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Jose Felix, Pro Se v. Michael J. Astrue

July 24, 2012


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


Pursuant to 42 U.S.C. § 405(g), pro se plaintiff Jose Felix ("plaintiff") appeals the final decision of defendant Michael Astrue, Commissioner of Social Security ("defendant"), who denied plaintiff's application for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") under Title II and Title XVI, respectively, of the Social Security Act ("the Act"). Plaintiff contends that he is disabled within the meaning of the Act and is thus entitled to receive the aforementioned benefits. Presently before the Court is defendant's motion for judgment on the pleadings. For the reasons stated below, defendant's motion is granted.


I. Procedural History

Plaintiff applied for SSD and SSI on September 18, 2007, claiming he has been disabled since May 31, 2007. (Tr. 105, 109.)*fn1 Plaintiff alleged that he was disabled due to the after-effects of rheumatic fever, which caused joint pain and heart palpitations. (Tr. 128.) The Social Security Administration (the "SSA") initially denied his application on January 18, 2008. (Tr. 69-72.)

Upon the SSA's denial of his application, plaintiff requested an administrative hearing before an Administrative Law Judge. (Tr. 73-74.) The SSA granted plaintiff's request for a hearing, which was attended by plaintiff and his counsel on February 18, 2009, before Administrative Law Judge Harvey Feldmeier (the "ALJ"). (Tr. 75-76, 87-90.) The ALJ issued a decision on March 26, 2009, finding that the plaintiff was not disabled.*fn2 (Tr. 21-28.) Specifically, the ALJ found that the plaintiff had the Residual Functional Capacity ("RFC")*fn3 to perform the full range of medium work.*fn4 (Tr. 26-27.) The ALJ further found that, although there was a medically determinable impairment that could reasonably be expected to cause plaintiff's alleged symptoms, the plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not credible to the extent that they were inconsistent with an RFC determination that plaintiff could perform the full range of medium work. (Id.) The ALJ thus concluded that the plaintiff was able to perform his past work as a shipping clerk as the job is actually and generally performed, which included lifting 50 to 100 pounds or more with the assistance of co-workers and "mostly" using a hand truck while standing or walking. (Tr. 27.)

Plaintiff appealed the ALJ's decision to the Appeals Council on September 22, 2009. (Tr. 9.) The Appeals Council denied the appeal on June 8, 2011, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-4.) This appeal followed.

II. Non-Medical Facts

Plaintiff was born on January 11, 1950. (Tr. 124.) Plaintiff's highest level of education is the ninth grade, but he has a general-equivalency diploma ("GED"), which he took in Spanish. (Tr. 41, 57.) Plaintiff can speak, but not read or write, English. (Tr. 127.)

Plaintiff's known work experience includes a position as a "general worker" at a fur business where he worked from 1977 to 1985, and shipping clerk positions at two fabric manufacturers. (Tr. 42, 145.) Most recently, plaintiff worked as a shipping clerk at Preview, a fabric manufacturer, from 2005 until 2007. (Id.)

Plaintiff has worked as a shipping clerk for approximately fourteen years. (Tr. 129.) Plaintiff claims that the job required him to unload boxes, lift rolls of fabric, walk for seven hours a day, stand for one hour, climb for six hours, grab big objects for three hours, and reach for eight hours in an eight-hour day. (Id.) In an undated Disability Report, plaintiff claimed that he frequently lifted fifty pounds or more, and that the heaviest weight he lifted was 100 pounds or more. (Id.) At the February 18, 2009 hearing, plaintiff testified that he had to lift 250 to 300 pounds with the help of a hand truck and his co-workers, and that he performed his tasks mostly standing. (Tr. 44.)

Plaintiff was fired from his last shipping clerk position on March 31, 2007. (Tr. 128.) In his Disability Report, plaintiff claimed that he was "fired due to a dispute, not related to any illness, with my employer." (Id.) At the February 18, 2009 hearing, however, plaintiff claimed that he was fired by his employer after plaintiff "slowed down a lot" because his "body wasn't that great." (Tr. 43.)

Plaintiff lives alone in a second-floor apartment. (Tr. 35-36, 134.) He climbs about ten steps to reach his apartment and is able to travel on the subway alone. (Tr. 36, 39.) Plaintiff reported going shopping at the grocery store below his apartment three times a month. (Tr. 39, 138.) In a Function Report questionnaire from October 17, 2007, plaintiff wrote that he cleans his home, takes walks, "go[es] to different agencies to seek financial help" on a usual day, and tries to go out everyday, and either walks or uses public transportation. (Tr. 135, 137.) Plaintiff also claimed that he could not stand for long periods due to joint pain, that it is difficult to dress himself, and that his joints cramp occasionally while shaving. (Tr. 135-36.) Otherwise, plaintiff said he is able to bathe and use the toilet independently. (Id.) Plaintiff prepares three meals a day for himself and performs all household chores, though he claimed doing chores is "difficult and painful." (Tr. 136-37.) Finally, plaintiff said he enjoys watching television and sports in parks and that he goes to a social club to play dominoes two or three times a week, though his illness has caused him to stay at home more often. (Tr. 138-39.)

Plaintiff claimed that he could walk ten blocks before needing to stop and rest for ten to fifteen minutes. (Tr. 140.) Plaintiff also asserted that he feels pain in his hands, legs, back, arms, and shoulders, but that at times he "mostly fe[lt] the pain from the waist down." (Tr. 142.) At the February 18, 2009 hearing, plaintiff testified that he could only walk two blocks or stand for ten minutes before having to rest due to leg pain. (Tr. 52.)

Additionally, plaintiff testified that he had received unemployment insurance benefits from March 2007 until January 2009. (Tr. 39, 59-60.) Plaintiff testified that while he was receiving unemployment insurance benefits, he had certified once every two weeks that he was ready, willing, and able to work. (Tr. 40-41.) At the hearing, however, plaintiff claimed that he only made the certifications because he "need[ed] the money" and thought he could "do something light" in his home. (Tr. 40.) Subsequently, plaintiff testified that he never tried to find work between March 2007 and January 2009 because his leg pain prevented him from taking the subway, in conflict with his prior representation that he was able to take the subway independently. (Tr. 37, 60.)

In a medical record from the Long Island College Hospital dated November 16, 2007, plaintiff admitted that he engaged in "substance abuse" -- later identified as cocaine use (Tr. 300, 309) -- by taking one gram of cocaine twice a week for twenty-nine years, though he had quit for one month (Tr. 303). When the ALJ questioned plaintiff about whether his heart problems were caused by cocaine use, as indicated in his medical records, plaintiff answered that he had used cocaine only once. (Tr. 47.) Plaintiff later corrected his testimony, claiming he had only used cocaine "once in a blue moon" since 1976, and had used marijuana "once in a blue moon" in order to help him move around. (Tr. 48.)

III. Medical Facts

Plaintiff has presented medical records dating back to October 2007.*fn5 (Tr. 172-79.) His date-last-insured is December 31, 2011. (Tr. 124.)

A. Plaintiff's Testimony Regarding His Symptoms

At plaintiff's February 18, 2009 hearing, plaintiff testified that he (1) had pain in his leg that he rated as a seven on a pain scale of zero to ten (ten being the most painful), (2) could only lift seven pounds, and (3) experienced heart palpitations due to his prior rheumatic fever in 1970 and a family history of heart problems. (Tr. 45, 57-60.) To plaintiff's knowledge, his mother, sister, father, and grandmother all died of cardiac problems. (Tr. 59.) Additionally, plaintiff claimed he was unable to close the thumb and index finger on his right (dominant) hand, where he was hit by a stray bullet in 1985 and stabbed in 1995 during an attempted robbery. (Tr. 53-54.) Finally, plaintiff testified that cold weather, rain, and snow caused pain in his stomach and legs. (Tr. 62.)

B. Consultative Examiner's Report

On October 18, 2007, plaintiff was examined by Dr. Rahel Eyassu, a consultative examiner. (Tr. 172-75.) Plaintiff reported taking non-prescription Advil and Motrin pain medications at the time. (Tr. 172.) Dr. Eyassu found that plaintiff had a history of a bullet wound in his right forearm, status post-surgery for a partial tendon laceration and a radial digital nerve laceration, and flexion deformity of his right index finger since 1982. (Id.) Dr. Eyassu also reported that plaintiff was in "no acute distress" and needed no help changing, rising from a chair, or getting on and off the exam table, though he had a slow gait. (Tr. 173.) Further, Dr. Eyassu wrote that plaintiff's lumbar spine had full rotary movement bilaterally, and full rotary movement of shoulders, elbows, forearms, wrists, hips, knees, and ankles. (Tr. 174.) Dr. Eyassu also found that plaintiff's strength in his upper and lower extremities and his grip strength in his hands were "5/5." (Id.)

Dr. Eyassu, however, found that plaintiff had an irregular heart rhythm and diagnosed plaintiff with tachycardia, hypertension, right index flexion deformity, and rheumatic heart disease, by history. (Tr. 173-74.) Apart from the tachycardia, for which Dr. Eyassu gave an unknown prognosis, plaintiff received a "fair" prognosis on all of Dr. Eyassu's diagnoses, with changes in medication and diet. (Tr. 174.) Dr. Eyassu also found that plaintiff was restricted to "mild to moderate exertion." (Id.) After finding plaintiff's irregular heart beat, Dr. Eyassu sent plaintiff to the Long Island College Hospital ("LICH") emergency room for his heart palpitation and uncontrolled hypertension. (Tr. 174, 180.)

C. Long Island College Hospital Medical Records

Plaintiff was admitted to LICH on October 18, 2007, complaining of heart palpitations. (Tr. 180.)*fn6 During his first visit, plaintiff underwent an electrocardiogram and was found to have paroxysmal atrial fibrillation. (Tr. 180.) On October 22, 2007, plaintiff underwent an exercise stress test that showed a heart rate that was 90% of the age predicted heart rate, a left ventricular ejection fraction of 51%, and "good wall motion" of the left ventricle. (Tr. 223.) The doctor found left ventricular hypertrophy, but no exercise induced ischemia. (Id.) Plaintiff was given aspirin, metoprolol (which the attending physician noted had "controlled" his high blood pressure), and Coumadin, an anticoagulant. (Tr. 178, 192.) Plaintiff was discharged on October 23, 2007. (Tr. 180.)

On October 24, 2007, the attending physician at LICH noted that plaintiff had New York Heart Association Class II symptoms, a category that includes slight limitation of activity due to cardiac disease and feelings of fatigue, palpitation, dyspnea, or anginal pain during ordinary physical activity. (Tr. 317.) ...

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