United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
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.
filed an application for DIB on June 20, 2012, (Admin. R.
(Doc. No. 20) at 120) 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).)
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.)
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.)
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.)
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.)
Medical Evidence Prior to December 20, 2011
Wyckoff Heights Medical Center
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.)
Damadian MRI in Canarsie, P.C.
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,
Medical Evidence after December 20, 2011
Wyckoff Heights Medical Center (June 6, 2012 - June 11,
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.)
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.)
Dr. Vinod Thukral, M.D., Treating Physician (September 12,
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.)
C. Williams, Medical Consultant (September 21,
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.)
Beth Israel Medical Center (December 2012)
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.)
Dr. Ko Latt, M.D., Internal ...