Civil Action No. 10-4157 (PGS)

Plaintiff.

v. OPINION

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

SHERIDAN, U.S.D.J.

This matter is before the Court on the appeal of P1aintift John Robinson. of the

Administrative Law Judge’s (“AU”) order denying his application for Social Security Disability

Benefits. The District Court hasjurisdiction under 42 U.S.C. § 205(g) and 42 U.S.C. § 1 383(c)(3).

Plaintiff applied for 1)isability Insurance Benefits and Supplemental Security Income Benefits on

July 16, 2007 alleging disability beginning on September 30, 20041 due to diabetes, burning

sensation in his feet, and pain in his shoulders, The issue in this case is whether substantial evidence

supports the Commissioner’s decision that Plaintiff was not disabled from March 15, 2005 through

November 12, 2009. the date of the AU’s final decision.

Plaintillis a 55 year old man and a high school graduate. I-Ic is 5’5” and 174 pounds. In his

last job in 2004. Plainiifl’was employed by Exxon Oil and served as a safety watch where he worked

Plaintiff originally alleged September 30. 2004, but later amended his alleged

onset date to March 15. 2005. (R. 32).
implants weighing up to 75 pounds. He also worked as an orderly at St. Elizabeth Hospital between

1992-1999. He stopped working in 2004 due to the pain in his feet and joints.

Currently, Plaintiff lives with his 29 year old son. His daily activities include taking a

shower, assisting others in making breakfast, light dusting, watching television, cleaning, and

napping.

II.

The issues here revolve around two contentions of Plaintiff The first concern alleges bias

by the AU against the Plaintiffs attorney. On that matter, I found no bias existed and my reasons

were set forth on the record during oral argument.

The second issue concerns whether the AU erroneously failed to have a vocational expert

testify about the non-exertional nature of Plaintiffs diabetes, and his environmental impairments at

step five of the sequential evaluation. This issue is discussed below.

Plaintiffs argument may be split into two parts. The first is whether diabetes is a non

exertional impairment requiring the testimony of a vocational expert; and the second is whether the

Plaintiff had environmental limitations that should have been considered by a vocational expert.

According to Plaintiff diabetes is a “non-exerlional impairment because diabetes “has

nothinL to do with strength” (ability to lift and carry): hut impinges upon a person’s “equilibrium.

sensation and other factors including pain” Plaintilis Brief. p. 12). With regard to same, diabetes

is a listed impairment under 20 CFR 404.1520(c). and 41 6.920(c). In order 10 qualify as severely
months documented hi appropriate blood chemical tests (p1-1 or pCO2 or bicarbonate levels): or

C. Amputation at. or above, the tarsal region due to diabetic necrosis or peripheral arterial disease;

or D. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02. 2.03, or 2.04.

The AU analyzed Plaintiffs diabetes under those listings as well as the associated symptoms

throughout his opinion. For instance, the AU relied on the report of Dr. Patel with regard to

diabetes. The AU found

The claimant has had a severe impairment involving diabetes mellitus (20CFR 404.1520(c) and 416.920(c).

At the request of DDS. the claimant underwent an internal medicineconsultative examination with Rambhai C. Paid, M.D. on February

21,2008. The diagnosis was diabetes mellitus. possibility of diabetesneuritis, hypertension and possibility of arthritis ofthe right shoulder

without permanent deformity. The physical examination revealed that

the claimant was walking with a normal gait and without theassistance of a cane. The chest x-ray was normal, There was no

vascular involvement and no swelling in the joints, no rub or any

tenderness noted (Exhibit IF).

In addition, the AU relied on Dr. Wilfredo Cruz. His findings were similar to Dr. Patel. The AU

discussed I)r. Cruzs report:

The claimant complained of diabetes. burning sensation in his feetand pain in his shoulders. The physical examination was basically

unremarkable. A laboratory report dated May 30, 2008 shows a

glucose reading of 160. The diagnosis was diabetes, hypertension,

hyperlipidemia, and beginning peripheral neuropathy (Exhibit 6F).

Despite this review by the AU, Plaintiff argues that Plaintiffs diabetes is an impairment of the
impairments in 20 CFR Part 404. Subpart P. Appendix 1 (20 CFR

404.1520(d), 404.1525,404.1 526.416.920(d), 416.925 and 416.926).

In making this determination, I have given particular attention to theimpairments set forth in 9.00 (Endocrine System); however, the

record does not contain the specific findings required by that section.

The claimant’s diabetes mellitus does not satisfy 9.08. The claimant

does not have neuropathy in two extremities resulting in sustained

disturbance of gross and dexterous movements, or gait and station

that satisfy the requirements of 9.08A.

Hence, all of Plaintiffs diabetic symptoms were addressed by the AU and do not meet or medically

equal the requirements of the listing.

With regard to plaintiffs allegations of occasional episodes ofmemory loss which may have

somehow related to the diabetes, the AU considered the report ofErnesto Perdomo. Ph.D. The AU

found:

The claimant also underwent a psychological consultative

examination with Ernesto Perdomo. Ph.D. on March 4, 2008. There

were no psychiatric medical records. The examination revealed his

thought process was well organized and focused. 1-fe had no

hallucinations or delusions. The claimant denied having depressionor anxiety. The examiner noted that the claimant’s problems appeared

to he only physical (Exhibit 2F).

The state agency medical consultant completed a psychiatric review

technique tbrm and concluded the claimant had no rnedicall

determinable mental impairment (Exhibit 3F). The evidence fails toestablish a severe mental impairment.
an eight hour day: push and pull arm and leg controls. In short, there does not appear to be any

diabetes related symptoms that the AU failed to consider, or which would require a vocational

expert to evaluate.

The second part of Plaintiffs argument concerns environmental restrictions set forth in l)r.

Schneider’s report dated March 20, 2010, and that such non-exertional limitations should have been

evaluated by a vocational expert. From reading the AU’s decision, it does not appear that these

environmental restrictions were assessed by the AU. Dr. Schneider was the first physician to find

that Mr. Robinson could not frequently be exposed to extreme cold, heat, wetness, humidity and

hazards. From reviewing the entire record, it appears that environmental limitations were never

alleged by the Plaintiff in his claim except for one instance on administrative appeal 2.For example,

the original questionnaires answered by Mr. Robinson on August 23, 2007 do not mention these

environmental restrictions (R. 1 07); the symptoms were not mentioned at the October 8. 2009

hearing before the AU; nor in Robinson’s brief to this court filed on January 3.2011. During oral

argument here, Robinson’s attorney emphasized those limitations much to the surprise of the

2 On January 10. 2010. the environmental restrictions were curtly mentioned in a

letter from Mr. Alter, Plaintiffs attorney, to the Appeals Council wherein he wrote:

In addition, the AU found no non-exertional impairments whatsoeverand thereibre no non—exertional restrictions. justifying the direct

application of the vocational rules. Yet, the State Agency physicians

found Plaintiff limited in his toleration of extremes of temperature,

wetness, humidity, vibration and hazards.
ilL

In making his final determination that Plaintiff was capable of performing the full range of

light work, the AU found that Plaintiffs testimony lacked credibility. This was based on Dr.Schneider’s report who found “the severity and duration ofthe symptoms are not fully proportionate

to the expected and not fully consistent with the totality of the MER. Similar to Dr. Schneider’sassessment that the symptoms. The AU found:

After careful consideration of the evidence, I find that the claimant’smedically determinable impairment could reasonably be expected to

cause some of the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects

ofthese symptoms are not credible to the extent they are inconsistent

with the above residual functional capacity assessment.

The claimant’s treatment for diabetes has been conservative andnon-aggressive. According to the claimant, he has been insulin

dependent for about 13 to 15 years. The medical evidence does not

indicate any emergency room visits or hospitalizations tor the

treatment of his diabetes. There is also no evidence of any end organdamage caused by diabetes. The claimant also complains of foot

problems and joint aches. The evidence fails to show any diagnostictests to indicate that the claimant’s complaints are credible.
affirmed. 42 U.S.C. § 405(g), 1383(c)(3). 

PETER G. SHERIDAN, U.S.D.J. I