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Perez v. Astrue

December 8, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff, Manuel N. Perez("Perez") filed this action pursuant to the Social Security Act, codified at 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("Disability"), and Supplemental Security Insurance ("SSI"). On March 4, 2008, the Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and on April 7, 2008, plaintiff cross-moved for judgment on the pleadings.

For the reasons that follow, I find that substantial evidence supports the decision of the ALJ. Accordingly, plaintiff's motion for judgment on the pleadings is denied and defendant's motion for judgment on the pleadings is granted.


Plaintiff is a 41 year old man with a twelfth grade education. (Tr. 34, 181) On August 10, 2004, Perez filed an application for Disability and SSI alleging that he has been disabled since January 12, 2004 because of a gunshot wound to his face and a cyst in his left hand. (Tr. 34, 50) His application was denied initially on October 18, 2004. (Tr. 28-30) Plaintiff requested a hearing which was held on January 26, 2006 at which plaintiff appeared before an Administrative Law Judge ("ALJ") and was represented by counsel. (Tr. 176-192) By decision dated February 21, 2006, the ALJ found Perez was not disabled. (Tr. 16-20) Plaintiff requested review by the Appeals Council. The decision of the ALJ became final when the Appeals Council denied review on June 1, 2007. (Tr. 4-6) Plaintiff commenced this action on July 12, 2007 claiming that he was disabled by a gunshot wound to the face, right sided facial pain, headaches, left hand pain due to a ganglion cyst, neck and low back pain.

A. Medical BackgroundOn January 12, 2004, plaintiff was shot in the face at close range and sought medical care in an emergency room. (Tr. 81) Initially, plaintiff experienced swelling and pain in the face. (Tr. 87) Imaging revealed no gross fracture or dislocation of the mandible, no evidence of prevertebral or focal soft tissue swelling, and no fracture of bony thorax nor any metallic foreign bodies in his chest. (Tr. 92)

At a follow-up examinations on June 21, 2004 and July 21, 2004, Perez complained of sharp pain especially at the right side of the face near the exit wound. (Tr. 98, 100) After images showed bullet fragments within the subcutaneous tissues of both cheeks, Dr. Kassiotis of the Kaleida Health Outpatient Clinic concluded that it was "most likely neuropathic pain due to the (bullet) fragments." (Tr. 99, 105) Perez was prescribed Lortab for pain and directed to return for a follow up examination in two to three months. (Tr. 103-104)

At the time of plaintiff's application for disability on August 22, 2004, Perez claimed that he experienced dizziness, sharp pains emanating from his lower jaw to his head and that he suffered from blurred vision. (Tr. 67) He was taking Naproxin and Amitriptyline for the chronic pain. (Tr. 54, 68)

On October 7, 2004, Perez was treated at the Kaleida clinic for continued headaches. (Tr. 130) He stated that Elavil worked well for most headaches but occasionally he required more relief and requested a refill for Lortab. (Tr. 130) Plaintiff was prescribed both Elavil and Lortab and directed to follow up with a neurologist. (Tr. 131)

An independent medical examination was performed on October 8, 2004 by Dr. Fenwei Meng. (Tr. 107-110) Dr. Meng noted that plaintiff suffered a gunshot wound to the face which passed through the left cheek, straight through the mouth causing some tooth damage, and out the right cheek. (Tr. 107) Plaintiff complained of pain in the face on the right side that shoots down to the hand. (Tr. 107) Further, Perez reported that the pain causes him dizziness and blurred vision. (Tr. 107) Dr. Meng also noted that plaintiff had a ganglion cyst on his left hand. At that time, plaintiff was taking Lortab, Elavil and Naprosyn. (Tr. 107) The medical examination revealed no abnormal findings except for the wound on the face and the left hand ganglion cyst. (Tr. 109) Specifically, Dr. Meng identified full flexion, extension, lateral flexion, and full rotary movement in the thoracic spine. He concluded that plaintiff had no limitations of speech, hearing, vision, nor impairments of his cervical and lumbar spine. (Tr. 109) Regarding his lower extremities, there were no limitations for walking, standing nor for use of stairs. There was some limitation noted with dexterity and gross activities of the upper extremities. (Tr. 109)

A Physical Residual Functional Capacity Assessment completed on October 15, 2004 found that plaintiff's claim of disability was not credible because plaintiff's report of daily activities was "not indicative of any significant activity restrictions." (Tr. 115) Plaintiff's impairment was not found to be severe. (Tr. 115)

On December 12, 2004, plaintiff sought treatment from the Kaleida Health Clinic for persistent headaches, cough and sinus congestion. (Tr. 132) Medical notes indicate that plaintiff did not follow through with the referral to see a neurologist but he did request a refill for Lortab. (Tr. 132) Perez was prescribed Lortab and antibiotics as well as referred to Dent Neurologic Group. (Tr. 133)

Plaintiff sought treatment on January 5, 2005 for a ganglion cyst on his left wrist. (Tr. 137) Excision was scheduled for its removal. (Tr. 137) On April 21, 2005, plaintiff was treated for left wrist pain and headaches. (Tr. 142) Perez reported that he ...

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