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GONZALEZ v. APFEL

September 5, 2000

VINCENTE GONZALEZ, PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

OPINION

Vincente Gonzalez ("plaintiff" or "claimant") brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) challenging a final determination by the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") disability benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c), F.R. Civ. P.

BACKGROUND

Plaintiff was born in Puerto Rico in 1943, and attended school there through the third grade. (Tr. at 34, 49.)*fn1 He can neither read nor write Spanish, and he knows only a little bit of English. (Id. at 34, 81.) He moved to the continental United States in 1962. (Id. at 32.) He is married, lives with his wife and has three grown children. (Id. at 32, 43.) Plaintiff had worked in a factory for many years until around 1976, when he left and began working, sometime thereafter, as a stock clerk and cleaning person in a small grocery store or bodega.*fn2 (Id. at 34, 78, 101.) In early November, 1994, he suffered chest pains and was hospitalized at Bellevue Hospital Center ("Bellevue"). (Id. at 115.) Plaintiff's pains were ultimately determined to be non-cardiac in origin, but he did not return to work at the bodega because of unrelated ailments which limited his mobility and strength and caused pain throughout his body, particularly in his legs. (Id. at 34-39).

On November 28, 1994, plaintiff applied for SSI benefits with the Social Security Administration ("SSA"), alleging disability due to arthritis, diabetes, a hernia, poor circulation and a heart condition. (Id. at 49, 74-76.) His application was denied initially and on reconsideration. (Id. at 62, 68.) Plaintiff requested an administrative hearing which was conducted by Administrative Law Judge ("ALJ") Kenneth Levin on September 25, 1996. (Id. at 16, 71.) In a written decision dated October 25, 1996, the ALJ denied plaintiff benefits. (Id. at 22.) Plaintiff submitted a request to the SSA's Appeals Council for review of the ALJ's decision and for consideration of additional medical evidence. (Id. at 11, 233-286.) On May 21, 1998, the Appeals Council rejected the request, making the ALJ's decision the Commissioner's final decision. (Id. at 7.) Plaintiff now appeals.

I. Administrative Hearing

A. Evidence from Treating Physicians

The ALJ received into evidence medical records and reports submitted by plaintiff's physicians at Bellevue and The New York Eye and Ear Infirmary.*fn3 The evidence from Bellevue included two reports, dated January 9, 1995, (id. at 91-98), and August 26, 1996, (id. at 227-30), submitted by the hospital's Medical Records Physician in response to requests for information from the SSA. The first report indicated that plaintiff had been treated at Bellevue approximately every three months between April, 1989, and November, 1994. (Id. at 91.) It noted that plaintiff suffers pain in his left leg and had been diagnosed with non-insulin dependent (type II) diabetes mellitus,*fn4 degenerative joint disease and hypercholestremia. (Id.) It also noted that plaintiff had "recently [been] admitted for chest pain" but that a myocardial infarction, i.e., a heart attack, had been ruled out. (Id. at 92.) The report assessed plaintiff as retaining the residual functional capacity to lift and carry no more than ten pounds; stand or walk less than two hours per day; and sit, push and pull without limitation. (Id. at 95.)

The second Bellevue report stated that plaintiff had been treated at the hospital approximately every four to six weeks between April, 1989, and August, 1996. (Id. at 227.) It noted that plaintiff had a history of diabetic retinopathy,*fn5 facial weakness*fn6 and pain in his chest and lower extremities. (Id.) It also noted that "[r]ecent x-rays show mild osteoarthritis*fn7 in [plaintiff's] hips, [and] knees," (id.), and diagnosed him with diabetes, diabetic retinopathy and osteoarthritis, (id. at 230).

The two reports, prepared on government-provided forms, are accompanied by a complete set of plaintiff's Bellevue medical records. (Id. at 113-189, 231.) These records primarily comprise treatment notes and evaluations prepared by various Bellevue physicians between approximately November, 1994, and April, 1996. In particular, they include the notes and diagnoses of a physician in Bellevue's Primary Care Clinic, Dr. Contreras, who had treated plaintiff on at least thirteen occasions during this time period. (See, e.g., id. at 136, 139, 164, 167, 172-74, 177-78, 182-83, 187, 189.)

A review of plaintiff's lengthy Bellevue file reveals that he was hospitalized on November 8, 1994, for three days because of substernal chest pain. (Id. at 115-132, 134-63.) During that time he was treated by several physicians, including both Drs. Contreras and Colbert. The latter recorded a medical history which recounted that plaintiff had multiple prior Bellevue admissions, a self-reported stroke which occurred around 1988,*fn8 Bell's Palsy and high cholesterol, among other problems. (Id. at 122.) Clinical findings included decreased mobility in plaintiff's left shoulder joint and in both of his knees; decreased pulses in his left leg; and "3-4 block claudication", i.e., lameness, in his left lower extremity. (Id. at 116, 122-23, 127-29.) An Emergency Radiology physician, Dr. Brown, reported that x-rays of plaintiff's chest showed "mild peripheral vascular congestion." (Id. at 159.) Ultimately, plaintiff's physicians concluded that his chest pain was non-cardiac in origin, (id. at 116, 130), and he was discharged after being diagnosed with atypical chest pain and peripheral vascular disease ("PVD"),*fn9 (id. at 115).

Plaintiff was treated again by Dr. Contreras on November 29, 1994, and was diagnosed with PVD secondary to diabetes and hypertension. (Id. at 164.) On February 14, 1995, Dr. Contreras examined plaintiff and reported that plaintiff suffered from PVD and had poor pulses in his lower extremities, which were cold to the touch. (Id. at 172.) He noted that plaintiff's diabetes was under control because of his medication but that his claudication was "now so severe that [he is] unable to maintain activities of daily living." (Id.) Separately, Dr. Contreras wrote a note that day stating that plaintiff "has severe complications from diabetes causing him severe pain on prolonged ambulation. He is unable to walk for extended distance[s]." (Id. at 231.) Dr. Contreras also saw plaintiff on February 23, 1995, and requested a vascular surgery consultation because plaintiff's "claudication [was] unrelieved" by various medications. (Id. at 173.)

B. Evidence from Consulting Physicians

The ALJ considered evidence from two consultative physicians who examined plaintiff on the Commissioner's behalf: Dr. De Leon, who examined plaintiff on February 10, 1995, and Dr. Brook, a radiologist who took and interpreted an x-ray of plaintiff's chest. (Id. at 105, 108.) During Dr. De Leon's examination, plaintiff reported a history of hypertension, diabetes, a heart condition, daily chest pains, and arthritis in his shoulder, neck, back, hands, feet and knees. (Id. at 105.) He specifically denied ever having had a heart attack. (Id.) Dr. De Leon examined plaintiff's extremities and reported no leg edema, i.e., accumulated fluid in the leg tissues. (Id. at 106.) His assessment of plaintiff's musculoskeletal system noted that plaintiff mounted the examination table slowly; an examination of plaintiff's neck, shoulder, elbow and wrist joints was negative; plaintiff was fully able to grip and could perform both fine and gross manipulations; plaintiff had no back tenderness; and an examination of plaintiff's hips, knees and ankles was negative — there was no joint swelling or effusion, no tenderness and no limitation of motion. (Id. at 106-107.) Plaintiff's chest x-ray was also negative. (Id. at 108.) Dr. De Leon diagnosed plaintiff with controlled hypertension, diabetes, arthralgia*fn10 and atypical chest pains, among other things, and stated that his prognosis was fair. (Id. at 107.) He opined that plaintiff was "able to perform the following work related activities, sitting, no limitation, walking, standing, carrying, lifting, pushing, [and] pulling slightly limited because of arthralgia and chest pains." (Id.)

The ALJ also considered the assessments of plaintiff made by two non-examining state agency physicians, Drs. Danza and Reynolds. (Id. at 54-65, 68.) These two physicians reviewed the January 1995 Bellevue report, as well as Dr. De Leon's report, and opined that plaintiff had the residual functional capacity to occasionally lift and carry up to 20 pounds; frequently lift and carry up to ten pounds; stand, walk and sit six hours per day; and push or pull without limitation. (Id. at 55.) They also stated their belief that the residual functional capacity assessment made by ...


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