Suarez v. Colvin

• Decision Date: 06 May 2015
• Docket Number: No. 14 CIV. 6505AJP.,14 CIV. 6505AJP.
• Citation: 102 F.Supp.3d 552
• Parties: Joseph SUAREZ, Plaintiff, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

102 F.Supp.3d 552

Joseph SUAREZ, Plaintiff,

v.Carolyn W. COLVIN, Commissioner of Social Security, Defendant.

No. 14 CIV. 6505AJP.

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

Signed May 6, 2015.

Alexandra Michalowicz, Sullivan & Kehoe, LLP, Kings Park, NY, for Plaintiff.

John E. Gura, Jr., New York, NY, for Defendant.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Joseph Suarez, represented by counsel (Sullivan & Kehoe), brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) denying him Social Security disability insurance benefits (“DIB”). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 15: Suarez Motion for Judgment on the Pleadings; Dkt. No. 18: Gov't Motion for Judgment on the Pleadings.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 14: Consent Form.)

For the reasons set forth below, the Commissioner's motion (Dkt. No. 18) is GRANTEDand Suarez's motion (Dkt. No. 15) is DENIED.

FACTS

Suarez applied for DIB on April 9, 2010, alleging disability since March 1, 2010. (Dkt. No. 6: Administrative Record (“R.”) 308–12.) After the Commissioner denied Suarez's application on initial review (R. 139–40, 160–64), Suarez requested a hearing (R. 168–70). On January 26, 2011, Suarez appeared before ALJ Lucian Vecchio. (R. 91–107.) On February 25, 2011, ALJ Vecchio denied Suarez's DIB application, finding that Suarez could perform light work. (R. 140–51.) Suarez appealed ALJ Vecchio's decision, and on May 3, 2012, the Appeals Council ordered reconsideration of the nature of Suarez's mental impairments, his maximum residual functional capacity (“RFC”) and testimony from a vocational expert. (R. 155–58.)

On October 25, 2012, ALJ Jack Russak held a hearing, but adjourned it to further develop the record and obtain consultative examination reports. (R. 82–90.) On March 21, 2013, ALJ Russak held another hearing at which Suarez appeared with counsel. (R. 108–38.) On April 12, 2013, ALJ Russak denied Suarez's application for DIB benefits. (R. 59–81.) Suarez appealed ALJ Russak's decision, and on June 23, 2014, the Appeals Council denied review. (R. 1–6.)

The period at issue is from March 1, 2010, when Suarez alleged he first became disabled, through April 12, 2013, the date of ALJ Russak's opinion. (R. 76.)

Suarez's Testimony & Non–Medical Evidence

Joseph Suarez, born on November 8, 1961 in Puerto Rico, was 51 at the time of ALJ Russak's decision. (R. 95, 308, 335.)

Suarez completed the fourth grade while living in Puerto Rico, came to the United States when he was seventeen or eighteen and obtained a vocational high school diploma. (R. 95, 97, 116–17.) Suarez can speak and read English. (R. 118, 804, 810.) He lives with his girlfriend in a street level apartment. (R. 113.)

Prior to the onset of his alleged disability, Suarez worked as a pump mechanic from October 2009 through March 2010 and as an electrician from July 2008 through October 2009. (R. 355–57.) Suarez initially claimed that he left his work as a pump mechanic after being laid off for excessive absences due to injuries (R. 95), but subsequently testified that he quit because his back could not take the work any more (R. 118).

In support of his DIB claim, Suarez reported having difficult with lifting, sitting, standing, walking, squatting, kneeling, climbing stairs, reaching and using his hands. (R. 343.) He also reported problems with self-care activities like dressing, putting on his shoes and doing household chores. (R. 339–41.) Suarez is able to use public transportation. (R. 341.)

At his initial January 26, 2011 hearing, Suarez testified that he could not work due to his back pain causing problems with sitting, standing and walking. (R. 96, 98–99.) Suarez also testified that because of difficulty with reading and spelling, he could not do less physically demanding jobs. (R. 97.) He also alleged that he was disabled due to fatigue from his hepatitis Cand stated that since 2006, depression had affected his ability to concentrate or remember. (R. 99100.) Suarez admitted to past drug and alcohol problems, although he stated that he stopped abusing these substances in 2006 or 2008. (R. 101.) Suarez was able to go to medical appointments and church. (R. 98.)

At his March 21, 2013 hearing, Suarez again complained of back pain and depression. (R. 120–22, 125.) He testified that his back pain meant that he had difficulty taking care of personal grooming needs, like putting on his socks or stepping into and out of the shower. (R. 113–14.) Suarez testified that he was supposed to use a cane, but he did not have the cane and was able to come to the hearing alone by subway. (R. 113–14.) Although Suarez has a “bad liver,” it does not cause him physical pain. (R. 121–22.) Suarez testified that he can only walk three or four steps before needing to take a five or ten minute break. (R. 123.) His girlfriend does the cooking and the shopping for both of them. (R. 123.) Suarez occasionally cleans the dishes, but his girlfriend does the other chores. (R. 124.) Suarez testified that that he ceased drug and alcohol use in 2008. (R. 126.)

Medical Evidence Before ALJ Russak

Prior To March 2010

An October 1, 2004 x-ray of Suarez's lumbar spine showed minimal degenerative changes and minimal wedging of some upper bodies. (R. 411, 413.) On October 4, 2004, Dr. Meena Tamhankar of Castle Hill Medical diagnosed Suarez with acute lumbosacral¹sprainand strain. (R. 412.)

On November 8, 2009, Suarez was admitted to Lincoln Medical and Mental Health Center in an unresponsive state after using cocaine, heroin and alcohol. (R. 476–77, 499.) He was diagnosed with hepatitis C, unspecified renal failure, heroin poisoning, and episodic cocaine abuse. (R. 476–77.) Suarez also was diagnosed with acute myocardial infarction.²(Id.) On November 9, 2009, Suarez was transferred to Bellevue Hospital. (R. 494, 499.) On November 10, 2009, he underwent an EKG, which showed no pericardial effusion,³mild left atrial dilation, mitral annular calcification,⁴mild mitral insufficiency⁵and mild tricuspid insufficiency.⁶(R. 511–12.) There was no evidence of pulmonary hypertension. (R. 512.) A November 13, 2009 cardiovascular stress testwas normal (R. 506–07), and Suarez was discharged (R. 499–500).

From March 2010 Onward

On June 7, 2010, Dr. Sharon Revan performed a consultative internal medicine exam on Suarez. (R. 523–26.) Suarez complained of overall joint pain due to arthritis. (R. 523.) He reported that standing caused back pain but that he did not have difficulty with sitting. (Id.) Suarez related that he could handle his own hygiene and cook but did not clean, do laundry or shop. (R. 524.) Dr. Revan observed that Suarez had a normal gait except for a limp on the left. (Id.) Suarez could walk on his heels and toes, and squat while holding onto something. (Id.) He did not need help getting on and off the examination table. (Id.) In his lumbar spine, Suarez had forty-five degrees of forward flexion as a result of back pain but full lateral flexion and rotation. (R. 525.) He had a full range of motion in his extremities, as well as full motor strength, no sensory deficits and normal reflexes. (Id.) Dr. Revan opined the Suarez had mild limitations walking distances and climbing stairs due to shortness of breath and unspecified limitations with standing due to his back pain. (R. 526.) Suarez had no limitations with his upper extremities for fine and gross motor activity. (Id.) Dr. Revan also found that Suarez had moderate limitations in activities of daily living secondary to his shortness of breath. (Id.) Suarez's overall prognosis was fair. (Id.)

On June 7, 2010, Suarez also underwent a consultative psychiatric examination with Dr. Dmitri Bougakov. (R. 527–30.) Suarez reported difficulty falling asleep, occasional dysphoric moods, concentration difficulties, diminished sense of pleasure, loss of interest and social withdrawal. (R. 527.) Suarez stated that he was able to cook and use public transportation. (R. 529.) Suarez reported that he was not currently receiving psychiatric treatment, but had seen a psychiatrist when he was undergoing an alcohol abuse program in 2009. (R. 527.) Suarez admitted ongoing alcohol use, although he claimed to have stopped using cocaine and heroin in 2008. (Id.)

On examination, Suarez was cooperative and related adequately. (R. 528.) He had a neutral mood, coherent thought processes, intact concentration, and average intellectual functioning but mildly impaired memory. (R. 528.) Dr. Bougakov found that Suarez was able to repeat three out of three objects immediately but only one out of three after five minutes. (Id.) Suarez was able to repeat five digits forward and two digits backward. (Id.) Dr. Bougakov diagnosed Suarez with current alcohol abuse, cocaine and heroin abusein remission and substance induced mood disorder. (R. 529.) Dr. Bougakov opined that Suarez did not present with any significant vocational difficulties aside from mild difficulties learning new tasks and performing complex tasks. (Id.) Dr. Bougakov opined that although Suarez's examination results were consistent with psychiatric and substance abuse problems, they were not significant enough to interfere with Suarez's ability to function on a daily basis. (Id.) Suarez had a guarded but fair prognosis due to his mild cognitive limitations and potentially ongoing alcohol abuse. (Id.)

On September 7, 2010, Dr. Nelson Cabagnot of Wakefield Medical Professionals completed a medical assessment form for Suarez. (R. 549–51, 553.) Dr. Cabagnot reported that Suarez had severe lower back pain and osteoarthritisin several joints. (R. 549.) Dr. Cabagnot opined that Suarez only could lift less that five pounds and...