Rivera v. Kijakazi

• Decision Date: 13 May 2022
• Docket Number: 21 Civ. 1193 (CS)(JCM)
• Parties: RAUL RIVERA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,[1]Defendant.
• Court: U.S. District Court — Southern District of New York

RAUL RIVERA, Plaintiff,
v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security,^[1]Defendant.

No. 21 Civ. 1193 (CS)(JCM)

United States District Court, S.D. New York

May 13, 2022

REPORT AND RECOMMENDATION

Judith C. McCarthy, United States Magistrate Judge

To the Honorable Cathy Seibel, United States District Judge

Plaintiff Raul Rivera (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied Plaintiff's application for disability insurance benefits. (Docket Nos. 1, 10). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 20), and (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 24). For the reasons set forth herein, the Court respectfully recommends denying Plaintiff's motion and granting the Commissioner's cross-motion.

I. BACKGROUND

Plaintiff applied for Title II Social Security Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) under the Social Security Act (“Act”) on June

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29, 2017,^[2] alleging a disability onset date of October 15, 2014.^[3] (R.^[4] 131,^[5] 416). Plaintiff's application was initially denied on November 8, 2017, (R. 160-67), after which Plaintiff requested a hearing, (R. 168-69). Hearings were held on May 20, 2019 and March 9, 2020. (R. 42, 75). Administrative Law Judge (“ALJ”) David Suna (“ALJ Suna”) issued a decision on April 29, 2020, denying Plaintiff's claim. (R. 10-33). Plaintiff requested review by the Appeals Council, which declined on December 15, 2020, (R. 1-6), making the ALJ's decision ripe for review.

A. Non-Medical Evidence

Born on June 10, 1966, (R. 80), Plaintiff was only six years old when he witnessed his family's murder in a home invasion, (R. 740, 766, 833, 1231). After entering the foster care system, he was molested and raped. (R. 740, 1231). Plaintiff attended “special education classes,” (R. 734, 741, 832), until he dropped out of school after seventh grade, (R. 83-84, 741).

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He reports continued difficulty in reading and writing, (R. 728, 737). Plaintiff also began abusing tobacco, alcohol, marijuana, and heroin when he was fifteen years old, (R. 838, 1231), which lead to several arrests, (R. 84, 833), and many years in prison, where he was “sexually abused by other inmates,” (R. 70, 1018). Since then, Plaintiff married, divorced, and had children. (R. 38, 1340).

1. Plaintiff's Work History

Starting 2010, Plaintiff worked at Mercury Paint Corp. as a “general helper,” “pouring the paint in a bucket[,] passing it down,” and “carry[ing] [it] to [a] machine.” (R. 462, 472). This required him to stand, sit, and frequently lift items under ten pounds. (R. 472). In 2014, Plaintiff also worked as a “helper-cutter” at Bracci Lumber & Hardware, Inc., which required him to stand, reach, and frequently lift ten pounds. (R. 462, 470). It is not clear whether Plaintiff's work at Mercury continued concurrently with his time at Bracci, but Plaintiff attested his last day of employment was October 15, 2014. (R. 461).

Plaintiff provides two reasons for ending employment: (1) the hospital informed him he could not return to work because of injuries sustained after he was “hit by a forklift” at work, (R. 135, 461); and (2) his boss “couldn't have no more” of Plaintiff's “time outs”^[6] at work (R. 86). After 2014, Plaintiff was “on welfare,” (R. 89, 1142), working “part time training children boxing,” (R. 1142, 1500), and waiting for disability benefits, (R. 98).

2. Plaintiff's Disability Application

Plaintiff's claim for disability was based on the following alleged impairments: back pain, substance abuse and dependence, hyperlipidemia, bipolar disorder, posttraumatic stress

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disorder (“PSTD”), depression and anxiety, left knee pain, and left shoulder pain. (R. 79-80, 460).

There are two function reports in the Record. Plaintiff completed a function report on August 20, 2017, (R. 519-26), and his case manager completed one on October 17, 2017, (R. 490-97). His case manager met with Plaintiff every 45 days for a couple of hours to obtain updated treating information, medications, and documentation. (R. 490). Plaintiff reported that he enjoyed exercising, working out, reading, watching TV, socializing daily by phone, and shopping weekly. (R. 494, 520, 522, 524). Although “a friend” reminded Plaintiff to shower and would sometimes cook for him, (R. 491-92), Plaintiff was able to care for all his personal needs, (R. 521), and prepare his own meals of hot dogs, eggs, and French fries, (R. 492, 523). Although Plaintiff did not have any problems getting along with others, he did not like “being around crowds” because of his anxiety, (R. 519, 524), and he only went outside to doctor's appointments, (R. 524). Plaintiff said his back pain impacted his ability to lift and reach; his knee and ankle pain impacted his ability to sit, stand, and kneel; and he had to take time to stop and rest when walking, climbing stairs, and using his hands. (R. 495, 519). He reported that he used a cane prescribed by his doctor, and that he needed to rest for ten to thirty minutes after ten minutes of walking. (R. 495, 525). His case manager added that Plaintiff also “need[ed] to be in a low stress environment due to his anxiety,” and “need[ed] additional training time.” (R. 495). Plaintiff reported he had problems paying attention and finishing what he started. (R. 525). Although Plaintiff attested to an inability to follow written instructions, his case manager noted that he could follow written instructions “well once you explain[ed] it to him.” (R. 495, 526). Finally, the case manager described Plaintiff's employment history as limited to “low skilled,

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inconsistent” jobs “a few short weeks at a time,” and stressed that Plaintiff was unable to “perform even sedentary employment.” (R. 491).

B. Medical Evidence

Plaintiff's alleged onset date (AOD) is October 15, 2014, and the ALJ determined that Plaintiff's Date Last Insured (DLI) was December 31, 2019 (“Eligibility Period”). (R. 13). The Record contains hospital and medical records from August 2014 to February 2020, extending to both before and after the Eligibility Period. Relevant parts of the Record are summarized below.

1. Treatment Related to Mental Impairments

Plaintiff sought mental health treatment in March 2016 at Essen Medical Associates, P.C. (“Essen”) with Dr. Raphael Lopez Sanchez (“Dr. Lopez”), after Plaintiff was “feeling sad” for three months and experiencing anhedonia, low energy, poor concentration, restlessness, insomnia, and irritability. (R. 1018). He denied suicidal or homicidal ideas but had a history of suicidal attempts, reportedly resulting in admissions to a psychiatric ward seven years earlier. (Id.). His psychiatric history included prior addictions and treatments-i.e., heroin and methadone-as well as a history of sexual abuse and depression. (Id.). Evaluation revealed Plaintiff was in good physical condition-i.e., normal strength and muscle tone, normal gait and station-and good mental function-i.e., normal speech, linear and coherent thought processes, normal associations, normal thought content, fair judgment and insight, orientation to time, person, place and circumstances, no memory problems, and of average intelligence.^[7] (R. 1020). Dr. Lopez assessed Plaintiff with Major Depressive Disorder and prescribed Seroquel and mirtazapine. (Id.). Dr. Lopez increased the Seroquel prescription and referred Plaintiff to a psychologist on April 26, 2016 for depression and anxiety. (R. 1015, 1017).

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Plaintiff was prescribed risperidone for PTSD in May 2016, (R. 1014), after reporting symptoms of anxiety, isolation, agoraphobia, recalling “what happened to him,” and being “extremely paranoid,” (R. 1012). On July 5, 2016, Plaintiff reported an “agitation episode” triggered by July 4th fireworks, but also admitted he had run out of medication two days prior. (R. 1009). When compliant with medication, Plaintiff reported good sleep and no side effects, so Dr. Lopez restarted Plaintiff's medication and formally added PTSD to his assessment. (R. 1009, 1011).

On August 9, 2016, Plaintiff still experienced anxiety, frustration, restlessness, sadness, and irritability-e.g., he “snapp[ed] and lashe[d]” out when somebody misplaced his belt-but reported having a better mood generally and was able to “go back to baseline mood.” (R. 1006). He denied suicidal ideations and panic attacks, but reported that his sleep had become fragmented again because he was “getting used to the Seroquel.” (Id.). Dr. Lopez increased Plaintiff's medication dosages. (R. 1006, 1008). On September 6, 2016, Plaintiff reported no sadness but experienced nightmares every day that were waking him, leaving him “hyperarousable” and “avoidant.” (R. 1003). Dr. Lopez increased Plaintiff's dosage of gabapentin and prescribed prazosin. (R. 1003, 1005).

Sometime after September 6, 2016, Plaintiff was arrested and incarcerated. By February 2017, Plaintiff was under the supervision of the Bronx Mental Health Court, after being ordered by the court to complete an 18- to 24-month mental health and substance abuse program. (R. 876). As part of the program, Plaintiff was required to “comply with all treatment recommendations, including intensive outpatient groups” that met five times per week. (Id.). Plaintiff was referred to St. Barnabas Hospital (“St. Barnabas”) for treatment for his opiate use disorder. (R. 885). He enrolled in St. Barnabas's out-patient detox program in March 2017,

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where he followed his individualized treatment plan, (see, e.g., R. 760-64), and attended group therapy, (R. 845-60). By the time he was discharged on January 9, 2018, Plaintiff's opioid use disorder was in...