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Henry Lazo-Espinoza v. Michael J. Astrue

March 27, 2012


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Plaintiff Henry Lazo-Espinoza ("Plaintiff") filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act") on May 18, 2009. (Compl. ¶ 8.) By a decision dated November 3, 2009, Administrative Law Judge David Z. Nisnewitz ("ALJ") concluded that Plaintiff was not disabled within the meaning of the Act. (Id. ¶ 10.)On March 9, 2010, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (Id. ¶ 11.) On May 5, 2010, Plaintiff commenced the instant action seeking reversal of the Commissioner's decision and remand solely for the calculation of benefits.

On August 6, 2010, the Commissioner served the administrative record and answer. On October 1, 2010, Plaintiff's counsel informed the Commissioner that the administrative record was missing a letter brief dated December 30, 2009 (the "Brief") that Plaintiff previously had sent to the Appeals Council. (See Dkt. Entry 14,Declaration of Candace Scott Appleton ("Appleton Decl.") ¶ 2; see also Dkt. Entry 16, Mem. of Law in Supp. of Pl.'s Cross-Mot. for J. on the Pleadings and in Opp'n to Def.'s Mot. for J. on the Pleadings ("Pl. Mem.") at 3.) Upon review of the records, the Commissioner also learned that Plaintiff had filed a subsequent disability application on April 16, 2010, which is currently pending before an ALJ hearing office. (Appleton Decl. ¶¶ 3-4.)

The Commissioner now moves for remand, pursuant to the fourth sentence of 42 U.S.C. § 405(g), to reconsider Plaintiff's claim in light of the Brief submitted to the Appeals Council and any potential new evidence obtained as part of Plaintiff's subsequent disability application. (See Dkt. Entry 13, Mem. of Law in Supp. of the Def.'s Mot. for Remand ("Def. Mem.") at 1.) Additionally, the Commissioner argues remand is appropriate because the existing record does not compel a finding that the criteria for disability were met. (Id.) Plaintiff cross-moves for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), asserting the ALJ erred by dismissing substantial evidence of Plaintiff's alleged medical impairment at step three of his evaluation and by failing to give controlling weight to the opinions of Plaintiff's treating physicians at step four of his evaluation. (Pl. Mem. at 1.) Plaintiff argues that the record contains sufficient evidence to support the finding that he is disabled. (Id.)

For the reasons set forth below, the Commissioner's motion is granted, Plaintiff's cross-motion is denied and the matter is remanded for further administrative proceedings consistent with this opinion.


I.Non-medical and Self-reported Evidence

Plaintiff alleges he became disabled on February 1, 2009. (A.R. at 32.) *fn1 On October 13, 2009, the ALJ held an administrative hearing to review Plaintiff's disability claim. (Id. at 25, 26.) Plaintiff was represented by a paralegal from Queens Legal Services at the hearing and a Spanish interpreter was also present.*fn2 (Id. at 25, 26, 91.) Plaintiff was born in Ecuador and came to the United States in 1988. (Id. at 27.) Plaintiff is married but currently lives alone. (Id.) He has held a variety of jobs in the United States, including employment as a distributor in a knitting factory from 1994 to 1998; a building maintenance porter from 1996 to 2005; and a taxi driver from 2007 to 2009. (Id at 30, 31.) In February 2009, Plaintiff left his job as a taxi driver because of pain in his back, feet and legs. (Id. at 30-32.) Plaintiff is diabetic, and has seen a primary care physician for his illness since 2004. (Id. at 35.) He stopped seeing his doctor in 2006 because he lacked medical insurance, but he resumed in 2009. (Id. at 35, 36.)

A.Adult Function Report

In an adult function report dated June 6, 2009, Plaintiff reported that he began experiencing pain in his back, feet and legs in November 2008 that felt like "electric shocks" or a "stabbing" sensation. (Id. at 139.) Plaintiff mostly felt the pain in his legs, but it often spread to other parts of his body, such as his hands and shoulders. (Id.) He reported that the pain would come and go throughout the day, and when he lifted objects or walked for long periods of time. (Id. at 136.) Plaintiff stated that he could only walk for ten blocks before having to stop and rest for seven minutes. (Id. at 137.)

Plaintiff spent almost all of his time inside of his apartment, unless he had an appointment. (Id. at 132.) He used public transportation, and usually went outside alone. (Id. at 134.) Plaintiff normally shopped twice a week, taking over an hour to complete errands. (Id. at 135.) During a typical day, he bathed, watched television and socialized with relatives. (Id. at 132.) Plaintiff was able to prepare meals three times per day, but it took him much longer to prepare meals than it used to because of his illness. (Id.) He took one tablet of Methocarbamol three times per day to reduce the pain. (Id. at 140.) However, it did not fully relieve him of the pain, and, had the side effect of inducing sleepiness and headaches. (Id.)

II.Medical Evidence

A.Evidence Prior to Plaintiff's Alleged Onset Date of 02/01/2009

Plaintiff sought medical treatment at the Queens Medical Office, P.C. ("QMO") from 2004 until 2009, where he was evaluated by several doctors, including Alveris Molina, M.D., his primary care physician, and Jesse Weinberger, M.D. a neurologist. (A.R. at 35, 36.)

On November 10, 2004, Plaintiff went to Dr. Molina for a routine physical and health examination. (Id. at 223-224.) Plaintiff denied having any changes in his weight, feeling fatigued or weak. (Id.) He also denied having acute joint pain, chronic joint pain, swelling of joints and back pain. (Id.) Dr. Molina discussed nutrition, exercise and other treatment matters with Plaintiff. (Id.) Plaintiff seemed alert, well developed and nourished during his visit, but was diagnosed with diabetes mellitus with unspecified hyperlipidemia. (Id. at 224.) Dr. Molina also ordered blood tests be performed. (Id. at 240-41.)

On November 26, 2004, Plaintiff followed up with Dr. Molina to obtain his test results, which showed Plaintiff had an elevated glucose level. (Id. at 221-22, 240-41.) He had no changes in his vision, or any back or joint pain. (Id. at 222.) Plaintiff denied having a history of anxiety, depression, schizophrenia or panic disorder. (Id.) His back and extremities had normal range of motion. (Id.) Dr. Molina prescribed Plaintiff Glucophage XR, Amaryl, and Vasotec. (Id.) Plaintiff was encouraged to return for a follow-up visit in one month. (Id.)

On December 23, 2005, Plaintiff returned to Dr. Molina complaining of a cough and sore throat that had lasted two weeks. (Id. at 219-20.) Dr. Molina prescribed the same diabetes medications and dosages as in November 26, 2004. (Id. at 220.) Plaintiff returned to QMO from January through May 2006 to follow up with Dr. Molina, continued taking Amaryl and Vasotec at the same dosages, but was prescribed an increased the dosage for Glucophage, and Zithromax, a new medication, by Dr. Molina. (Id. at 211-18.)

Plaintiff visited Dr. Molina between October and December 2006, during which time he gained seven pounds, but his vision, heart rate and extremities were all normal. (Id. at 205-10.) However, on October 2, 2006, he complained of having episodes of diaphoresis, general weakness and knee pain. (Id. at 210.) Plaintiff also reported that he no longer had any medications at home. (Id. at 210.)

B.Evidence On and After Plaintiff's Alleged Onset Date of 02/01/2009

1. Dr. Molina

On May 4, 2009, Plaintiff resumed treatment with Dr. Molina, almost three years after his last visit. (A.R. at 203, 204.) The gap in treatment was caused by Plaintiff's loss of health insurance. (Id. at 35.) Plaintiff returned to Dr. Molina because he experienced pain and numbness in his lower extremities, and vision changes. (Id. at 35, 203.) Upon examination, Dr. Molina observed neurological deficits. (Id. at 204.) Plaintiff indicated he had not taken his medications for many months. (Id.) Dr. Molina restarted him on Glucophage, prescribed Elavil, and recommended that he consult with an ophthalmologist and podiatrist. (Id.) Blood and urinalysis tests were also performed at this visit. The laboratory results showed that Plaintiff had elevated glucose and cholesterol levels. (Id. at 294-96.) Plaintiff was directed to return for a follow up visit with Dr. Molina in two weeks. (Id.)

On May 15, 2009, Plaintiff returned for his follow up visit. Dr. Molina documented numbness and weakness in Plaintiff's nervous system. (Id. at 289.) Dr. Molina started him on a low fat diet, doubled his Glucophage dosage, prescribed Simvastatin and recommended that Plaintiff return to QMO in one month. (Id. at 290.)

Plaintiff returned for a June 5, 2009 follow up visit. Dr. Molina noted a loss of sensation, numbness and weakness in Plaintiff's nervous system. (Id. at 288.) Plaintiff stated that he continued having bilateral leg pain. (Id. at 200, 288.) Dr. Molina directed Plaintiff to continue taking his medication and see a neurologist for his lower extremities. (Id.) Plaintiff returned to see Dr. Molina on July 11, 2009, for his neurological test results. (Id. at 287.) Plaintiff continued experiencing pain in his lower extremities, and now complained of pain in the upper back. (Id.) He was also talking Cymbalta. (Id.)

By August of 2009, Plaintiff's physical and psychiatric conditions appeared to worsen. (Id. at 284.) He complained of muscle weakness, chronic back pain, numbness, tingling, anxiety and depression. (Id.) Upon examination by Dr. Molina, Plaintiff was found to have a lumbar spine herniated disc, and diabetic neuropathy. (Id. at 285.) Dr. Molina diagnosed Plaintiff with diabetes mellitus with neurological manifestations. (Id. at 285, 287.) Plaintiff's blood test showed that he had heightened glucose levels. (Id.) As a result, Dr. Molina prescribed insulin Levemir. (Id.)

On August 27, 2009Dr. Molina completed a diabetes mellitus residual functional capacity questionnaire, stating that Plaintiff suffered from a variety of symptoms, including, fatigue, extremity pain and numbness, hyper/hypoglycemic attacks and kidney problems. (Id. at 277.) Dr. Molina confirmed that Plaintiff's impairments were reasonably ...

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