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Melendez v. Astrue

May 19, 2009


The opinion of the court was delivered by: Robert L. Carter, District Judge


Harry Melendez brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) challenging the final determination by the Commissioner of Social Security denying his application for Supplemental Security Disability ("SSD") and Social Security Income ("SSI") benefits. The Parties move for judgment on the pleadings pursuant to Rule12(c) of the Federal Rules of Civil Procedure.


Melendez was born in 1968 and has a 10th grade education. He lives in a fifth floor walk-up apartment with his wife and daughter. On August 7, 2001, Melendez injured his right ankle when he fell from a ladder at work.

On July 23, 2003, Melendez applied for SSI and SSD benefits with the Social Security Administration ("SSA"), claiming disability since 2001 due to his compromised vision and the ankle injury. His applications were denied initially. Administrative Law Judge Kenneth G. Levin ("ALJ") conducted a hearing on February 14, 2005, and found that Melendez was not under a disability. Melendez submitted a request to the SSA's Appeals Council for review of the decision. On June 21, 2006, the Appeals Council rejected the request, making the ALJ's decision final. Melendez now appeals.

I. Administrative Hearing

a. Evidence from Treating Physicians

i. Ankle Injury

The ALJ received into evidence medical records and reports from St. Luke's-Roosevelt Hospital ("St. Luke's"), where, on the day of his accident, Melendez was diagnosed with a right ankle fracture. Melendez underwent surgery there on August 8, 2001, and was discharged on August 10, 2001. He was seen in follow-up on September 4, 2001, complaining of mild right leg pain, and was diagnosed with status-post ankle fracture and advised no weight bearing for at least two more weeks. On September 27, 2001, Melendez denied pain, his cast was removed, and he was advised to maintain no weight bearing for four weeks. On October 30, 2001, his status was changed to weight bearing as tolerated, and he was prescribed physical therapy for range of motion and strengthening. On November 20, 2001, Melendez reported using a cane for stabilization with walking, but having increased pain with activity. X-rays dated December 10, 2001, showed a fractured fragment behind the tibia and bony fragments between the talus and medial malleolus.

The ALJ also received into evidence medical records and reports from Dr. David Neuman. Melendez began to see Dr. Neuman on June 19, 2003, complaining of fluctuating right ankle pain. The doctor diagnosed healed fractures of the distal tibia and medial malleolus, irregularity of the articular surfaces between the tibia and the talus medially, and a fracture fragment posterior to the tibia consistent with posterior malleolus fracture. On July 3, 2003, Dr. Neuman diagnosed prominent painful hardware of the right ankle and posttraumatic arthrosis of the right ankle joint, and recommended removal of the hardware, continued weight bearing with a cane, and oral medication. On October 3, 2003, Dr. Neuman performed arthroscopic surgery and debridement of the right ankle, chondroplasty of the medial tibial platform and removal of one of the surgical screws. Dr. Neuman noted that Melendez was at risk for persistent pain and disability regarding the lower right extremity, and diagnosed post-traumatic degenerative joint disease. On November 13, 2003, Dr. Neuman reported that Melendez had 90% of range of motion in the right ankle. On December 18, 2003, Dr. Neuman advised Melendez to continue using a cane as necessary for support and to continue with strengthening exercises, icing and elevating the ankle as necessary. On March 25, 2004, Dr. Neuman diagnosed status-post arthroscopy and posttraumatic arthritis status-post fracture of the right ankle, and advised Melendez to continue home exercise, physical therapy, and use of high-top shoes and a cane for support. Following a September 28, 2004, examination, Dr. Neuman noted that Melendez's ankle lacked a range of motion of five degrees in all directions, atrophy of the calf with softness, and less agility in the right side upon hopping. He advised Melendez to continue physical therapy, use ice, and elevate his leg. On March 24, 2005, Dr. Neuman, noting no change in Melendez's condition, prescribed Vicodin and encouraged Melendez to exercise and continue to elevate his ankle.

Upon the request of the government, Dr. Neuman completed a Medical Source Statement of Ability to do Work-Related Activities ("Medical Source Statement") on April 27, 2004. He opined that Melendez was able to carry/lift occasionally ten pounds and was limited to standing and/or walking less than two hours in an eight hour workday.

The ALJ also considered evidence from two consultative physicians: Dr. Arden Kaisman and Dr. Mohammad Khattak.

On April 26, 2005, Melendez consulted Dr. Kaisman, an anesthesiologist, who reported that Melendez remained totally disabled. Dr. Kaisman's examination noted decreased range of motion in the right ankle, pain on palpation, and crepitus. He prescribed Vicodin, and recommended physical therapy, range of motion exercises, cold packs to the right ankle, and elevation of the leg. On July 5, 2005, Dr. Kaisman diagnosed bimalleolar fracture of the right ankle and internal derangement of the right knee.

On August 28, 2003, Melendez consultated Dr. Khattak, a board certified surgeon, who noted right ankle dorsiflexion to 15 degrees, plantar flexion to 20 degrees, and that Melendez favored the right leg. Dr. Khattak diagnosed status-post healed fracture, rule-out traumatic arthritis of the right ankle, and opined that Melendez's ability to stand and walk might be mildly limited, but there were no other limitations.

ii. Visual Problems

Melendez has a long history of vision problems. His efforts at corrective surgery have been fruitless, his prescription bifocals induce headaches, and the shape of his eyes prevents him from wearing contact lenses. The ALJ received into evidence medical records from St. Luke's and Bellevue Hospital ("Bellevue"). Melendez was evaluated in the eye clinic at St. Luke's on September 9, 2002, where his uncorrected visual acuity was 20/200 and 20/400, and his corrected visual acuity was 20/60 and 20/80. He was diagnosed with hyperopia. On December 13, 2002, he was evaluated at Bellevue, where they measured his best visual acuity at 20/60 in the right eye and 20/80 in the left eye. On January 8, 2003, his uncorrected vision was measured at 20/200 in both eyes. He was evaluated again at Bellevue the following week, where his uncorrected bilateral acuity was measured at 20/400, and his corrected acuity was 20/60 and 20/80. He was also diagnosed with high hyperopia again.

The ALJ also received into evidence reports from Dr. Deborah Ruiz-Blenk, an ophthalmologist who evaluated Melendez on September 10, 2003, at the request of Social Security. She found that his visual acuity without correction at a distance and at near was 20/400 in both eyes. With correction, it improved to 20/100 in the right eye and 20/200 in the left eye. Dr. Ruiz-Blenk diagnosed high hyperopia with astigmatism, strabismus, and dense amblyopia secondary to high refractive error and strabismus. She noted that Melendez had difficulty focusing because of a restricted field of vision and reported that Melendez's problem, while lifelong, was very debilitating. She concluded that his vision was likely stable at 20/100 and 20/200 when corrected.

iii. Asthma

Melendez also has a long history of asthma. He was evaluated at the St. Luke's ambulatory care clinic on December 19, 2003, where he reported having suffered from asthma since childhood, no intubation, and no recent hospitalizations. The doctor diagnosed an upper respiratory infection and asthma. A pulmonary function test was performed on January 22, 2004, and he was started on Advair. Another pulmonary function test was performed on March 4, 2004, showing diminished capacity. The doctor referred Melendez to the St. Luke's chest clinic, where he was seen on March 29, 2004, and returned on April 26, 2004, and ...

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