Newell v. Colvin, 15cv07095 (PKC) (DF)

EUGENE NEWELL, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

15cv07095 (PKC) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 1, 2017

REPORT AND RECOMMENDATION

TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:

Plaintiff Eugene Newell ("Plaintiff") seeks review of the final decision of defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Defendant" or the "Commissioner"), denying Plaintiff Supplemental Security Income ("SSI") and disability insurance ("SSDI") benefits under the Social Security Act (the "Act"), on the ground that Plaintiff's impairments did not constitute a disability for purposes of the Act. Currently before this Court for a report and recommendation are Defendant's motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings affirming the Commissioner's decision (Dkt. 15), and Plaintiff's cross-motion for judgment on the pleadings reversing the Commissioner's decision, or, in the alternative, remanding the matter for a new hearing (Dkt. 19).

For the reasons set forth below, I respectfully recommend that Defendant's motion be denied and Plaintiff's cross-motion be granted, and that this case be remanded solely for the calculation and payment of benefits to Plaintiff from his alleged disability onset date of December 31, 2007.

BACKGROUND¹

Plaintiff filed applications for SSI and SSDI benefits on March 27, 2009. (R. at 135, 142, 152.) In both applications, Plaintiff alleged disability as of December 31, 2007, due to mental health issues, including depression, and chronic back, neck, and leg pain. (Id. at 176, 187.) After a lengthy procedural history - including three hearings before two administrative law judges and a stipulated remand back to the Social Security Administration ("SSA") from this Court - Administrative Law Judge ("ALJ") Robert Gonzalez issued a decision on May 28, 2015, denying Plaintiff's applications. (Id. at 424-25.) As set out in his decision, ALJ Gonzalez determined that, despite the fact that Plaintiff had certain severe impairments, Plaintiff was nonetheless able to work at jobs existing in significant numbers in the national economy, and, therefore, was not disabled for the purposes of the Act. (Id.) The decision was apparently affirmed by the Social Security Appeals Council, and thereafter became the final decision of the Commissioner.² Plaintiff now challenges the Commissioner's denial of benefits.

A. Plaintiff's Personal and Employment History

Plaintiff was born on December 14, 1961, and was 47 years old at the time that he filed his applications. (Id. at 135.) He lives in Newbergh, New York, has never been married, and hasno children. (Id. at 4-5, 136, 486.) He began taking special education classes in the third grade, and was awarded an Individualized Education Plan ("IEP") Diploma in 1981 after completing the 12th grade.³ (Id. at 19-20, 34-35, 149-50, 1127.) He reported first being able to write his name in the sixth or seventh grade. (Id. at 1127.)

Plaintiff was determined to be disabled by the SSA from April 1981 to June 1988. (Id. at 152.) The reason for that disability determination is not included in the Record. When questioned as to why he was under a disability between those dates, Plaintiff testified that he believed that his mother applied for disability benefits on his behalf because he had attended special education classes. (Id. at 19.) He admitted, however, that he was actually "not too sure" of the reason. (Id.)

From 1985 to 1999, Plaintiff worked as a cashier, stock person, and fork-lift operator at the Bradlees department store. (Id. at 167, 170.) He then worked as a cashier and shelf-stocker at Spear Brothers Lumber, a hardware store, from November 2000 to December 2006. (Id. at 167, 169, 479-82.) After leaving that job, Plaintiff worked as a cashier and deep fryer at Popeyes Louisiana Kitchen, a fast food restaurant, from January 2007 to December 31, 2007. (Id. at 167-68, 176, 483-84.) In an undated "Disability Report" that Plaintiff filed with the SSA, Plaintiff indicated that he had stopped working at that time due to "mental issues" and because his "pain was too much." (Id. at 176.) In testifying before ALJ Gonzalez, however, Plaintiff stated that he had stopped working because his Popeyes location went out of business, and he needed to take care of his mother, who had been diagnosed with cancer. (Id. at 488.) Plaintiff testified that his mother passed away from cancer in January 2009. (Id. at 20-21.)

While Plaintiff has not actually been employed since December 31, 2007 (id. at 176, 490), at some point in 2013, he apparently began delivering pizzas, on occasion, for Napoli's Family Restaurant & Pizzeria ("Napoli's"), in exchange meals from the restaurant and tips from customers (id. at 513-25, 712-13, 1136).

In terms of his daily activities, Plaintiff reported preparing "T.V. dinners" for himself, shopping while riding an "electric cart," showering once a week, doing laundry irregularly, walking around his apartment, driving, "light vacuuming," watching television, listening to the radio, and socializing with friends and family. (Id. at 158, 160, 166, 224, 227, 1125, 1138-39, 1147.) He also stated that he cleans his apartment, but that sometimes, his landlord cleans it for him. (Id. at 446.)

B. Medical Evidence

As Plaintiff reported that his disability began on December 31, 2007, the relevant period under review for Plaintiff's SSDI benefits runs from that date through December 31, 2013, the date that Plaintiff was last insured. See Swainbank v. Astrue, 356 F. App'x 545, 547 (2d Cir. 2009) (citing Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989)); see also 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.130, 404.315(a).⁴ The relevant period under review for Plaintiff's SSI benefits, however, runs from March 27, 2009, the date that Plaintiff applied forthose benefits, through May 28, 2015, the date of the ALJ's decision. See Frye v. Astrue, 485 F. App'x 484, 485 n.1 (2d Cir. 2012); see also 20 C.F.R. § 416.335.

The relevant medical evidence of record consists of treatment records and other information provided by Plaintiff's treating sources, reports of examinations conducted by a consulting psychologist, internist, and orthopedist, and opinion testimony and a report by two non-examining psychiatrists. In total, the Record in this matter is 1,957 pages.

1. Evidence Pre-Dating the Relevant Period

In July 2004, Plaintiff was injured in a motor vehicle accident. (R. at 208.) In November 2004, he visited New York Neurosurgical, complaining of neck pain and an episode in which he had felt "paralyzed" for a few minutes. (Id.) An MRI was taken, which revealed a herniated disc in Plaintiff's cervical spine. (Id. at 209.) Plaintiff underwent physical therapy and was not recommended for surgery. (Id. at 210.) In both September 2009 and January 2015, Plaintiff attributed his chronic back pain to this accident. (Id. at 1173, 1952.)

2. Evidence From the Alleged Disability Onset Date Through the Date of Plaintiff's Benefits Applications (Dec. 31, 2007 - Mar. 27, 2009)

Plaintiff has alleged a disability onset date of December 31, 2007, but has only pointed to one page of medical evidence in the 1,957-page Record from the year 2008. (See Pl. Mem., at 6 (citing R. at 220).) That one page of evidence is a progress note from the Horizon Family Medical Group ("Horizon"), dated October 30, 2008, indicating that Plaintiff had been diagnosed with depression and prescribed Zoloft. (R. at 220.) The only other piece of 2008 evidence that this Court has located in the Record is an April 2008 progress note from Horizon regarding Plaintiff's complaints of a headache, foot pain, congestion, and cough. (Id. at 221.) This lack of evidence appears to be the reason why Plaintiff's attorney stated at the September 24, 2010hearing that, if the ALJ did not find that Plaintiff's impairments satisfied one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"), then the "appropriate onset date" in this case would be January 2009. (Id. at 41-42.)

On January 5, 2009, Plaintiff was assessed with having anxiety and was prescribed Xanax. (Id. at 218.) On March 9, 2009, Plaintiff was assessed with suffering from a "grief reaction," and was referred for therapy. (Id. at 215.)

3. Evidence From the Date of Plaintiff's Benefits Applications Through Plaintiff's Date Last Insured (Mar. 27, 2009 - Dec. 31, 2013)

a. Consultative Psychiatric Evaluation (Leslie Helprin, Ph.D., May 21, 2009)

On May 21, 2009, psychologist Leslie Helprin, Ph.D., conducted a consultative psychiatric evaluation of Plaintiff for the purposes of Plaintiff's SSA disability claims. (Id. at 222-25.) Plaintiff informed Dr. Helprin that he was unable to work due to "depression and [an] adjustment disorder," apparently reporting a diagnosis he had received from a treating physician. (Id.)

Upon conducting a mental status examination of Plaintiff, Dr. Helprin concluded that Plaintiff was "able to follow and understand simple directions and instructions and perform simple rote tasks and some complex tasks independently, limited by cognitive limitations." (Id. at 224.) He further concluded that Plaintiff was "able to maintain attention and concentration, maintain a regular schedule, make appropriate simple decisions, relate adequately with others, and deal appropriately with stress." (Id. at 224.) Although Dr. Helprin found that the results of his examination appeared to be consistent with "some secondary emotional difficulties," he did not find Plaintiff's limitations to be significant enough to interfere with his ability to function on a daily basis. (Id.) He diagnosed Plaintiff with an "[a]djustment disorder with depressed mood,mild, episodic," and also noted his hypertension, carpal tunnel syndrome, and back and knee pain. (Id. at 224-25.) As to Plaintiff's cognitive functioning, Dr. Helprin...