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Dinnocenzo v. Commissioner of the Social Security Administration

September 13, 2010


The opinion of the court was delivered by: Wigenton, District Judge


Before the Court is Claimant Joseph Dinnocenzo's appeal of Administrative Law Judge Richard DeSteno's ("ALJ") denial of Dinnocenzo's disability claim under Section 216(i) of the Social Security Act ("the Act"), 42 U.S.C. § 416(i), his Disability Income Benefits ("DIB") claim under Section 223 of the Act, 42 U.S.C. § 423, and his Supplemental Security Income ("SSI") benefits claim under Section 1614(a)(3)(A) of the Act. 42 U.S.C. § 1382c(a)(3)(A).*fn1

This appeal is decided without oral argument pursuant to Local Rule 9.1. The Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Venue is proper under 28 U.S.C. § 1391(b). For the reasons stated below, this Court affirms the Commissioner's decision in part for the period from November 6, 2002*fn2 to April 10, 2005 and reverses the Commissioner's decision in part for the subsequent period beginning April 11, 2005.

I. Background and Procedural History

On August 6, 2003, Joseph Dinnocenzo filed for SSI and DIB benefits under the Social Security Act. Claimant claims disability beginning on November 6, 2002, after leaving his last employment as a clerk at a Quick Check convenience store. Claimant also worked as a "prep cook" in a pizza parlor and as a school bus driver in the past. Claimant's applications for benefits were denied initially and then again on reconsideration. On December 16, 2005, the ALJ issued an unfavorable decision denying Claimant's benefits. The Appeals Council granted Claimant's request for review and subsequently vacated the decision of the ALJ and remanded for the resolution of evidentiary issues. The ALJ again issued an unfavorable decision on October 24, 2007, and the Appeals Council subsequently affirmed the ALJ's decision on April 6, 2009. Thus, Claimant commenced the present action seeking a disability finding or a remand of his claims to the Commissioner for reconsideration in light of the alleged deficiencies in denying Claimant's disabled status.

A. Medical Treatment Records for Claimant's Impairments

Claimant suffers from a number of impairments, including morbid obesity, chronic obstructive pulmonary disease with sleep apnea, diabetes with cellulitis of the left leg, persistent cardiac arrhythmia, a right shoulder fracture, general osteoarthritis, migraine headaches, and depression. On March 1, 2004, Dr. Hoffman found that: Claimant has "a history of chronic obstructive pulmonary disease" and "problems with sleep apnea" for which he has "been treated with a combination of inhalers . . . nebulizing machines . . . [and] a BiPAP machine"; Claimant had difficulty walking more than a block in distance but used no assistive devices; he "was hospitalized in 2001 . . . for cellulitis of the left leg"; he "has been treated for depression over the past two years"; he has a family history of diabetes; and he suffers from chest pains. Dr. Hoffman noted that Claimant is a smoker living alone in the YMCA and opined that Claimant is "morbidly obese . . . with a history of sleep apnea," suffering from "chronic obstructive pulmonary disease . . . [and] asthmatic symptomology"-conditions that are "certainly exacerbated by the morbid obesity."

Claimant fractured his left shoulder due to a fall on April 11, 2005 and underwent open reduction and internal fixation surgery. Claimant subsequently re-injured his left arm and was diagnosed with a left humeral non-union by Dr. Sirkin as well as with complete radial nerve palsy by Dr. Tan. On August 18, 2005, Dr. Sirkin performed an "open reduction and internal fixation of [the] left humeral shaft fracture" with cerclage wires. During the same procedure, Dr. Tan performed "exploration and neurolysis of [the] radial nerve." Postoperative diagnoses indicate Claimant's continuing nonunion of the left humeral shaft and complete radial nerve palsy, respectively. In a subsequent postoperative evaluation, Dr. Tan explained: that "the nerve graft . . . would have been . . . too extensive to expect any reasonable return of the radial nerve function"; that Claimant was "wearing a radial nerve splint for hand extension"; that Claimant indicated a four out of ten pain level during this examination; and that he would consider "options for tendon transfers."

In addition to his physical impairments, Bayonne Community Mental Health Center has diagnosed Claimant with depression. Dr. Gerard A. Figurelli, who conducted a psychiatric evaluation in 2004, found that Claimant "manifested no significant deficits with immediate recall, concentration on structured tasks of relatively short duration, or the recall of more remote, personal life history information," but he did have "difficulty with delayed immediate recall." Claimant "denied any history of suicidal . . . ideation, intent, plan or attempts" at that time but did report that he suffered from depression.

The agency appointed psychiatrist found that Claimant experiences: moderate restriction of activities of daily living and difficulties in maintaining concentration, persistence, or pace; mild difficulties in maintaining social functioning; no episodes of decompensation; and no evidence establishing the presence of the "C" criteria for a mental impairment. Additionally, Claimant's Mental Residual Functional Capacity Assessment shows moderate limitation in ability to maintain attention and concentration for extended periods, ability to perform activities within a schedule, ability to complete a normal workweek without interruptions, and ability to get along with co-workers or peers.

C. Claimant's Testimony

At the 2005 ALJ hearing, Claimant testified that: he is 5'6" with a weight fluctuating between 330 and 370 pounds; he has had lifetime breathing problems, including chronic obstructive pulmonary disease and sleep apnea, but uses a CPAP machine to control the problem; his doctor diagnosed him with "a touch of diabetes," but he has no symptoms from it; he can neither sit or stand for very long without his legs going numb nor can he walk very far without getting tired; his right arm fracture has healed; he has difficulty interacting with others, maintaining relationships, and concentrating; and he is depressed and spends most of his time watching television or sleeping in his room at the YMCA. In addition, Claimant fractured his right arm in the summer of 2004, but the injury has healed and is not disabling.

Claimant also stated that he fell and sustained a left arm fracture that "shattered all the nerves in [his] arm," such that he could not feel anything from his elbow to his hand. Claimant re-injured his left arm three weeks later, which worsened his condition: he initially could not bend his fingers and can only now "make a little bit of a fist, but can[not] straighten out [his] fingers." Additionally, because his "hand was limp and [he could not] pick it up because of [his] nerve[, his] hand would just hang." As a result, he wears a special elastic glove to keep his hand and fingers straight up and exercise them. In short, he felt that his "nerve is dead."

At the post-remand hearing, Claimant stated: that he was removed from a weight control support group because he made inappropriate comments to some of the female members; that he has urinary problems requiring frequent bathroom visits; that when he sits for too long his legs go numb; that he has migraines; that his various medications make him fall asleep; and that he has attempted suicide. Claimant also testified as to the worsening condition of his left arm: he uses his left arm only five percent of the time; he could not lift more than five pounds with his left arm; he has a hard time putting his left arm in his shirt and experiences pain while doing so; he uses his left hand very little, only to assist him in eating: he walks to the supermarket to select items but must have an employee deliver them to his home because ...

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