Wilson v. Colvin

• Decision Date: 02 June 2015
• Docket Number: No. 14 Civ. 9207(AJP).,14 Civ. 9207(AJP).
• Parties: Francis WILSON, Plaintiff, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

107 F.Supp.3d 387

Francis WILSON, Plaintiff,

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

No. 14 Civ. 9207(AJP).

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

Signed June 2, 2015.

Christopher James Bowes, Dr. Shoreham, NY, Richard P. Morris, Klein, Wagner & Morris, L.L.P., New York, NY, for Plaintiff.

Leslie A. Ramirez–Fisher, United States Attorney's Office, New York, NY, for Defendant.

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Francis Wilson, represented by counsel, 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 Disability Insurance Benefits ("DIB"). (Dkt. No. 2: 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. 14: Wilson Motion; Dkt. No. 18:

Gov't Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 11.)

For the reasons set forth below, Wilson's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED to the extent of remanding the case to the Commissioner for further proceedings consistent with this Opinion. The Commissioner's motion for judgment on the pleadings (Dkt. No. 18) is DENIED.

FACTS

Prior Proceedings

Wilson applied for DIB on May 22, 2012, alleging disability since January 29, 2012. (Dkt. No. 12: Administrative Record ("R.") 103.) The Social Security Administration ("SSA") initially denied Wilson's application. (R. 29–36, 51–56.) On June 10, 2013, Wilson had a hearing before Administrative Law Judge ("ALJ") Michael Friedman. (R. 39–50.) On June 27, 2013, ALJ Friedman denied Wilson's claim. (R. 16–25.) On October 10, 2014, the Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner. (R. 1–6.) The period at issue for Wilson's application runs from January 29, 2012, when Wilson alleged he became disabled, through June 27, 2013, the date of ALJ Friedman's decision. (R. 39.)

Non–Medical Evidence

Wilson was born in January 1955 and was between fifty-seven and fifty-eight years old during the period at issue. (R. 29, 103.) Wilson completed four years of college. (R. 120.) Wilson's past relevant work included over thirty-seven years of employment at the New York City Human Resources Administration, most recently as a staff analyst. (R. 42, 120.) Wilson's work included policy and planning, reports, analysis, budgeting and proofreading of documentation. (R. 42, 121.) Wilson retired on January 29, 2012. (R. 42, 119.)

Wilson is not married. (R. 104.) Wilson lives with a female friend who is a stroke victim. (R. 41, 139–40.) Wilson took public transportation to his hearing by himself, but stated "I got a seat. I was lucky." (R. 44.) Wilson's daily routine involved getting up, washing himself, and walking and caring for his two dogs. (R. 140–41.) Wilson picks up after himself if he makes a mess. (R. 47.) Wilson also puts out the garbage two times a week and goes to church on Sunday. (R. 141.) Because the grocery store is not far from his home, Wilson sometimes goes himself and sometimes has others shop for him. (R. 46.) Wilson states that he does not do "too much" cooking. (Id. ) Wilson enjoys reading and watching the television news. (R. 47.)

Although Wilson used to exercise, he gained weight while working and now has a bad back. (R. 140.) Wilson stated that he is "too big" and has "trouble fitting into clothing." (Id. ) Wilson reports having trouble bending to bathe, although he washes regularly. (Id. ) Wilson stated that "I don't do too much" because of how his pain affects his activities. (R. 141.) Wilson goes to the doctor when in pain. (Id. )

Wilson testified that he stopped working because, "Well, I had the time but I had medical problems. I had trouble standing up, getting up, my back, my legs, you know." (R. 42.) Wilson reported that he stopped working "[b]ecause of [his] condition(s)" and "[b]ecause of other reasons." (R. 119.) Wilson wrote: "My medical conditions were worsening and limiting my ability to work, and I was eligible to retire." (Id. ) Wilson indicated that his conditions did not cause him to make changes in his work activity. (Id. ) Wilson reported that he used machines, tools or equipment in his work as well as technical knowledge or skills. (R. 121.) Wilson described the physical requirements of being a staff analyst as walking for three hours, standing for two hours, sitting for two hours, stooping for one hour, and writing, typing or handling small objects for four hours in a work day. (Id. ) No lifting of more than ten pounds was required. (Id. )

Wilson reported that although his weight fluctuates, it was close to 300 pounds in June 2013. (R. 42.) At the hearing in June 2013, Wilson reported pain and discomfort in his breathing, lower back and legs. (R. 42–43.) Wilson also reported asthma and chronic obstructive pulmonary disease ("COPD") that "comes and goes." (R. 43.) Wilson reported taking medication for the pain that "[s]ometimes" helped. (R. 43.) Wilson stops to rest a little when doing tasks, and stated that heat from baths or showers "sometimes" helps. (R. 43.) Wilson usually does not stand for more than five or ten minutes at a time. (R. 43–44.) When asked how long he can sit for, Wilson stated "[s]ometimes I get up a couple minutes." (R. 44.) Wilson testified that he could walk for about five to ten minutes at a time. (Id. ) Wilson reported difficulty climbing stairs and taking the subway to and from work as a result, which was one reason for Wilson leaving his job. (R. 47–48.)

Wilson uses a nebulizer machine at home. (R. 43.) Wilson's conditions affect his sleeping, but he does not use any devices to aid in sleeping. (R. 43, 140.) Weather that is too hot or too cold affects Wilson's shortness of breath and causes his lungs to constrict. (R. 48, 142.) After Wilson's telephone interview for a disability report on May 22, 2012, the interviewer noted that Wilson "had great difficulty breathing during call, often coughing, choking and needing to take a break or drink water. He also seemed to have difficulty reaching for papers, and during call stated he was feeling ill." (R. 136.)

On August 16, 2012, Wilson completed a disability report online and reported "severe and constant low back pain" as a change that had occurred in his daily activities since his May 2012 report. (R. 153–56.)

Medical Evidence

Prior To January 2012

On October 27, 2005, Dr. Muhammed Naeem saw Wilson for a neck-related complaint. (R. 189.) Dr. Naeem described Wilson as "a pleasant, 50 year old male in no apparent distress who looks his given age, is well-developed and nourished with good attention to hygiene and body habitus [sic]." (Id. ) Dr. Naeem observed "no rales,¹ rhonchi,² wheezing, or rubs" on auscultation.³ (R. 189.) There was no cyanosis,⁴ clubbing or edema.⁵ (R. 189.) Wilson's muscles were full, symmetric and of normal tone. (Id. ) On November 19, 2005, Dr. Naeem diagnosed Wilson with an acute upper respiratory infection. (R. 190.) Auscultation showed clear lungs without rubs. (Id. )

On April 17, 2006, Dr. Naeem saw Wilson for complaints of pain in his neck and left forearm, as well as "mild to moderate" non-radiating lower back pain. (R. 192.) Dr. Naeem noted that a motor vehicle accident caused trauma to Wilson's lower back. (Id. ) Wilson's weight was 258 pounds. (Id. ) Examination results were largely unremarkable. (Id. ) Dr. Naeem ordered an MRI "of the spinal canal and contents, cervical without contrast," opined that Wilson's neck and back pains were due to the accident, and referred Wilson to neurosurgery and pain management. (Id. ) On June 15, 2006, Wilson showed no symptoms during examination. (R. 194.)

Dr. Naeem saw Wilson on December 11, 2007 for unrelated conditions; his review of Wilson's respiratory and musculoskeletal systems was normal. (R. 196.)

On January 11, 2010, Wilson went to Dr. Naeem "for evaluation of breathlessness, dyspnea,⁶ shortness of breath, tachypnea⁷ and wheezing" brought on by walking that had been ongoing for two weeks. (R. 198.) Dr. Naeem's physical examination recorded Wilson's height as six feet, one inch, with a weight of 225 pounds and body mass index ("BMI") of thirty. (Id. ) Dr. Naeem noted that Wilson was "distressed." (Id. ) Lung auscultation revealed "expiratory wheezes bilateral." (Id. ) Wilson took a spirometry⁸ test with a predicted FEV1⁹ value of 4.169 liters. (R. 186.) His pre-bronchodilator¹⁰ FEV1 was 3.245 liters, seventy-eight percent of the predicted value. (R. 186.) His post-brochodilator FEV1 was 3.112 liters, seventy-five percent of the predicted value. (Id. ) The spirometry report noted "[m]ild airway obstruction. Post bronchodilator test not improved." (R. 186, 198.) Dr. Naeem recorded Wilson's test results and opined that Wilson had dyspnea, asthma and bronchitis. (R. 198–99.)

At a February 9, 2010 follow-up evaluation with Dr. Naeem, Wilson reported that he still had shortness of breath and had not been taking his medication. (R. 200.) Wilson's physical exam results were "unchanged from previous visit," but Wilson was "in no apparent distress." (Id. ) Dr. Naeem diagnosed Wilson with dyspnea and ordered a diagnostic EKG. (Id. )

On November 29, 2010, Dr. Naeem saw Wilson again for "breathlessness, dyspnea, shortness of breath, tachypnea and wheezing" that had occurred for two weeks. (R. 201.) Dr. Naeem's review of Wilson's systems was substantially identical to his January 2010 review. (Id. ) Dr. Naeem's physical examination recorded Wilson's height as five feet, with a weight of 150 pounds and BMI of twenty-nine. (Id. )¹¹ Dr. Naeem noted that Wilson was "distressed." (Id. ) Lung auscultation revealed "expiratory wheezes bilateral." (Id. ) Wilson undertook a spirometry test. (R. 185.) Pre-bronchodilator FEV1 was unreported. (Id. ) The predicted FEV1 value was 2.777...