The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
Plaintiff William Baez brought this action seeking judicial
review of the finding of defendant Jo Anne Barhnart, Commissioner
of Social Security, that plaintiff is not disabled. Before the
Court are the parties' cross-motions for judgment on the
pleadings. For the reasons that follow, plaintiff's motion is
denied in its entirety and defendant's motion is granted.
The administrative record contains the following facts.
Plaintiff was born in the Dominican Republic in 1953. R. 25, 36.
He was 41 years old when he filed his applications for
Supplemental Security Income ("SSI") and Social Security
Disability ("SSD") benefits. R. 36. Previously, plaintiff had
been employed in the United States since 1977 as a parking
attendant, building superintendent, factory worker, forklift
operator, and taxi driver. R. 25, 26. In 1992 he ceased working
because of foot and ankle pain and diabetes. R. 88.
I. Administrative Proceedings
Plaintiff filed for SSI and SSD benefits on August 16, 1994. R.
36-39, 52-54. The applications were denied, as was plaintiff's
request for reconsideration. R. 40-51, 55-66. Plaintiff then
requested a hearing before an administrative law judge. R. 65.
Plaintiff was represented by counsel and testified at that first
hearing on October 3, 1995. R. 22-35. The ALJ issued a decision on October 23, 1995, finding that
plaintiff was not disabled. R. 12-16. The Appeals Council denied
plaintiff' request for review of that decision, R. 3-4, and
plaintiff commenced this action.
The parties stipulated, on May 21, 1997, to a remand of the
case to the Commissioner for further proceedings. R. 303-04. On
October 3, 1997, the Appeals Council vacated its prior action,
granted plaintiff's request for review, and remanded the case to
an ALJ, because of the failure of the ALJ to consider the timely
submitted report of a new treating physician, Dr. Roger Antoine.
The second hearing was held on January 9, 1998. R. 264.
Plaintiff, again represented by counsel, appeared and testified,
as did a medical expert, Dr. Plotz,*fn1 and a vocational
expert, Ms. Jonas. R. 264-302. The ALJ, in a decision dated March
28, 1998, found that Plaintiff was not disabled at any time
through that date. R. 255-61. The Appeals Council denied
plaintiff's request for review, and the ALJ's decision thus
became final. R. 212-13.
II. Claimant's Testimony and Work History
At various times, plaintiff described the physical requirements
that his jobs entailed. In his 1994 "Disability Report," plaintiff said the parking attendant job involved one
hour a day of walking, five hours a day of sitting, occasional
bending but no reaching, lifting, or carrying. R. 93. At the
January 1998 hearing, plaintiff reported that the parking
attendant job required standing all day except for one half-hour
when he was parking the car. R. 270. He also reported in 1994
that his job as building superintendent involved sweeping and
mopping the building, R. 92, but at the 1995 hearing, plaintiff
testified that he had a helper who did the cleaning. R. 26. At
the 1998 hearing, plaintiff said this job involved walking most
of the time and lifting only a light tool box weighing about five
pounds. R. 271.
At the 1995 hearing, plaintiff testified that he had no
problems using public transportation, still had a driver's
license, could walk a block or more without stopping, could stand
for two to three minutes and sit for one-half an hour. R. 25-26,
30-31. He could lift up to ten pounds. R. 31. At the 1998
hearing, however, plaintiff testified that he could not use
public transportation because he suffered from dizziness. R. 268.
He also testified that he took his diabetes medication and stuck
to his diet. R. 273. He took Motrin for his foot pain, which was
effective but upset his stomach. R. 273-74. Plaintiff testified
that he got dizzy when his blood sugar went up, and that his high
cholesterol made him sleepy. R. 276-77. He reported that he could walk half a block at a time, stand for two
to three minutes and sit for fifteen minutes; in an eight hour
day he could walk twenty-five minutes, stand ten or twelve
minutes and sit for almost twenty-five minutes. R. 275-76. He
added that he was afraid of dizziness from sitting for too long,
and that sitting caused his foot to hurt because of a circulation
problem. R. 279-80.
The first notation in the record of plaintiff' having been
treated for foot pain is dated March 22, 1994. R. 172. On that
date, plaintiff was seen at the Foot Clinics of New York for a
complaint of pain in his right ankle. R. 172. The examination
revealed ankle tenderness and edema, as well as scaling on the
plantar aspect. R. 179. An x-ray performed on the same date
revealed marked nonuniform narrowing in the ankle joint, and
neither traumatic arthritis nor Charcot ankle could be ruled out.
R. 179, 194. Plaintiff was given an air cast to wear daily. R.
On March 29, 1994, plaintiff reported chronic pain in the ankle
which he attributed to a sprain of the ankle a year earlier,
although there is no medical evidence in the record reflecting
such a sprain. R. 182. He reported that the air cast provided
some relief but the pain persisted. R. 182. The edema was gone,
but there was still tenderness, and the physician's impression was traumatic arthritis. R. 182. Physical therapy was
recommended. R. 182. On April 8, 1994, plaintiff was prescribed
Motrin 600. R. 185. A week later Plaintiff reported improvement
with the Motrin and the air cast, and stated that his diabetes
was well-controlled. R. 186. An opthalmological exam performed on
April 21, 1994, showed no signs of diabetic retinopathy. R. 189.
On April 29, 1994, plaintiff reported feeling much better and had
no redness or edema of the ankle. R. 188. He was told to continue
to wear the air cast and to avoid too much exercise. R. 188.
Plaintiff subsequently reported that the ankle "brace" was
helping to relieve the pain, but that the pain persisted on rainy
days. R. 190. He was diagnosed with athlete's foot at that time.
Beginning on June 24, 1994, plaintiff received his medical
treatment at the New York Medical Group through the Health
Insurance Plan of Greater New York ("HIP"). R. 131. On that date
plaintiff complained of foot pain. R. 131. He showed a deformity
of the ankle and walked with a painful gait. R. 131. On July 7,
1994, an orthopedic surgeon, Dr. Emmanuel, examined plaintiff.
Plaintiff reported pain in his ankle and inability to stand for
long periods. R. 130. An x-ray of the same date showed an old but
mended fracture but did not show any recent traumatic
abnormality. R. 122. On July 20, 1994, Plaintiff reported that
his ankle had been painful for two or three months. R. 121. On July 27, 1994, Dr. Emmanuel wrote a letter for
plaintiff stating that plaintiff was "being followed" for pain ...