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August 11, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


On October 31, 2001, Pedro Castillo ("Castillo") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying Castillo's application for Supplemental Security Income ("SSI") disability benefits. Beginning on September 28, 1998, Castillo submitted applications for disability benefits related to various physical and mental ailments, including back problems, seizure disorder, arthritis, and depression. The Commissioner found that Castillo, although suffering from a severe impairment, retains the ability to do sedentary work. For the reasons that follow, the decision of the [ Page 2]

Commissioner is affirmed.


Pedro Castillo was born on September 30, 1960, in Santa Domingo, Dominican Republic and attended school there through the fourth grade. He is married and has four sons who in 2000, were all less than twelve years old. Castillo came to the United States in 1992, working as a machine operator in a staple factory located in New Jersey from 1992 to 1993. Castillo alleges that his disability began on September 28, 1998, but that his seizure disorder and physical problems began in 1993, which resulted in Castillo leaving his job at the staple factory.

Overview of Application History

Castillo's initial application on April 19, 1998, for SSI benefits was based on a seizure disorder and denied on September 21, 1998. On January 8, 1999, Castillo applied again for SSI, listing arthritis, back problems, high blood pressure and seizures. The second application was denied on April 26, 1999. June 4, 1999, Castillo requested reconsideration of his application. On October 19, 1999, the denial of benefits was confirmed. Castillo requested a hearing on November 20, 1999. On May 10, 2000, Castillo appeared and testified before Administrative Law Judge ("ALJ") Kenneth L. Scheer. On July 22, [ Page 3]

2000, the ALJ issued a finding that Castillo was not disabled at any time through the date of the decision, i.e., from the date of his first application in 1998, to the date of the hearing. On August 17, 2000, Castillo filed a request for review of the decision and on August 3, 2001, the Appeals Council denied his request for review.

Medical History

Castillo's reported medical history begins with records from 1995. Castillo first arrived at Bronx Lebanon Medical Center by ambulance on May 15, 1995, suffering from a seizure. The record states that Castillo had been previously hospitalized for seizures, and had been prescribed Dilantin. The record for May 15, 1995, indicates his Dilantin level was below the "therapeutic level".

Castillo returned to Bronx Lebanon Hospital five additional times (October 6, 1995, and March 3, March 24, April 8, 1996, and July 4, 1998) after having suffered seizures. For only one of these visits, April 8, was Castillo transported by ambulance to the hospital. On each visit, Castillo's Dilantin level was reported as being far below the therapeutic range. After Dilantin was administered at the hospital, there is no evidence of further seizure activity during Castillo's hospital stays.

Approximately two years later, on June 19, 1998, Castillo [ Page 4]

applied for SSI benefits. On July 14, 1998, Dr. Bridget Patterson-Marshall ("Marshall") examined Castillo, who complained of lower back pain and arrived with a cane. Castillo stated that his doctor had prescribed the cane to him. After further questioning he stated that he liked having the cane and had purchased it with his own money. The examination revealed nothing abnormal, although Marshall noted that "perhaps" Castillo should be on additional anti-epileptic medication. Castillo's Dilantin levels were found to be below the therapeutic range. On September 3, 1998, plaintiff had an electronencephalogram ("EEG") at Bronx Lebanon Hospital, the results of which were normal.

Castillo was examined on September 19, 1998, by state agency physician Dr. L. Marasigan ("Marasigan"). Marasigan concluded that Castillo had no external, postural, manipulative, visual or communicative limitations. Marasigan's report stated that Castillo should avoid hazardous work environments (such as work with machinery and at heights) because of his seizures. Blood work drawn on October 14, 1998, by Bronx Lebanon Hospital showed a non-therapeutic level of Dilantin. This was the latest in a series of blood tests administered since October 6, 1995 that showed that Castillo was not taking his Dilantin as prescribed. On February 4, 1999, plaintiff received a CT scan of his thoracic spine, head and lumbar spine, all of which were found to be normal. [ Page 5]

On March 9, 1999, Castillo's personal physician Dr. Luis F. Rivas ("Rivas") completed the New York State Office of Temporary and Disability Assistance medical form for the Division of Disability Determination. This is a standard form where the physician checks off the appropriate medical determination with the opportunity to add more detailed findings underneath. On this form Rivas listed Castillo's medical problems as epilepsy, elevated triglycerides, and arthritis. Rivas does not indicate frequency or limitations resulting from Castillo's seizures. At this time, Castillo's Dilantin level was just within the therapeutic range. Rivas indicated that Castillo had stated he had experienced pain for over one year in his limbs and more severe pain in his back and right elbow. The form noted that his muscle tone, gait, gross/fine manipulation, and sensory abilities were normal. Rivas rated plaintiff's motor strength at "5/5" in both the right and lower quadrants, and "3/5" in the left upper and lower quadrants. Rivas concluded that Castillo had a limited ability to lift or carry less than five pounds with respect to his right arm specifically, to stand or walk less than two hours, and to sit less than six hours in a workday.

On March 9, 1999, Castillo saw Dr. Cristina Bortuzzo ("Bortuzzo") at Diagnostic Health Services ("DHS"), a medical group in Bronx, N.Y.. She noted that his station and gait were normal and his Dilantin was within the therapeutic range. [ Page 6]

Additionally, he had no difficulty moving from a seated position, on and off the examination table. She also noted that he was able to dress and undress using both hands and arms. Bortuzzo determined that Castillo appeared to be limited in his ability to engage in repetitive physical activity such as carrying, lifting, pushing, pulling, bending, walking and standing, especially in relation to his frequent episodes of seizures. She concluded that Castillo was capable of performing fine and gross manipulation with the ability to perform light sedentary work. A radiographic examination performed for DHS on March 10, 1999, produced negative findings in both the LS spine and the chest.

On March 9, 1999, Dr. Robert Cicarell ("Cicarell"), a psychiatrist from DHS, examined Castillo after he complained about being depressed. Cicarell concluded that Castillo was neither suicidal nor homicidal and indicated that Castillo may have a dysthmyic disorder (depression) and recommended therapy.

An additional psychiatric evaluation was performed by a state agency physician on April 2, 1999. The doctor found Castillo to be markedly limited in his ability to understand, remember and carry out detailed instructions. He reported that Castillo was only moderately limited in the following areas: maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance, sustaining an ordinary routine without special [ Page 7]

supervision and working in coordination with or proximity to others without being distracted by them. Castillo was examined by Dr. Levit ("Levit"), a state agency physician, on April 21, 1999. Levit concluded that Castillo had no physical limitations, but that he should avoid environmental hazards such as heights and machines due to his seizures.

Castillo visited Rivas again on May 14, 1999, complaining of pain in his lower back, which bothered him when he stood for long periods of time. There is no record of a blood test to check Dilantin levels on this date, although Rivas continued Castillo's previous prescription of Dilantin for the seizures.

Castillo visited Bronx Lebanon Hospital on May 28, 1999, and reported that he had suffered a seizure the week before. Castillo was advised to be compliant with his medication.

On June 4, 1999, Castillo requested reconsideration of his benefits. Castillo visited Rivas on July 9, 1999, in order to have the disability determination form completed. In this report Rivas stated that Castillo has a history of seizures, and pain in his right elbow and back. Additionally, Rivas noted that Castillo reported having suffered three seizures since his last visit on May 14, 1999, and continues to have two to three seizures per month despite continued medication. Castillo's Dilantin level was solidly within the therapeutic range. Rivas added that the pain in Castillo's elbow occurs when it is flexed [ Page 8]

and that the pain in Castillo's back worsens when he walks or bends down. Rivas concluded Castillo had no loss of motion throughout his body, with the exception of some loss in his right elbow. He indicated that Castillo reported feeling depressed, with the depression occurring mostly after a seizure. Rivas did not find Castillo to have a psychiatric disorder. Rivas concluded that Castillo had a limited ability to lift or carry less than five pounds, with respect to his right arm specifically, to stand or walk less than two hours, and to sit less than six hours in a workday. Additionally, Rivas indicated that Castillo had postural limitations, although he did not elaborate on this condition.

Castillo visited Kings M.D. Medical Services ("Kings M.D.") on July 9, 1999, where Dr. Vijaya Doodi ("Doodi") examined him. Doodi found Castillo's Dilantin level to be within the therapeutic range and his cervical spine and right elbow to be normal. Doodi concluded that ...

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