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Cruz v. Astrue

March 2, 2008

RAYMOND CRUZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Raymond Cruz brings this pro se action under 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security determining that he is not entitled to disability insurance benefits under the Social Security Act. The Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, the motion is granted.

BACKGROUND

A. Non-Medical Evidence

Cruz was born in Puerto Rico on March 15, 1960. R. 42. He has a high school equivalency diploma and has served in the U.S. Army. Id. at 68, 394-95. His most recent employment, which ended on December 1, 2002, id. at 42, 62, was as a stacker in a cardboard factory, id. at 62-63, 365. This job required him to lift and carry between 10 and 40 pounds of cardboard, and to walk and stand approximately 7 hours a day. Id. at 63, 365-67. He also performed other minimum wage factory and food preparation jobs. Id. at 62-63, 367-69.

In December 2002, Cruz hurt his back, and afterward his right knee, which had been the subject of previous surgery, began to deteriorate. Id. at 370-71. In 1992, he was diagnosed with HIV, id. at 370, and he stopped taking his medications in 2003 because they caused severe weight loss, id. at 392-93. His T cells are at acceptable levels currently. Id. at 393. Cruz claims that he cannot work due to his knee problem and depression to approximately equal degrees. Id.

Cruz's right knee is afflicted with stabbing pain every day for most of the day. Id. at 92-93. Squatting and kneeling are difficult, and he occasionally uses a cane or crutches. Id. at 89, 391. He takes 600 mg of Ibuprofen several times per day, and also uses Ace bandages, hot baths, massages, and over-the-counter gels and ointments. Id. at 93-94. In the Disability Report he included in his application, he stated that he can lift up to 10 pounds, stand for 15 minutes at a time, and walk for three blocks before resting for 5-10 minutes. Id. at 85, 89-90. At his benefit eligibility hearing, he indicated that he can lift up to 10 or 20 pounds, stand and sit for an hour at a time, and walk five or six blocks at a time before resting. Id. at 374, 391-92. He had knee surgery in 2004, which caused improvement until he fell and reinjured his knee approximately 18 months later. Id. at 376-78. He also has itchy and painful lesions on his feet occasionally due to psoriasis and an inherited condition. Id. at 383-84.

Cruz also complains of difficulty concentrating, id. at 62, problems with stress and memory, id. at 91, and difficulty sleeping, id. at 384. He claims to experience suicidal thoughts and voices telling him to kill himself "off and on." Id. at 384-88. He hates "society in general" due to being incarcerated several times. Id. at 386.

Cruz lives alone in a third-floor walk-up apartment in Brooklyn, where he moved from Connecticut in 2003. Id. at 84, 362-64. He is able to manage his financial affairs, groom himself, take his medications, clean (including sweeping, mopping and garbage disposal), do laundry once a week, buy groceries twice a week (his shopping trips typically take between an hour and a half and three hours), and cook for himself. Id. at 85-88, 381, 391. He can walk and take public transportation and goes outside three or four times per week. Id. at 87.

Cruz spends his time reading, watching television, playing video games, and engaging in arts and crafts. Id. at 88, 94. He socializes and attends meetings about HIV, alcoholism and anger management at Housing Works, a social support center offering services to low-income individuals with HIV/AIDS. Id. at 360, 390. He travels there by subway three or four times a week, spending three to six hours at a time there. Id. Cruz enjoys going to Housing Works, and denies having any difficulty getting along with authority figures. Id. at 90, 382.

B. Medical Evidence

1. Hospital for Joint Diseases

New York University Medical Center's Hospital for Joint Diseases has treated Cruz's right knee injury since before the onset of Cruz's alleged disability on December 1, 2002. He complained on September 29, 1999 of right knee pain that had worsened since an accident two years earlier. R. 183-84. Although there were mild clicks when he flexed his knee, there was no joint swelling or redness. Id. at 183. An orthopedic clinic examination on October 20, 1999 showed mild atrophy and mild medial knee pain, but a full range of motion. Id. at 182. An X-ray taken on that date showed a fracture of indeterminate age, and a possible enchondroma.*fn1

Id. at 181. Magnetic resonance imaging ("MRI") taken on November 30, 1999 revealed an anterior cruciate ligament (ACL) tear and a bone bruise, prior hemarthrosis*fn2 and a small cyst, and confirmed the old fracture and potential enchondroma suggested by the X-rays. Id. at 167-68. At a January 26, 2000 visit to an oncology clinic, Cruz was diagnosed with a benign enchondroma tumor not requiring treatment. Id. at 165.

On March 15, 2000, Cruz was diagnosed with a stable ACL tear and possible damage to the meniscus. Id. at 163.*fn3 He underwent arthroscopy*fn4 on his right knee on March 31, 2000, along with partial synovectomy*fn5 and shaving chondroplasty.*fn6 Id. at 178-79. On August 1, 2000, he underwent successful ACL reconstruction. Id. at 170-72. On March 14, 2001, Cruz visited the clinic and reported that he fell in December of 2000, causing knee pain. Id. at 147. The impression was a possible meniscal tear. Id.

On May 7, 2003, Cruz complained of knee pain with mechanical symptoms and pain when he bent his knee deeply after a fall three weeks prior. Id. at 283-84. He showed right knee tenderness, but no swelling or redness and had full motor strength. The impression was a possible meniscal tear. X-rays taken on May 14, 2003 showed a possible enchondroma and the aftereffects of ACL repair. Id. at 135, 143. An MRI conducted on May 22, 2003 showed a complex meniscal tear. Id. at 133.

Cruz complained of right knee pain, but no instability, at clinic visits on October 29, 2003 and January 14, January 21, February 4, and February 18, 2004. Id. at 123-32, 141. A March 5, 2004 X-ray revealed no ...


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