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BAEZ v. BARNHART

August 31, 2005.

WILLIAM BAEZ, Plaintiff,
v.
JO ANNE BARNHART, COMMISSIOER OF SOCIAL SECURITY, Defendant.



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.

  FACTS

  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. R. 305-07.

  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.

  III. Medical Evidence

  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. 180.

  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. R. 190.

  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 ...


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