Distefano v. Berryhill

363 F.Supp.3d 453

Gregory DISTEFANO, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

18 Civ. 721 (GWG)

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

Signed March 27, 2019

Scott R. Goldstein, Ouimette, Goldstein & Andrews, L.L.P., Middletown, NY, for Plaintiff

Allison Rovner, United States Attorney's Office, New York, NY, for Defendant

OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Gregory Distefano brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Acting Commissioner of Social Security (the "Commissioner") denying his claim for disability benefits and Supplemental Security Income under the Social Security Act (the "Act"). Both Distefano and the Commissioner have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, the Commissioner's motion is granted and Distefano's motion is denied.

I. BACKGROUND

A. Procedural History

Distefano filed applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on August 12, 2014, alleging a disability onset date of October 2, 2008. See Certified Administrative Record, filed May 9, 2018 (Docket # 11) ("R."), at 198-99, 260-72. The Social Security Administration ("SSA") denied Distefano's applications on November 4, 2014. R. 201-07. Distefano then requested a hearing before an administrative law judge ("ALJ") to review the denial. R. 210-11. Distefano was represented by his attorney at a hearing before an ALJ, which occurred on December 2, 2016. R. 49-134. In a decision dated January 11, 2017, the ALJ found that Distefano was not disabled within the meaning of the Act. R. 24-42. Distefano requested that the Appeals Council review the ALJ's decision, R. 15-16, and on November 24, 2017, the Appeals Council denied Distefano's request for review of the ALJ's decision, R. 1-4. That made the ALJ's decision the final decision of the Commissioner. This action followed. See Complaint, filed Jan. 26, 2018 (Docket # 1).

B. The Hearing Before the ALJ

Distefano's hearing before ALJ Robert Gonzalez occurred on December 2, 2016, in White Plains, New York. R. 49. At the hearing, Distefano gave testimony and was represented by his attorney, William Chellis. R. 49, 200. Also present and testifying were Distefano's mother, and a vocational expert, Esperanza DiStefano, who was not related to the claimant. R. 49, 120, 417-18. Before testimony was taken, the ALJ granted Distefano's application to amend the disability onset date to January 26, 2012. R. 54-55.

1. Distefano

Distefano testified that he was 41 years old and had received a bachelor's degree from Middle Tennessee State University ("MTSU"), where he majored in "recording industry," which means "music production, sound engineering, and music business." R. 56-57. He is 5 feet 7.5 inches tall and weighs around 350 pounds. R. 61. While a student at MTSU, Distefano did not have any accommodations "for testing, or for schooling, or for note taking." R. 68. He graduated with a GPA of 2.9998. R. 68. Distefano was living with his mother at the time of the hearing. R. 68-69.

Distefano testified regarding his then-current part-time employment. He had been working as a union stagehand at an outdoor performing arts center in Bethel, New York ("Bethel Woods"). R. 57-58, 59. The work is seasonal, as the venue is only open from May/June to September. R. 58. He had worked that past summer. R. 62. As a stagehand at Bethel Woods, Distefano works as part of a crew assisting in setting up microphone stands, plugging in microphone cables, assisting with parts of concert production, putting up speakers, assembling video walls, hooking up cables to amplifier racks, and helping run cables. R. 59. He does not, however, "do any rigging," and he is never "on any ladders." R. 59, 60. The work generally consists of five hours of setting up and four hours of dismantling and packing up the equipment. R. 60. There are certain, more senior, union positions that Distefano cannot perform because of problems with his feet due to diabetes, which causes nerve pain. R. 61. This pain is caused "primarily" from Distefano "being on [his] feet," but he can generally carry items, with the help of others, weighing "between 30 to 80" pounds, though Distefano noted this was a "wild estimation." R. 61. Additionally, Distefano stated that, during Summer 2016, he only worked "14 out of 27" shows because of his foot pain, diabetes, and the side effects of his blood pressure medication Cinapro, which causes dizziness. R. 62-63. He cannot work an event with a "three or four-day run," R. 62, because he cannot work the consecutive days without taking a day off in between, R. 63.

Distefano testified further to his medications and their side effects: he takes "about 14 pills a day." R. 63. Besides taking Cinapro for high blood pressure, he also takes Metformin for diabetes, which sometimes causes nausea, and other diabetes medications. R. 63-64. Distefano also takes medication for cholesterol, atrial fibrillation, anxiety, and depression. R. 64. Dr. Schild, Distefano's physician, had been prescribing psychotropic medications including Lexapro and Buspar. R. 76. Distefano has anxiety, sometimes resulting in panic attacks. R. 76-77. In addition to taking medication, Distefano deals with his anxiety by trying to calm himself down. R. 77. The only "minute" side effect from these drugs was some weight gain. R. 76. Distefano stated that although his anxiety medication does the "best that it can," he still cannot drive on highways and at night. R. 80. He was hospitalized for pneumonia in San Diego, where he was visiting his brother, and for atrial fibrillation complications in approximately 2011. R. 74-75. The atrial fibrillation complications usually occur after Distefano experiences a head cold or a "bad sinus infection," or allergy complications. R. 75-76.

Distefano has had other part-time jobs. He worked at a ShopRite for a number of weeks in June 2013, but left due to his conflicting work schedule at Bethel Woods, and because the union job at Bethel Woods paid more. R. 73-74, 82-83; see R. 538. Duties at ShopRite consisted of restocking shelves and checking shelves for expired items. R. 74. The shift was "basically midnight to 7:00 a.m." R. 74. Distefano has looked for other work as well. For example, he applied to work at Best Buy and GameStop in the past, and since 2012, Distefano stated that he had applied to "[q]uite a bit" of employers in his search for work — "at least 20." R. 78-79. He had one interview at RadioShack, but believed the interviewer questioned why an individual with a college degree would want to work at RadioShack. R. 79. In other words: "they look at me, and, you know, like I have two heads, like why are you going to take this $ 8.50 minimum wage job, you know, at your age when you have a Bachelor's Degree." R. 79. Distefano previously worked as a stage manager for a country club around 2007. R. 91-92.

Distefano also testified as to his daily activities and hobbies. He sometimes helps a musician friend out with setting the friend's equipment up, whether it be to record music, or to play at a local tavern, bar, or "open mike" night. R. 64-66. However, this only happens "once or twice every couple months." R. 65. Distefano himself "dabble[s] with guitar," but is "not very good." R. 67. Distefano drives a car, but only on local roads because of his "very huge anxiety of driving on the highway." R. 67. He testified to driving recently to get breakfast at Dunkin' Donuts, go to the post office, and run errands for his mother. R. 67. Typically, while his mother is away at work, Distefano makes himself breakfast, takes his medication, and does household chores including vacuuming, doing the dishes, taking out the garbage, and doing the laundry. R. 69. He also sometimes shops for his mother. R. 69. During the months when he is not working at Bethel Woods, Distefano plays video games on his Xbox console, uses his computer and laptop, watches videos on YouTube, listens to music, and watches television. R. 77. He has "tried" looking for work, and had been working with the New York State Office for People With Developmental Disabilities ("OPWDD"), an agency which was helping him look for work. R. 77, 87. Distefano does "some" yoga so he is not "housebound so much." R. 77.

As for social relationships, Distefano stated that he has "a couple" friends he socializes with, but it is difficult to see them in part because his mother uses the car to drive to work. R. 69. However, he stated: "there are times ... when I'm feeling comfortable, and the anxiety isn't at an all-time high, I'm feeling kind of okay, I will go out with my friends and go to a concert, or go out to a movie, or something like that." R. 69-70. In 2014 or 2015, he drove with a friend to Massachusetts to attend a concert, and he sometimes attends the concerts that he helps set up as a stagehand. R. 70-71. He has visited his brother in San Diego by airplane, usually "during the holidays," around six to eight times since 2012. R. 71-72.

Distefano then gave testimony in response to his attorney's questioning. R. 80-91. As to his work at Bethel Woods, Distefano confirmed that he would not be able to "work [a] full shift continuously for nine hours, or eight hours, or even seven hours." R. 82. As to the panic attacks, he stated that they "come and go whenever," and that the attacks result in "a feeling that comes on that's very overwhelming, and then I start to sweat, my hand sometimes shakes ...." R. 83. Vested, a rehabilitation agency, helped Distefano apply for jobs, and although he went on interviews and achieved "excellent" assessment tests, he was "the only one out of all the people they had who wasn't able to get a job." R. 86-87. Distefano expressed that although he "push[ed] through" in college,...