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Amalia Ramirez O/B/O Fulgencio Zetino v. Michael J. Astrue

February 3, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:



Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff Amalia Ramirez ("plaintiff"), as successor in interest to her deceased husband, Fulgencio Zetino ("Zetino"), appeals the final decision of defendant Commissioner of Social Security Michael Astrue ("defendant" or the "Commissioner"), who denied Zetino's application for Social Security Disability Insurance ("SSD") and Supplemental Security Income ("SSI") benefits pursuant to Titles II and XVI, respectively, of the Social Security Act (the "Act"). Plaintiff argues that she is entitled to receive SSD and SSI benefits on behalf of Zetino because of Zetino's severe medically determinable impairments, including right shoulder derangement, right knee derangement, diabetes mellitus, hypertension, low back derangement/degenerative spondylosis, psoriasis, and cervical/lumbar radiculopathy, which plaintiff contends rendered Zetino disabled and prevented him from performing any substantial gainful activity since October 2, 2000. (See generally ECF No. 1, Complaint, dated 8/2/2010 ("Compl.").) Presently before the court are the parties' cross-motions for judgment on the pleadings. For the reasons set forth below, defendant's motion for judgment on the pleadings is granted and plaintiff's cross-motion for judgment on the pleadings is denied.


I. Procedural History

Zetino filed applications for SSI and SSD benefits on March 27, 2003 and April 10, 2003, respectively, claiming that he was disabled since October 2, 2000. (See ECF No. 19, Administrative Transcript, filed 4/28/2011 ("Tr."), at 49, 91-93.) Zetino's applications were denied, and he requested an administrative hearing. (See id. at 49, 65.) Zetino and his attorney appeared before Administrative Law Judge Manuel Cofresi (the "ALJ") on August 9, 2005 and February 21, 2006. (See id. at 837-62, 863-80.) On April 27, 2006, the ALJ issued a decision concluding that Zetino was not disabled within the definition of the Act. (Id. at 50-64.) On June 5, 2006, Zetino sought review of the ALJ's decision by the Appeals Council. (See id. at 68-70.) On June 29, 2006, however, Zetino died, and his widow, plaintiff Amalia Ramirez, substituted herself for the remainder of the administrative proceedings. (Id. at 81, 789A.)*fn1

On July 31, 2007, the Appeals Council vacated the ALJ's decision and remanded the case for, inter alia, further consideration of certain evidence and further development of the record. (See id. at 83-88.)

The ALJ held a supplemental hearing on August 5, 2008. (See id. at 802-36.) On September 12, 2008, the ALJ issued a second decision, which upon de novo review of the record, found that Zetino was not disabled at any time prior to his death. (Id. at 13-32; see also id. at 17 ("A de novo review of the total record was conducted."); 805 (stating that ALJ would review the record de novo and "reevaluate the evidence").) On June 4, 2010, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Zetino's request for further review. (Id. at 5.)

Plaintiff filed the instant action on August 2, 2010, alleging that she is entitled to receive SSI and SSD benefits due to Zetino's severe medically determinable impairments, including right shoulder derangement, right knee derangement, diabetes mellitus, hypertension,*fn2 low back derangement/degenerative spondylosis,*fn3 psoriasis,*fn4 and cervical/lumbar radiculopathy,*fn5 which plaintiff contends rendered Zetino disabled and prevented him from performing any substantial gainful activity since October 2, 2000. (See Compl. ¶¶ 5-6.) In her Complaint, plaintiff alleged that the ALJ's decision was erroneous, contrary to law, and not supported by substantial evidence in the record. (Id. ¶¶ 15-17.) Defendant moved for judgment on the pleadings on March 16, 2011. (See ECF No. 14, Notice of Motion for Judgment on the Pleadings, dated 3/16/2011; ECF No. 15, Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings, dated 3/16/2011 ("Def. Mem.").) Plaintiff filed a cross-motion for judgment on the pleadings on April 11, 2011. (See ECF No. 16, Notice of Motion for Judgment on the Pleadings, dated 4/11/2011; ECF No. 17, Plaintiff's Memorandum of Fact and Law in Support of His Cross-Motion for Judgment on the Pleadings, dated 4/11/2011 ("Pl. Mem.").) Defendant served plaintiff with its reply, and the fully briefed motions were filed, on April 28, 2011. (See ECF No. 18, Reply Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Cross-Motion, dated 04/28/2011 ("Def. Reply").)

II. Summary of Personal, Employment, and Non-Medical History

Zetino was born in Guatemala on April 21, 1959, and he immigrated to the United States in 1980. (Tr. at 840.) From 1986 through October 2000, Zetino worked in a painting factory, where he painted heavy machinery. (Id. at 841.) As a painter, Zetino used machines, tools, equipment, and his own technical knowledge and skills. (Id. at 96.) Zetino walked, stood, and climbed for eight hours per day; handled, grabbed, or grasped big objects for eight hours per day; and stooped, kneeled, crouched, crawled, and reached for four hours per day. (Id.) Zetino indicated that he did not sit, write, type, or handle small objects at all. (Id.) Zetino lifted and carried pieces of equipment and machines over fifty feet each day, and the heaviest weight he would lift was 100 pounds or more. (Id.) Zetino stated that in the course of his duties as a painter, he frequently lifted fifty pounds or more. (Id.) Zetino also indicated that he "used to do construction." (Id.)

Zetino had an eleventh grade education,*fn6 and he never completed any type of special job training, trade, or vocational school. (Id. at 100.) Zetino stated that he was unable to read or write in English and that he spoke Spanish at home to his wife and at work. (Id. at 840, 847.) Zetino acknowledged, however, that he had completed forty hours of English instruction in the United States and was able to "speak a few words" of English. (Id. at 851-52.) Zetino married plaintiff on May 14, 2004, and they resided in Jamaica, Queens.*fn7 (See id. at 79, 839-40; Compl. ¶ 1.)

On October 2, 2000, Zetino injured his right knee during a slip and fall accident at work. (Id. at 95, 130, 841-42). According to the Complaint, Zetino had been unable "to perform any substantial gainful activity, due to his medical condition" since the date of his accident. (Id. at ¶ 5, 6.) In a disability report dated April 10, 2003, Zetino stated that because of his accident, his knees locked and he could not stand for long periods. (Id. at 95.) In a disability report dated May 8, 2003, he stated that whenever he moved, he had "permanent" stabbing pain in his right knee that radiated down the leg to the foot. (Id. at 125-26.) He stated that he used a cane and knee brace, and that he had difficulty lifting, standing, walking, climbing stairs, kneeling, squatting, and seeing. (Id. at 122-23.) His day consisted of eating breakfast, lunch, and dinner, taking a shower, watching television, reading, and feeding his pet bird and fish. (Id. at 118, 121.) Zetino stated that it took a lot of time to tend to his personal needs and that he could not stand on his feet to shave or shower. (Id. at 118, 120, 127.) He did not cook, shop, or do house or yard work. (Id. at 119-21.) He reported that he went outside three times a week, (id. at 119), but he could not see friends or go to church or stores, (id. at 127.) He could walk one block at a time and then had to rest for three minutes. (Id. at 123.)

At a hearing before the ALJ on August 9, 2005, Zetino testified that he had pain in his shoulder, waist, and knee. (Id. at 843.) Zetino also stated that he could not "carry anything because [he had] three parts of [his] body that are damaged." (Id. at 844.) Zetino testified that he could sit for 15 to 20 minutes but then had to move because of the pain. (Id.) Zetino used a brace on his right knee and he "ha[d] to have it on . . . at all times." (Id.) Zetino also used "a certain assistive device that [had] metal rods so that [his right knee would] not move" while he slept. (Id. at 844-45.) Zetino took a taxi to the ALJ hearing, and he testified that on "a good day," he was able to "walk very slowly to the bus." (Id. at 845.) Zetino was also able to take a two-month trip to Guatemala in December 2004 and he could sit in a car for two hours to and from Atlantic City. (Id. at 853.)

Zetino testified that, if he did not take his medication at night, he would wake up every half hour because of the pain. (Id. at 846.) In his home, Zetino's wife did activities such as cooking, cleaning, food shopping, and laundry; Zetino testified that he was no longer able to clean or sweep. (Id.) Zetino stated that his wife also assisted him with bathing. (Id. at 846-47.) During the day, Zetino would watch television and listen to music. (Id. at 847.) Zetino would also lie down for approximately an hour during the day. (Id.)

III. Summary of the Medical History

A.Zetino's Orthopedic Impairments

The record contains the following medical evidence regarding Zetino's orthopedic impairments. After his October 2, 2000 workplace injury, x-rays of Zetino's right knee were taken on October 5, 2000. (See id. at 176.) This examination revealed suspected fluid in the suprapatellar bursa,*fn8 but Zetino's bone density was normal, and no fracture or dislocation was observed. (Id.) On October 6, 2000, Zetino began to see Dr. Arthur Gray ("Dr. Gray"). (See id. at 192.)

Definition of Bursa,, art.asp?articlekey=2558 (last visited Feb. 3, 2012).

On July 6, 2001, x-rays taken of Zetino's knees at the Queens Hospital Center (the "QHC") revealed "no fracture, dislocation or other significant osseous abnormalities." (Id. at 141.) However, the report did note some "mild degenerative changes." (Id.)

On February 26, 2002, Zetino was examined by Dr. Yury Koyen. (See id. at 130-34.) Zetino complained of right knee pain worsened by ambulation and standing. (Id. at 130.) Zetino used a cane for his left side. (Id. at 131.) Ranges of motion in Zetino's neck, cervical spine, shoulders, elbows, wrists, thoracic spine, hips, ankles, and feet were all found to be normal. (Id. at 131-33.) Zetino's right knee showed "mild medial swelling [and] tenderness medially." (Id. at 132.) Flexion of his right knee was limited to 110 degrees (135 degrees is considered normal), and extension was to negative five degrees (zero is normal). (Id.) Zetino's gait was stable, and his heel, toe, and tandem walking were adequate. (Id. at 133.) His reflexes and muscle strength were normal. (Id.) Dr. Koyen diagnosed Zetino as having right knee trauma and recommended "[p]hysical therapy at a frequency of 3-4 times per week." (Id. at 133-34.)

On October 8, 2002, Zetino had arthroscopic surgery on his right knee. (Id. at 22, 842-43, 126, 148.)*fn9

On March 7, 2003, Dr. Harshad Bhatt ("Dr. Bhatt") examined Zetino, who complained of pain in his right knee and right shoulder. (See id. at 173-74.) Dr. Bhatt noted that Zetino was "doing well" after his right knee surgery. (Id. at 173.) Dr. Bhatt observed fluid, tenderness, and swelling in Zetino's right knee, but there was no discoloration. (Id.) The alignment of Zetino's knee was also good. (Id.)

On examination of Zetino's right shoulder, Dr. Bhatt noted that Zetino's range of motion in his shoulder joint was "restricted." (Id. at 174.) Dr. Bhatt found that abduction of the shoulder was limited to 65 degrees, and flexion and extension were limited to 45 degrees bilaterally. (Id.) Zetino was "severely tender over the subachromial area of [his] Right Shoulder." (Id.) Rotator movement was noted as "painful" for Zetino and he tended to "keep [his] shoulder in to flexion and adduction avoiding any sudden movements." (Id.) Dr. Bhatt diagnosed "Internal Derangement of right shoulder" and noted that Zetino should continue physical therapy, wear a knee brace, take non-steroidal anti-inflammatory drugs ("NSAIDS"), and obtain a magnetic resonance imaging scan ("MRI") of his right shoulder. (Id.)

On May 23, 2003, Dr. Bhatt examined Zetino and completed a report, stating that he had treated Zetino on a monthly basis since March 2002. (See id. at 161-66.) The report indicated that Zetino had neck and back pain, which Zetino claimed forced him to walk with a limp. (Id. at 162.) Zetino's gait was antalgic*fn10 and slow, and he was unable to move his right shoulder. (Id. at 163, 162.) Zetino had muscle spasms in his lumbar and cervical spine. (Id. at 162.) Dr. Bhatt also noted that Zetino had herniated discs. (Id.) Zetino wore a knee brace on his right knee and used a walking cane. (Id.) Dr. Bhatt diagnosed Zetino with right knee and right shoulder derangement, cervical and lumbar radiculopathy, cervical and lumbar degenerative disc disease, diabetes, and diabetic neuropathy. (Id. at 161; see also id. at 821.) Dr. Bhatt estimated that Zetino could stand or walk for less than two hours per day, could sit for less than six hours per day, and was limited in pushing and pulling. (Id. at 163.)

On June 10, 2003, Dr. Edmond B. Balinberg ("Dr. Balinberg") examined Zetino. (See id. at 150-53.) Zetino had a brace on his right knee, held a cane in his left hand, and complained of "severe pain in the right knee." (Id. at 150-51.) Dr. Balinberg diagnosed Zetino with a "[h]istory of diabetes mellitus" and a "[h]istory of hypertension. (Id. at 151.) It was also noted that Zetino had "psoriasis with plaques over the left knee, elbows, scalp, and a few lesions over the upper and lower extremities with involvement of the body surface 10-15%." (Id.) Dr. Balinberg's prognosis was "[c]hronic stable condition," and it was noted that Zetino had the "[f]unctional capacity to do work related activities." (Id.) Dr. Balinberg "estimated that [Zetino] has some restriction in his ability to do heavy physical activities like to lift, to carry, to push and to pull heavy loads." (Id.)

On June 10, 2003, Dr. Kyung Seo ("Dr. Seo") performed a consultative orthopedic examination on Zetino. (See id. at 148-49.) Zetino complained of "pain of the right knee, limitation of range of motion of the right knee, and right leg giving way." (Id. at 148.) Zetino also complained of "subcutaneous crepitation of both temporomandibular joints."*fn11 (Id.) Zetino's activities of daily living were noted as being "[s]omewhat limited." (Id.) Throughout the exam, Zetino was "constantly using the cane"; however, Dr. Seo noted that the cane was "probably nonweightbearing." (Id.) Dr. Seo also found that Zetino had a "[s]table knee joint" and "had no difficulty standing up from the sitting position and had no difficulty getting on and off the examination table." (Id. at 149, 148.) Zetino could heel and toe walk, although the doctor noted Zetino's complaints of right knee joint pain. (Id.) Zetino could squat "approximately halfway down" and his muscle strength in both legs was graded 5/5. (Id. at 149.) "Generalized psoriatic changes" were noted mainly on "both legs around the knee joint areas and low back." (Id.)

With regard to Zetino's back, Zetino's cervical spine and thoracolumbar spine showed normal curvature, and his "[l]umbosacral spine show[ed] mild levoscoliosis of the lumbar vertebrae," which was noted to be "functionally not significant." (Id.) Dr. Seo found that Zetino had "[l]ow back derangement, probably degenerative spondylosis" and "[m]ild degenerative osteoarthritis of the right knee, probably psoriatic." (Id.) Dr. Seo gave a "[g]uarded" prognosis" and noted that an x-ray of the right knee was negative. (Id.; see also id. at 147.) Dr. Seo gave the following medical assessment: "Functionally, due to aching pain of the right knee and back, sitting is slightly limited, walking is slightly limited, bending, lifting, and carrying heavy objects are slightly limited." (Id. at 149.)

A June 11, 2003 x-ray of Zetino's right knee requested by Dr. Balinberg revealed "no evidence of acute fracture, dislocation or destructive bony lesion." (Id. at 147.) A June 26, 2003 x-ray of Zetino's lumbosacral spine requested by Dr. Balinberg showed a transitional L5 vertebral body and straightening of the lumbar curvature. (Id. at 154.)

An x-ray of Zetino's right shoulder on August 11, 2003 was marked as "[n]ormal." (Id. at 557.) A MRI of Zetino's right shoulder, taken on August 25, 2003, however, suggested a "chronic tear of [the] supraspinatus tendon, with probable fibrosis and without significant retraction." (Id. at 220.)

In August and September 2003, Zetino attended occupational therapy for his right shoulder. (See id. at 271-78.) On September 16, 2003, the therapist indicated that Zetino complained of chest pain, and Zetino was referred to a cardiac clinic. (See id. at 223-24.) On October 30, 2003, he was discharged from therapy after missing occupational therapy appointments for one month. (Id. at 274.)

At an October 9, 2003 examination at the QHC, Zetino complained of low back pain and "stiffness in knees after sitting in car for 2 hours when he goes to Atlantic City." (Id. at 222.) The report from this examination indicated that Zetino had degenerative joint disease and osteoarthritis. (Id.)

Dr. Bhatt examined Zetino again on October 31, 2003. (See id. at 182-84.) Dr. Bhatt noted that Zetino had "so much pain in the right knee that he [was] unable to walk and he limp[ed] heavily." (Id. at 182.) Zetino complained of "severe pain in the neck and lower back with radiation to the upper and lower extremities." (Id.) Zetino also told the doctor that he was unable to sleep and had "tingling and numbness in the area of the hand in all the fingers." (Id.) Dr. Bhatt noted that "[a]ll the movements and walking causes aggravation of the pain in the back and legs." (Id.) Zetino's gait was "[a]ntalgic without support," but his sensory and motor functions were normal. (Id.) Notably, Dr. Bhatt indicated that Zetino had "no previous problem with the knee" and that Zetino "does not drink." (Id.) Zetino had normal heart sounds and no murmurs; his skin was also clear. (Id. at 183.) Dr. Bhatt found that Zetino had "severe restriction of motion" in his right shoulder and "severe pain on abduction and internal rotation." (Id.)

Dr. Bhatt diagnosed "[l]umbar radiculopathy," "[i]nternal derangement of shoulder," "[r]ight shoulder traumatic bursitis and tenosynovitis," "[h]erniated disc cervical spine," and "[i]nternal derangement of knee." (Id. at 184.) Dr. Bhatt recommended treatment with NSAIDs, muscle relaxants, and physical therapy. (Id.)

In a May 9, 2005 medical assessment of Zetino's ability to do work-related activities, Dr. Bhatt stated that due to Zetino's shoulder derangement and diabetes, he could lift and/or carry 10 to 15 pounds for up to one-third of an eight-hour work day. (Id. at 185.) Due to his diabetes with neurological deficits and peripheral neuritis, Zetino could stand and/or walk for a total of only two hours out of an eight-hour work day. (Id.) Due to his knee derangement, he could sit for a total of two hours out of an eight-hour work day, and he could not climb, stoop, kneel, balance, crouch, or crawl. (Id.) Dr. Bhatt noted that Zetino's reaching, handling, feeling, pushing, and pulling were limited by his diabetes with peripheral neuropathy. (Id. at 186.) Further, Dr. Bhatt indicated that Zetino had environmental restrictions with regard to height, moving machinery, temperature extremes, humidity, and vibration. (Id.)

B.Zetino's Non-Orthopedic Impairments

The record also contains the following medical evidence regarding Zetino's additional impairments, including diabetes, hepatitis, hypertension, psoriasis, gastritis, esophageal varices,*fn12 and liver disease. On July 5, 2001, Zetino went to the QHC emergency room, complaining of left-sided chest pain after drinking alcohol. (Id. at 296A-98, 318, 327, 344-45.) Zetino was then admitted to the hospital. (Id. at 327.)

A chest x-ray showed no focal consolidation or significant effusions, but the impression was limited due to poor inspiratory effort. (Id. at 146.) A discharge order dated July 9, 2001 stated that once he was admitted, Zetino's chest pain subsided. (Id. at 296A, 327.) The principal diagnosis upon discharge was alcohol withdrawal delirium, and the secondary diagnoses were acute alcoholic intoxication, chest pain, undiagnosed cardiac murmurs, psoriasis, disorder of magnesium metabolism, alcohol gastritis,*fn13 and pain in lower leg joint. (Id. at 337.)

On August 10, 2001, an esophagogastroduodenoscopy was performed on Zetino at the QHC gastrointestinal clinic. (Id. at 304.) The results showed esophageal varices, evidence of mild reflux with esophagitis, gastric varices, portal gastropathy, and diffuse gastritis of the entire stomach. (Id.) The duodenum was within normal limits, however, and there was no peptic ulcer disease or masses. (Id.) Zetino was told to follow up with the gastrointestinal clinic for what appeared to be cirrhosis,*fn14 and he was encouraged to stop alcohol intake. (Id.) Notes dated August 27, 2001 from the QHC gastrointestinal clinic indicate that Zetino had portal hypertension secondary to alcohol abuse, but he may not yet have had cirrhosis. (Id. at 264.)

On April 22, 2002, Zetino was examined at the QHC and found to have "no pain." (Id. at 210.) On May 31, 2002, Zetino was diagnosed with latent syphilis, hyperlipidemia,*fn15 esophagus varices without bleeding, chronic hepatitis C without coma, and acute alcoholic hepatitis. (Id. at 491.) On July 9, 2002, the QHC dermatology clinic diagnosed Zetino with psoriasis. (Id. at 244, 498.) On August 26, 2002, the QHC gastrointestinal clinic diagnosed Zetino with unspecified alcoholic liver damage and noted that Zetino claimed to have been sober for three months. (Id. at 495, 261.) On October 1, 2002, Zetino was diagnosed with latent syphilis, hyperlipidemia, esophageal varices without bleeding, chronic hepatitis C without coma, and psoriasis. (Id. at 494.) On October 24, 2002, an ultrasound revealed that Zetino's liver was enlarged, but that the biliary ducts and common bile duct were not dilated. (Id. at 503.) On January 10, 2003, Zetino was examined at the QHC and diagnosed with alcohol hepatitis C, questionable cirrhosis, hypothyroidism,*fn16 esophageal varices, latent syphilis, hyperlipidemia, hyperglycemia,*fn17 psoriasis, and periodontitis.*fn18 (Id. at 137.) Zetino was also found to have new onset diabetes. (Id.) The next day, Zetino was seen at the QHC emergency room with a blood sugar level of 490, complaining of weakness and polydypsia. (Id. at 219.) On January 14, 2003, Zetino was seen by the QHC diabetes clinic, where he was prescribed insulin for his diabetes. (Id. at 251.) A February 14, 2003 abdominal CT scan showed slight additional hypertrophy of Zetino's left lobe of the liver, suggesting cirrhosis, but his spleen was not enlarged. (Id. at 391.)

At a regular check up on March 17, 2003, Zetino complained of chest pain "on and off" for three days, but he had no shortness of breath or cough. (Id. at 389-90, 354.) He had abnormal erythematous skin lesions on his lower extremities and abdomen, and his liver was abnormally enlarged. (Id. at 385.) On May 12, 2003, the QHC diagnosed Zetino as ...

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