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Bulger v. Astrue

July 1, 2009


The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge


Michael Bulger ("Plaintiff") brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final determination of the Commissioner of Social Security ("Commissioner") terminating Plaintiff's Social Security Disability Insurance Benfits ("DIB") and Supplemental Security Income benefits ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("the Act").


A. Procedural History

Plaintiff was awarded DIB and SSI on October 19, 2000 due to renal failure. On February 24, 2004, Plaintiff was informed that as a result of medical improvement, he was no longer considered disabled under Continuing Disability Review ("CDR"), and his benefits were therefore terminated. Plaintiff's request for reconsideration was originally denied on June 17, 2004, and again after a review by a Disability Hearing Officer ("DHO").

On September 8, 2005, Plaintiff received a hearing in Johnstown, NY before Administrative Law Judge ("ALJ") Thomas P. Zolezzi. After performing a de novo review of Plaintiff's disability claim, ALJ Zolezzi issued a decision on November 4, 2005 finding that Plaintiff's medical condition had improved and he was no longer disabled, thereby disqualifying him from receiving DIB and SSI.

Plaintiff made a timely request to the Appeals Council for review of the ALJ's decision. On March 26, 2007, the Appeals Council denied Plaintiff's request for review, making the ALJ's ruling the Commissioner's final decision regarding Plaintiff's disability claim. Plaintiff now seeks review of the Commissioner's final decision.

B. Educational and Vocational History

Plaintiff was born on September 2, 1960. R. at 467.*fn1 Plaintiff received special education services during his schooling, which ended after the ninth grade.*fn2 R. at 467. Between 1990 and 2000, Plaintiff worked in the fields of leather finishing and siding installation. R. at 106. In 2000, when Plaintiff first began receiving disability benefits, he was 40 years old.

C. Medical History

1. 2000-2004: Renal Disorder

In August 2000, Plaintiff was admitted to Albany Medical Center Hospital and diagnosed with end-stage renal disease. R. at 181-86. Hemodialisys was initiated, and an arteriovenous fistula was created in Plaintiff's upper left arm in order to create permanent access for treatment. R. at 189-90. Plaintiff was discharged from Albany Medical Center Hospital on September 23, 2000 and received hemodialysis treatment at the Amsterdam Dialysis Center three times a week from September 2000 to November 2002. R. at 383-422. In February 2001, Plaintiff had a temporary chest catheter that had been used for hemodialysis removed because it was no longer necessary following the creation of the arteriovenous fistula. R. at 299-301.

On November, 3, 2002, Plaintiff was again admitted to Albany Medical Center Hospital with a diagnosis of end-stage renal disease secondary to polycystic disease. R. at 199. Plaintiff underwent a right side cadaveric renal transplant with no complications. R. at 199-203. On November 9, 2002 Plaintiff underwent another surgery for a nephrectomy - removal of the native right kidney - so that the right ureter could be used on the transplanted kidney. R. at 201. Plaintiff was discharged on November 15, 2002, but was readmitted on November 28, 2002 with a small bowel obstruction which required an exploratory laparotomy with lysis of adhesions. R. at 204. Plaintiff was discharged on December 10, 2002. Id.

From November 19, 2002 through December 19, 2002, Plaintiff made weekly visits to the Albany Medical College Section of Transplantation where he was followed by Drs. Conti, Escobar and Isenberg. R. at 280-82. Plaintiff's immunotherapy medication included Cellecpt, Medrol and Prograf, and he was also on Valcyte, Bactrim, Colace, baby aspirin, Pepcid, Nilstat, Malalox and potassium phosphate. R. at 280. Plaintiff continued follow-up care at the Section of Transplantation from December 31, 2002 through October 14, 2003 with no transplant-related complications.

In April 2003, Plaintiff was diagnosed as suffering from Gastroesophageal reflux disease, ("GERD") and he was taken off Pepcid and placed on Prevacid. R. at 273. In December 2003, Plaintiff underwent surgery for a recurrent small bowel obstruction. R. at 268. Follow-up visits in January and February 2004, and subsequent visits in April, June and September 2004 showed stable renal function. R at 266-67, 330-32. Baby aspirin was discontinued in June 2004 as Plaintiff complained of bruising easily. R. at 331. Plaintiff continued to suffer from GERD. R. at 329-30.

2. 2002-2003: Right Shoulder Surgery

In October 2002, Dr. Zimmerman, Plaintiff's primary care physician, referred Plaintiff to orthopedic surgeon Dr. Gerald Ortiz for evaluation of right shoulder pain. R. at 218. Dr. Ortiz's assessment was left should bursitis with trigger points*fn3, and he recommended that Plaintiff undergo physical therapy. Id.

On April 17, 2003, Plaintiff was evaluated by physical therapist Andrea Evans. R. at 252. Plaintiff complained of right shoulder pain, prickling, tingling and weakness in the left hand and wrist, and overall fatigue and decreased strength. Id. Ms. Evans suspected carpal tunnel syndrome in Plaintiff's left wrist, and recommended that he undergo physical therapy treatment four times per week for four weeks. Id. On May 13, 2003, Ms. Evans noted that after 17 physical therapy sessions, Plaintiff's exercise tolerance had improved, yet he was still restricted by fatigue and decreased strength and he had difficulty with lifting, carrying and repeated activities and required rest throughout the day due to poor endurance. R. at 251. Plaintiff's arm strengthening was limited due to a rotator cuff tear in his right shoulder. Id.

Plaintiff was examined by Dr. Ortiz again in April and May 2003 for evaluation of further right shoulder pain. R. at 217. Dr. Ortiz suspected a right shoulder rotator cuff tear, and Plaintiff was given a script for an MRI Scan. Id. The MRI revealed a full thickness rotator cuff tear and an arthroscopic-assisted repair was subsequently performed by Dr. Ortiz on May 27, 2003 at Amsterdam Memorial Hospital. R. at 288. Dr. Ortiz examined Plaintiff in a June 9, 2003 follow-up visit and noted that he was doing fairly well and physical therapy was again recommended. R. at 216.

Plaintiff resumed physical therapy three times a week with Ms. Evans beginning in June 2003. R. at 250. On July 7, 2003, Ms. Evans recommended that Plaintiff continue physical therapy sessions for another four to six weeks. R. at 249. Ms. Evans reported that Plaintiff complained of a 'clicking' noise during overhead motion, and concluded that he was "minimally limited with lifting and overall endurance due to rotator cuff repair and organ transplant." R. at 248. On September 8, 2003, Ms. Evans noted that Plaintiff had completed 33 physical therapy sessions following his rotator cuff repair, and recommended that he be discharged from physical therapy as he had reached his maximal benefit at that point. Id.

3. 2004: Back and Knee Pain

Plaintiff visited Dr. Zimmerman in July 2004, complaining of acute lower back pain and right shoulder pain. R. at 325. Dr. Zimmerman again referred Plaintiff to Dr. Ortiz. Id. On July 14, 2004, Dr. Russell Cecil, an orthopedic surgeon and colleague of Dr. Ortiz, examined Plaintiff and ordered X-rays of his back. R. at 312. The X-rays showed slight osteopenia and minimal evidence of disc degeneration. Id. Dr. Cecil diagnosed bursitis in Plaintiff's right shoulder and a sprain of the lumbar spine and suggested physical therapy. Id.

Plaintiff resumed physical therapy with Ms. Muhlebeck (formerly Evans) on July 21, 2004.

R. at 432. Ms. Muhlebeck noted that Plaintiff was unable to "complete daily activities including lifting, feeding, sleeping, transfers, laundry, and gripping without increased discomfort in the shoulder and back." Id. Palpable spasms in the right lower lumbar paraspinals and gluteals muscles were also noted. Id. Ms. Muhlebeck recommended that Plaintiff continue physical therapy sessions two to three times a week for a four week period. Id. On August 24, 2004, Ms. Muhlebeck noted that Plaintiff's strength had increased during the previous month of physical therapy, but reported that his daily activities were still limited due to restricted endurance and motivation. R. at 431. On September 20, 2004, Ms. Muhlebeck again noted that Plaintiff's strength and overall endurance had improved, but that "restricted endurance and medical maladies" still limited his daily activities. R. at 430.

During a September 29, 2004 visit to Dr. Ortiz, Plaintiff complained of right knee pain and catching. R. at 314. Dr. Ortiz diagnosed a probable medial meniscal tear which was confirmed by a subsequent MRI. R. at 314-15. Plaintiff underwent a medial meniscectomy of the right knee on November 9, 2004. R. at 368.

At a follow-up visit on November 18, 2004, Dr. Ortiz noted mild swelling, some stiffness and "[s]ome pain over the portals and ecchymosis," and recommended physical therapy. R. at 316. Plaintiff again visited Ms. Muhlebeck from November 23, 2004 to January 2005 when Dr. Ortiz recommended that his stretching exercises be completed at home. R. at 317. On December 27, 2004, Ms. Muhlebeck noted that Plaintiff complained of occasional catching in his right knee and stiffness during cold weather. Ms. Muhlebeck also noted that Plaintiff's ability to "complete prolonged sitting, standing or lying, lifting, changing positions, walking, stair climbing and doing laundry, housekeeping and shopping" was limited. R. at 427.

4. 2005: Polycystic Left Kidney Disease and Hernia Repair

On May 5, 2005, Plaintiff complained to Dr. Zimmerman of fatigue and left side lower back pain. R. at 323. Dr. Zimmerman ordered a renal ultrasound which revealed a polycystic left kidney and a normal right renal transplant. R. at 327. Plaintiff suffered left side pain in July 2005 and a subsequent renal ultrasound ordered by Dr. Zimmerman showed "innumerable small predominantly anechoic cysts." R. at 353.

During a June 7, 2005 visit with Dr. Conti at the Albany Medical College Section of Transplantation, Plaintiff was determined to have a "large ventral hernia with some skin atrophy at the umbillical portion of the hernia." R. at 449. Dr. Conti performed a ventral hernia repair on Plaintiff on June 20, 2005. R. at 334. During the procedure, a large amount of adhesions of the small bowel were also removed. R. at 345. During a June 22, 2005 exam, Dr. Conti also noted multiple calcifications in the region of the left renal pelvis. R. at 347. Plaintiff was discharged on June 26, 2005, and Dr. Conti reported that plaintiff was recovering well after a July 5, 2005 follow-up examination. R. at 448.

5. 2006: Evidence Submitted to the Appeals Council

Plaintiff's representative supplemented her February 14, 2006 argument to the Appeals Council by submitting additional evidence regarding the condition of Plaintiff's left wrist. R. at 8-10,461-62. On January 4, 2006, Plaintiff complained to Dr. Ortiz of left wrist pain. R. at 461. Dr. Ortiz ordered an X-ray which revealed a schaphoid fracture, osteoarthritis and a suggestion of avascular necrosis of the left wrist. R. at 461-62.

6. Treating Source Reports

i. Dr. Alexander Zimmerman (Primary ...

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