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Crow v. Colvin

United States District Court, D. Rhode Island

August 13, 2014

DAVID L. CROW, Plaintiff,


PATRICIA A. SULLIVAN, Magistrate Judge.

Pro se Plaintiff David L. Crow claims that he has been disabled for eight years as a result of a heart attack suffered when he was only forty-four years old, which was closely followed by a bleeding ulcer linked to medication prescribed to prevent further heart issues. This matter is before the Court on his motion for reversal of the decision of the Commissioner of Social Security (the "Commissioner"), denying Supplemental Security Income ("SSI") under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (the "Act").

Plaintiff was represented by counsel throughout the administrative process below, but is proceeding pro se before this Court. He contends that the decision of the Administrative Law Judge ("ALJ") was infected by errors of law and not supported by substantial evidence. Specifically, Plaintiff argues that the ALJ failed adequately to consider the side effects of his medications and the pain in his knees and back, inappropriately focused on his alcohol intake and failure to file tax returns and failed to consult a medical expert at the administrative hearing. Based on these arguments, he now seeks to reverse the decision of the Commissioner. The Acting Commissioner, Carolyn W. Colvin, has filed a motion for an order affirming her decision.

With the parties' consent, this case has been referred to me for all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Because I find that the decision of the Commissioner that Plaintiff is not disabled is legally correct and well supported by substantial evidence, I order that Plaintiff's Motion for Reversal (ECF No. 16) be DENIED and the Commissioner's Motion for Order Affirming the Decision of the Commissioner (ECF No. 17) be GRANTED.

I. Background Facts

Plaintiff was born in 1961; he was forty-four on December 9, 2005, which is the date both of his heart attack and the alleged onset of disability. Tr. 108, 249. After completing high school and attending one year of college, Tr. 134, he served in the Army on a gunnery crew in a non-combatant setting. Tr. 33, 398. The record does not reveal when he was discharged from the Army or what work he did after the Army until 1994. From 1994 until the heart attack in 2005, he claims to have worked continuously and full-time as a self-employed carpenter. Tr. 130. Since December 2005, he reports that he has not worked. Tr. 129. He lives with his mother, who supports him financially, while he assists in caring for her. Tr. 33, 37, 138.

Plaintiff's reported earnings after 1994 are largely inconsistent with his averment in his application that he worked full-time as a self-employed carpenter until the heart attack. Records show reported annual income for the prior period, from 1980 (the first date for which records were requested) through 1991, of between $597 and $12, 201.16. Tr. 117. However, from 1992 through 2001 and from 2003 through 2005, he had no reported income whatsoever; anomalously, in one year over this thirteen year period (2002), he reported that he earned $20, 028. Id . When the ALJ questioned him about this inconsistency, Plaintiff testified that, despite his self-employed status, he had been advised by the Internal Revenue Service ("IRS"), "[d]on't bother filing anymore if you don't make enough to file." Tr. 34-35.

Plaintiff's 2005 heart attack was serious. It was treated with angioplasty and stent placement, as well as medication, including the blood thinner, Plavix. With this treatment, by July 2006, Plaintiff was generally doing well and not experiencing any symptoms of angina. Tr. 381-83. However, a year after the heart attack, in December 2006, he was hospitalized again for gastrointestinal bleeding due to a gastric ulcer. The ulcer was linked to his use of Plavix, which was discontinued. Tr. 281-82. At a follow-up appointment in March 2007, his cardiac condition was stable, with no angina, and his EKG was essentially normal; he reported only that he "does feel a little tired." Tr. 380.

Less serious is Plaintiff's issue with breathing, apparently linked to smoking, which is reflected in a diagnosis of chronic obstructive pulmonary disease ("COPD"). Tr. 226. His check-ups consistently reflect that his shortness of breath remained stable during the relevant period and was linked as much to deconditioning as to COPD; there is no evidence of extensive pulmonary evaluation. The only treatment of a COPD-related issue occurred in March 2008, when he was seen in the emergency room for acute bronchitis that was causing a severe cough resulting in pain in a rib that he claims was fractured while he was in the Army. ECF No. 16 at 1. However, Plaintiff was discharged the same day with cough medication. Tr. 385. No follow-up treatment or medication for COPD, back or rib pain was recommended. After significant pressure from medical providers, in 2010, Plaintiff stopped smoking. Tr. 167, 200, 400. He is prescribed ventolin to use as needed for COPD. Tr. 455.

Overall, Plaintiff's treatment records, which are primarily from the Veterans Administration ("VA") facility in Providence, Rhode Island, do not evidence any work-related limitations, except for a ban on strenuous exercise (like shoveling snow). Id . Apart from his complaint that he feels tired, they largely reflect an absence of pain[1]or shortness of breath and no concerns with activities of daily living or functional issues; to the contrary, they demonstrate that Plaintiff has the ability to walk up at least one flight of stairs, mow the lawn, work in a small garden, ride a bike for thirty minutes and walk the dog. Tr. 183, 190, 200, 214, 231. His SSI application added the activities of vacuuming, cleaning, meal preparation and grocery shopping.[2] Tr. 138-40. While his health providers observe that Plaintiff had not been working, none has opined that he cannot work. See, e.g., Tr. 183 ("[z]ero activity"); 380 ("not getting a whole lot of exercise and he has not been working"). In the months leading up to the hearing before the ALJ, both an EKG and a stress test produced normal results. Tr. 428, 431, 438-40.

After his cardiac status and the related ulcer stabilized in 2006 and 2007 respectively, the health issues that dominate Plaintiff's medical treatment relate largely to life-style and behavior - Plaintiff's providers repeatedly advise that his diet, lack of appropriate exercise, use of tobacco and alcohol consumption all pose serious risk of future health catastrophes, though no provider has opined that any of them is currently affecting his ability to function. His medical records reflect the diagnoses linked to these behaviors COPD, hyperlipidemia, abnormal liver function tests, tobacco use disorder and alcohol dependence. Tr. 226. The record also reflects that, over time and despite much resistance, Plaintiff has gradually improved somewhat in that he finally quit smoking in 2010, pays more attention to nutrition, has tried to cut back on beer drinking and exercises by walking the dog and riding his bike. Tr. 141, 191, 195-96, 398, 406, 422.

Plaintiff's long-standing alcohol dependence appears to be the most troubling of these problems. His providers have linked it both to his abnormal liver function level and cholesterol results[3]and have repeatedly warned that continued alcohol use could lead to heart attack and stroke resulting in death. Tr. 406. At virtually every appointment with his treating team at the VA, alcohol consumption was discussed. While Plaintiff has generally agreed to try to reduce his beer intake, he has consistently refused to strive for abstinence. Tr. 194, 400, 406. He consistently declined AA, detoxification treatment or counseling. Tr. 194, 422. Over the period covered by the medical records, Plaintiff typically reported to medical providers that he regularly drank between two and ten beers per day, with a peak report of four to twelve per day in September 2009. Tr. 207. In 2009 and 2010, the records reflect his claim that he had cut back significantly so that he was no longer drinking daily, and when he drank, he limited his intake to two to four beers a day. Tr. 185, 196-97. However, in November 2010, his treating physician noted that he "continues to drink heavily;" at the appointment prior to the ALJ hearing, her notes indicate that he told her he was drinking "2-10 beers a day." Tr. 398, 406. She advised that he would require detoxification to stop drinking. Tr. 400-01. Importantly, a mental health evaluation performed in April 2010 reflects that alcohol dependence is Plaintiff's only mental impairment. Tr. 410-22.

As of the hearing, Plaintiff was taking five prescription medications a blood pressure medication (amlodipine), a second medication for blood pressure and heart issues (metoprolol), a statin to reduce cholesterol (rosuvastatin), ventolin as needed for COPD and nitroglycerin as needed for chest pain, in addition to aspirin, fish oil and a multivitamin. Tr. 404, 455. During the VA appointment with his treating physician immediately prior to the hearing, the potential side effects from these medications were discussed but no concerns or changes were noted. Tr. 401. Plaintiff presented no new symptoms with respect to cardiovascular disease and no change in exercise tolerance. Tr. 400. No physical limitations were noted, although the familiar mantra about the extreme risk of continued alcohol consumption was repeated "advised to quit etoh - discussed would need detox, not motivated at this time." Id . There is a reference to knee complaints, [4] but Plaintiff declined a referral to an orthopedic physician for a baseline evaluation of his knee; no medication or other intervention is reflected. Id . A stress test performed soon after, in July 2011, showed normal cardiac function, confirming that his heart condition remained stable. Tr. 431, 437-38. At the hearing, Plaintiff testified that he takes an over-the-counter analgesic if he feels pain. Tr. 42.

In connection with his pending SSI application, in March 2010, Plaintiff was sent to agency physician, Dr. John McCaffrey, for a consultative examination, as well as to Rhode Island Medical Imaging for a chest x-ray and to Newport Hospital for an EKG. Tr. 164-67. Dr. McCaffrey acknowledged that Plaintiff suffers from shortness of breath, "but this is mainly secondary to being out of shape;" he observed that Plaintiff did not appear to be short of breath after his climb of the stairs to the office for the appointment. Tr. 166. Dr. McCaffrey's findings on physical examination were all normal. Tr. 167. Based on his examination and review of the available medical history, Dr. McCaffrey opined that Plaintiff's cardiac condition appeared to be stable, but that he could not return to his prior work as a carpenter due to the amount of climbing, carrying, stooping and squatting involved. Id . The EKG and chest x-ray performed at the same time were both normal. Tr. 164-65.

Based on Plaintiff's medical history, [5]Dr. McCaffrey's consultative examination and related test results, in April 2010, agency physician Dr. Edward Hanna prepared an assessment of Plaintiff's physical residual functional capacity ("RFC"). Tr. 168-75. Dr. Hanna concluded that Plaintiff is limited in his ability to lift more than ten pounds though he could occasionally lift twenty pounds, is limited in his ability to stand, walk or sit for more than six hours, and only occasionally is able to climb, stoop, kneel, crouch or crawl, taking his deconditioning into consideration. Tr. 169-70. Agency physician Dr. Henry Laurelli performed a second review and concurred in Dr. Hanna's assessment. Tr. 245. Apart from Drs. McCafferty, Hanna and Laurelli, there is no opinion evidence in the record regarding Plaintiff's limitations or RFC.

II. Travel of the Case

In October 2009, with the assistance of counsel, Plaintiff applied for SSI, claiming that he had become disabled in December 2005. Tr. 108. After his application was denied initially and on reconsideration, he sought a hearing before an ALJ. Tr. 57-59, 66-71. At the hearing on October 4, 2011, still represented by counsel, Plaintiff testified, as did a vocational expert. Tr. 29-53. No medical expert was called, nor did Plaintiff's attorney suggest that one was needed. On October 28, 2011, the ALJ denied Plaintiff's application for benefits. Tr. 12-26; see also Tr. 27-54. On November 20, 2012, the Appeals Council denied his request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 5-9. Plaintiff filed a timely appeal bringing the matter to this Court.

III. The ALJ's Hearing and Decision

At the administrative hearing, Plaintiff's counsel argued that he was claiming to be disabled based on the heart attack, his high blood pressure and shortness of breath. She asserted that Plaintiff's alcohol dependence is not material either to COPD or heart disease. Tr. 32.

Plaintiff testified that, based on his physical restraints and "doctor's orders, "[6]he cannot work because he cannot lift more than forty-five pounds, he gets dizzy if he stands up too fast, he is "sleepy, " "tired" and "ache[s], " he has trick knees that could give out, he had a broken rib that now aches when he sneezes and he cannot stand for prolonged periods. Tr. 37. He stated he is basically idle during the day, but might do a little gardening or yard work, vacuuming, cooking and shopping; once in a while, he goes out with a working friend to help out with tasks like turning a valve or anchoring a ladder, but does not do strenuous work himself and is not paid. Tr. 36, 39, 43-44. He watches television, reads the newspaper and an occasional magazine, and does crossword and Sudoku puzzles. Tr. 40. While knee and back pain affects his ability to sit "[n]ow and then, " he has never been treated for either and uses only over-the-counter medication. Tr. 41-42. He believes that his medications make him tired and interfere with sleep. Tr. 38, 42. During his testimony, he insisted that he drinks no more than two beers a day and that the contemporaneous VA reference to two to ten beers a day was an error by a nurse, although he conceded the same notation is accurate in reflecting that his treating physician advised that he would require detoxification to achieve sobriety. Tr. 46-47. He downplayed the seriousness of this advice, testifying that he told his doctor that he would not stop his one beer per day and that she said that would be "okay." Tr. 48.

The other witness at the hearing was Edmund Colandra, the vocational expert. Consistent with Dr. Hanna's RFC assessment, the ALJ posed a hypothetical that asked Mr. Colandra to assume

[A] hypothetical Claimant... with a residual functional capacity for work generally at the light exertional level limited by inability to climb or work on ladders, ropes, scaffolding. Not more than occasional climbing of ramps or stairs, stooping, kneeling, crouching, or crawling. [He] would not be able to work where he would be exposed to cold temperature extremes or where he would be exposed to unprotected heights, dangerous moving machinery, or driving automotive equipment on the job.

Tr. 49. Mr. Colandra testified that such an individual would not be able to do Plaintiff's past work as a carpenter, but should be able to do various semi-skilled occupations such as quality control inspector and sales clerk (in hardware stores and tool departments of larger stores), to which his prior skills could transfer, as well as unskilled occupations such as small parts assembler, cashier and mail clerk. Tr. 50-51. In addition, for the period prior to Plaintiff's fiftieth birthday, he could perform the occupations of security surveillance monitor, bench hand and jewelry stringer. Tr. 52.

In his decision, at Step One of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since at least September 15, 2009, the date he protectively filed his application. Tr. 17. At Step Two, the ALJ examined all of the medical evidence beginning with the heart attack in 2005 and found that Plaintiff has the severe impairment of coronary artery disease status post a myocardial infarction, but that, at Step Three, it does not meet or equal the criteria for any cardiovascular listing. Tr. 17-19. At Step Four, mindful that Plaintiff's cardiac condition had been stable since 2006, and that no other severe impairment affects his RFC, the ALJ made an RFC finding that is consistent with both Dr. Hanna's RFC assessment and Dr. McCafferty's examination report

[Plaintiff] has had the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except for the nonexertional limitations of inability to climb ropes/ladders/scaffolds, of inability to engage in climbing of stairs/ramps, balancing, stooping, crouching or crawling and of the need to avoid exposure to cold or work-place hazards (20 CFR 416.945 and SSR 96-8p).

Tr. 19-21. Based on this RFC finding, the ALJ found that Plaintiff cannot do his past work as a carpenter. Tr. 21. At Step Five, in reliance on the testimony of the vocational expert, the ALJ found that Plaintiff can do a significant number of semi-skilled jobs as a quality control inspector and a sales clerk for a tools/hardware business and a significant number of unskilled jobs as a small parts assembler, cashier and mail clerk. Tr. 22-23 n.7. Accordingly, the ALJ found that Plaintiff has not established that ...

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