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Santos-Sanchez v. Astrue

July 15, 2010


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.


Plaintiff Raul A. Santos-Sanchez appeals from the final decision of the Social Security Administration ("SSA") that disallowed his claim of total disability since March 15, 2002. After full review, I hold that there is substantial evidence in the record supporting the findings of the SSA, I grant defendant's motion, and I deny plaintiff's motion, for judgment on the pleadings, and I grant judgment dismissing the complaint.



Plaintiff was born in the Dominican Republic on April 10, 1963. (Tr. 52.)

He completed ten years of school in the Dominican Republic and speaks, writes and reads Spanish. (Tr. 61, 465.) He cannot read or write English, but speaks "a little" English. (Tr. 465, 720.) He is 5'3" and weighs 160 pounds. (Tr. 475.)

Plaintiff moved to the United States in approximately 1987. (Tr. 465, 720.) He lives in New York City with his wife and three children on the second floor of a "walk-up" apartment building. (Tr. 78, 470, 476, 720.) He travels usually by subway. (Tr. 476, 729.)

From July 1989 through March 2002, he worked as a general helper in a candy factory. (Tr. 62.) The job involved cleaning the factory, cooking, packing, lifting, and carrying boxes of candy that weighed between 40 to 100 pounds. He spent most of the day standing and walking. (Tr. 62, 466, 721.)

In 1999, plaintiff "started to have lower back pain." (Tr. 116.) On October 29, 2001, Dr. Xiao-Ke Gao, a psychiatrist and neurologist began treating him. (Tr. 131.) She diagnosed him with: (1) lumbar dorsal derangement with traumatic myofascitis (inflamation of a muscle and its fascia [band of fibrous tissue]); (2) lumbar radiculopathy (disease of the nerve roots); and (3) lumbar disc herniation, and prescribed medication and physical therapy. She determined that plaintiff was partially disabled from his "regular" job and she instructed him to avoid lifting more than 20 pounds. (Tr. 132.) However, plaintiff continued to work full time.

On March 8, 2002, plaintiff again saw Dr. Gao. Dr. Gao determined that plaintiff now was totally disabled from his regular job. A week later, on March 15, 2002, plaintiff stopped working. (Tr. 52, 62, 145.) He was then 39 years old.

In 2002, plaintiff claimed disability benefits from the Workers' Compensation Board. At an April 8, 2005 hearing, the Board found him to be permanently partially disabled. Plaintiff settled his claim for $55,000. (Tr. 597-600.)


1. Dr. Eduardo Belandria

In an August 20, 2003 report, Dr. Belandria, a physical medicine and rehabilitation physician, stated that he had been treating plaintiff monthly since May 10, 2001. (Tr. 91.) Dr. Belandria took an MRI of plaintiff on October 17, 2001. The August 2003 report stated that plaintiff suffered from chronic lower back pain syndrome and a herniated disc at lumbar spine L3-L4, resulting in painful range of motion. (Tr. 91-92.) However, Dr. Belandria's clinical findings showed positive straight leg raising, no atrophy, and positive pinprick sensation at L3-L4, conditions that were not consistent with plaintiff's complaints. (Tr. 92.) Dr. Belandria determined that plaintiff could occasionally lift fifteen pounds, stand and/or walk less than two hours per day, sit less than six hours per day, and had limited ability to push and pull. (Tr. 93-94.)

Although Dr. Belandria's August 2003 report stated that he had seen plaintiff monthly since May 2001, he produced only two treatment notes, both from October 2001, in response to a subpoena requesting all his medical records. (Tr. 242-43.)

2. Dr. Xiao-Ke Gao Dr. Gao treated plaintiff for lower back and leg pain monthly or bimonthly between October 29, 2001 and July 2007. (Tr. 98-121, 130-55, 158-204, 269-326, 445-48, 453-54, 672-93.) As discussed above, Dr. Gao, after her October 29, 2001 examination, indicated that plaintiff's "motor and neuromuscular examination show[ed] full strength, 5/5, and no atrophy or fasciculation," and that plaintiff's gait was normal, although he complained that he was unable to walk on his toes or heels. (Tr. 131-32.) She reported that plaintiff was able to tandem walk and had a negative Romberg's sign, but was not able to raise his legs more than 40 degrees. Dr. Gao found plaintiff to be partially disabled for his job.

In March 2002, after additional examinations, Dr. Gao found that plaintiff was totally disabled. She indicated that plaintiff suffered from total disability on Workers' Compensation forms beginning that month. (Tr. 158-204.)

Over the years, plaintiff's symptoms showed a certain deterioration of his condition. Dr. Gao's reports described that plaintiff had decreased sensation to pinpricks and to light touch in his left L4 dermatome, decreased range of motion in lumbar flexion, difficulty with sitting and standing for prolonged periods of time and straight leg raising limited to 30 degrees. Plaintiff's gait continued to be normal but, by March 27, 2003, he began to walk with a cane. He refused Dr. Gao's recommendation of surgery. Two epidural injections did not seem to resolve the pain. On the basis of this evidence, on July 24, 2003, Dr. Gao reported to the New York State Office of Temporary and Disability Assistance that, in her opinion, plaintiff had the ability to stand and/or walk for less than two hours per day, sit for less than six hours per day, and push and/or pull fifteen pounds. (Tr. 118.)

In October 2004, plaintiff told Dr. Gao that he had stopped using his cane, but had difficulty walking, "specifically if he attempts to walk fast." (Tr. 325.) Dr. Gao completed a second questionnaire about plaintiff's condition on May 3, 2005, reporting, inconsistently, that plaintiff could sit for less than six hours in an ...

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