id.)

In addition to the problems with his hip, Riddick claimed that his ability to work was limited by high blood pressure, Hepatitis C, asthma, acid reflux, bronchitis, and tuberculosis. (Id. at 96.) He also alleged that he had "fractured wrists," which made it difficult to lift. (Id. at 110.) In addition to Mobic to manage the pain in his hip, he takes medication to control his high blood pressure. (Id. at 33.) As of the date of the hearing, Riddick was not taking the medication that his doctor had proscribed to manage his Hepatitis C because of the side effects, explaining that it "[made him] drowsy, as if he was back on drugs." (Id.) He had approximately one asthma attack a month, and carried his "pump" with him. (Id. at 37.) He said that he was supposed to use it twice per day, but tried to use it only once. (Id.) Riddick also had a nebulizer that he had usedaround three times in the past fifteen months. (Id.) He testified that the conditions in the kitchen at Key Food did not trigger his asthma because it was well ventilated and he worked near the walk-in refrigerator which "brings in the air." (Id.)

Riddick testified that on an average day he was able to cook; clean; shop for groceries; do laundry; and bathe, dress, and feed himself. (Id. at 35.) At the time of the hearing, he worked at Key Food five hours a day, six days a week. (Id. at 34.) While he was there, he was on his feet for most of his shift, standing and walking. (Id.) He infrequently had to lift. (Id.) At most, he said, he would lift a rack of chickens weighing around ten pounds. (Id.) To get to work, he took two busses and a train and said that he only had trouble in "cold weather." (Id. at 35.) He testified that he could walk about half a mile or for about an hour. (Id. at 36.) In a function report, completed in March 2013 as part of his initial application for disability benefits, he wrote that he needed a cane for walking long distances, that he could walk about eight blocks before he needed to stop and rest, and that he could only walk for twenty to thirty minutes. (Id. at 112.) He also wrote that he could not sit still for long periods of time; would get winded climbing stairs; and was unable to kneel, squat, or fully bend. (Id. at 111.) He testified that he did not engage in many social activities and that he preferred to read. (Id. at 35.) In his function report, he wrote that he would meet daily in groups, and helped cook and prepare meals at the treatment center. (Id. at 110.) He tried to go to church twice a week. (Id.)

2. Medical Evidence
a. Sandra Brown-Truter, N.P.

The record contains notes from Phoenix House for two physical examinations by Nurse Practitioner Sandra Brown-Truter ("NP Brown-Truter"). (Id. at 146-47, 168-69.) The first examination notes, dated August 20, 2012, indicated that Riddick's current complaints were hippain and insomnia. (Id. at 146.) NP Brown-Truter listed three current medications: 25mg daily of hydrochlorothiazide, for high blood pressure; 150mg of Zantac twice a day, for acid reflux; and 15mg daily of Mobic daily, an NSAID (non-narcotic) pain reliever.1 (Id. at 147.) She indicated that Riddick's last PPD test, for tuberculosis, was negative. (Id.) After a review of his systems, she wrote that he had occasional chest pain and right hip pain. (Id.) NP Brown-Truter placed a mark next to each of the following activities, although it is unclear2 whether she intended to indicate that Riddick had limitations in them: walking, stooping, reaching, standing, pulling, lifting, pushing, kneeling; working inside and outside; working in either humid, dry, or dusty conditions; or working in sudden temperature changes. (Id. at 149.) At the end of the physical, she recommended that Riddick continue his course of medications, add 81mg of aspirin daily for his hypertension, take Benadryl for his insomnia, and consider stop smoking. (Id.)

The second examination notes were taken just three weeks later, on September 4, 2013. (Id. at 171.) NP Brown-Truter wrote that Riddick was "awaiting ortho appointment." (Id. at 168.) His current complaint was "hip pain." (Id.) She wrote "see med sheet" for a list of current medications, but the "med sheet" is not included in the record. (Id.) She again indicated that Riddick was experiencing right hip pain. (Id. at 169.) NP Brown-Truter recommended that Riddick continue his current medication for hypertension, cease smoking, and see an orthopedic specialist for his hip pain. (Id. at 171.)

b. Jamaica Hospital Medical Center

The record contains the results of five radiology examinations performed between November 2010 and March 2011: MRI's in December 2010 and March 2011, an upper GI seriesin December 2010, and chest x-rays in November 2010 and March 2011. (Id. at 140-44, 182-87.) The x-rays and GI series were normal. (Id. at 144, 184, 187.) The MRI on December 6, 2010 indicated an abnormality on Riddick's left femoral head which raised the possibility avascular necrosis—bone tissue death caused by a lack of blood supply, which can lead to tiny breaks in the bone and the bone's eventual collapse3—although the "femoral head contour [was] maintained." (Id. at 185) The MRI also revealed "moderate degenerative changes of the hips," the formation of osteophytes, joint...

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