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Perez v. Astrue

United States District Court, N.D. New York

November 30, 2012

Edicer PEREZ, Plaintiff,
v.
Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant.

Page 267

[Copyrighted Material Omitted]

Page 268

Peter A. Gorton, Lachman, Gorton Law Firm, Endicott, NY, for Plaintiff.

Benil Abraham, U.S. Social Security Administration, New York, NY, for Defendant.

DECISION and ORDER

WILLIAM G. YOUNG, District Judge.[1]

I. INTRODUCTION

Edicer Perez (" Perez" ) brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the " Commissioner" ). Perez challenges the decision of the Administrative Law Judge (the " hearing officer" ) denying him Social Security Disability Insurance (" SSDI" ) benefits and Supplemental Security Income (" SSI" ) benefits. Perez requests that this Court grant his motion for judgment on the pleadings and grant his application for SSDI and SSI benefits or remand this case to the Commissioner for further proceedings. Compl., ECF No. 1; Pl.'s Br. (" Perez's Mem." ), ECF No. 15. The Commissioner requests that this Court affirm the hearing officer's decision and grant his motion for judgment on the pleadings. Def.'s Br. Pursuant General Order No. 18 (" Def.'s Mem." ), ECF No. 16.

A. Procedural Posture

On June 14, 2007, Perez filed a Title II application for SSDI benefits and a Title XVI application for SSI benefits, alleging disability for a period beginning June 11, 2007. Admin. R. at 10, ECF No. 8. Perez's application was initially denied on November 15, 2007, id. at 40-46, and Perez filed a timely written request for a hearing by a hearing officer on December 26, 2007, id. at 50-51. Perez testified at a hearing held on November 5, 2009, and was represented by an attorney. Id. at 10. The hearing officer issued an unfavorable decision on November 18, 2009. Id. at 15. Perez subsequently filed a timely request for review, id. at 5, which was denied by the Appeals Council on March 9, 2010, id. at 1-4.

On March 23, 2010, Perez filed the present action with this Court to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Compl. 1. The government filed an answer, Answer, ECF No. 7, and both sides filed briefs, Perez's Mem.; Def.'s Mem. On February 3, 2012, the case was reassigned to this Court. Reassignment Order, ECF No. 18.

B. Factual Background

Perez was born in 1957. Admin. R. at 79. He smokes a pack of cigarettes per week, uses alcohol, and has no history of drug use. Id. at 237. Perez has a twelfth-grade education from Puerto Rico and received some vocational training in carpentry in New York. Id. at 23. He is able to read and write English. Id. His prior employment includes some labor work, laundry, painting, and refinishing and polishing work. Id. at 99. Perez has a history of numerous physical impairments. Id. at 12-14.

1. Physical Impairments

Perez reported to Wilson Memorial Hospital and saw Dr. Sabah S. Toma on June 11, 2007, complaining of headaches and dizziness. Id. at 175. He underwent a noncontrast computed tomography scan of his head and paranasal sinuses, which revealed minimal mucoperiosteal thickening and a deviated nasal septum. Id. at 195.

On June 21, 2007, Perez arrived at Our Lady of Lourdes Memorial Hospital with left upper extremity severe weakness and tingling, and left lower extremity weakness

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with a left-sided facial droop. Id. at 237. Dr. Victoria M. Mirza (" Dr. Mirza" ), Perez's attending physician, noted that Perez had a history of deep venous thrombosis, pulmonary embolism, migraines, and nicotine dependence. Id. at 242. Dr. Mirza further noted that Perez was noncompliant with his Coumadin therapy treating the deep venous thrombosis. Id. at 245. Perez underwent a magnetic resonance imaging test, which revealed that he had suffered from acute right brain ischemic stroke. Id. at 238. Perez was diagnosed with left spastic hemiparesis and right middle cerebral artery infarct. Id. at 244. Perez's condition subsequently stabilized, and he was cleared medically to return home and was instructed to attend outpatient rehabilitation therapy. Id. at 236.

On October 1, 2007, Perez saw Dr. Jamshid Sheikh (" Dr. Sheikh" ), for a consultative exam on a referral from the Division of Disability Determination. Id. at 214. Perez reported that his condition had improved tremendously since his stroke and that he was able to cook, clean, do laundry, and shop, but he continued having difficulty lifting or holding heavier objects. Id. at 214-15. Dr. Sheikh noted that Perez appeared to be in no acute distress, his gait was normal, he could walk on his toes and heels, and he could complete a full squat, although he did use a cane for balance when climbing stairs. Id. at 215.

On August 7, 2008, Perez saw Dr. Meng Zhao (" Dr. Zhao" ), complaining of pain in the right ankle. Id. at 281. Perez underwent an x-ray test, which revealed a trimalleolar fracture dislocation of the right ankle. Id. at 280. Dr. Michael McClure (" Dr. McClure" ) subsequently performed an open reduction and internal fixation procedure on Perez's right ankle. Id. at 282. Perez attended several post-surgery follow-up examinations with Dr. Zhao and Dr. McClure between August 29, 2008, and October 27, 2008. Id. at 273-77. During a checkup on January 29, 2009, Dr. Zhao noted an edema on the left leg, very subtle slurred speech, and ...


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