Singletary v. Commissioner of Social Security

Filing 15

DECISION AND ORDER granting 9 Commissioner's Motion for Judgment on the Pleadings; denying 11 Plaintiff's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/3/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSEPH S. SINGLETARY,
Plaintiff,

11-CV-6055
DECISION
and ORDER

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security
Defendant.
INTRODUCTION

Plaintiff, Joseph S. Singletary (“Plaintiff”), brings this
action pursuant to Title XVI of the Social Security Act (“the Act”)
seeking reversal of a final decision of the Commissioner of Social
Security (“Commissioner”) finding that he was not entitled to
Supplemental

Security

Income

(“SSI”)

benefits.

Specifically,

Plaintiff alleges that the decision of the Administrative Law Judge
(“ALJ”) James Dombeck denying him benefits was not supported by
substantial

evidence

in

the

record

and

was in

conflict with

principles of res judicata and collateral estoppel.
The Plaintiff moves for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure and 42 U.S.C.
405(g) seeking to reverse the Commissioner’s decision or, in the
alternative,

remand

this

case

to

the

Commissioner

for

reconsideration of the evidence. The Commissioner cross-moves for

-Page 1-

judgment on the pleadings pursuant to 42 U.S.C. 405(g) on the
grounds that the findings of fact of the Commissioner are supported
by substantial evidence. This Court finds that the ALJ’s decision
is supported by substantial evidence in the record and is in
accordance with the applicable legal standards. Therefore, for the
reasons set forth below, the Commissioner’s motion for judgment on
the pleadings is granted, and the Plaintiff’s motion is denied.
Plaintiff’s complaint is dismissed with prejudice.

PROCEDURAL HISTORY
Plaintiff first protectively filed for SSI on May 2, 1991,
under Title XVI of the Act, alleging disability due to a gunshot
injury sustained to his right arm on March 15, 1991. Transcript of
the Administrative Proceedings at 128, 577-19 (hereinafter “Tr.”).
Plaintiff’s

application

was

denied

at

the

initial

and

reconsideration levels. The Plaintiff was eventually granted a
hearing before an ALJ, and appeared before Judge Stanley A. Moskal,
Jr. with attorney, Paul Kelly, on July 20, 1992. Administrative
Addendum Exhibit A (hereinafter “Admin. Add.”).
In a Decision dated September 10, 1992, ALJ Moskal determined
that Plaintiff had been disabled through the date of the decision.
In his decision, ALJ Moskal acknowledged that Plaintiff did not
meet the criteria under listing 1.13 of the regulations. Admin.
Add. Exhibit A. He found Plaintiff to be disabled on the grounds

-Page 2-

that the medical treatment planned would be “the equivalent of a
series of staged surgical procedures” and was therefore suffering
from an impairment “equivalent” to 1.13. 20 C.F.R. 416.920(d).
Admin. Add. Exhibit A. he recommended the file be reviewed in one
year.
In August of 1996, Plaintiff was incarcerated and his benefits
were suspended pursuant to section 1611(e)(1)(A) of the Act.
Tr. 33, 383. His entitlement was then terminated in November of
1996 pursuant to section 1631(j)(1) which requires the termination
of eligibility for SSI benefits after a claimant is ineligible for
12 consecutive months. There is no evidence, nor does Plaintiff
assert, that he appealed the termination of his benefits. Tr. 33.
Plaintiff was incarcerated from July 1996 through October 2002.
Tr. 383, 574, 579-88.
Upon his release from prison, Plaintiff re-applied for SSI on
November 25, 2002 claiming disability since May 2, 1991. On May 2,
2003 Plaintiff’s application was initially denied, and he again
requested a hearing before an ALJ. A hearing was held on June 14,
2005 in Rochester, New York, before ALJ Karen Peters by videoconference.

In

determined

that

a

decision dated
Plaintiff

was

August

no

15, 2005,

longer

disabled

ALJ

Peters

under

the

regulations. Tr. 28-35. In her decision, ALJ Peters determined that
because the Plaintiff’s benefits had been terminated and a new
application had been filed, the new application was to be treated

-Page 3-

as a new claim and reviewed de novo. Tr. 33-34. Plaintiff appealed
ALJ

Peter’s

decision,

and

the

Appeals

Council

(“AC”)

denied

Plaintiff’s request for review. Tr. 4-6.
Plaintiff then appealed to the Federal District Court for the
Western District of New York and was assigned to Judge Charles
Siragusa. By

Decision and Order date January 22, 2008, Judge

Siragusa remanded Plaintiff’s case back to the Commissioner for
determination of the issue whether the November 2002 application
was subject

to

res

judicata,

thus

making the

September

1992

decision determinative. Tr. 409-17. On February 19, 2008, the
Appeals Council vacated the August 5, 2005 hearing decision by ALJ
Peters and remanded the case to an ALJ for further proceedings in
accordance with the fourth sentence of Section 405(g) of the Act.
Tr. 404-05. A hearing was held before ALJ James Dombeck on June 4,
2008. Plaintiff appeared and testified with counsel Dennis J.
Annechino, an associate of Plaintiff’s former attorney Mr. Kelly.
In a decision dated March 4, 2009, ALJ Dombeck decided res
judicata

was

not

applicable

in

this

case

and

a

de

novo

determination of Plaintiff’s potential disability was required.
Tr. 380-404. ALJ Dombeck determined that Plaintiff was not disabled
as defined by the listings and was capable of performing activities
within the “light” exertional range. Tr. 380-404. The Appeals
Council denied Plaintiff’s request for review on December 4, 2010,

-Page 4-

making

ALJ

Dombeck’s

decision

the

final

decision

of

the

Commissioner. This action followed.

DISCUSSION
I.

Jurisdiction and Scope of Review

42 U.S.C. § 405(g) grants jurisdiction to Federal District
Courts to hear claims based on the denial of Social Security
benefits.

Matthews

v.

Eldridge,

424

U.S.

319,

320

(1976).

Additionally, the section directs that when considering such a
claim, the Court must accept the findings of fact made by the
Commissioner,

provided

that

such

substantial evidence in the record.

findings

are

supported

by

See Bubnis v. Apfel, 150 F.3d

177, 181 (2d Cir. 1998); see also Williams v. Comm’r of Soc. Sec.,
No. 06-2019-cv, 2007 U.S. App. LEXIS 9396, at *3 (2d Cir. Apr. 24,
2007).
Substantial evidence is defined as “such relevant evidence as
a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). Section 405(g) thus limits this Court’s scope of review to
two

inquiries:

1)

whether

the

Commissioner’s

conclusions

are

supported by substantial evidence in the record as a whole, and
(2) whether the Commissioner’s conclusions are based upon an
erroneous legal standard.

Green-Younger v. Barnhard, 335 F.3d 99,

105-06 (2d Cir. 2003); see also Wagner v. Secretary of Health &

-Page 5-

Human Serv., 906 F.2d 856, 860 (2d Cir. 1990)(holding that review
of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
The Commissioner asserts that the ALJ’s decision is supported
by substantial evidence in the record and is in accordance with the
applicable legal standards, and moves for judgment on the pleadings
pursuant

to

Rule

12(c).

Under

Rule

12(c),

judgment

on

the

pleadings may be granted where the material facts are undisputed
and where judgment on the merits is possible merely by considering
the contents of the pleadings. Sellers v. M.C. Floor Crafters,
Inc., 842 F.2d 639 (2d Cir. 1988). If, after reviewing the record,
the Court is convinced that Plaintiff has not set forth a plausible
claim for relief, judgment on the pleadings may be appropriate. See
generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

II.

Standard for Entitlement to SSI Benefits

Under the Social Security Act, a disability is defined as the
“inability to engage in substantial gainful activity by reason of
a medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months...” 42
U.S.C. §1382c(a) (3). An individual will only be considered “under
a disability” if his impairment is so severe that he is both unable
to do his previous work and unable to engage in any other kind of

-Page 6-

substantial gainful work that exists in the national economy.
42 U.S.C. §1382c(a)(3)(b).
“Substantial gainful work” is defined as “work that exists in
significant numbers either in the region where the individual lives
or in several regions of the country.”

Id.

Work may be considered

“substantial” even if it is done on a part-time basis, if less
money is earned, or if work responsibilities are lessened from
previous employment. 20 C.F.R. § 416.972(a). Work may be considered
“gainful” if it is the kind of work usually done for pay or profit,
whether or

not

a

profit

is

realized.

20

C.F.R.

§416.972(b).

Furthermore, “substantial gainful work” is considered available to
an

individual

regardless

of

whether

such

work

exists

in

his

immediate area, whether a specific job vacancy exists for him, or
whether he would be hired if he were to apply for work. 42 U.S.C.
§1382c(a)(3)(B).
In determining whether or not a claimant is disabled, SSA
regulations require the ALJ to perform a five-step sequential
evaluation. In doing so, the ALJ must determine:
(1)

Whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has a severe impairment
which significantly limits his physical or mental ability
to do basic work activities;

(3)

if the claimant suffers a severe impairment, the ALJ
considers whether the claimant has an impairment which is
listed in Appendix 1, Subpart P, Regulation No. 4, if so,
the claimant is presumed disabled;

-Page 7-

(4)

if not, the ALJ considers whether the impairment prevents
the claimant from doing past relevant work;

(5)

if the claimant’s impairments prevent her from doing past
relevant work, if other work exists in significant
numbers in the national economy that accommodate the
claimant’s residual functional capacity and vocational
factors, the claimant is not disabled.

20 C.F.R. §416.920(a)(4)(i)-(v)(2009).
In the instant case, after determining that the Plaintiff met
the insured status requirements of the Social Security Act under
sections 216(i) and 223, the ALJ performed the required five-step
evaluation and determined that: (i) Plaintiff had not engaged in
substantial gainful activity since his alleged disability onset
date of November 25, 2002; (ii) Plaintiff’s status post gunshot
injury to the right upper extremity (1991) with residual nerve
palsy of the right hand was a “severe” impairment under 20 C.F.R.
§ 416.921 et seq; (iii) Plaintiff’s impairments did not meet or
medically equal any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. §§416.925 and 406.926);
(iv) Plaintiff had essentially complete inability to use the right
hand and arm for grasping, manipulation, lifting, carrying, pushing
or pulling but maintained normal use of th left upper extremity for
all fine and gross work-related functions; and (v) Plaintiff
retained the residual functional capacity (“RFC”) to perform light
work.

-Page 8-

III.

The Commissioner’s decision to deny the Plaintiff
benefits was legally correct and supported by
substantial evidence in the record.
A. Background

Plaintiff was born on December 5, 1967 in Rochester, where he
has maintained a permanent residence in the family home. Tr. 301,
562. Plaintiff testified that he was residing in California with his
girlfriend at the time of the hearing before ALJ Dombeck. Tr. 56162, 574. Plaintiff was unemployed and had been since before the
incident in 1991 which prompted his initial application for SSI. He
testified that the last time he was working was in 1989. Tr. 561-62.
Records obtained from the Rochester City School District show that
Plaintiff withdrew from school in January of 1985 at the age of 17.
Tr. 481. Plaintiff testified that he recalled dropping out of school
around the tenth grade but he was unable to recall with certainty.
Tr.

563.

Plaintiff

further

testified

that

he

was

completely

illiterate. Tr. 563-64. The school records show that Plaintiff had
been classified as “learning disabled” and placed in non-graded
special classes for academic subjects. Tr. 498-503. A psychological
evaluation in 1982, when Plaintiff was 14, indicated scores in the
average range for non-verbal skills and in the borderline retarded
range for verbal skills. A Wide Range Achievement Test was given at
the same time, indicating a reading level of a 3.3 grade equivalent.
Tr. 498. However, the record also revealed Plaintiff’s absenteeism
and truancy which contributed to his inability to learn to read and
-Page 9-

write. Tr. 388, 480-498, 576. The record does not contain any
evidence that Plaintiff required or received any treatment during
his adolescent or adult life for any mental disorder.

Tr. 389.

Claimant testified that his only work experience was that of
a butcher in a slaughterhouse, doing roofing and siding, and as a
stock boy in a warehouse. Tr. 565-67. His most recent employment was
at the slaughterhouse in 1989 and required extensive use of both of
his arms. Tr. 566. ALJ Dombeck conceded Plaintiff’s previous jobs
all required the use of both hands and both arms. Tr. 566-67.
In his hearing on June 14, 2005 before ALJ Peters, Plaintiff
testified that he was convicted of two crimes, but denied having
committed either crime.

The first was for assault on a police

officer, for which he was incarcerated from 1995-1996. Tr. 322, 390.
He testified that the second conviction arose from a “domestic
dispute” during which he stabbed his girlfriend in the back. The
stabbing took place in the back seat of a car, through the driver’s
seat, with the weapon in Plaintiff’s non-dominant hand. Tr. 317-22,
580. He was incarcerated again for this assault from 1996 until
October of 2002. Tr. 317-22, 580, 595. ALJ Peters noted, in response
to his admission of this stabbing, that his ability to stab a person
through the seat of a car with his non-dominant hand provided some
evidence of his strength and functional capabilities, even as a onearmed man. Tr. 321 (also noted by ALJ Dombeck on page 390).

-Page 10-

At his hearing before ALJ Dombeck on June 4, 2008, Plaintiff
was uninsured and had no income. Tr. 573. Plaintiff testified that
he was denied public assistance in New York State because of his
pending SSI claim. Tr. 573-74. He testified that he was living off
the assistance provided by his family members and girlfriend.
Tr. 574.
B. Medical Evidence
Plaintiff filed his first application for SSI at the age of 22
claiming disability as a result of a 12-gauge shotgun wound to his
right arm. The incident occurred on March 15, 1991, less than
2 months before Plaintiff filed for SSI benefits. Plaintiff was
admitted to the Emergency Department (“ED”) of Rochester General
Hospital (“RGH”) on March 15, 1991 and remained until April 2,
1991, during which he was treated for a “gunshot wound to the right
humerus with grade III, comminuted, open fracture of the right
humerus, and right radial nerve injury.” Tr. 128. The attending
physician

was

Dr.

Stephen

Kates.

During

his

admission

four

surgeries were performed for irrigation and debridement of the
wound,

the

application

and

adjustment

of

external

fracture

fixation, a split thickness skin graft and repair of the right
radial nerve. Tr. 129-33. He was released in stable condition with
a prescription for Tylenol and instructions to care for the wound,
including the arrangement of a Visiting Nurse for the two weeks
following his discharge for dressing changes at home. Tr. 130.

-Page 11-

In May of 1991, a month after Plaintiff was discharged, he was
admitted to the ED of RGH for removal of the external fixator.
Dr. Rusotti was Plaintiff’s attending physician responsible for his
care and treatment. Tr. 143-44. From April 1991 through May of
1992, Plaintiff returned to the ED twice for recurrent pin/tract
wound infections with Staph Aureus and for sightings of “pus”
discharge from the site of skin graft. Tr. 143. The wound infection
was treated with Keflex, an antibiotic, and resolved. Tr. 144.
As noted by ALJ Dombeck, the current record contains no
further medical documentation for the years June 1992-1999. ALJ
Moskal’s September 10, 1992 decision references medical history
indicating complete loss of ulnar nerve function and no use of
fingers, reduced bicep strength and difficulty to the right arm and
hand when pressure was applied. Tr. 389, Admin. App. Exhibit A. As
a result of Plaintiff’s incomplete recovery from the injury as of
the date of ALJ Moskal’s decision, as well as a brief report from
a treating physician stating that Plaintiff was scheduled for
further reconstructive surgery, ALJ Moskal found the claimant’s
right arm injury “equaled” the criteria of then-existing section
1.13 of the Listing of Impairments in Appendix 1. However, as ALJ
Dombeck notes, “there is no medical evidence, and essentially no
allegation, that the [Plaintiff] ever underwent any additional
surgery.” Tr. 390. Furthermore, by Plaintiff’s own admission, there

-Page 12-

was no further course of treatment possible to remedy his arm.
Tr. 334, 573.
The record contains medical records from the Department of
Corrections (“DOCS”) chronicling Plaintiff’s medical issues while
incarcerated. Ambulatory health records list a series of complaints
unrelated to Plaintiff’s gunshot wound, including gastrointestinal
discomfort,

frequent

gas,

bloating,

abdominal

pain,

GERD-like

symptoms and occasional constipation. Tr. 174-239.
The DOCS records also contained medical evidence relating to
the gunshot wound. On June 21, 1999, Plaintiff was seen at the Bare
Hills Correctional Facility Clinic (“the Clinic”) complaining of
“lots of pain in neck and shoulder” which he reported had been
going on “for months”. Tr. 554. He returned on July 6 and 19, 1999
with the same complaint on both occasions, first requesting muscle
relaxants and then alleging that medication seemed to make it
worse. Tr. 554. He denied any new injury. Over the next ten to
eleven months Plaintiff returned to the Clinic repeatedly with
complaints of neck and arm pain, but examinations revealed nothing
more than right upper extremity deformity. Tr. 509-53. Plaintiff
was even reported to have a full range of motion in his neck and
right shoulder with mild discomfort in February of 2000. Tr. 544,
509-53. Plaintiff was prescribed Naprosyn, Robaxin, Tylenol, and
Motrin for the pain. Tr. 509-53.

-Page 13-

Although the Plaintiff was seen frequently at the clinic from
April 2000 through December 2000, there was little mention of neck,
shoulder or arm pain in the clinic’s records. Tr. 528-44.
In January of 2001, Plaintiff’s complaints of pain in his
right arm resumed. He was examined and found to have scarring and
shortening of the right arm from the gunshot wound, with complaints
of increased stiffness and aching as well as locking of the right
elbow. Tr. 525.
Plaintiff was referred for physical therapy and went to an
outpatient facility on February 26, 2001. Tr. 202. This evaluation
detailed a shortened right arm, loss of bicep/tricep tissue and
scarring from the gunshot wound. Tr. 201-03. Plaintiff denied the
presentation of pain at the exam. The physical therapist noted a
poor

rehabilitation

potential

as

a

result

of

the

residual

structural deficits of Plaintiff’s right arm and neck. Tr. 202-03.
After performing a strength examination on Plaintiff’s cervical
spine, the physical therapist reported a full range of motion and
5/5 strength in all planes. The physical therapist reported a 4+/5
overall gross strength in the right shoulder, elbow, wrist and
hand. Plaintiff was approved for three weekly therapy sessions to
teach him an exercise program to increase flexibility in his right
upper extremity, cervical spine and upper torso. Tr. 203. Upon his
return to the Correctional Facility he reportedly had no questions
or problems. Tr. 523.

-Page 14-

After Plaintiff reapplied for SSI benefits in November of
2002, he was seen by consultative physician Dr. Ramon Medalle.
Tr. 151-54. Plaintiff reported that he is able to cook to a certain
extent, to clean to a limited extent, to do laundry, to shop for
food and clothing and to care for his children. Tr. 152. He also
reported that he reads in his spare time, contrary to prior
testimony

that

he

was

illiterate.

Tr.

152.

Dr.

Medalle’s

examination revealed full flexion, extension, lateral flexion and
full bilateral rotary movement of the cervical spine and lumbar
spine. Tr. 153. Plaintiff’s SLR, however, was negative bilaterally.
The examination also revealed full ROM of shoulders, elbows and
forearms bilaterally and of left wrist. Right wrist, however, was
incapable

of

moving

and

was

in

30

degree

flexion.

Tr.

153.

Plaintiff’s right arm also displayed obvious loss of muscle at the
posterolateral part of the distal part of the right arm and
appeared to be two inches sorter than the left arm.

He exhibited

a strength of 5/5 in all upper extremities but a 0/5 grip strength
of the right hand. Tr. 153. Plaintiff could not move second through
fourth fingers of his right hand.
Dr. Medalle opined that “claimant is markedly limited in
performing any fine motor movements with the right hand because of
loss of function due to nerve damage.” Tr. 154. He further opined
that Plaintiff was “moderately limited in activities requiring
forceful use of the right upper extremity because of loss of muscle
and nerve damage to the right upper extremity”. Tr. 154.
-Page 15-

Since his release from prison, through 2005, Plaintiff had
visited RGH on several occasions with complaints unrelated to his
right arm, including a laceration to the finger, chest pain, back
pain, and a car accident. Tr. 269-76, 157-59, 155-73, 251-62.
At the time of the hearing before ALJ Dombeck in June 2008,
approximately six years had passed since Plaintiff had seen a
doctor because he did not have health insurance. Tr. 564. ALJ
Dombeck correctly found that from 1992 until the time of his
decision, there is no evidence that Plaintiff’s arm required
continued surgical intervention.
C.

The ALJ properly concluded that the 1992 disability
determination is not determinative of Plaintiff’s
disability status with respect to his November 2002
application.

Plaintiff argues that ALJ Moskal’s original September 1992
decision finding him to be disabled is determinative with regard to
the current SSI Claim under the doctrines of res judicata and
collateral estoppel.
The

issue

of

whether

or

not

res

judicata

or collateral

estoppel applies to the 1992 disability determination was initially
addressed by this Court in Judge Siragusa’s January 22, 2008
Decision and Order remanding this case to the Commissioner for
consideration of that issue.

In that Decision and Order, after

reviewing case law suggesting that in some circumstances, a prior
determination of disability could preclude a subsequent finding
that a claimant was not disabled, Judge Siragusa instructed the
-Page 16-

Commissioner to specifically address whether or not the 1992
disability determination in this case precluded ALJ Peters from
finding that the Plaintiff was not disabled in her August 15, 2005
decision denying Plaintiff’s application for benefits. See January
22, 2008 Decision and Order at p.

9 (“This action is remanded . .

. .to the Commissioner to reassess the application of res judicata
. . . .”)

Judge Dombeck, in his March 4, 2009 decision, found that

Plaintiff’s benefits were properly terminated, that neither res
judicata nor collateral estoppel were applicable to the Plaintiff’s
1992 disability determination, and that Plaintiff had failed to
establish that he is disabled under the regulations.

For the

reasons set forth below, I affirm the ALJ’s findings.
1.

Plaintiff’s benefits were properly terminated pursuant
to the Social Security Regulations.

Although Plaintiff contends that his benefits were improperly
terminated,

as

determination,

Judge
with

Dombeck

respect

to

explained

in

Supplemental

his

benefits

Security

Income

Benefits, pursuant to the regulations, such benefits are suspended
upon the incarceration of a beneficiary, and terminated in cases
where the beneficiary is incarcerated for a period of more than 12
consecutive
§1383(j)(1).

months.
When

42

U.S.C.

benefits

are

§1611(e)(1)(A);
terminated

42

because

U.S.C.
of

the

incarceration of the recipient, the individual must reapply for
benefits

under

section

1611

and

meet

the

requirements

disability under the section. 42 U.S.C. §1383(j)(1).
-Page 17-

for

Based on

these regulations, I find that Plaintiff’s benefits were rightfully
terminated, and that his recourse was to submit a new application
for benefits, which he did, in November 2002.
2.

Plaintiff’s prior disability determination does not have
preclusive effect on his subsequent application for
benefits

In cases such as this, where benefits have been terminated and
the

recipient

has

made

a

new

application

for

benefits,

the

recipient must prove that he or she is disabled, without regard to
the prior determination that he or she was disabled.
Dombeck

stated

in

his

decision,

the

Act

provides

As ALJ
that

the

disability determination will be:
made on the basis of the weight of the evidence and on a
neutral basis with regard to the individual's condition,
without any initial inference as to the presence or
absence of disability being drawn from the fact that the
individual has previously been determined to be disabled.
Tr. 385; 42 U.S.C. §1382c(a)(4)(C).

Accordingly, pursuant to the

Social Security Act, Plaintiff’s new application for benefits is
not subject to findings made in prior determinations.
Plaintiff argues, however, that even if res judicata does not
apply, he must still be found disabled because his condition has
not improved since he was found to be disabled by ALJ Moskal in
1992.

While it is true that typically, once disability has been

granted to a claimant, the regulations require that there be a
“medical improvement in the individual's impairment or combination
of impairments (other than medical improvement which is not related
-Page 18-

to the individual's ability to work)” in order for benefits to be
terminated 42 U.S.C. §1382c(a)(4), as stated above, that provision
does not apply here, where Plaintiff’s benefits were properly
suspended,

and

incarceration.

then

terminated,

because

of

Plaintiff’s

Rather, because Plaintiff was required to file a

new application for benefits, and because the regulations require
that the new application be evaluated without regard to the prior
finding of disability, lack of medical improvement is inapposite to
the determination of whether or not the Plaintiff is disabled as of
the date of the new application for benefits.
Moreover, even if the issue of lack of medical improvement
could be considered with respect to Plaintiff’s new application for
benefits, the evidence in the record of lack of improvement would
not support a finding that the Plaintiff is disabled.

This is so

because Plaintiff’s initial disability determination was not based
on the loss of function of his right arm, but instead was based on
ALJ Moskal’s finding that Plaintiff suffered from a soft tissue
injury, the recovery from which would be expected to take more than
one year.

Specifically, ALJ Moskal considered whether or not

Plaintiff met the criteria for a soft tissue injury, as set forth
in Section 1.13 of the Social Security Disability Listings. At the
time of ALJ Moskal’s determination, Section 1.13 provided that a
soft tissue injury to an upper extremity would be considered
disabling where the injury required “a series of staged surgical
procedures

within

12

months

after

-Page 19-

onset

for

salvage

and/or

restoration of major function of the extremity, and such major
function was not restored or expected to be restored within 12
months after onset.”1

While ALJ Moskal found that Plaintiff’s

condition did not “meet the strict criteria of section 1.13", he
nevertheless found that Plaintiff’s condition was equivalent to the
listing’s articulation of a “series of staged surgical procedures”,
and therefore Plaintiff was disabled “at least through the date of
[his September 10, 1992] decision.” Indeed, ALJ Moskal recommended
that the Plaintiff’s file be reviewed in one year’s time--after the
Plaintiff had undergone his course of rehabilitation--at which time
the functional capacity of his right arm could be evaluated.
Because ALJ Moskal found that the Plaintiff was disabled on the
basis of a soft-tissue injury that would require further surgery
and rehabilitation that was likely to last longer than one year,
and not because of the loss of use of his right arm, evidence that
Plaintiff’s arm function did not improve is not relevant to the
initial finding of disability, and is not probative of whether the
initial disability finding remains valid.
Finally, Plaintiff’s claim that he was found disabled based on
the loss of function in his right arm is not only contradicted by
the record, which clearly indicates that he was found disabled in

1

Amendments to the Regulations, effective 2/19/01 (66 FR
58032, Nov. 19, 2001), preserved the general content and
substance of section 1.13 of Appendix 1 as it pertained to soft
tissue injuries to an extremity, and placed it in re-designated
section 1.08 of Appendix 1.
-Page 20-

1992 based on the fact that he was expected to undergo an intensive
rehabilitation period expected to last longer than one year, but is
also rebutted by the fact, as noted by ALJ Dombeck, that “even the
complete loss of function or amputation of a single upper extremity
is not sufficient medical basis under the Listings to result in a
finding of disability.” Tr. 394. 20 C.F.R. Pt. 404, Subpt. P,
App. 1.

Indeed, the regulations recognize that a “one-armed”

individual without further course for treatment, could have the
ability to perform substantial gainful activity. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Section 100C (current section 100N).

In both his

testimony before ALJ Peters as well as his testimony before ALJ
Dombeck,

Plaintiff

admitted

there

was

no

further

course

of

treatment for him, and doctors have told him there is nothing more
to

be

done.

Tr.

334,

573.

This

testimony

is

reiterated

in

Plaintiff’s brief that no further treatment has been presented to
the Plaintiff or can be done in the future for him. Plaintiff’s
Brief, at 2, 7, 8. Plaintiff has not been to see a doctor for an
infection or problem with his wound-site for the past 17 years
since May of 1992. Tr. 112-14. Although pain in his upper arm
persisted throughout his time in prison, nothing more than pain
management could be done for him. Tr. 175-239. There is no evidence
Plaintiff

did

not

undergo

any

of

the

anticipated

additional

surgeries which formed the basis for ALJ Moskal’s decision.
ALJ Dombeck properly considered the very basis of ALJ Moskal’s
decision and his expressed recommendation to reconsider the case
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after the year of surgeries was completed pursuant to Section 1.13.
ALJ Dombeck’s decision that res judicata did not apply to this case
was

supported

by

the

applicable

law

and

SSA

regulations.

Therefore, this Court finds that ALJ Moskal’s 1992 decision is not
determinative of the current application, and ALJ Dombeck is
correct in reviewing this case de novo.
D.

The ALJ Properly determined that Plaintiff is not
Disabled.
ALJ Dombeck found that the Plaintiff had a severe impairment

in the right upper extremity and residual nerve palsy of the right
hand. Tr. 396. He next found that even with this impairment,
Plaintiff did not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments.
After considering all the relevant evidence in the record, ALJ
Dombeck

found

that

while

Plaintiff’s

medically

determinable

impairments could reasonably be expected to cause the alleged
symptoms,

the claimant’s

persistence

and

limiting

statements
effects

concerning

of

these

the

symptoms

intensity,
were

not

credible to the extent they were inconsistent with the residual
functional capacity assessment (“RFC”).
ALJ

Dombeck

concluded

that

Plaintiff

had

the

residual

functional capacity for light work, with the added limitation that
Plaintiff has a complete inability to use his right hand and arm
for grasping, manipulation, lifting, carrying, pushing, or pulling.
Tr. 398. ALJ Dombeck concluded that the Plaintiff is able to sit,
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stand, walk, climb stairs and bend without significant limitation.
Tr. 398.
ALJ Dombeck found that Plaintiff’s testimony that he has
suffered from constant and severe pain as a result of the 1991
gunshot to his right arm is not supported by the record. Medical
reports from The Department of Corrections show periodic reports of
pain in his arm and even report Plaintiff’s self-described pain as
“intermittent.” Tr. 174-239. Since his release from prison in 2002,
the record indicates Plaintiff has infrequently sought medical
attention at RGH for his right arm pain. For the six years leading
up to the hearing before ALJ Dombeck, Plaintiff had not seen a
doctor at all. Tr. 564.
Claimant also reported total paralysis in his right arm.
However, when further questioned, he admitted to being able to move
his shoulder and elbow and raise his arm to wash and to steady
objects. He reported he was capable of performing everyday tasks
with minimal use of his right arm, including driving with his left
arm. Tr. 151-54. He otherwise testified he was incapable of using
his right arm to complete everyday tasks. The record contains no
evidence suggesting Plaintiff ever attempted to develop left-hand
dominant functioning.
This Court finds that ALJ Dombeck’s credibility determination
is supported by substantial evidence in the record.
ALJ Dombeck’s RFC indicated that Plaintiff was capable of
performing work in the “light” exertional category with the added
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limitation that Plaintiff has a complete inability to use his right
hand

and

arm

for

grasping,

manipulation,

lifting,

carrying,

pushing, or pulling. Tr. 398. ALJ Dombeck concluded that the
Plaintiff is able to sit, stand, walk, climb stairs and bend
without significant limitation.

He also presumptively considered

Plaintiff as illiterate.
ALJ

Dombeck

relied

upon

consultative

physician

Dr.

Ramon

Medalle’s evaluation of Plaintiff’s abilities in forming his RFC.
According to the regulations, it is the responsibility of the
claimant to furnish medical and other evidence “that can be used to
reach conclusions about a medical impairment(s). If material to the
determination whether you are disabled, medical and other evidence
must be furnished about the effects of your impairment(s) on your
ability to work.” 20 C.F.R. § 416.912(a). Such evidence includes
medical opinions or professional findings, laboratory tests and
statements

from

others

regarding

a

claimant’s

impairment

or

abilities. 20 C.F.R. § 416.912(a)(1)-(8). When the evidence as a
whole is insufficient to support a determination or decision on a
claim, such as when additional evidence needed is not contained in
the records of your medical sources, the Commissioner has the right
to order a consultative examination at the expense of the Social
Security Administration. 20 C.F.R. § 416.919a.
Plaintiff failed to provide medical records identifying a
treating physician or any doctor he saw within six years of the
hearing before ALJ Dombeck. None of the medical records he provided
-Page 24-

spoke to his abilities or functioning. Without this evidence, ALJ
Dombeck was correct in relying upon Dr. Medalle’s evaluation in
formulating his RFC.
After examining the Plaintiff in March of 2003, Dr. Medalle
found that Plaintiff was “markedly limited in performing any fine
motor movements with the right hand” and was “moderately limited in
activities requiring forceful use of the right upper extremity
because of loss of muscle and nerve damage to the right upper
extremity.” Tr. 154. He reported Plaintiff’s prognosis to be
“stable.” Tr. 154.
ALJ Dombeck’s RFC is supported by the evidence contained in the
record.
ALJ Dombeck presented the Vocational Expert (“VE”) Peter A.
Manzi with the following hypothetical factors: a younger individual
(less than 45 years of age); who completed 9 years of school, but
who is unable to read or write; with a vocational background the
same as that of the Plaintiff; who had total inability to use the
upper right extremity from the shoulder to the fingers; who retains
full use of his left extremity. Tr. 402, 603-19. The VE testified
that based on that hypothetical, such an individual would not be
able to perform the past jobs of the Plaintiff, but would be
capable of performing jobs such as a table worker (DOT 739.682182). This job is sedentary in nature and involves inspection of
flooring, such as tiles, for defects. The VE testified there are

-Page 25-

14,713 table worker jobs in the national economy and 50 jobs in the
Finger Lakes region. Tr. 403, 604-19.
ALJ Dombeck concluded by specifying that the Act does not take
hireability into consideration past the impact of the impairment on
a claimant’s ability to work. Plaintiff’s past criminal history and
the effect that may have on potential employers willingness to hire
him had no bearing on the administrative proceedings. Tr. 403.
Therefore, this court finds that ALJ Dombeck’s determination
that Plaintiff is capable of performing work and is not disabled is
supported by substantial evidence in the record.
CONCLUSION
For the reasons set forth above, this Court finds that the
Commissioner’s decision to deny the Claimant benefits was supported
by substantial evidence in the record. Therefore, I grant the
Commissioner’s motion for judgment on the pleadings, and deny
Plaintiff’s motion for judgment on the pleadings. The Plaintiff’s
motion is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

August 3, 2012
Rochester, New York

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