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Francois v. Astrue

June 21, 2010

DUVAL FRANCOIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1

OPINION & ORDER

Duval Francois ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination by the Commissioner of Social Security (the "Commissioner") that he was not disabled within the meaning of the Social Security Act (the "Act") as a result of an injury suffered on March 12, 1994 and hence not eligible for disability insurance benefits ("DIB"). Both the Commissioner and Plaintiff move for judgment on the pleadings pursuant to Rule 12(c). FED. R. CIV. P. 12(c). For the following reasons, Plaintiff's motion is DENIED, the Commissioner's motion is GRANTED, and the case is dismissed.

I. BACKGROUND

A. PLAINTIFF'S HISTORY

Plaintiff was born January 16, 1961 and is a high school graduate. Transcript of Administrative Record of the Social Security Administration ("Tr.") at 28--29, 56, 435--36, 602-- 03. At the time of the injury on March 12, 1994, he was employed as a Maintainer's Helper for the New York City Transit Authority ("Transit Authority"). Tr. at 29--30, 102, 436. His principal duties involved the inspection and fueling of buses. Tr. at 30, 436, 604--06. Prior to this position, he was a Cleaner for the Transit Authority from November 1987 until June 1990, at which time he was offered the Maintainer's Helper position. He was also a Cleaner for the New York City Police Department from June 1981 until May 1985. Tr. at 102.

Plaintiff's injury on March 12, 1994 was his third workplace injury. He suffered his first injury in October 1990 in a fall that damaged his right knee. Tr. at 104, 108. After treatment, which included a knee surgery, Plaintiff returned to work in the spring of 1993. He suffered a second slip and fall in September 1993 in which he aggravated his right knee again and hurt his right shoulder. Tr. at 32, 105. While on restricted duty from the second accident, Plaintiff suffered the alleged disabling injury to his right knee on March 12, 1994. Tr. at 106, 443--44. Plaintiff indicated to his treating physician, Dr. Richard Memoli that his knee "buckled" causing him to fall and to injure his knee and back. Tr. at 163. Plaintiff has been under the care of Dr. Memoli since October 29, 1990, except for a short period between June and September 1993. Tr. at 104--07, 614. Following the injury on March 12, 1994, Plaintiff supported himself with worker's compensation benefits. Tr. at 603. These benefits continued until the New York City Employees' Retirement System retired Plaintiff, effective October 12, 1996, for "disability retirement pursuant to Section 605 of the Retirement and Social Security Law." Tr. at 131.

B. PROCEDURAL HISTORY

Plaintiff applied for DIB for his March 1994 knee injury on March 26, 1997.*fn2 Plaintiff's application was initially denied on May 30, 1997 and again, upon reconsideration, on January 30, 1998. Plaintiff's present appeal, for which he is now proceeding pro se, challenges the August 17, 2007 decision of Administrative Law Judge Katherine Edgell ("ALJ Edgell"), which found that he had the residual functional capacity ("RFC")*fn3 to perform at least sedentary work with the option of alternating between sitting and standing on an as-needed basis. Prior to ALJ Edgell's decision, Plaintiff received two similarly unfavorable decisions rendered by Administrative Law Judge Louis V. Zamora ("ALJ Zamora"). Both decisions, the first on February 24, 1999 and the second on June 24, 2002, were denied review by the Social Security Administration Appeals Council ("Appeals Council") and then were appealed by Plaintiff to this Court. See Francois v. Apfel, 00 Civ. 2664 (DAB); Francois v. Barnhart, 03 Civ. 4946(HB). By Stipulation and Order, dated April 12, 2001 and December 23, 2003 respectively, each matter was remanded for additional administrative proceedings. The Plaintiff filed the present action on July 27, 2009 after the Appeals Council declined review of ALJ Edgell's decision on May 2, 2009. At PreTrial Conference on November 4, 2009, the parties agreed, as memorialized by Order of this Court dated November 11, 2009, to have this appeal decided as a Motion for Judgment on the Pleadings.

C. RELEVANT EVIDENCE IN THE RECORD

1. Medical Opinions*fn4

a. Dr. Richard Memoli (Treating Source)

Dr. Richard Memoli began treating Plaintiff in October 1990 following a workplace injury. Tr. at 104, 615. Plaintiff suffered a second injury in September 1993 and sought additional treatment from Dr. Memoli. Plaintiff was being treated for this second injury at the time of the March 12, 1994 injury. He has since remained in Dr. Memoli's care. Tr. at 106, 614. As a result of his injuries, Plaintiff has undergone three surgeries to his right knee; each was performed by Dr. Memoli. On August 22, 1991, following Plaintiff's initial knee injury, Dr. Memoli performed a right knee arthroscopy with arthrotomy and medial meniscectomy on Plaintiff. Tr. at 137--38. To correct a right medial meniscus tear that resulted from the March 12, 1994 injury, Dr. Memoli performed a second surgery on Plaintiff's right knee on July 7, 1994. Tr. at 396--97. Plaintiff underwent a third operation on November 9, 1995 to repair a partial tear of the right anterior cruciate ligament. Tr. at 417--18. Operative notes indicate that each procedure was well tolerated. Tr. at 137--38, 396--97, 417--18.

Dr. Memoli's examination reports from April 29, 1996 until October 16, 1997 show regular appointments approximately every six to eight weeks. These reports indicate that Plaintiff suffered from a moderate partial disability and that either he experienced no change or saw an improvement in his condition. Tr. at 189--202. Importantly, progress notes completed by Dr. Memoli, dated June 25, 1996 and April 15, 1997, state that, while Plaintiff should continue physical therapy and use of medication, he could return to light duty work. Tr. at 191, 197. However, in a May 1, 1997 report prepared for the New York State Department of Social Services Office of Disability Determinations, Dr. Memoli opined that Plaintiff was "disabled from work." Tr. at 104--07. At the time of the report, Plaintiff was under a course of treatment involving home heat, exercise and a prescription for Naprosyn.*fn5 Id. On September 24, 1998, Dr. Memoli completed a questionnaire*fn6 in which he stated that, among certain other restrictions, Plaintiff was restricted to standing/walking for up to one hour and sitting for a total of one to two hours during a standard eight-hour day. Tr. at 158--59. While still indicating that Plaintiff suffers a moderate partial disability and that his condition remains unchanged, examination reports dated December 23, 1997 through June 29, 1998 stated that the condition is ...


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