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November 3, 2005.

Jo ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: ROBERT SWEET, District Judge


Plaintiff George Metaxotos ("Metaxotos") has moved under Rule 12(c), Fed.R.Civ.P., to vacate the decision of defendant Jo Anne B. Barnhart, Commissioner of Social Security (the "Commissioner") for supplemental security income disability benefits, to find Metaxotos disabled and to remand the action for the calculation of benefits, or, alternatively, to remand to consider new and material evidence. The Commissioner has cross-moved to vacate the decision and to remand and has opposed a finding of disability. For the reasons set forth below, the motions for remand are granted, and the motion seeking a finding of disability is denied.

Prior Proceedings

  Metaxotos applied for disability benefits alleging arthritis as his disabling impairment on May 24, 2000. (See Tr. 86-95.) His application was denied on August 30, 2001. (See Tr. 28-32.) He filed a request for reconsideration on September 17, 2001, (see Tr. 33-34, 35, 117-122), and complained that he continued to experience knee, back, and hip pains. (See Tr. 117.) SSA denied the request for reconsideration on March 27, 2002. (See Tr. 36-39.)*fn1 On April 9, 2002, Metaxotos promptly filed an appeal of the March 27, 2002 denial. (See Tr. 40.)

  A hearing was scheduled for May 22, 2003, which was adjourned to July 2, 2003. Metaxotos and his attorney appeared at the July 2, 2003 hearing and provided testimony regarding his impairments. (See Tr. 296-316.) The record was kept open after the hearing to allow Metaxotos's attorney to submit additional evidence in support of his claim. The Administrative Law Judge ("ALJ") asked the attorney to obtain "some kind of medical report" as well, and the attorney said he would try. (See Tr. 314-15.) Additional evidence was submitted to the ALJ on August 28, 2003.

  By notice of decision dated August 30, 2003, the ALJ denied Metaxotos's claim for benefits. (See Tr. 9-19.) The ALJ agreed that Metaxotos suffered from severe osteoarthritis of the knees and hepatitis C and that these impairments caused functional limitations which would prevent him from performing his past relevant work as a painter and piano mover. However, the ALJ determined that Metaxotos retained the ability to perform the full range of sedentary work. (See Tr. 18.) She used the Commissioner's medical vocational rules and considered his ability to perform sedentary work, his age (49 1/2), education (high school), transferrable work skills (none), and relied on medical vocational rule 201.21 to deny the claim.

  Metaxotos appealed to the Commissioner's Appeals Council. By notice dated February 21, 2004, the Appeals Council denied his appeal. (See Tr. 4-7.)

  This action was filed on April 20, 2004 seeking to reverse the Commissioner's decision and to remand for a calculation of benefits.

  The instant motion and cross-motion were marked fully submitted on June 22, 2005.

  The Administrative Record

  Metaxotos was born in New York City on March 12, 1954. He did not graduate high school but eventually did obtain a general equivalency diploma in 1996. He worked in the past as a house painter and a piano mover. Metaxotos suffers from severe arthritis of the knees, back and neck, as well as hepatitis C and depression.

  The records of the Valley Hospital Clinic covered treatment for bilateral knee pain from March to May 2000. An x-ray taken on April 3, 2000 revealed "marked narrowing of the medial compartment of each knee . . . consistent with bilateral osteoarthritis." The diagnostic impression was "bilateral severe osteoarthritis" and "left knee loose bodies." (See Tr. 169-178.)

  Metaxotos reported that he sustained extensive multiple body injuries, including injuries to his knees, from a car accident in 1979. He reported that he was told in 1995 that he was a candidate for "TKR" (total knee replacement) but was using alcohol and drugs at that time and failed to follow up properly. He received Darvocet and Vicodin for pain management. (See Tr. 172, 175.)

  The Brooklyn Hospital records revealed treatment for bilateral knee pain from November 2000 to March 2001. (See Tr. 179-193.) A knee x-ray done on November 8, 2000 reportedly revealed "advanced degenerative changes involving both compartments of knees." (See Tr. 187.) A December 29, 2000 x-ray of the knee was consistent with post-traumatic degenerative osteoarthritis. (See Tr. 190.)

  Clinical examination revealed crepitus and synovial thickening of the knee. Metaxotos was not taking medication other than Motrin around this time but it was also noted that his Medicaid had yet to be approved. He was also in the process of quitting heroin at the time. He complained of an inability to sleep because of pain. He was prescribed Vioxx for the arthritis as well. (See Tr. 185-86.) On March 2, 2001, Dr. Emilio Del Priore wrote a letter indicating Metaxotos had "late stage osteoarthritis." Dr. Del Priore reported that Metaxotos was not able to participate in heavy physical activity and that he should be involved only with "sedentary roles." (See Tr. 193.)

  Records from Methodist Hospital from June 2001 reported that Metaxotos complained of feeling overwhelmed and expressed some thoughts about suicide. He was unable to recall how he had been thrown out of a crisis center. He complained of pain in his legs and hips and was taking Tylenol #3 for pain. He was discharged after it was determined that he was not a risk to himself. (See Tr. 198-203.)

  Records from Lincoln Hospital in June 2001 stated that Metaxotos was being treated for lower back and knee pain. (See Tr. 210.) At this time his medications included Flexeril and Tylenol #3. (See Tr. 206.)

  Records from Cabrini Hospital included a January 2002 x-ray of the lumbosacral spine revealing spondylosis at L4-L5 and L5-S1. An x-ray of the knees revealed ...

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