United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL, District Judge.
The plaintiff, Arturo Moreira, brought this action to seek review of a final decision of the defendant, the Commissioner of Social Security (the "Commissioner"), that the plaintiff was not entitled to Disability Insurance Benefits ("DIB") and Social Security Income ("SSI"). The plaintiff filed applications for DIB and SSI on April 8, 2011, alleging that he became unable to work on April 1, 2009. The plaintiff complained of meniscal tears in both knees and back pain. (Tr. 221.) His claims were initially denied on June 24, 2011. He filed a written request for a hearing on July 1, 2011. The Administrative Law Judge ("ALJ") held a hearing on October 25, 2011, and denied the plaintiff's claims on October 31, 2011. After the Appeals Council declined review on June 21, 2013, the decision of the ALJ became the final decision of the Commissioner.
The parties have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
The administrative record contains the following facts.
The plaintiff, born December 8, 1966 and aged 42 at the time he sustained the alleged disability, worked as a factory worker, electrician, and clothing pattern inspector. (Tr. 197, 228.) He worked as a pattern inspector from 1999 until 2008, when he was laid off. (Tr. 35, 56, 202.)
The plaintiff's knee problems began with arthroscopic knee surgery on his right knee due to meniscal tears after a fall in 2003. (Tr. 268-69, 271-73.) An X-ray of the left knee on December 6, 2010 revealed minimal narrowing of the medial tibiofemoral joint compartment. (Tr. 338-39.) An MRI of the left knee on March 8, 2011 revealed a complex tear of the body of the medial meniscus. (Tr. 277-78.) On March 9, 2011, the plaintiff visited Dr. Mark Silverman at St. Barnabas Hospital; Dr. Silverman evaluated the plaintiff's left knee and the MRI. (Tr. 337-38.) Dr. Silverman noted the plaintiff's difficulty in walking and running and diagnosed a left knee medial meniscus tear; Dr. Silverman then recommended arthroscopic surgery on the plaintiff's left knee. (Tr. 337-38.)
On March 24, 2011, Dr. Manuel Erroa, the plaintiff's primary care physician, examined the plaintiff and found chronic sinusitis and fatty liver disease from alcohol abuse. (Tr. 283.) On March 31, 2011, Dr. Silverman performed arthroscopic knee surgery on the plaintiff's left knee, with a partial medial menisectomy and a major synovectomy. (Tr. 290-91.) Following the surgery, the plaintiff was required to undergo eight weeks of physical therapy. (Tr. 307.) Treatment records available to the ALJ showed that the plaintiff attended weekly physical therapy from at least April 06, 2011 to August 2, 2011, and again from September 19, 2011 to October 12, 2011. (Tr. 308-25, 348-57, 361.)
The plaintiff filed applications for SSI and DIB on April 8, 2011, alleging that he became unable to work on April 1, 2009. (Tr. 66-67, 175-76, 177-85.) A wellness report dated June 1, 2011 from Dr. Silverman (signed by Dr. Adeleke) noted pain and tenderness in the left knee and recommended six more weeks of physical therapy: the report stated that the plaintiff would be temporarily unemployable for two months. (Tr. 321-22.) In the space on the form for identifying limitations or explanations, it was noted that the plaintiff was receiving "physical therapy to strengthen the knee and improve the range of motion." (Tr. 321-22.)
On June 10, 2011, Dr. Vinod Thukral performed a consultative internal medicine examination at the request of the Commissioner. (Tr. 293-96.) He noted normal gait with or without a cane, ambulation without assistance during examination, normal range of motion in all joints bilaterally, and strength of 5/5 in the upper and lower extremities. (Tr. 294-295.) Based on this examination Dr. Thukral concluded that the plaintiff was capable of lifting 50 pounds occasionally, carrying 25 pounds frequently, walking six to eight hours a day, pushing, pulling, sitting, standing, "or any other such related activities, " without limitation other than a moderate limitation on squatting and a need to avoid environmental irritants due to asthma. (Tr. 296, 298, 300.)
On July 27, 2011, the plaintiff returned to Dr. Silverman complaining of pain in his left knee and back and requesting more physical therapy for his knee. (Tr. 341-45.) The report from the visit noted abnormal range of motion, tenderness, and pain on palpation, and Dr. Silverman prescribed six more weeks of physical therapy and a follow-up in six weeks. (Tr. 341-42.) An orthopedic note from the St. Barnabas Hospital Orthopedic Clinic dated August 10, 2011, indicates that disability papers were filled out with a prospective return to work date of September 19, 2011. (Tr. 378.) The plaintiff subsequently returned to the clinic on September 7, 2011, stating that he had insurance issues with the physical therapy, but requesting more therapy, and noting continued back pain. (Tr. 343.) The report from the visit noted abnormal range of motion secondary to pain in the left knee, and, in addition to repeating earlier findings, obvious crepitus. (Tr. 343.) Dr. Silverman again ordered continued physical therapy for six weeks to strengthen the range of motion and modalities, a prescription of Mobic for pain and a follow up in twelve weeks. (Tr. 343, 345.) A lumbar X-ray on September 12, 2011 suggested no significant findings. (Tr. 346.)
On October 21, 2011, Dr. Regina Gurerich examined the plaintiff and assessed his residual functional capacity ("RFC"). (Tr. 372-73.) She diagnosed him with bilateral knee internal derangement and lumbar IVD syndrome with neuropathy, following left knee arthroscopy, and stated that his prognosis was poor. (Tr. 370-73.) With respect to the plaintiff's RFC, Dr. Gurerich concluded that the plaintiff could not sit or stand for more than an hour a day, could not carry or lift over five pounds, and needed assistance ambulating. (Tr. 372-73.) She also concluded that he had marked limitations in grasping, manipulating, and reaching objects and could not push, pull, kneel, bend, and stoop, and that these limitations might have begun as early as 2008. (Tr. 373-74, 377.)
After the plaintiff's claims were initially denied on June 24, 2011, he filed a request for hearing on July 1, 2011, and a hearing was held on October 25, 2011 before the ALJ. (Tr. 30.) The plaintiff appeared with his attorney and with the aid of a Spanish interpreter. (Tr. 47.) The plaintiff testified that he was single, living alone, and depended on his sister for most meals, cleaning, and grocery shopping. (Tr. 50, 54.) He stated that, despite having looked for work until his second operation, he had not worked since being terminated in April 2008. (Tr. 50, 56.) He also stated that he had recently seen Dr. Silverman, his primary physician Dr. Erroa, a physical therapist, as well as a general practitioner. (Tr. 56-57.) At the hearing, the ALJ asked the plaintiff's attorney whether there were any additional documents to be submitted at the time, and the attorney represented that there were not. (Tr. 63.)
On October 31, 2011 the ALJ issued his decision denying the benefits. (Tr. 30.) The ALJ found that the plaintiff did not currently engage in substantial gainful activity. (Tr. 32.) The ALJ further found, based on the plaintiff's impairments with respect to his knees, liver, back, and asthma, that the plaintiff had "severe impairments" which limited his mental or physical ability to do basic work activities. (Tr. 32.) However, the ALJ found that these ...