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Marlon M. Rivera v. Michael J. Astrue

August 11, 2012


The opinion of the court was delivered by: Cogan, District Judge.


Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking an order to vacate the final administrative decision of an Administrative Law Judge ("ALJ") and remand this action solely for calculation of disability benefits. Plaintiff and the Commissioner of Social Security have each filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.*fn1 For the reasons set forth below, the Commissioner's motion is granted and plaintiff's motion is denied.


I.Procedural Background

Plaintiff applied for Supplemental Security Income ("SSI") benefits on June 3, 2010, alleging disability since October 1, 2008, due to fractured ankles. When his application was denied, plaintiff requested a hearing before an ALJ, which was held on February 16, 2011. In a decision dated March 25, 2011, ALJ Miriam L. Shire found that plaintiff was not disabled.

This decision became the final decision of the Commissioner on July 8, 2011, when the Appeals Council denied plaintiff's request for review. Mr. Rivera then commenced this civil action.

II. Medical Evidence

Mr. Rivera was admitted to Hospital Buen Samaritano in Aguadilla, Puerto Rico, on September 11, 2008, after sustaining several injuries caused by falling twenty to twenty-five feet while doing construction on his roof. The attending physician applied elastic bandages and soft bandages to both ankles. Plaintiff was then referred to the orthopedic outpatient department for further treatment and was discharged.

X-rays of plaintiff's right foot taken on September 11, 2008, revealed a possible fracture at the base of the plaintiff's right foot as well as possible calcification or foreign bodies around plaintiff's toes. Imaging of plaintiff's left foot revealed osteopenia (low bone mineral density) and osteoarthritis. No fracture of the left foot was identified. Plaintiff also underwent X-ray imaging of his ankles, which displayed fractures of the heel bone in both ankles with displacement of the fractured fragments. On September 18, 2008, plaintiff was seen at Hospital Buen Samaritano for evaluation of possible head trauma. Plaintiff was discharged after X-rays of his skull showed no abnormalities.

Plaintiff checked into Damon House New York, Inc., on January 21, 2010, for a nine to twelve month community services program that assisted with substance and alcohol dependency. The program included individual and group counseling as well as workshops and seminars on various life skill topics. Following his arrival at Damon House, plaintiff began treatment at the Neighborhood and Family Community Health Center, where he complained of aching pain in both feet that worsened with walking and improved with rest. An examination revealed bony prominence of the right foot soft tissue and left foot deformity.

On March 12, 2010, plaintiff went to the Neighborhood and Family Health Center and complained of continued foot pain. He was diagnosed with lower extremity edema (swelling in the foot due to fluid buildup) and was referred to a podiatrist, Dr. Roosevelt Hazzard. Dr. Hazzard prescribed orthotics (custom made insoles for plaintiff to wear daily).

On June 28, 2010, Dr. Eugene Edynak conducted a consultative examination of plaintiff in connection with his SSI claim. Plaintiff reported that he had bilateral "stabbing" pain since his ankle fractures. Plaintiff described the pain as a level five out of ten and explained that the pain was relieved, with some medication, down to a level of three out of ten. Plaintiff described his daily activities to Dr. Edynak, which consisted of cleaning, shopping and laundering his clothes once per week, and showering and dressing himself daily.

Dr. Edynak observed that plaintiff appeared in no acute distress, presented with a normal station, walked without a noticeable limp, but could not walk on his toes or heels. Dr. Edynak further noted that plaintiff used no assistive devices and required no assistance changing for the examination or getting on and off the examination table. Examination revealed a full range of motion in plaintiff's spine and no spinal or paraspinal tenderness. Dr. Edynak also noted an absence of vertebral or lower back spasms. Plaintiff had no joint effusion, inflammation, or instability. He showed a restricted range of motion in the ankles. Plantar flexion (movement of toes toward the sole) in the right ankle was zero to forty degrees and in the left ankles was zero to thirty degrees. Dr. Edynak also noted tenderness in both ankles. The doctor indicated that an X-ray of plaintiff's ankles showed normal healing after the fracture he had sustained. Dr. Edynak opined that plaintiff had a mild to moderate limitation with walking, standing, climbing stairs, squatting, heavy lifting, or carrying because of his bilateral ankle pain and restricted range of motion.

On July 11, 2010, plaintiff visited the Neighborhood and Family Health Center complaining of foot pain. However, he had not obtained the orthotics he had been prescribed months earlier. Plaintiff was told that he needed to obtain a diagnosis for his foot pain before the doctors at the center could prescribe treatment or therapy. He was advised to check with a podiatrist regarding orthotics.

On August 3, 2010, an X-ray of plaintiff's heel showed a right heel spur, a bony protrusion on the side of the right heel, and soft tissue calcifications along the middle of the right heel. An X-ray of both feet showed osteoarthritis of the joints of both feet. X-rays of both ankles were normal except for plaintiff's right heel spur. On August 26, 2010, plaintiff presented at the center with a limping gait and stated that he needed an updated prescription for orthotic custom insoles. Dr. Hazzard told plaintiff to decrease all physical movement as much as possible. An X-ray of plaintiff's lower spine on the following day revealed normal findings. Approximately one week later, on September 3, 2010, plaintiff was prescribed physical therapy for low back syndrome, painful right hip, and inflammation on the bottom of both feet.

On September 9, 2010, plaintiff reported that he saw an orthopedist at the Neighborhood and Family Health Center who referred him to physical therapy, but he had no improvement in his pain. Dr. Surekha Bharne, a physiatrist specializing in physical medicine and rehabilitation, completed a spinal impairment questionnaire provided by plaintiff's attorney on February 3, 2011. Dr. Bharne indicated that she saw plaintiff on September 22, 2010; November 11, 2010; and February 3, 2011. Dr. Bharne diagnosed chronic low back pain, a herniated disc, and bilateral ankle pain. Dr. Bharne stated that plaintiff had limited flexion and bilateral tenderness in his lower back. There was no muscle spasm, sensory loss, reflex changes, muscle atrophy, or muscle weakness in plaintiff's lower back. Additionally, plaintiff did not have any limited range of motion, tenderness, muscle spasm, sensory loss, reflex changes, muscle atrophy, or muscle weakness in his neck. Dr. Bharne stated that plaintiff had no swelling or trigger points but he needed a cane for ankle pain. The doctor indicated that she had no laboratory or diagnostic tests available to support her diagnosis because plaintiff was treated by another provider.

Dr. Bharne opined that plaintiff could sit up to one hour and stand or walk up to one hour in an eight-hour day. The doctor further stated that plaintiff's symptoms would constantly interfere with his ability to maintain attention and concentration. She indicated that plaintiff could not sit continuously and would need to move around every twenty minutes and could not sit again for five to ten minutes. Plaintiff also could not stand or walk continuously in a work setting. Dr. Bharne believed that he could frequently lift or carry up to five pounds and occasionally lift up to ten pounds. She did not prescribe any medications but noted that plaintiff began physical therapy for his ankles in October, 2010. ...

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