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Torres v. Commissioner of Social Security

United States District Court, E.D. New York

August 12, 2014

DAVID TORRES, Plaintiff,



David Torres ("plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final determination of defendant Commissioner of Social Security ("Commissioner") that plaintiff is not eligible to receive Supplemental Social Security Income ("SSI") under the Social Security Act (the "Act"). Now before the Court is the Commissioner's unopposed motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the Commissioner's motion is granted.

I. Background

A. Administrative Proceedings

Plaintiff is a thirty-eight (38) year old male. (Transcript of Administrative Record ("Tr.") [Docket Entry No. 17], 140). On March 7, 2011, plaintiff filed an application for SSI benefits, alleging that he was disabled due to injuries from gunshot wounds to his spine and left foot, injuries of his neck and shoulder, and a laceration of his left hand. (Tr. 7, 53, 156). On June 9, 2011, the Social Security Administration ("SSA") denied plaintiffs application and determined that plaintiff was not disabled, and explained that "based on [plaintiff's] age of 35 years, [his] education of 12 years, and [his] experience, [he] can perform light work" and his "condition is not severe enough to keep [him] from working." (Tr. 54-57). On June 29, 2011, plaintiff filed a written request for a hearing. (Tr. 7, 159).

On March 20, 2012, a hearing was held before Administrate Law Judge ("ALJ") Brian J. Crawley, at which plaintiff appeared with his attorney. (Tr. 18-41). On May 31, 2012, ALJ Crawley issued a decision (the "ALJ Decision") denying plaintiff's application for SSI benefits and concluding that plaintiff was not disabled. (Tr. 4-13). On July 31, 2012, plaintiff sought review of the ALJ Decision by the Appeals Council of the SSA Office of Disability Adjudication and Review. (Tr. 42). On December 20, 2012, the Appeals Council denied plaintiff's request for review, rendering the ALJ Decision the final decision of the Commissioner. (Tr. 1-3).

On February 19, 2013, plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's final determination. [Docket Entry No. 1]. On June 12, 2013, the Commissioner filed an answer and served plaintiff with the administrative record. [Docket Entry No. II]. On November 14, 2013, the Commissioner moved for judgment on the pleadings. [Docket Entry No. 15]. Plaintiff has not opposed the Commissioner's motion.

B. Medical Records

1. Plaintiff's Treatment Records

In 2000, plaintiff sustained a gunshot wound to his back. (Tr. 176). On March 24, 2005, x-rays of plaintiff's right hip showed no abnormalities. (Tr. 189). On March 30, 2005, a computerized tomography ("CT") scan of plaintiff's pelvis revealed a bullet fragment at the level of the right ileum. (Tr. 186). On April 14, 2005, an x-ray of plaintiff's right shoulder showed no fracture or dislocation. (Tr. 188). On May 10, 2005, an x-ray of plaintiff's right hip showed a bullet within the right ilium, but no bone, joint, or soft tissue abnormality. (Tr. 187). On June 18, 2005, plaintiff underwent a whole-body bone scan, which revealed normal bone activity, except for abnormal uptake in the right maxilla that was likely dental in origin. (Tr. 185).

On June 16, 2006, Dr. Fawzy Salama from Queens-Long Island Medical Group ("QLIMG") conducted a neurological evaluation of plaintiff, which revealed that: plaintiff's cranial nerves were within normal limits; all muscle groups of plaintiff's upper and lower extremities were of normal strength; his deep tendon reflexes were 1 symmetrical and equal; and moderate restrictions of plaintiff's lumbar spine mobility. (Tr. 179). Plaintiff was able to heel-walk and tip toe. (Id.). There was positive straight leg raising sign on the right side up to eighty (80) degrees. (Id.). The impression was listed as chronic lower back pain, and right hip pain, possibly related to the bullet injury. (Id.).

On August 10, 2006, Dr. Donna Mohamed of QLIMG diagnosed plaintiff with low back pain. (Tr. 178).

On October 24, 2006, Dr. A. Pluchinotta of QLIMG conducted an orthopedic evaluation of plaintiff, during which plaintiff was able to ambulate on his heels and toes without difficulty. (Tr. 176). Dr. Pluchinotta found plaintiff's spine and hips had some limitation in range of motion, there was some discomfort throughout the right groin area, and the straight leg raising test was negative bilaterally. (Tr. 176-77). Dr. Pluchinotta's diagnosis was "retained bullet, right iliac bone status post gunshot wound, " and instructed plaintiff "to follow up with pain management specialist for treatment of chronic pain." (Tr. 177).

On July 18, 2007, Dr. Mohamed found plaintiff's motor strength, heel walking, musculoskeletal system, and lumbosacral spine motion were normal. (Tr. 250). Plaintiff's lumbosacral spine exhibited no tenderness on palpitation. (Id.). Dr. Mohamed's assessment was "pain localized to one or more joints, " "lumbago, " and "sciatica." (Id.). X-rays of plaintiff's lumbar spine taken that day were negative, and x-rays of plaintiffs hips revealed mild osteoarthritis. (Tr. 184).

On October 19, 2007, Dr. Pluchinotta saw plaintiff for an "orthopedic followup, " during which plaintiff stated that "he has not returned to work due to his chronic pain" and "has not seen [a] pain management specialist." (Tr. 174). Dr. Pluchinotta noted that plaintiffs gait was physiologic, examination of the spine revealed mild discomfort with full flexion, but no tenderness to palpitation of the spine or paraspinous muscles, straight leg raising test produced only lower back pain, peripheral pulses were intact, and the neurological examination was unremarkable. (Id.). Dr. Pluchinotta's impression was that the origin of plaintiffs symptoms appeared to be obscured. (Id.). [1]

On September 5, 2008, following a gunshot wound to his left foot, plaintiff was admitted to Nassau University Medical Center for treatment. (Tr. 337). X-rays on plaintiffs left foot revealed a fracture of the navicular bone. (Tr. 352). X-rays of plaintiffs lumbosacral spine revealed no acute fracture or dislocation. (Tr. 353). Upon his discharge on September 9, 2008, plaintiff had no physical activity limitations and could ambulate with crutches. (Tr. 337).

On September 15, 2008, Dr. Mark Panish of QLIMG treated plaintiff following the gunshot wound to his left foot. (Tr. 232). Plaintiff had been receiving percocet in the hospital, but complained that Tylenol and advil were not helping his pain. (Id.). Dr. Panish prescribed plaintiff acetaminophen-codeine and wrote "surgery ASAP" under "Plan." (Id.). On September 18, 2008, plaintiff went to QLIMG for a surgery consultation, where his wound was cleaned and he was advised to remain non-weight bearing until seen by an orthopedist. (Tr. 220-21).

On September 23, 2008, Dr. Christopher Durant of QLIMG examined plaintiff, who complained of pain in his left foot and difficulties ambulating and bearing weight. (Tr. 215). Dr. Durant's impressions were a gunshot wound and navicular bone fracture of the left foot. (Id.). Plaintiff was prescribed a CAM walker after he declined the cast treatment initially recommended by Dr. Durant. (Tr. 216). X-rays revealed a comminuted fracture of the tarsonavicular bone in the left foot. (Tr. 209).

On September 30, 2008, Dr. Durant conducted a follow-up orthopedic evaluation of plaintiff, and found there was still some swelling and tenderness in the left foot, and recommended that plaintiff continue to use the CAM walker and obtain new x-rays of the left foot in three (3) to four (4) weeks. (Tr. 208).

On October 21, 2008, plaintiff went to QLIMG for an orthopedic follow-up. (Tr. 206). X-rays taken of plaintiffs left foot showed "possible early healing." (Tr. 207). Plaintiff was advised to continue to use the CAM walker, report for a follow up visit and x-rays in four (4) weeks, and was referred for physical therapy for ankle range of motion exercises. (Tr. 206).[2]

On January 8, 2009, plaintiff was seen by Dr. Panish at QLIMG. (Tr. 203). Dr. Panish noted that plaintiff needed forms for social services filled out, and that plaintiff had continued back pain, he could sit for just less than one (I) hour, he could not stand for an hour, he could not lift ten (10) pounds, and that he was limping. (Id.). Dr. Panish listed the assessment as low back pain and open fracture of the navicular bone of the left foot. (Id.).

On January 13, 2009, physician assistant Eugene Butta of QLIMG saw plaintiff for a follow up visit, and found that plaintiff's gunshot wounds were well healed and range of motion was satisfactory on plantar flexion and dorsiflexion of the left foot. (Tr. 198). X-rays of the left foot taken that same day revealed callus formation and malunion due to comminuted fracture, and a deformity of the tarsonavicular bone consistent with chronic fracture. (Tr. 199).

On January 27, 2009, Eugene Butta saw plaintiff for another follow up visit, found that plaintiffs left foot showed slight swelling and a slightly depressed arch, and referred plaintiff for arch support. (Tr. 194). X-rays of plaintiffs left foot taken that same day ...

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