United States District Court, S.D. New York
OPINION AND ORDER
PITMAN United States Magistrate Judge
brings this action pursuant to section 205(g) of the Social
Security Act (the "Act"), 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the
Commissioner of Social Security ("Commissioner")
denying his application for supplemental security income
("SSI") and disability insurance benefits
("DIB"). Both plaintiff and the Commissioner have
moved for judgment on the pleadings pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure (Docket Items
("D.I.") 19, 25). Both parties have consented to my
exercising plenary jurisdiction pursuant to 28 U.S.C. §
636(c) (D.I. 12). For the reasons set forth below,
plaintiff's motion is denied and the Commissioner's
motion is granted.
plaintiff's applications for SSI and DIB he alleged that
he became disabled on July 19, 2011 due to asthma,
allergies and eczema (Tr. 82, 156-62, 182-83). Plaintiff later
amended his applications to claim that he was also disabled
due to sleep apnea and a right knee impairment (Tr. 26). The
claims were initially denied by the Social Security
Administration on September 20, 2012 (Tr. 82-88). Plaintiff
requested a hearing, and an Administrative Law Judge
("ALJ") conducted a video hearing on December 23,
2013 during which plaintiff, who was represented by an
attorney, testified on his own behalf (Tr. 42-73). On May 14,
2014, the ALJ issued a decision finding that plaintiff was
not disabled (Tr. 24-34). The ALJ's decision became the
Commissioner's final decision when the Appeals Council
denied plaintiff's request for review on June 18, 2015
was born in 1972 and was 39 years old at his alleged onset
date (Tr. 178). Plaintiff completed the eleventh grade and
was trained as an auto mechanic (Tr. 183). Plaintiff worked
as a mechanic's assistant for a sanitation company from
1989 to 1998 (Tr. 66, 229-30). Plaintiff subsequently worked
as a sales associate for a beer company from 1998 through his
alleged onset date in 2011 (Tr. 229). The latter job involved
driving a truck to deliver cases of beer and beer displays
and setting up the displays (Tr. 66-67, 183, 231).
documentation dated August 31, 2012, plaintiff reported to
the Social Security Administration ("SSA") that he
lived in an apartment with his parents (Tr. 190). Plaintiff
stated that he was able to shower, iron his clothes, repair
holes in the walls and put away laundry (Tr. 191-93).
Plaintiff went outside every day, usually to the park, and
would walk at a slow pace, so as to not "over
exert" himself (Tr. 191, 193, 195). According to
plaintiff, he could walk three blocks before needing to take
a rest (Tr. 197), and would lose his breath climbing stairs
(Tr. 196, 193, 196). Plaintiff stated that, at his previous
job, lifting cases of beer frequently caused shortness of
breath that was so severe that he needed to sit down (Tr.
195). Plaintiff indicated that his social life had not
changed as a result of his medical condition and that he went
to the movies, went fishing and visited his children (Tr.
Dr. Rajesh Patel
record contains treatment notes from family-medicine
practitioner Dr. Rajesh Patel prior to plaintiff's
alleged onset date. Plaintiff saw Dr. Patel on May 2, 2008
and his chief complaint during that visit was an asthma
attack which had lasted for three days (Tr. 255-56). The
medical history indicates that plaintiff had asthma since
2007 and allergic rhinitis since 1985 (Tr. 255). Dr. Patel
diagnosed plaintiff with "unspecified asthma without
mention of status asthmaticus, "which was "chronic
controlled, " and "contact dermatitis and other
eczema, " which was also "chronic controlled"
(Tr. 255-56). Dr. Patel prescribed Lidex cream, Singulair,
Benadryl and an albuterol inhaler (Tr. 256).
Treatment at Medinova Physicians
Treatment Prior to Alleged Onset Date
was seen by Dr. Vijay Alla at Medinova Physicians
("Medinova") on January 7, 2010, complaining of a
rash on his face, itching all over his body and swollen eyes
(Tr. 366). During that visit, plaintiff stated that he had no
shortness of breath when at rest, but that he did experience
shortness of breath upon exertion (Tr. 366). Plaintiff
reported that his shortness of breath improved when he rested
or used his inhaler (Tr. 366). Plaintiff also reported that
he had a history of snoring and that he fell asleep at the
wheel of his car, but also reported that his breathing
problems did not wake him up at night (Tr. 366). Dr. Alla
found pigmented lesions on plaintiff's face and hands
(Tr. 366). He diagnosed plaintiff with a rash and another
nonspecific skin eruption and prescribed Elidel cream,
Temovate cream and Pataday solution (Tr. 367).
Alla also found that plaintiff had decreased breath sounds
bilaterally, but no wheezing, rhonchi or rales (Tr. 366).
Dr. Alla also diagnosed plaintiff with "bronchial asthma
without mention of status asthmaticus" or acute
exacerbation (Tr. 366). Dr. Alla continued plaintiff on
Singulair and also prescribed Symbicort and Ventolin inhalers
saw Dr. Alla again on January 21, 2010, for a follow-up visit
(Tr. 364). Dr. Alla found that plaintiff's respiration
was clear bilaterally, and that plaintiff had no wheezing,
rhonchi or rales (Tr. 364). Plaintiff complained of blurred
vision and a rash, and Dr. Alla continued plaintiff's
prescription of Elidel cream for his rash and continued
plaintiff on Singulair, Symbicort, albuterol and Ventolin for
his asthma (Tr. 364-65).
Treatment After Alleged Onset Date
returned to Dr. Alla on June 7, 2013 for a physical
examination (Tr. 300). Plaintiff complained of having sharp
pain in his right knee that he rated as 7 out of 10 (Tr.
300). Plaintiff reported that the pain had lasted for a
"long time on and off" (Tr. 300). Dr. Alla's
notes indicate that plaintiff had no limitation in motion and
no trouble walking (Tr. 301). Dr. Alla prescribed Naprosyn
tablets for plaintiff's knee pain and ordered an x-ray
and a magnetic resonance imaging ("MRI") scan (Tr.
the June 7 visit, plaintiff reported to Dr. Alla that he had
no shortness of breath (Tr. 300). Dr. Alla examined plaintiff
and found that plaintiff's respiration was clear
bilaterally and that there was no wheezing (Tr. 300). Dr.
Alla assessed that plaintiff had "bronchial asthma
without mention of status asthmaticus or acute
exacerbation" (Tr. 301). Dr. Alla prescribed albuterol,
Ventolin and Singulair (Tr. 301).
same date, plaintiff had an x-ray taken of his right knee at
Madison Avenue Radiology Center (Tr. 305). The x-ray showed
that there was lateral subluxation at the tibia and a joint
effusion indicating internal derangement (Tr.
305). No fractures, dislocations or bone lesions were
observed (Tr. 305). The radiologist recommended that
plaintiff have a MRI scan of the right knee (Tr. 305).
27, 2013, plaintiff underwent an MRI examination of his right
knee (Tr. 319). The MRI showed that plaintiff had a
full-thickness displaced tear of the lateral
meniscuswith a meniscal fragment about the
lateral joint line, a non-displaced two centimeter tear of
the posterior horn medial meniscus, with a moderate grade
medial collateral ligament sprain (Tr. 319).
was seen again at Medinova on August 1, 2013, by registered
physician's assistant ("RPA") Anna Litvin, to
discuss the results of his x-ray and MRI exams (Tr. 297). RPA
Litvin found that plaintiff's respiration was clear
bilaterally, with no wheezing (Tr. 297). Plaintiff was again
assessed as suffering from "bronchial asthma without
mention of status asthmaticus or acute exacerbation"
(Tr. 297). Plaintiff was referred to a pulmonologist for his
asthma and for an orthopedic evaluation (Tr. 297-98).
August 26, 2013, plaintiff was seen by Dr. Alla to obtain
medical clearance prior to undergoing a right knee
arthroscopy (Tr. 293). During this visit, plaintiff
denied having any shortness of breath either at rest or with
exertion (Tr. 297). Plaintiff also reported that he had not
taken his asthma medication for several days (Tr. 295). Dr.
Alla's examination of plaintiff was consistent with his
prior examinations; he found no shortness of breath, cough or
wheezing (Tr. 294).
was again seen by RPA Litvin on September 17, 2013, for a
refill of his medications (Tr. 291). Plaintiff stated that he
could walk a "good number of blocks without any
problems, " and that he had right knee pain, but
"no pain in the legs" (Tr. 291). The record of that
visit indicates that plaintiff was in a good general state of
health and that he was able to do his usual activities (Tr.
291). His respiratory examination was again negative for
coughing, shortness of breath or wheezing (Tr. 291).
Plaintiff's assessment and medications remained unchanged
from his prior visits (Tr. 292).
Dermatologist Dr. Hyun-Soo Lee
December 21, 2013, plaintiff was examined by Dr. Hyun-Soo
Lee, a dermatologist (Tr. 378). Dr. Lee's notes indicate
that plaintiff had numerous erythematous papules and
plaque on his cheeks, neck and body (Tr. 375). Dr. Lee
diagnosed plaintiff with severe atopic dermatitis and
prescribed medications to treat his skin condition (Tr. 378).
Consulting Examiner Dr. Elizama Montalvo
request of SSA's Division of Disability Determination,
consulting family-medicine physician Dr. Elizama Montalvo
examined plaintiff on September 10, 2012 (Tr. 283-86).
Plaintiff told Dr. Montalvo that he had a history of eczema,
allergic rhinitis and asthma and that he had been
hospitalized for two weeks in 2006 because of his asthma (Tr.
283). Plaintiff reported that his last asthma attack was on
July 18, 2012 (Tr. 283). Plaintiff also reported that he
could only walk for three blocks without having breathing
problems and that he would then have to stop and use his
inhaler (Tr. 283). Plaintiff also stated that he needed to
use his inhaler when climbing the three flights of stairs to
his apartment (Tr. 283). Plaintiff stated that he was
prescribed albuterol, Claritin, a Ventolin inhaler, Benadryl,
Singulair and Betamethasone cream (Tr. 283).
Montalvo examined plaintiff and found that plaintiff weighed
236 pounds, his gait and stance were normal and that he did
not need an assistive device to walk (Tr. 284-285). Plaintiff
could walk on his heels and toes without difficulty and squat
fully (Tr. 285). Plaintiff rose from a chair without
difficulty and needed no help changing or getting on and off
the examination table (Tr. 285). Plaintiff had full range of
motion in his cervical spine, shoulders, elbows, forearms,
wrists, fingers, hips, knees and ankles (Tr. 284).
Plaintiff's joints were stable and nontender, and
plaintiff had no redness, heat, swelling or effusion (Tr.
284). Plaintiff had full (5 out of 5) strength in all
extremities, with no sensory deficits (Tr. 284).
Montalvo also examined plaintiff's chest and lungs and
[h]e has poor effort. Difficulty to expand his diameter, but
I did not hear any wheezing. Percussion normal. No
significant chest wall abnormality. Normal
Montalvo observed that plaintiff had hyperkeratosis on his
upper extremities, face, neck and the back of his knees and
that his skin was very dry, with scaling and oozing (Tr.
Montalvo diagnosed plaintiff with asthma, allergic rhinitis
and severe eczema (Tr. 284). Dr. Montalvo determined that
plaintiff had moderate limitations in walking and climbing
stairs and that plaintiff should avoid dust, environmental
pollutants and smoke (Tr. 284).
Plaintiff's Knee Surgery and Follow-Up Treatment
August 21, 2013, plaintiff saw orthopedic surgeon Dr.
Neofitos Stefanides (Tr. 315). Plaintiff told Dr. Stefanides
that he had been experiencing right knee pain since he had
tripped a year before and that the pain had been getting
progressively worse and adversely affecting the activities of
daily living (Tr. 315). Plaintiff reported that his pain at
the time of his examination was 8 out of 10, with periods of
worsening pain (Tr. 315). Plaintiff stated that Motrin and
Tylenol provided mild pain relief (Tr. 315). Plaintiff could
walk without an assistive device (Tr. 315). During this
visit, plaintiff denied any coughing, wheezing, chest pain or
shortness of breath (Tr. 315).
Stefanides examined plaintiff and found that plaintiff had an
antalgic gait and that plaintiff could
kneel and squat with a moderate amount of difficulty (Tr.
315). Plaintiff had positive medial and lateral joint
tenderness (Tr. 315). Dr. Stefanides also found mild effusion
(Tr. 315). Plaintiff's range of motion in his right knee
was "0-140 without crepitus" and his strength
was 4 out of 5 due to pain (Tr. 315). Dr. Stefanides
recommended arthroscopic surgery on plaintiff's right
knee (Tr. 316).
are no records concerning the surgery in the administrative
record. However, Dr. Stefanides' medical records indicate
that on September 30, 2013, he saw plaintiff for the first
post-operative visit (Tr. 313). Plaintiff reported that he
was doing well and had mild pain that was well controlled
with medication (Tr. 313). Plaintiff did not have any
shortness of breath or wheezing (Tr. 313). Dr. Stefanides
examined plaintiff and found that he did not have any
tenderness at the medial and lateral joint lines and that
there was no effusion (Tr. 313). Plaintiff's right knee
strength was 5 out of 5 and his range of motion was 0-140
without crepitus (Tr. 313). He had a mildly antalgic gait and
had difficulty squatting (Tr. 313). Dr. Stefanides prescribed
physical therapy three times a week for 4 weeks (Tr. 314,
began physical therapy on October 8, 2013 (Tr. 362). Physical
therapist Howard Krebaum noted that plaintiff rated his pain
as 10 out of 10 (Tr. 362). Krebaum found that plaintiff's
right knee strength was 3 out of 5, that plaintiff was
limited by pain and that plaintiff needed an assistive device
to walk (Tr. 362). Krebaum also noted that plaintiff's
right knee extension was -5 degrees and that his flexion was
tight at 95 degrees (Tr. 362). Plaintiff attended physical
therapy on October 10, October 22, October 29, November 5,
November 19 and November 21, 2013 (Tr. 356-61).
had a second postoperative visit with Dr. Stefanides on
October 21, 2013 (Tr. 311). Plaintiff reported during that
visit that he was doing better and that the surgery had
reduced his pain by 20% (Tr. 311). Plaintiff stated that he
continued to walk with a cane (Tr. 311). Plaintiff also
indicated that he was performing his home exercise program as
instructed and continuing with his physical therapy regularly
(Tr. 311). Plaintiff denied experiencing any shortness of
breath or wheezing (Tr. 311).
October 21 examination of plaintiff's right knee, Dr.
Stefanides found that plaintiff had a range of motion of
"5-110 with moderate amount of crepitus" (Tr. 311).
His strength was 4 out of 5 due to pain (Tr. 311). Dr.
Stefanides observed that plaintiff's knee had a mild
varus deformity with moderate effusion (Tr. 311). Plaintiff
had an antalgic gait and plaintiff could kneel and squat with
a moderate amount of difficulty (Tr. 311). Palpation revealed
tenderness at the medial and lateral joint lines and at the
patellofemoral joint (Tr. 311).
October 25, 2013, approximately a month after plaintiff's
arthroscopic surgery, Dr. Stefanides completed a Lower
Extremities Impairment Questionnaire (Tr. 345-52). Dr.
Stefanides reported that plaintiff experienced constant right
knee pain after prolonged standing, walking or climbing of
stairs (Tr. 347). Dr. Stefanides opined that plaintiff could
sit for a total of four hours and stand/walk for a total of
up to one hour in an eight hour workday, needed to avoid wet
conditions, temperature extremes, humidity and heights and
could not kneel (Tr 346-52). Dr. Stefanides opined that
plaintiff's symptoms were frequently so severe that he
would be absent from work more than three times a month (Tr.
351). Dr. Stefanides stated that he did not know whether
plaintiff's impairments would last at least twelve months
(Tr. 350). Dr. Stefanides opined that plaintiff could
initiate and sustain walking with the assistance of a cane
(Tr. 347). Dr. Stefanides further indicated that plaintiff
could carry out the activities of daily living independently
without assistance, including traveling from his house to
appointments, preparing meals and bathing and dressing (Tr.
348). Dr. Stefanides stated that plaintiff's pain was
completely relieved by medication without any unacceptable
side effects (Tr. 348).
November 21, 2013, plaintiff's physical therapist sent a
report to Dr. Stefanides, indicating that after five sessions
treating his right knee, plaintiff had full extension and
strength of 3 out of 5 (Tr. 354-55). However,
plaintiff's self-reported lower extremity functional
scale ("LEFS") was 7 (Tr. 354-55).
returned to Dr. Stefanides on December 2, 2013, complaining
of pain in his knee that worsened at night and when he stood
or walked for prolonged periods (Tr. 403). Plaintiff reported
that Percocet relieved the pain (Tr. 403). Plaintiff
indicated that he had also experienced some relief from the
pain after receiving an injection at his last doctor's
visit, but that the relief was short lived (Tr. 403). Dr.
Stefanides's notes indicate that there had been no change
in plaintiff's symptoms since his last visit. Dr.
Stefanides advised plaintiff to lose weight and prescribed
physical therapy and Orthovisc injections (Tr. 403).
saw Dr. Stefanides again on January 6, 2014, for his first
Orthovisc injection (Tr. 405). Dr. Stefanides' notes of
the visit indicate that plaintiff continued to walk with a
cane but that physical therapy was helping to alleviate his
pain (Tr. 405). Plaintiff denied experiencing any shortness
of breath or wheezing (Tr. 405). Upon examination, Dr.
Stefanides found that plaintiff had an antalgic gait and that
kneeling and squatting were accomplished with a moderate
degree of difficulty (Tr. 405). Dr. Stefanides observed that
the right knee had a mild varus deformity with moderate
effusion (Tr. 405). Plaintiff's right knee strength was
limited to 4 out of 5 due to pain and the range of motion in
this knee was 5 to 110 with a moderate amount of crepitus
(Tr. 405). Palpation again revealed tenderness at the medial
and lateral joint lines and at the patellofemoral joint, but
without effusion (Tr. 405).
Stefanides referred plaintiff to Dr. Yakov Perper at
Universal Pain Management who examined plaintiff on January
8, 2014 (Tr. 400). Plaintiff told Dr. Perper that he had
numbness, tingling and weakness in his right knee and that
his knee would give way (Tr. 400). Plaintiff also stated that
he had a sharp pain in his knee that improved with elevation
and rest, but that standing made the pain worse (Tr. 400).
Plaintiff reported that he was taking Percocet for pain and
that the Orthovisc injections he had received from Dr.
Stefanides also provided some relief (Tr. 400). Plaintiff
denied experiencing fatigue (Tr. 400). In his physical
examination, Dr. Perper determined that plaintiff was not in
acute distress (Tr. 401). Plaintiff's right knee appeared
normal and without swelling or effusion (Tr. 401). The knee
and the lateral joint line were tender to palpation (Tr.
401). Dr. Perper's testing revealed decreased range of
motion in the right knee (Tr. 401). Dr. Perper prescribed
Mobic and continued plaintiff on Percocet (Tr. 401).
January 13, 2014, plaintiff returned to Dr. Stefanides for
another Orthovisc injection (Tr. 407). Plaintiff reported
that his knee pain had improved since his first injection
(Tr. 407). Dr. Stefanides examined plaintiff's right knee
and found that plaintiff had mild varus deformity in his
knee, but no atrophy, ecchymosis or swelling (Tr. 407).
Plaintiff's right knee strength had improved to 5 out of
5, and Dr. Stefanides found no effusion or crepitus (Tr.
400). Plaintiff's range of motion in his right knee was 0
to 110 degrees with pain at the end of flexion (Tr. 407).
Palpation again revealed tenderness at the medial aspect of
the proximal tibia and at the adjoining joint line (Tr. 407).
Plaintiff denied having shortness of breath or wheezing (Tr.
January 20, 2014, plaintiff received a third Orthovisc
injection (Tr. 409). At this visit, plaintiff reported that
his knee pain had improved since the second Orthovisc
injection (Tr. 409). Dr. Stefanides's clinical findings
were similar to those made at plaintiff's January 13,
2014 visit (Tr. 409).
plaintiff's follow-up visit on February 17, 2014, Dr.
Stefanides found that plaintiff's right knee showed
"definite improvement with no new problems or positive
findings" (Tr. 411). Dr. Stefanides's notes indicate
that plaintiff had experienced "significant [pain]
relief" after receiving a course of three Orthovisc
injections (Tr. 409).
February 21, 2014, plaintiff returned to Dr. Perper (Tr.
398). Dr. Perper's findings were the same as with
plaintiff's prior visit to his office (Tr. 398). Dr.
Perper continued plaintiff's Percocet prescription for an
additional 30 days, but discontinued the Mobic (Tr. 399).