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Torregrosa v. Colvin

United States District Court, E.D. New York

March 17, 2017

LUIS TORREGROSA, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.

         Plaintiff Luis Torregrosa brings this action against defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner"), pursuant to 42 U.S.C. §§ 423(d)(1), (3), (5), seeking review of the Commissioner's determination that Torregrosa is not entitled to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Torregrosa maintains that the Commissioner's determination is not supported by substantial evidence and is contrary to law. (Pl's Mem. (Doc. No. 18) at 16-17.) Both Torregrosa and the Commissioner have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). (Def.'s Mem. (Doc. No. 16); Pl's Mem.) For the reasons set forth below, Torregrosa's motion is denied and the Commissioner's motion is granted.

         BACKGROUND

         I. Procedural History

         Torregrosa filed an application for DIB on June 20, 2012, (Admin. R. (Doc. No. 20) at 120)[1] alleging disability as of December 20, 2011, due to diabetes, dislocated shoulder ligaments, an inflamed prostate, and pain in his joints, back, and knees, (Id. at 98-105, 124). The application was denied on September 21, 2012. (Id. at 57-60.) On October 2, 2012, Torregrosa requested a hearing before an Administrative Law Judge ("ALJ") to review his application. (Id. at 61-62.) On October 3, 2013, ALJ Alan B. Berkowitz held a hearing, at which Torregrosa, his wife Lucilla Torregrosa, and vocational expert Christina Boardman testified without counsel. (Id. at 10.) On December 6, 2013, ALJ Berkowitz decided that Torregrosa did not qualify for DIB because, while he could no longer perform any past-relevant work, (id. at 49), Torregrosa was able to perform light work as defined in 20 C.F.R. § 404.1567(b). (Id. at 47.) On January 15, 2014, Torregrosa requested review of the ALJ's decision by the Social Security Appeals Council. (Id. at 5-7.) On March 20, 2015, the Appeals Counsel denied Torregrosa's request for review. (Id.) On April 15, 2015, Torregrosa commenced this action. (Id. 5-7; Compl. (Doc. No. 1).)

         II. Administrative Record

         a. Non-Medical Evidence

         Torregrosa was born on August 4, 1965. (Admin. R. at 50.) He completed high school in Puerto Rico and can understand, speak, and read English. (Id. at 16, 36, 125.) At the time of the ALJ hearing, Torregrosa lived in an apartment with his wife and three children. (Id. at 15-16, 141.) On a typical day, he would prepare meals, go on two walks, and watch TV. (Id. at 137- 38.) He also indicated that he could count change, manage a savings account, and go grocery shopping once a week, but could not handle paying his bills. (Id.)

         Torregrosa worked as a real estate broker from 2005 to 2011 and a truck driver from 1992 to 2007, earning approximately $29, 000 per year. (Id. at 15, 27, 28, 49, 125.) As a truck driver, Torregrosa would drive to New Jersey and Connecticut, load the truck, fix and lift machines, and deliver plant equipment and syrup for a pizzeria and a beverage company. (Id. at 29.) The heaviest thing he had picked up for work was a boiler. (Id. at 20.) During 2011 and 2012, he was self-employed and earning approximately $9, 000 annually by picking up cans and scratch metal. (Id. at 19-20.)

         Torregrosa reported that since December 20, 2011, he could not squat, lift any heavy objects, stand or sit for a long time, or do house and yard work. (Id. at 135-36, 138.) He could not drive a truck or load and unload equipment as he used to do. (Id. at 140.) He could walk for only about thirty minutes and required a five-minute break every fifteen minutes. (Id. at 134- 36.) He struggles to climb stairs, kneel, reach, and use his hands. (Id. at 135.) Torregrosa represented that he requires assistance taking a shower and injecting insulin. (Id. at 139.) His sleep has been affected by constant pain in his shoulders and the need to urinate every hour. (Id. at 140.)

         In the July 6, 2012 disability report filed in connection with this appeal, Torregrosa alleged that he has been disabled since December 20, 2011. (Id. at 124.) He indicated that he has diabetes, dislocated shoulder ligaments, an inflamed prostate, and pain in his joints, back, and knees. (Id.) On October 3, 2013, Torregrosa testified before the ALJ that he has memory loss, damage in both shoulders, swollen knees, and back pains. (Id. at 21-23.) These pains occurred approximately four times per week and occasionally kept him in bed all day. (Id. at 23.) He further testified that he could stand for ten or fifteen minutes, walk two blocks non-stop, sit about forty-five minutes, lift up his arms and shoulders for two or three seconds, and lift at most twelve to fifteen pounds. (Id. at 24.) Torregrosa's wife testified that due to his considerable pain, Torregrosa had not worked since 2012. (Id. at 34-35.)

         b. Medical Evidence Prior to December 20, 2011

         i. Wyckoff Heights Medical Center

         From March 2008 to December 2011, Torregrosa repeatedly visited the Emergency Room of Wyckoff Heights Medical Center. (Id. at 360-68.) On March 8, 2008, Torregrosa complained of pain on the right side of his face. (Id. at 360.) He was diagnosed with a toothache. (Id.) On July 27, 2010, Torregrosa was diagnosed with a shoulder sprain and strain contusion at pain scale ten, the worst possible pain. (Id. at 365-68). There was no swelling. (Id. at 364.) On May 9, 2011, Torregrosa went to the Emergency Room for a "sudden onset of [sic] severe [sic] colicky pain in [his] left flank." (Id. at 343, 346, 351.) Torregrosa was diagnosed as having small non-obstructing kidney stones and was discharged on May 11, 2011. (Id. at 342.)

         ii. Damadian MRI in Canarsie, P.C.

         On April 12, 2011, a magnetic resonance imaging ("MRI") scan revealed a tear in Torregrosa's right shoulder. Specifically, the MRI showed a full thickness tear of the musculotendinous junction supraspinatus tendon with a 2x2 centimeter tendon gap without tendon restriction. (Id. at 171, 216, 264.)[2]

         c. Medical Evidence after December 20, 2011

         i. Wyckoff Heights Medical Center (June 6, 2012 - June 11, 2012)

         Torregrosa was hospitalized at Wyckoff Heights Medical Center for three weeks, complaining of dehydration with nausea and increased frequency of urination. (Id. at 210, 284.) A radiology report of Torregrosa's chest did not show any evidence of pulmonary infiltration or consolidation. (Id. at 179, 325.) A June 7, 2012 report showed that Torregrosa had normal sensations, normal range of motion, no tenderness, and no swelling. (Id. at 197.) He also had joint pain in his right shoulder rotator cuff. (Id. at 195.) Furthermore, in a consultant's opinion dated June 8, 2012, Dr. Stella Ilyayeva indicated that Torregrosa had recently used cocaine and occasionally drank alcohol. (Id. at 188.) He was diagnosed with new onset type II diabetes. (Id. at 190, 320.)

         A June 11, 2011 discharge summary indicated that the primary diagnosis was new onset diabetes with the secondary diagnosis of morbid obesity. (Id. at 269.) Torregrosa had no pain and had ambulatory functional status. (Id. at 270.) Me had a good response to hospital treatment and denied urinary frequency and dry mouth on the day of discharge. (Id. at 273.) He was advised to follow up with a nutritionist, a primary medical doctor, and an endocrinologist in three-to-five days. (Id.)

         ii. Dr. Vinod Thukral, M.D., Treating Physician (September 12, 2012)

         In an internal medicine examination report, Dr. Vinod Thukral indicated that Torregrosa complained of shoulder pain, knee pain, diabetes, decreased visual acuity, and proteinuria. (Id. at 218.) The report indicated that Torregrosa could cook, clean, do laundry, and shop as needed. (Id. at 219.) Dr. Thukral indicated that Torregrosa denied any drug, alcohol or substance abuse. (Id.) Torregrosa generally appeared to be able to walk on heels and toes without difficulty, squat fully, stand normally, and change clothes without help. (Id.) He demonstrated full range of movement with his elbows, forearms, wrists, left shoulder, hips, knees, and ankles. (Id.) The examination on his right shoulder showed moderate tenderness on movement. (Id.) His forward elevation and abduction were both limited to ninety degrees. (Id.) With the exception of his right shoulder, he had stable joints. (Id.) The examination showed that Torregrosa could sit or stand, but had a moderate limitation in pulling, pushing, lifting, or carrying due to joint pain. (Id. at 221.) By Torregrosa's medical history, Dr. Thukral diagnosed diabetes, decreased visual acuity, proteinuria, bilateral knee pain, and bilateral shoulder pain. (Id.) Dr. Thukral advised Torregrosa to see his primary care physician for elevated blood pressure immediately upon leaving the medical center. (Id. at 219, 222.) Torregrosa was also advised to see an ophthalmologist for decreased visual acuity in his left eye. (Id. at 219.)

         iii. C. Williams, Medical Consultant (September 21, 2012)

         On September 21, 2012, Torregrosa went through a physical residual functional capacity assessment. (Id. at 223-228.) The assessment report revealed that he could occasionally carry or lift up to ten pounds. (Id. at 224.) Medical Consultant Williams found that Torregrosa could walk, stand, or sit with normal breaks for six hours in an eight-hour workday. (Id.) His push or pull capacity was limited in his upper extremities. (Id.) He could only occasionally climb or crawl due to his right shoulder impairment, and was limited in all directions. (Id. at 225.) The primary diagnosis was right shoulder joint effusion with a tendon gap, and the secondary diagnosis was type II diabetes. (Id. at 223.) In a case analysis report dated November 15, 2012, Dr. R. Mitgang reviewed and agreed with the September 21, 2012 assessment report. (Id. at 230.)

         iv. Beth Israel Medical Center (December 2012)

         Dr. Catherine Compito performed rotator cuff surgery on Torregrosa's right shoulder. (Id. at 369-70.) Dr. Compito prescribed anti-inflammatory and pain management drugs, and instructed Torregrosa to keep his arm in a sling for six weeks. (Id.)

         v. Dr. Ko Latt, M.D., Internal ...


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