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Pinckney v. Astrue

March 17, 2009

GUS EUGENE PINCKNEY, PRO SE, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Gus Eugene Pinckney filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act") on October 4, 2006. Plaintiff's application was denied initially and on reconsideration. Plaintiff testified at a hearing held before an Administrative Law Judge ("ALJ") on June 22, 2006, accompanied by a non-attorney representative. By a decision dated July 12, 2006, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On October 13, 2006, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The Commissioner now moves, unopposed, for judgment on the pleadings, pursuant to Rule 12 of the Federal Rules of Civil Procedure. For the reasons set forth more fully below, the Commissioner's motion is granted in its entirety. The court finds that the substantial evidence supports the ALJ's determination that plaintiff is not disabled and the ALJ properly applied the relevant law.

BACKGROUND

A. Non-medical and Testimonial Evidence

Plaintiff, who was born in 1954, has a high school equivalency degree and attended one semester of college. (Tr. 83, 188.) Plaintiff primarily worked as a truck driver, delivering freight and unloading it at customer locations. (Tr. 80-81, 85-87, 90, 93-94, 114, 190-92.) He also worked briefly as a salesman in a hardware store, and as a porter, both of which required lifting. (Tr. 85, 88-89, 192-93.) Plaintiff has a personal and a commercial driving license. (Tr. 83, 193-94, 200.) Plaintiff ceased working on March 15, 2004, as he was suspended due to an accident. (Tr. 80.) Plaintiff received unemployment benefits through September 12, 2004. (Tr. 59.)

Plaintiff appeared at his hearing with a non-attorney representative, Carolyn Bell, of the Disability Services Program, Human Resources Administration ("HRA") (Tr. 181.) Previously, Maria Ovodenko, another non-attorney representative with the HRA, assisted plaintiff with his application. (Tr. 22.) Plaintiff testified that he became disabled on September 5, 2004, could walk at most three blocks, and could lift up to 45 pounds. (Tr. 47, 80, 169, 200-02.) He admitted to a history of cocaine abuse, but denied any substance abuse since 1998. (Tr. 199.) Plaintiff was diagnosed with HIV, diabetes, and hypertension, for which he takes Glipizide, Avandamet, Zocor, Quinapril, Sustiva, and Truvada. (Tr. 113, 196-97.)

B. Medical and Psychiatric Evidence

1. Treating Physicians

Prior to the hearing, the ALJ wrote to plaintiff's representative to inform her that the ALJ had received "virtually no medical records" from the plaintiff's treating physicians, despite attempts to obtain them. (Tr. 111.) There are no medical records of treatment prior to the alleged onset date, September 5, 2004, although plaintiff indicated that he treated at Brookdale Hospital Medical Center ("Brookdale") for HIV and diabetes in 2004.

There are some records of treatment after the alleged onset date. Dr. Usha Karumudi, plaintiff's treating physician at the time of the hearing,*fn2 evaluated plaintiff in December 2004, diagnosing him with asymptomatic HIV, diabetes, and hypertension. (Tr. 121.) Dr. Karumudi indicated that plaintiff had no restrictions with respect to sitting, standing, walking, handling objects, communicating, traveling, understanding, responding, concentrating, adapting, or interacting with others. Dr. Karumudi indicated that plaintiff should limit lifting and carrying to "occasionally," but did not provide any specific weight restrictions. (Tr. 123-25.)

Plaintiff attended a psychology consult with Dr. M. Butler on January 24, 2005. Dr. Butler diagnosed plaintiff with dysthymic disorder and antisocial personality disorder, noting that his prognosis was fair. (Tr. 137.) Additionally, Dr. Butler indicated that plaintiff would have "mild to moderate difficulty at meeting interpersonal demands in an employment setting." (Id.)

Plaintiff also consulted with Dr. Antonio de Leon, M.D., on February 4, 2005. Dr. De Leon diagnosed plaintiff with diabetes mellitus, intermediate HIV infection, depression, and a history of alcohol and drug use, noting that his prognosis was poor. (Tr. 140.) Dr. De Leon indicated that plaintiff was able to perform "light to moderate activity," with a "mild" impairment with respect to sitting, standing, walking, lifting, carrying, and handling objects. (Id.)

Finally, Dr. Vincent Yeung, operated on plaintiff in August 2005. (Tr. 168.) A post-operative evaluation from Dr. Yeung indicates that Dr. Yeung diagnosed plaintiff with lymphoid hyperplasia, and plaintiff underwent a resection of a right paratid cyst and a ...


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