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Diaz v. Astrue

August 24, 2009

MANUEL DIAZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Manuel Diaz was a construction worker his entire life until the end of August in 2006, when, at age 53, he stopped working. On January 6, 2007, he filed an application for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits. He alleged that he stopped working because he was disabled due to right kidney removal, a left kidney impairment described variously as nephritic syndrome*fn1 and nephrotic syndrome,*fn2 and the side effects of medication taken to treat his kidney problems. After filing his claim, which alleged an onset date of September 10, 2006, Diaz developed avascular necrosis in his right hip.*fn3 Diaz's application was denied initially and on reconsideration, and he requested a hearing before an administrative law judge ("ALJ"). Diaz appeared with an attorney at the July 8, 2008 hearing before ALJ Jeffrey Jordan. On July 23, 2008, the ALJ concluded that Diaz was not disabled within the meaning of the Social Security Act ("the Act") between September 10, 2006 and December 26, 2007, when he turned 55 and became disabled based upon medical-vocational factors. The Appeals Council denied Diaz's request for review on October 16, 2008. The adverse decision thus became the decision of the Commissioner of Social Security ("Commissioner").

Diaz seeks review of that decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based upon the record before the Commissioner, the parties have cross-moved for judgment on the pleadings. I heard oral argument on August 21, 2009.

Because the ALJ failed to apply correct legal standards in evaluating the evidence, and because his finding regarding Diaz's residual functional capacity ("RFC") during the relevant period is not supported by substantial evidence, I grant the plaintiff's cross-motion for judgment on the pleadings, deny the defendant's motion, and remand the case for further proceedings.

BACKGROUND

Manuel Diaz was born on December 27, 1952. At the July 8, 2008 hearing, Diaz testified that his right kidney was removed in 1998. In 1999, he was diagnosed with a "syndrome" in his left kidney, and took steroids for almost two years for his condition. Tr. 31. As a result of the steroids, he experienced "muscle pain" and significant weight gain. Id. Prior to this time, he had worked for various construction companies, but he then "went on his own," because he "couldn't handle" working for a company where he would be "expected to do a lot of work [he] couldn't do." Tr. 31. Diaz also stated that his doctors discovered "a disease in [his] right hip," Tr. 32, in April of 2008. This disease caused "very sharp" pain in his hip. Tr. 33. Diaz treated the pain with Tylenol, which helped "a little bit." Tr. 34.

Diaz stopped taking steroids for his kidney condition in December 2007. He saw Dr. Joseph Lieber for his renal condition approximately every two months. He worked as a construction worker until August 2006, until the pain from his ailments and the side effects of his medicine rendered him unable to continue working.

In a statement dated February 5, 2007, Diaz states that his daily activities consist of watching television and reading. He also states that he can drive and go out alone, and can walk twenty blocks without resting. He cannot, however, do house or yard work or engage in sports because of pain in his back, knees, and abdomen.

Diaz claims that the "stabbing" pain he feels in his knees, back, neck, abdomen, and left hamstring started in 1999 and steadily worsened. Tr. 119. He experiences this pain for a few hours every day, and it is aggravated if he tries "to work hard," or stands in the same position while, for example, washing dishes. Tr. 120. He takes Tylenol for the pain, which "helps a little bit." Tr. 120. He also lies down to ease his pain.

Dr. Dyana Aldea performed a consultative examination of Diaz on February 27, 2007. Diaz presented with a history of abdominal pain that began in 1998, when Diaz was diagnosed with cancer of the right kidney, which was surgically removed at Elmhurst Hospital in Queens. He developed nephrotic syndrome in his left kidney in 1999 "and since that time has had increasing back pain and abdominal pain." Tr. 149. He also complained of neck pain radiating to the lower back. The pain occurs spontaneously several times daily for at least two hours, with intensity from a 5/10 to 8/10. It is aggravated by prolonged standing, walking, squatting, and climbing, and relieved with rest and medication. Diaz also complained of left knee pain, similarly aggravated and relieved, caused by arthritis diagnosed in 2005. According to Aldea, Diaz stopped working as a construction worker in September 2006 "secondary to kidney problems and abdominal pain." Tr. 149.

Dr. Aldea noted that Diaz could clean and dress himself but could not assist his wife with cooking, shopping, cleaning or laundry because of "lower abdominal pain and kidney problems." Tr. 150. When examined, Diaz did not appear to be in acute distress, had a normal stance, used no assistive devices, and was able to change for the exam and get on and off the exam table without help. However, his gait was mildly antalgic, he limped with his left foot, and his squat was "only 50% of full, complaining of left knee pain." Tr. 150.

Aldea also noted that Diaz's abdomen was distended and tender to palpitation "over the right lower quadrant." Tr. 151. He had a limited range of motion in his left knee, and his strength across the left knee "could not be well assessed secondary to pain." Id. His left knee was also swollen.

Aldea gave the following medical source statement ("MSS"): Secondary to kidney problems, abdominal pain, and back pain, the claimant has moderate limitations for lifting, bending, squatting, and prolonged climbing. No limitations for standing or ambulation. No ...


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