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Carlos Dejesus v. Michael J. Astrue

April 7, 2011


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


Pro se plaintiff Carlos DeJesus brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("the Commissioner") denying DeJesus Disability Insurance Benefits ("DIB"). (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 10: Notice of Motion; see also Dkt. No. 11: Comm'r Br.) DeJesus did not respond to the motion. The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 7.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.


Procedural Background

On January 27, 1999, plaintiff Carlos DeJesus applied for DIB and Supplemental Security Income ("SSI"), alleging that he had been disabled since June 5, 1991. (See Dkt. No. 9: Administrative Record filed by the Commissioner ("R.") at 55-57.) DeJesus claimed that he could not work because of back, leg, left shoulder, chest and neck pain. (R. 5, 44, 61, 82, 91-93, 288-94, 588-89.) The Social Security Administration awarded DeJesus SSI benefits for the period beginning December 1, 1998, but denied his DIB application because there was insufficient evidence of disability prior to September 30, 1995, the date his DIB eligibility lapsed. (R. 34-43; see R. 21, 24, 560-61.)

DeJesus requested an administrative hearing. (R. 44-51.) On February 23, 2000, Administrative Law Judge ("ALJ") Michael P. Friedman held a hearing, at which DeJesus testified.

(R. 15-33.) On April 19, 2000, ALJ Friedman issued a decision finding DeJesus not disabled prior to September 30, 1995, the date he was last eligible for DIB. (R. 7-14.) ALJ Friedman's decision became the final decision when the Appeals Council denied DeJesus' request for review on November 27, 2001. (R. 3-4.)

DeJesus appealed the Commissioner's decision to this Court. (02 Civ. 0927: Dkt. No. 2: Compl.; see R. 257A-B.) On September 10, 2002, Judge Swain approved the parties' stipulation remanding to the Social Security Administration "pursuant to sentence six of 42 U.S.C. § 405(g), for further administrative proceedings." (02 Civ. 0927: Dkt. No. 8: Stipulation & Order; see R. 257A-60.)

On February 11, 2005, ALJ Friedman held a supplemental hearing (R. 284-96), and on April 11, 2005, he issued a written decision denying DeJesus DIB (R. 251-57). DeJesus again appealed to this Court and again the case was remanded upon stipulation of the parties in October 2007. (02 Civ. 0927: Dkt. No. 9: Stipulation & Order; see R.333-34.)

On September 3, 2008, ALJ William W. Berg held a hearing at which DeJesus (appearing pro se), a medical expert and a vocational expert testified. (R. 573-621.) ALJ Berg held a supplemental hearing on November 6, 2008, at which DeJesus again testified along with a second medical expert. (R. 545-72). ALJ Berg issued a written decision on December 2, 2008 finding DeJesus not disabled as of September 30, 1995. (R. 299-310). ALJ Berg's decision became the final decision on June 19, 2010, when the Appeals Council denied DeJesus' request for review. (R. 296-98.)

The issue before the Court is whether the Commissioner's decision that DeJesus was not disabled between June 5, 1991 and September 30, 1995 is supported by substantial evidence. Non-Medical Evidence DeJesus was born on November 7, 1949 and graduated high school in June 1968.

(R. 26, 55-57, 67, 291, 577, 580-81.) Between 1972 and 1989, DeJesus worked as a state correction officer (and sergeant) performing various tasks including restraining, lifting and carrying inmates.

(R. 61-62, 74-75, 81, 288, 582-84.) DeJesus spent the majority of the day on his feet, and the heaviest weight he lifted on the job was 200-300 pounds. (R. 62, 75.) DeJesus hurt his lower back and left shoulder in 1980 while restraining an inmate and again hurt his back in 1983 while breaking up a fight between two inmates. (R. 17-18, 81, 281, 584-85, 590.)

DeJesus began working as a deliveryman for UPS in 1991 and was required to walk and climb stairs with packages as heavy as 100 pounds. (R. 20, 74, 76, 288, 582.) DeJesus quit after only two months because he could not keep up with the required delivery quota, and because he experienced pain in his lower back and shortness of breath. (R. 91, 281, 288, 582.) DeJesus gained a lot of weight after he lost his correction and UPS jobs. (R. 594-95.)

DeJesus was forty-one and a half years old at the alleged onset of his disability in June 1991. (R. 55-57, 291.) DeJesus lives with his mother and has three children, ages ten, twelve and fourteen. (R. 23, 26, 90, 288.) As of September 30, 1995, the date he was last insured, DeJesus estimated that he could stand for around ten minutes and walk about two blocks before getting chest pains and shortness of breath. (R. 28, 291-92.) DeJesus testified that he used a cane at that time, could not lift a five to ten pound grocery bag and did not do any household chores. (R. 29, 30, 292-93.) DeJesus passes a typical day reading, watching television and taking short walks around his neighborhood. (R. 30-31, 90, 293.)

DeJesus testified that he became depressed when he lost his job, but did not seek medical treatment because he had no medical insurance. (R. 21, 23, 294, 582, 589, 593.) DeJesus could have gone to the VA for treatment, but he did not trust them. (R. 29, 290, 294.)

Medical Evidence Related to the June 1991 to September 30, 1995 Period

The earliest medical evidence in the record is from DeJesus' visits to Dr. Samuel Hale between July 22, 1980 and November 18, 1980. (R. 96, 98.) DeJesus sprained his back while attempting to subdue an inmate. (R. 96.) Dr. Hale noted that x-rays of DeJesus' lumbosacral spine and pelvis were "negative in every respect," and that DeJesus had an unrestricted range of motion of his back and cervical spine. (R. 96.) Straight-leg raising tests also were negative. (R. 96.) Dr. Hale stated: "No disability, no further treatment." (R.96.)

DeJesus next visited Dr. Hale on September 25-26, 1983. (R. 99-100.) DeJesus hurt his back again while restraining an inmate and had been out of work since September 2, 1983. (R. 100.) Dr. Hale diagnosed DeJesus with "low back derangement [with] radiculitis down [the] left lower limb." (R. 100.)*fn1

On April 23, 1992, DeJesus sought medical treatment at the Veterans Affairs Medical Center ("VAMC") (R. 278.) DeJesus had pain in his left shoulder and occasional numbness and burning in his right upper leg exacerbated by standing for long periods. (R. 278.) Although x-rays showed an "essentially normal shoulder" (R. 276), DeJesus was "unable to do external rotation" and "crepitus" was observed (R. 278). As to the right leg, DeJesus' sacroiliac joint was tender, but straight-leg tests were negative. (R. 278.) The VAMC doctor noted that DeJesus had a "history of l[eft] shoulder dislocation" and diagnosed him with questionable radiculopathy. (R. 278.) DeJesus was referred to an orthopedist for follow up care. (R. 278.)

On May 4, 1992, DeJesus visited the orthopedic clinic at the VAMC for further examination of his left shoulder. (R. 270.) Anterior apprehension, relocation, and impingement tests performed on DeJesus' left shoulder were each positive and the VAMC doctor diagnosed DeJesus with anterior subluxation with a history of reconstruction and prescribed rehabilitation and nonsteroidal anti-inflammatory drugs. (R. 270.)

On May 13, 1992, DeJesus had additional testing done on his left shoulder. (R. 271.) DeJesus' strength was 5/5 in all areas tested: abduction, biceps, wrists and internal and external rotation. (R. 271.) His left shoulder's range of motion was 155 degrees elevation, 150 degrees abduction, 55 degrees external rotation and 50 degrees internal rotation. (R. 271.) Sensation in the shoulder was intact and deep tendon reflexes were 2, equal and symmetrical. (R. 271.) The VAMC doctor diagnosed DeJesus with anterior instability of the left shoulder and instructed him in a home exercise program. (R. 271.)

On September 16, 1992, DeJesus again visited the VAMC because he occasionally felt that his left shoulder was dislocating, and he had pain while lying on his left side. (R. 275.)

Although DeJesus had been strengthening his left shoulder through rehabilitation, the doctor noted that "[t]he symptoms have interfered with his ability to carry out some activities." (R. 275.) Examination showed DeJesus had full range of motion in his shoulder and 5/5 strength, but also revealed positive impingement and apprehension signs. (R. 275.) DeJesus' symptoms were suggestive of recurrent anterior shoulder instability, and the doctor recommended exercise and rehabilitation. (R. 275.)

On August 24, 1993, DeJesus went to the VAMC complaining of pain on the right side of his neck, shoulder and arm that had persisted for two days. (R. 272.) The doctor examined DeJesus' heart and lungs and found nothing abnormal. (R. 272.) However, fine papules were observed on DeJesus' right forearm and he was diagnosed with herpes zoster. (R. 272.) On September 7, 1993, a physician in the dermatology department noted that DeJesus' herpes was healing and prescribed Tylenol No. 3 for pain. (R. 273.) DeJesus followed-up at the VAMC dermatology department on September 28, 1993. (R. 268.) He reported that the herpes zoster was "still painful" and that he could not take Tylenol No. 3 because it contained codeine which caused heart palpitations. (R. 268.) The doctor prescribed Ibuprofen and referred DeJesus to the neurology department if the medication was not effective. (R. 268.) DeJesus visited the VAMC neurology department on November 1, 1993. (R. 274.) The neurologist found that DeJesus' herpes rash had healed, but that he had reduced sensation in his right arm. (R. 274.) The doctor diagnosed DeJesus with herpatic neuralgia and prescribed Elavil. (R.274.)

On April 18, 1995, DeJesus went to Metropolitan Hospital complaining of acute chest pain. (R. 348-49.) An x-ray of the frontal view of the chest "reveal[ed] an inadequate study." (R. 348.) The cardiologist determined that DeJesus had "coronary risk factors" and "felt strongly" that the assessment process begin at the medical clinic. (R. 349.)

On May 2, 1995, a clinic doctor noted that nitroglycerin had relieved DeJesus' chest pain. (R. 351.) DeJesus' blood pressure was 140/80 and he was in no apparent distress. (R. 351.) The doctor diagnosed DeJesus with atypical chest pain and referred him for an electrocardiogram ("ECG") to rule out coronary artery disease. (R.351).

On May 23, 1995, DeJesus underwent an ECG. (R. 221.) The test found "normal sinus rhythm with sinus arrhythmia." (R. 221.) Dr. Preston noted "early transition. Increase[d] R/S ratio in VI. Consider posterior infarct." (R. 221.)

On May 29, 1998, DeJesus was treated for chest pain at Metropolitan Hospital. (R. 113, 239.) Chest x-rays showed "no evidence of active disease of lung or pleura [and] [t]he heart, aorta, and hilar contours [were] normal." (R. 113, 239.) No bony abnormalities were observed and there were "[m]inimal degenerative changes of the thoracic spine." (R. 113, 239.) An ECG showed only a "normal sinus rhythm" and was described as a "normal ECG." (R. 222.)

On February 19, 1999, DeJesus was examined by consultative physician Dr. Antonio De Leon. (R. 117-19.) DeJesus was able to walk without a cane, bend forward to 40 degrees, squat and walk on both the heel and ball of his feet. (R. 118.) DeJesus was also "[a]ble to do both fine and gross manipulations." (R. 118.) Chest x-rays showed "mild levoscoliosis" (R. 119) and physical examination revealed left shoulder forward elevation and abduction to 90 degrees, no back tenderness or muscle spasms and "[s]traight leg testing to 40 degrees" (R. 118). Dr. De Leon posited that DeJesus' prognosis was fair and opined that DeJesus could sit with no limitation and could walk, stand, carry and lift with mild limitation. (R. 119.)

On April 7, 1999, Dr. Peter Graham conducted a treadmill stress test on DeJesus. (See 123-46.) The results showed "no significant arrhythmia" and DeJesus did not experience chest pain during the test; however, Dr. Graham noted "significant ST-T Wave changes." (R. 123.)

On April 14, 1999, Dr. Ron Reynolds reviewed DeJesus' medical record and concluded that his heart condition fulfilled the requirements of the Commissioner's Listing of Impairments 4.04 ("Listing 4.04"). (R. 177; see C.F.R. Part 404, Subpart P, Appendix 1.)

DeJesus saw consultative physician Dr. Steven Rocker on June 14, 1999. (R. 149-51; see 152-73.) Dr. Rocker found that DeJesus had "no difficulty transferring from a seated position on and off the examining table[,] . . . [n]o tenderness or spasm of [the] lumbar spine [and] [f]ull range of motion of [the] lumbosacral spine." (R. 150.) Further, all of DeJesus' joints were found to have full range of motion without swelling or tenderness. (R. 150.) DeJesus underwent another treadmill stress test, which Dr. Rocker found "positive for exercise induced myocardial ischemia."

(R. 150-51.) Dr. Rocker felt that this "limited [DeJesus] to sedentary work activity[,]" but noted that DeJesus' condition "could probably be markedly improved with adequate treatment." (R. 151.)

On June 22, 1999, Dr. S. Siddiqui reviewed the results of the treadmill stress test and also found it positive for myocardial ischemia. (R. 175.) Dr. Siddiqui concluded that DeJesus' heart condition met the requirements of Listing 4.04, but that "disability at 9/95 cannot be determined with [the] information contained in chart." (R. 175.)

On June 23, 1999, an agency physician reviewed DeJesus' file and completed a physical residual functional capacity assessment. (R. 179-86.) According to that assessment, as of September 30, 1995 (DeJesus' date last insured), DeJesus could sit or stand for about 6 hours in an 8-hour workday, occasionally lift up to 50 pounds, and frequently lift up to 25 pounds. (R. 180.)

Additionally, the agency physician believed that DeJesus could frequently kneel, crouch and balance, and occasionally climb ramps and stairs. (R. 181.)

On July 6, 1999, Dr. R. F. Leeds reviewed DeJesus' medical records and concluded that DeJesus' "ECG abnormalities appear to be diagnostic of [Coronary Artery Disease] . . . and [m]eet listing 4.04A." (R. 195.) Dr. Leeds believed, however, that DeJesus' ...

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