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Lamond v. Astrue

August 2, 2010




On September 9, 2003, Plaintiff Terry F. Lamond ("Plaintiff") protectively filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act. Plaintiff alleges that he has been unable to work due to disability since June 10, 2001. Plaintiff's application was denied on December 26, 2003. Subsequently, Plaintiff filed a timely written request for a hearing on January 30, 2004. Two hearings were held on February 17, 2005 and July 19, 2005. The Administrative Law Judge held that Plaintiff was not under disability, and, as a result, the Commissioner of Social Security denied Plaintiff's application.

Plaintiff, through his attorneys, commenced this action on July 7, 2006. Dkt. No. 1. Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). Both Plaintiff and Defendant move for judgment on the pleadings. Dkt. Nos. 9; 12.


A. Medical Background

Plaintiff was born on December 28, 1963. Pl's Brief (Dkt. No. 9) at 4. In the past, he has worked as an auto body person, floor maintenance worker, laborer, parts washer, press operator, material handler, and warehouse maintenance worker. R. at 107, 214-15. Plaintiff possesses a General Equivalence Diploma ("GED"); and as of 2005, was enrolled in the Keever Community College studying criminal justice. R. at 48. Plaintiff alleges disability stemming from ulcers on his feet, lymphedema, venous statis, and memory problems from alcohol dependency. R. at 214. According to Plaintiff, these conditions cause swelling and infections in his legs which make it so he cannot stand or sit for extended periods of time. R. at 214. Plaintiff claims that these conditions first bothered him in 1994, and alleges that, due to these conditions, he has been unable to work since July 10, 2001. Pl's Brief at 3.

The Court will briefly summarize the relevant record and opinion evidence contained in the Administrative Transcript.*fn1 See Dkt. No. 7. On June 11, 2001, Plaintiff was admitted to the A.L. Lee Memorial Hospital, under the care of Dr. Ramachandran, for treatment of an ulcer. R at 235. Plaintiff returned to the hospital on July 12, 2001 for treatment of cellulitis of the left ankle, was treated by Dr. Malhotra, and discharged on July 16, 2001. R. at 242-43. Plaintiff filed his first disability application on September 4, 2001. R. at 106. As a result of this application, the New York State Office of Temporary and Disability Assistance (the "State Agency") had Dr. Ganesh examine Plaintiff on September 24, 2001. R. at 275. Dr. Ganesh diagnosed Plaintiff with a partially healed ulcer and lymphedema. R. at 279.

Dr. Wilson, Plaintiff's treating physician, specializes in internal and geriatric medicine. R. at 369. Plaintiff has been seeing Dr. Wilson since 1999 for chronic leg swelling, recurrent ulcers, and infections in his lower legs. R. at 405. On November 26, 2001, Dr. Wilson wrote a letter to the State Agency opining that Plaintiff was permanently disabled due to lymphedema and recurrent ulcerations on the left foot. R. at 280. Dr. Finley, a non-examining review physician, submitted a medical advice statement at the request of the New York State Office of Temporary and Disability Assistance on November 28, 2001. R. at 281. Dr. Finley opined that Plaintiff was able to work, capable of standing and/or walking for at least 2 hours per day and sitting for at least 6 hours per day. R. at 281. On December 4, 2001, Plaintiff underwent a residual functional capacity ("RFC")*fn2 assessment, which found that Plaintiff could occasionally lift and/or carry 10 pounds, frequently lift and/or carry less than 10 pounds, stand and/or walk at least 2 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and could push and/or pull with limitations. R. at 283. On December 18, 2001, a medical consultant submitted a review of the RFC assessment and opined that Plaintiff's assessment was "not reasonable and/or supported by evidence in the file." R. at 291.

The following year, Dr. Wilson prescribed Plaintiff a lymphedema management program on May 31, 2002. R. at 296. Plaintiff began the program on June 13, 2002 and was discharged on August 2, 2002 after achieving some success in reducing the swelling in his legs. R. at 298, 320.

Plaintiff again returned to the A.L. Lee Memorial Hospital on June 5, 2003 with a case of cellulitis and was treated by a triage nurse and discharged the following day. R. at 321-28. Plaintiff returned to the same hospital on Jule 23, 2003 with complaints of an infection but he refused medical treatment. R. at 334. On August 19, 2003, Plaintiff was treated at the Oswego Hospital for cellulitis and discharged the same day. R. at 335. Dr. Wilson examined Plaintiff on August 25, 2003 and determined that Plaintiff should return to the lymphedema management program. R. at 339. Plaintiff began the program on September 8, 2003 and discontinued on October 14. 2003. R. at 343, 351.

On October 21, 2003, Dr. Shapiro completed a psychiatric examination of Plaintiff at the request of the State Agency and determined that Plaintiff had no mental impairments. R. at 355. Dr. Ganesh again examined Plaintiff on October 31, 2003 at the request of the State Agency. R. at 356. Dr. Ganesh concluded that Plaintiff had "no limitation to sitting, standing, or the use of upper extremities," but that he should "avoid prolonged standing, walking, and climbing." R. at 358.

On July 26, 2004, Plaintiff saw Dr. Wilson in order to have a disability form filled out. R. at 372. Plaintiff returned on October 19, 2004 to have an evaluation as well as another form filled out for his school. R. at 371. Dr. Wilson observed that Plaintiff's leg had "some dry areas... but nothing as severe as... in the past." R. at 371. On December 16, 2004, Plaintiff returned to Dr. Wilson to have another disability form filled out. R. at 371. Dr. Wilson completed a medical source statement on February 8, 2005 in which he opined that Plaintiff had "room for recovery," was capable of "moderate" work stress, could sit for about 4 hours per day, and stand and/or walk for less than 2 hours. R. at 394-96. Dr. Wilson went on to report that Plaintiff could occasionally lift and carry less than 10 pounds. R. at 397. After examining Plaintiff on February 14, 2005, Dr. Wilson completed a second medical source statement in which he opined that Plaintiff was incapable of "low stress jobs," and that he could sit, stand, and/or walk about 2 hours in a day. R. at 400-02. On February 24, 2005 Dr. Wilson, in a letter to Plaintiff's attorneys, stated that Plaintiff met Listing 4.11. R. at 405-06.

Dr. Alexander, a state agency consultant, completed a medical opinion interrogatory of Plaintiff on March 23, 2005. R. at 411-13. Dr. Alexander diagnosed Plaintiff with a history of congenital lymphedema, statis ulcer, and statis dermatitis. R. at 411.

B. Procedural History

The relevant procedural history may be summarized as follows: Plaintiff protectively filed applications for a period of disability, DIB, and SSI on September 30, 2003. R. at 167. At that time, Plaintiff alleged disability, beginning August 15, 2003, due to bilateral congenital edema, episodes of cellulitis of the lower extremities, and ulcers of the left leg. Pl's. Brief at 2. This application was initially denied, and Lamond timely filed a request for a hearing before an Adminstrative Law Judge ("ALJ"). Id. at 2. A hearing was held via video teleconference before Adminstrative Law Judge Gordon Malick on February 17, 2005 at which Plaintiff, his attorney, and Dr. Alexander were present. R. at 43. At this hearing, Plaintiff requested that his onset date be amended from August 15, 2003 to June 10, 2001, and that the record be left open to obtain additional evidence. R. at 22. The record was left open in order for Plaintiff to obtain evidence dating back to June 10, 2001. R. at 22. A supplemental hearing was held on July 19, 2005 at which Plaintiff, Dr. Alexander, and Jean Hambrick, a vocational expert ("VE"), testified. R. at 75. On Septemer 19, 2005, after considering the Plaintiff's application de novo, the ALJ found that Plaintiff was not disabled. R. at 31. Plaintiff filed a timely request for review by the Appeals Council. Pl's Brief at 3. The ALJ's decision became the Commissioner's final decision on June 7, 2006, when the Appeals Council denied Plaintiff's request for a review. Id.

Plaintiff, through counsel, commenced this action on June 7, 2006. Dkt. No. 1. The Commissioner filed an Answer on December 20, 2006. Dkt. No. 8. Plaintiff filed a supporting brief on February 5, 2007. Dkt. No. 9. The Commissioner filed a brief in opposition on April 3, 2007. Dkt. No. 12.


A. Legal Standard

District courts have jurisdiction to review claims contesting a final decision by the Commissioner of Social Security denying disability benefits. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). In reviewing any such claim, a district court may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, it must defer to the Commissioner's determination unless the correct legal standards were not applied or that determination is not supported by substantial evidence in the record. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles").

"Substantial evidence" requires more than a mere scintilla of evidence, yet less than a preponderance. Sanchez v. NLRB, 785 F.2d 409 (2d Cir. 1986). It has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Where evidence is susceptible to more than one rational interpretation, a district court may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a ...

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