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Ricardo Smith v. Michael J. Astrue

September 12, 2012


The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge



Plaintiff Ricardo Smith brings this action under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the decision by defendant Michael J. Astrue, Commissioner of Social Security, to deny his application for supplemental security income.

Plaintiff alleges that he has been disabled since December 15, 1996, due to blindness of the left eye, internal derangement of the right knee, facet disease of the lumbosacral spine, a herniated disc, spondylolisthesis, and an aneurysm.

On October 24, 2003 plaintiff filed an application for benefits under the Social Security Act. After his initial application was denied plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Elizabeth Koennecke held a hearing on February 2, 2005. T. 452. Plaintiff appeared at the hearing with his attorney. T. 452. On March 27, 2005, the ALJ issued a decision denying plaintiff's application. T. 18. On July 24, 2006, the Appeals Council vacated the decision and remanded the case to the ALJ with directions: to evaluate plaintiff's work activity in 2005 to determine whether plaintiff performed substantial gainful work activity; to obtain additional evidence concerning plaintiff's physical impairments; and to obtain opinions from medical and vocational experts. T. 97-98. The Appeals Council also directed the ALJ to offer plaintiff a second hearing. T. 99.

On June 21, 2006, while the case was pending before the Appeals Council, plaintiff protectively filed a second application for supplemental security income. T. 18. This application was denied in a notice of initial determination dated September 19, 2006, and was consolidated with the claim remanded by the Appeals Council. T. 18.

Because of plaintiff's incarceration, the second hearing was delayed until July 7, 2008, and held via "video teleconferencing".*fn1 T. 401-44. The ALJ presided over the hearing in Syracuse, New York. T. 403. Plaintiff testified from the Ogdensburg Correctional Facility via video teleconference. T. 403. He was represented by Laura Weekly.*fn2 T. 403. Medical Expert Thomas Weiss, M.D., testified via telephone. T. 403. Vocational Expert David Festa appeared and testified in Syracuse. T. 403.

On October 24, 2008, the ALJ issued a decision denying plaintiff's applications. T. 18-25. On November 25, 2009, the Appeals Council denied plaintiff's request for review making the ALJ's decision the final decision of the Commissioner. T. 7. This action followed.


The following is a chronological summary of the medical records in the Administrative Transcript. In a note dated January 6, 1997, Jeffrey Stern, M.D., a retina - vitreous specialist, stated:

Ricardo Smith is a patient of mine who underwent major eye surgery on December 17, 1996 for a retinal detachment. A pars plana vitrectomy and scleral buckle were performed on his left eye. Multiple surgeries will most likely be needed on his eye. In addition, the prognosis on his left eye for visual recovery is limited. On his last visit to our office on December 30, 1996, visual acuity was at light penetration only.

T. 243.

Alexander Filipp, M.D., from The Center for Sight, examined plaintiff on February 28, 1997. In his report, Dr. Filipp noted that plaintiff was a "professional boxer who sustained a retinal detachment" of the left eye and had "surgery with silicone oil instillation." T. 242. Plaintiff asked Dr. Filipp "whether anything could be done to improve the vision" in his left eye.

T. 242. Dr. Filipp found that plaintiff had "questionable no light perception [left eye]" and that the visual acuity in his right eye was 20/30 without correction. T. 242. Dr. Filipp told plaintiff that the retina in his left eye had "suffered significant damage" and that "the prognosis for any improvement . . . was extremely poor." T. 242.

A State of New York - Department of Correctional Services ambulatory health record dated September 9, 2003 stated that plaintiff "slipped on wet floor in bathroom" and that he had "chronic back problems" and was "having pain and difficulty using RT leg" as well as "numbness". T. 261. Plaintiff was given a "cane until [could be] seen by M.D." T. 261.

On December 8, 2003, at the Commissioner's request, Berton Shayevitz, M.D. performed a consultative internal medicine examination. Plaintiff told Dr. Shayevitz that "he had pain in the lower lumbar area occasionally radiating to the right sacroiliac area" and that the pain was "constant and the intensity varie[d]." T.251. Plaintiff's vision was less than 20/200 on the right and 20/40 on the left. T. 252. Dr. Shayevitz reported that plaintiff's gait was normal and that he could walk "on heels and toes without difficulty." T. 253. Dr. Shayevitz found that plaintiff had full flexion of the lumbar spine and "full range of motion of shoulders, elbows, forearms, . . wrists, . . . hips, knees, and ankles." T. 254. Dr. Shayevitz reported that:

Forward flexion is 0-45 degrees without discomfort, extension is 0-45 degrees causes pain in the mid upper neck bilaterally, lateral flexion is 0-45 to the right causes pulling on the right side of the neck to the right with no discomfort and bilateral rotation is 0-70 degrees limited by stiffness.

T. 253. Dr. Shayevitz listed the following under "Impression":

1. Complaints of low back pain without having abnormal physical findings.

2. Bilateral pes planus.

3. Total loss of vision in the right eye.

4. Possible degenerative changes in the neck.

T. 245. Dr. Shayevitz stated:

He is limited at this point only in loss of use of his right eye. It might be somewhat of a problem in activities involving driving or rapid repetitive motions requiring vision of the right [eye]. He may be between mildly and moderately limited if at all by his back.

T. 254.

In a radiology report dated December 8, 2003, Pesho S. Kotval, M.D., Ph.D. stated that a lumbar sacral spine x-ray showed: "Disc space narrowing at L5-S1 and Grade II spondylolisthesis of L5-on-S1." T. 256.*fn3

On January 30, 2004, plaintiff went to the emergency room at Community General Hospital in Syracuse, New York for medical treatment after slipping on ice. Plaintiff told Phillip Tatnall, M.D., that he recently "was released from prison where he had multiple back problems" but that he had been doing "quite well until he slipped on ice this morning, and has redeveloped numbness and tingling in his right leg". T. 265. Dr. Tatnall examined plaintiff's back and found "pain on percussion of L3-L4." T. 265. Dr. Tatnall observed that plaintiff could "heel and toe walk" but that he did so "with great difficulty". T. 265. Dr. Tatnall diagnosed "acute M exacerbation of low-back pain with herniated disc by history" and prescribed Lortab and Flexeril.

T. 265.

On February 10, 2004, plaintiff returned the Community General Hospital emergency room to obtain treatment for back and leg pain. T. 273, 279. Plaintiff was given Tylenol, Motrin and ice packs. Plaintiff was discharged the same day with a prescription for Lortab and instructed to follow-up with his physician. T. 273; see also T. 275-76.

Joseph Smith, M.D., an orthopedist at Syracuse Orthopedic Specialists, examined plaintiff on April 28, 2004. T. 304. Plaintiff told Dr. Smith that he had pain in his right knee and leg and that he had injured his knee in 1997 while playing basketball and since then had intermittent episodes of his right knee "giving out, most recently, approximately two weeks ago, while playing" basketball. T. 304. Dr. Smith observed that plaintiff's gait was hesitant and that there was "tenderness to palpation at the medial joint line and medial collateral distally". T. 305. The range of motion in plaintiff's right knee was "[n]early normal . . . limited, probably by pain rather than a mechanical block." T. 305. Dr. Smith diagnosed "[l]ong chronic third-degree ACL deficiency, right knee . . . [m]inimal medial collateral ligament strain." T. 306. Dr. Smith requested an MRI of plaintiff's right knee. T. 306. Dr. Smith stated in his report that plaintiff was: "Temporarily TOTALLY disabled. Partial disability moderate." T. 306. Dr. Smith also gave plaintiff a note stating: "Pt. is to be out of work until further notice [diagnosis] knee pain."

T. 285.

On May 12, 2004, Dr. Smith issued a "physician's statement for determination of employability". T. 286. Dr. Smith stated that plaintiff could not perform any activity and was "temp[orarily] totally disabled" because he had "pain in extremity" and "deficiency lower limb". T. 286. Dr. Smith also stated that an M.R.I. had been requested. T. 287.

A radiology report dated July 3, 2004 states that four views of plaintiff's right knee were taken and that they showed a "small joint effusion". T. 316.

In a residual functional capacity assessment dated July 21, 2004, Heather Crandell, a physician assistant, who was treating plaintiff's knee condition, see T. 294, stated that in an eight hour work day, plaintiff could sit for two hours, stand and walk for less than one hour, and "sit/stand/walk combination" for six hours. T. 288. Crandell indicated that plaintiff could bend, stoop, and twist "less than 1 hr." in an eight hour work day but could not kneel climb, or drive at all. T. 288. Crandell stated plaintiff could use his upper body to push and pull two hours each day and could lift ten pounds but that he could not carry anything. T. 288. Crandell also stated that plaintiff could use his hands to perform gross and fine motor activities, grasp, hold, turn, and, with support, reach forward three hours and "over chest" four hours each day. T. 288. Crandell cited "ACL insufficiency and possible meniscus tear" as the basis for her opinion. T. 289. Crandell indicated that sustained activities could cause plaintiff to regress physically and that his condition was likely to last more than a year "unless treated surgically". T. 289. Crandell stated that she believed that plaintiff's symptoms and complaints were reasonable. T. 289.

On July 22, 2004, plaintiff told Mateen Awan, M.D., a primary care physician at Syracuse Community Health Center, that he had lower back pain, numbness in the right leg, and pain in the right knee. T. 319. Dr. Awan examined plaintiff and noted that he had "tenderness in the lumbosacral spine and the paraspinal muscles", that "[s]traight leg raise test is limited at about 40 degrees on the left and 30 degrees on the right", and that plaintiff had "decreased muscle power because of the pain in the knee and in the back on the right side." T. 319. Dr. Awan diagnosed lower back pain and right knee injury. T. 319.

On July 27, 2004, plaintiff went to see Tamara Scerpella, M.D. at University Hospital Orthopedic Surgery regarding his right knee. T. 293. Dr. Scerpella noted that plaintiff had "a chronic A[nterior] C[ruciate] L[igament] tear (1998) sustained in an altercation with an officer" and diagnosed right knee ACL "chronic insufficiency with subacute medial meniscal tear." T. 293. Dr. Scerpella recommended surgical "intervention to treat the meniscus". T. 293. Dr. Scerpella gave plaintiff a note stating that she was treating "a meniscal and ACL tear of the [right] knee", that "surgery will be later this month" and that plaintiff would "be fully disabled for 3-4 w[eeks] post-surgery and permanently disabled (partial - light walking only) due to ACL tear." T.

On July 29, 2004, plaintiff had arthroscopic partial medial and lateral meniscectomy surgery. T. 294-95.

On August 4, 2004, during a post-surgery appointment, plaintiff told Dr. Scerpella that he was doing "very well", could ride a bike and had "much less pain than he did prior to surgery."

T. 292. Dr. Scerpella recommended "referral to physical therapy to work on range of motion, strengthening and proprioceptive retraining." T. 292. Dr. Scerpella stated that plaintiff was "totally disabled at this time, but when he [returned] in one month he will likely be eligible for all but strenuous work". T. 292. Dr. Scerpella noted that plaintiff "obviously has other issues including left leg sciatica and the blindness in one eye" but they were "out of the realm of our expertise." T. 292.

In a report dated September 7, 2004, Gerard McChohan, M.D. stated that an M.R.I. of plaintiff's lumbar ...

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