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Dipalma v. Colvin

United States District Court, S.D. New York

June 28, 2013

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

Page 556

For Christopher G. DiPalma, Plaintiff: Sharmine Persaud, Persaud & Morrin PLLC, Farmingdale, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Leslie A. Ramirez-Fisher, LEAD ATTORNEY, United States Attorney's Office, Southern District of New York, New York, NY.


Page 557


Andrew J. Peck, United States Magistrate Judge.

Plaintiff Christopher G. DiPalma, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the " Commissioner" ) denying him Disability Insurance Benefits (" DIB" ). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 14, 17 & 19: Notices of Motion.) The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 24.)

For the reasons set forth below, the Commissioner's cross-motion for judgment on the pleadings (Dkt. No. 17) is GRANTED, and DiPalma's motion (Dkt. Nos. 14 & 19) is DENIED.


Procedural Background

On November 15, 2008, DiPalma applied for DIB, alleging that he was disabled since January 6, 2003. (Dkt. No. 9: Administrative Record filed by the Comm'r (" R." ) 93.) In his application, DiPalma claimed to suffer from a right knee injury and back and neck pain. (R. 32-33, 136-37.) On March 23, 2009, the Social Security Administration (" SSA" ) found that DiPalma was not disabled and denied his claim. (R. 46-50.) On April 25, 2009, DiPalma requested an administrative hearing. (R. 65.)

Page 558

Administrative Law Judge (" ALJ" ) Dennis G. Katz conducted a hearing on June 7, 2010 (R. 28-39), at which DiPalma appeared with counsel (R. 28, 30). After the hearing, ALJ Katz directed a post-hearing consultative medical examination. (See R. 19, 169, 448-59.) On July 1, 2010, DiPalma underwent a consultative examination with Dr. Suraj Malhotra. (R. 448-59.) On August 24, 2010, ALJ Katz issued a written decision finding that DiPalma was not disabled. (R. 9-23.) ALJ Katz's decision became the Commissioner's final decision when the Appeals Council denied DiPalma's request for review on July 12, 2012. (R. 1-4, 7-8.)

The issue before the Court is whether the Commissioner's decision that DiPalma was not disabled between January 6, 2003 and August 24, 2010 is supported by substantial evidence.

Non-Medical Evidence

DiPalma was born on July 16, 1961 and was forty-one years old at the time of the alleged onset of his disability. (R. 93.) DiPalma obtained a GED degree in 1979. (R. 142.) Between 1991 and 1999, DiPalma held a number of jobs, including bus driver (light exertion) (R. 144, 148-50), nursing assistant (medium exertion) (R. 144, 147-48) and messenger (light exertion) (R. 144, 146-47). Most recently, DiPalma was an ironworker for a construction company from 1999 to 2003. (R. 144-46.) During those four years, DiPalma engaged in exertionally medium to heavy labor, grabbing, handling and grasping large objects for eight hours. (R. 145.) DiPalma lifted heavy iron pieces, ladders and scaffolding, weighing from fifty to 100 pounds, and stood and walked for four hours each per day. (R. 145.)

In January 2003, DiPalma was injured while working as an ironworker when he stepped into a trough during a blackout. (R. 31-32.) DiPalma injured his right knee and developed pain in his neck and back. (R. 31, 359.) DiPalma had two surgeries to repair his knee and five procedures between the surgeries due to various infections. (R. 35-38, 167-68, 173-74.) DiPalma tried unsuccessfully to return to construction work but could not work for more than two hours. (R. 32.) Aside from a Worker's Compensation settlement of $1.2 million, DiPalma does not receive a pension or disability benefits. (R. 31-32.)

DiPalma lives at home with his wife and two of their four children, ages twelve and fourteen. (R. 34-35.) As a house husband, DiPalma makes breakfast and lunch for his wife, picks up his children from school, and prepares dinner for his family in a typical day. (R. 34.) DiPalma experiences pain when he walks and is unable to sit or stand for long. (R. 33-34.) DiPalma can drive for thirty to forty-five minutes at a time. (R. 34.) DiPalma used to take pain medication but stopped because he is a recovering addict. (R. 35.) DiPalma's knee has not improved since the injury; it remains stiff when he sits and he cannot bend it fully. (R. 35-36.)

Medical Evidence

January 6, 2003 Through December 31, 2007

Treating Physician Dr. Marc Appel

After DiPalma's injury on January 6, 2003, DiPalma underwent a MRI of his right knee, which revealed a tear to the posterior horn of the medial meniscus. (R. 364.) DiPalma began treatment with Dr. Marc Appel, who diagnosed the medial meniscus tear. (R. 296.) After two weeks of physical therapy, Dr. Appel performed arthroscopy on February 20, 2003 and saw DiPalma monthly through November 2003. (R. 296, 289-91, 297-302, 322, 373-74.)

Throughout this period, DiPalma continued to report pain in the right knee and

Page 559

walked with a limp on the right side. (R. 289-91, 297-99, 322.) Nevertheless, DiPalma had no atrophy, effusion or instability of the knee (R. 289-91, 297-98, 322), and his knee had satisfactory alignment (R. 289-91, 322). Dr. Appel prescribed physical therapy and a knee brace, and advised DiPalma to go to the gym. (R. 289-91, 297-99.) On May 12, 2003, DiPalma complained of " stress transfer to the back and to the neck secondary to walking differently." (R. 298.) Believing that these complaints were related to the knee injury, Dr. Appel referred DiPalma to a chiropractor. (R. 298.)

On April 1, 2003, Dr. Appel assessed that DiPalma was not employable. (R. 297.) In May, July, August and November 2003, Dr. Appel indicated that DiPalma could not perform ironwork. (R. 289-90, 298, 322.) On September 26, 2003, Dr. Appel stated that DiPalma could not perform any type of construction work. (R. 291.) On November 4, 2003, Dr. Appel indicated that if DiPalma could not perform his ironwork position in the future, a decision would have to be made about what kind of work DiPalma would eventually be able to perform. (R. 322.)

On January 23, 2004, Dr. Appel reported that DiPalma continued to walk with a limp, had knee pain and " buckling" to his knee; Dr. Appel recommended that DiPalma continue with weight loss, as he had lost thirty pounds in the past few months. (R. 292, 303.) Dr. Appel stated that while it was about a year since DiPalma's surgery, it was " doubtful" that DiPalma would ever be able to work as an ironworker. (R. 292.) On February 20, 2004, Dr. Appel diagnosed medial compartment osteoarthritis and reiterated that DiPalma " cannot do his regular job." (R. 293, 304.) Although total knee replacement was discussed, Dr. Appel opined on March 19, 2004 that DiPalma was not a good candidate for this procedure due to his young age and marked obesity. (R. 295.) Dr. Appel stated that DiPalma was " not employable." (R. 295.) On May 27, 2004, Dr. Appel performed a high tibial osteotomy. (R. 367-68, 371.) DiPalma subsequently developed a painful infection and had several procedures to drain the surgical wound. (R. 312-13, 315-16, 366, 372, 430.) By July 19, 2004, DiPalma no longer used a wheelchair or walker, and although he used a cane, DiPalma was able to bear weight fully on his right leg. (R. 317-18; see R. 309, 314, 433-34.)

On August 2, 2004, Dr. Appel's inspection of DiPalma's knee revealed no erythema, deformity or drainage, and the wound was clean. (R. 197, 319.) DiPalma had an antalgic gait and reported mild arthralgia. [1] (R. 197.) DiPalma's neurovascular status, palpation, muscle strength, and range of motion all were normal. (R. 197.) Dr. Appel assessed knee pain and chronic osteomyelitis of the lower leg, and recommended progressive weight-bearing and use of a cane. (R. 197.) On December 8, 2004, DiPalma complained of worsening symptoms, but upon physical examination, Dr. Appel found no deformity. (R. 187-88.) On December 9, 2004, Dr. Appel performed surgery to remove hardware from the prior surgery. (R. 376.) Later that month, Dr. Appel reported that DiPalma had stable symptoms and that DiPalma described moderate anthralgia. (R. 283-85, 325, 327, 329.)

Throughout 2005, Dr. Appel stated that DiPalma could not return to work and had a " temporary total disability." (R. 204,

Page 560

206, 269-70, 276, 278, 339, 341, 345, 351.) Between January and March 2005, however, Dr. Appel consistently noted that DiPalma's symptoms were improving. (R. 201, 272-77, 336, 338, 340, 342, 344.) On March 18, 2005, DiPalma told Dr. Appel that he was improving and that he was going to Mexico. (R. 272, 344.) On April 15, 2005, after returning from Mexico, DiPalma reported worsening symptoms and low back pain. (R. 203, 346.) DiPalma weighed 350 pounds and reported difficulty with daily activities and an inability to sit, stand or walk for more than ten minutes. (R. 203, 346.) Upon examination of DiPalma's right knee, Dr. Appel noted muscle atrophy of the quadriceps, genu varus, and an antalgic gait. (R. 204.) At DiPalma's June, August, and October 2005 visits, DiPalma had pain medially and laterally upon palpation of his knee. (R. 205-06, 267, 350-51, 353.) On August 22, 2005, Dr. Appel noted that DiPalma would likely ...

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