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Suarez v. Commissioner of Social Security

March 26, 2009


The opinion of the court was delivered by: Pitman, United States Magistrate Judge


I. Introduction

Plaintiff, Ramon Suarez, brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying plaintiff's application for disability insurance benefits. Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Commissioner's motion is denied and plaintiff's motion is granted, to the extent of remanding this matter to the Commissioner for further administrative proceedings consistent with this Opinion and Order. Plain-tiff's motion is denied in all other respects.

II. Facts

A. Procedural Background

Plaintiff filed an application for disability benefits pursuant to 42 U.S.C. § 423(b) on June 18, 2003 (Tr.*fn1 37-39). Plaintiff claimed in his application that he had been unable to work since January 19, 2001 because of constant pain in his left shoulder (Tr. 37, 43). On July 29, 2003, the Social Security Administration denied plaintiff's application for benefits (Tr. 29-34). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 21-28, 35). The ALJ, Mark Hecht, held a hearing on March 11, 2005 (Tr. 121-37), at which plaintiff appeared with counsel and testified. In a decision dated April 20, 2005, the ALJ found that plaintiff had the residual functional capacity ("RFC") to perform "a range of light work," and, therefore, was not disabled through the date of the ALJ's decision (Tr. 19, 20). The decision of the ALJ became the final decision of the Commissioner on January 11, 2006, when the Appeals Council denied plaintiff's request for review.*fn2

Plaintiff commenced this action in forma pauperis on April 12, 2006, and, on October 14, 2006, moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Oct. 14, 2006 ("Pl.'s Br.")). The Commissioner opposes plaintiff's claim for disability benefits, and has cross-moved for judgment on the pleadings pursuant to Rule 12(c) (Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings, dated Jan. 29, 2007 ("Def.'s Br.")). The parties have consented to my exercising plenary jurisdiction over the case pursuant to 28 U.S.C. § 636(c) (Docket Item 5).

B. Evidence

1. Plaintiff's Age, Education and Experience

Plaintiff was born on April 28, 1955, completed third grade in the Dominican Republic, and immigrated to the United States in 1994 (Tr. 126, 127). He cannot read or write English or Spanish (Tr. 127). Prior to his arrival in the United States, plaintiff worked as a motorbike mechanic (Tr. 127-28). In the United States, plaintiff worked as the superintendent of an apartment building, where he supervised two employees, painted, plastered and cleaned, did plumbing and electrical work, and frequently lifted objects weighing at least 50 pounds (Tr. 64, 128). In December 1999, plaintiff injured his left shoulder while moving a refrigerator (Tr. 82, 89, 130). Notwithstanding his injury, plaintiff continued to work as a superintendent until January 19, 2001, when he was fired (Tr. 49, 128). Plaintiff was 45 years old when he stopped working (Tr. 125). He has not worked again since that time (Tr. 129).

2. Plaintiff's Function Report

In support of his application for disability benefits, plaintiff submitted a function report to the Division of Disability Determinations of the New York State Office of Temporary and Disability Assistance (the "DDD") on or about June 30, 2003 (Tr. 71-81).*fn3 In his function report, plaintiff stated that he could not "lift weights," reach with his left hand or use his left hand due to his injuries (Tr. 76). In addition, plaintiff stated that standing, walking or sitting caused him pain (Tr. 76). Plaintiff also stated that he was unable to carry anything when he walked to the store or to the residence of a relative (Tr. 78). Plaintiff described the pain in his left shoulder as a dull ache that radiated to his back (Tr. 79). Plaintiff reported that he took Tylenol to relieve the pain (Tr. 81).

3. Medical Evidence

a. Treating Physician

Douglas Schwartz, M.D., treated plaintiff's shoulder on a monthly basis, from May 2001 through at least 2003 (Tr. 53, 88).*fn4 Plaintiff did not claim any treatment before that provided by Dr. Schwartz (Tr. 53-54). Dr. Schwartz completed a questionnaire on July 8, 2003, which diagnosed plaintiff with chronic left shoulder derangement, status post acromioplasty*fn5 (Tr. 88). Plaintiff's symptoms were chronic left shoulder pain, which increased with repetitive overhead use of the left arm or when plaintiff lay on the left side, and interrupted sleep (Tr. 88). Dr. Schwartz prescribed Bextra*fn6 for plaintiff (Tr. 89). In an undated employability report, Dr. Schwartz noted that plaintiff's treatment also included physical therapy two to three times per week and a weekly massage (Tr. 101).

Dr. Schwart'z report also noted that plaintiff exhibited full range of motion in his right shoulder, elbows, wrists, knees, hips, spine and ankle (Tr. 93-94). In addition, Dr. Schwartz noted that plaintiff exhibited no limitation in his ability to sit, stand or walk (Tr. 91). However, plaintiff's left shoulder exhibited a decreased range of motion and left deltoid atrophy (Tr. 89). Specifically, Dr. Schwartz found that plaintiff's left shoulder exhibited a forward elevation of 135 out of 150 degrees, abduction of 130 out of 150 degrees, adduction of 20 out of 30 degrees, internal rotation of 55 out of 80 degrees and external rotation of 60 out of 90 degrees (Tr. 93). The left deltoid and two of the rotator cuff muscles (the infraspinatus and supraspinatus) exhibited strength of 4 out of 5, while a third rotator cuff muscle (the subscapularis) exhibited strength of 4- out of 5 (Tr. 89).

Plaintiff was limited to pushing, pulling, lifting and carrying a maximum of ten pounds in his left arm (Tr. 90-91). Plaintiff exhibited no limitation in his ability to sit, stand or walk (Tr. 91). Under the heading, "Other (e.g. postural, manipulative, visual, communicative, environmental)," Dr. Schwartz checked the box labeled "Limited" and stated "no climbing" and "remains totally disabled" (Tr. 91).

b. Examining Physicians

Arthur E. Helft, M.D., a surgeon, examined plaintiff on May 1, 2003 (Tr. 82-83). Dr. Helft wrote a letter to plaintiff's worker's compensation insurer dated May 2, 2003, which reported that after a shoulder injury in 1999, plaintiff came under the care of Dr. Schwartz, who treated him with physical therapy (Tr. 82). Plaintiff underwent arthroscopic surgery on his shoulder on December 14, 2001 (Tr. 82).*fn7 Plaintiff complained to Dr. Helft of daily pain in his left shoulder which radiated to his neck (Tr. 82). Plaintiff took pain medication daily but did not recall the medication's name (Tr. 82). Plaintiff limited his left arm's forward elevation and abduction to 90°, but Dr. Helft was able to perform a further forwared elevation to 150° "with complaints of pain" (Tr. 82). Dr. Helft concluded that plaintiff had a "40% schedule loss of use of the left arm" and that "[m]aximum benefit from therapy ha[d] been achieved" (Tr. 83).

In addition, Dr. Osiris Nunez, a licensed physician in the Dominican Republic, examined plaintiff on or about November 2004. At that time, Dr. Nunez certified that plaintiff was "suffering from a severe lesion of the rotator bone of the left shoulder[,] [f]or which [he] recommend[ed] four months of rest and rehabilitation" (Tr. 114-15). In March of 2005, Dr. Dionisio Bueno, also of the Dominican Republic, prescribed plaintiff dexamethasone, which is an anti-inflammatory corticosteroid, and two other medications, "Neurodon" and "Reumisone." The record does not disclose the nature of these medications, and I have not been able to locate them in any English-language pharmaceutical dictionary (Tr. 119-20).

4. Disability Examiner's Assessment

Following plaintiff's application for disability benefits, a disability examiner*fn8 identified as "D. Ingram" determined plaintiff's residual functional capacity on behalf of the DDD based on the written submissions of plaintiff and his physicians. The record does not indicate whether Ingram was a physi- cian (Tr. 29).*fn9 Ingram opined that plaintiff could frequently lift and/or carry a maximum of ten pounds and occasionally lift or carry a maximum of 20 pounds because there was no limitation or loss of movement and strength in his dominant arm, elbow and shoulder (Tr. 96). Ingram also noted that plaintiff's ability to reach was limited because his left shoulder exhibited a limited range of motion (Tr. 97). Finally, because Dr. Schwartz stated that plaintiff had limited use of his left arm, but no other physical ability limits, Ingram opined that plaintiff retained the ability to engage in substantial gainful activity where he would not have to use his left arm and shoulder (Tr. 99).

5. Administrative Hearing Testimony

Plaintiff, represented by counsel, testified at the administrative hearing that he experiences severe pain every day, but if he doesn't move, "it sort of contains the pain a little bit" (Tr. 131-32). Plaintiff cannot lift anything with his left arm, but he can hold a cup of coffee with his left hand if it is "very very light" (Tr. 132). Plaintiff wears his arm in a sling in the afternoon, "when the pain gets really bad" (Tr. 132). ...

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