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February 12, 2004.

IVAN JOSEPH, Plaintiff -against- JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant

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


Ivan Joseph ("Joseph" or the "plaintiff") commenced this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security (the "Commissioner") denying disability insurance Page 2 benefits to him. Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (" Fed.R.Civ. P.").


 A. The Procedural History

  On March 24, 1999, Joseph filed an application for social security disability insurance benefits, claiming disability since September 26, 1997 due to constant back pain. After his application initially and on reconsideration was denied, he requested a hearing before an administrative law judge ("ALJ"). On November 1, 2000, a hearing was conducted in Miami, Florida where the plaintiff was represented by an attorney. In a decision dated May 16, 2001, the ALJ found that Joseph was not disabled within the meaning of the Act and was therefore not entitled to disability insurance. On May 16, 2001, he filed a request for review with the Appeals Council. On September 27, 2002, the Appeals Counsel declined to review the claim, making the ALJ's decision the final administrative determination. This appeal followed.

  1. Joseph's Testimony at the Hearing

  At the November 1, 2000 hearing, the plaintiff stated that he was born on April 13, 1964, making him 36 years of age at the time of the administrative hearing. Joseph graduated from high school. At the time of the hearing, he lived in Grenada. Before moving Page 3 to Grenada, he worked at a Pathmark supermarket in New York on and off for 17 years and was an assistant produce manager. His duties included unloading, delivering, and breaking down produce in the supermarket. Joseph's position also included customer relations duties and occasionally supervising seven employees in the produce department.

  Joseph testified that, on March 20, 1996, he injured his middle to lower back while he was unloading heavy cartons. As a result, Joseph stated that he had difficulty reaching, bending, lifting, and sleeping. The plaintiff stated that he continued to work on and off until September 1997. Although Norflex, a muscle relaxer, was previously prescribed for him on a date not specified in the transcript, the plaintiff testified that he was not currently taking any medication. He stated that he was seeing an orthopedist, Dr. Kester Dragon, about every six weeks. Prior to seeing Dr. Dragon, Joseph testified that he was seeing Dr. Salvatore Inserra.

  Joseph also testified that for the entire day he could sit for a total of three hours, stand for a total of three hours, and walk about five miles or for about 15 minutes. However, he explained that he felt pain after sitting for about 45 minutes or standing for about 40 minutes. He also testified that he had trouble sleeping at night and that he had problems bathing and dressing. Joseph testified that he did some light cooking and that he attended church for approximately 45 minutes to an hour every other Sunday. The plaintiff stated that Page 4 he played the drums but had not played in a year and a half. The plaintiff further stated that he spent his days lying down, watching television, reading, and taking short walks and drives.

  Furthermore, Joseph reported that he had been depressed for about 6 to 9 months and was experiencing recurrent crying spells and suicidal thoughts, but had not received any medical treatment for his depression.

  2. The Treating Physicians

  a. Dr. Salvatore Inserra

  Between December 3, 1997 until May 21, 1999, Dr. Salvatore Inserra, an orthopedic surgeon, treated the plaintiff. During each of the examinations, Joseph complained of recurrent pain and stiffness in his lower back which interfered with his sleeping habits. On January 2, 1998, Dr. Inserra noted that Joseph was able to ambulate with a normal gait pattern and that "range of motion of the lumbosacral spine was painful, but normal." He observed that the plaintiff's deep tendon reflex and his motor and sensory exam were intact. In addition, based on a December 3, 1997 x-ray of the lumbosacral spine and pelvis, he stated that there was evidence of degenerative disc disease at L4-L5 and L5-S1.

  On March 29, 1998, the plaintiff complained of "residual pain in his lower back, associated with recurrent spasm, stiffness and generalized discomfort, aggravated by Page 5 prolonged standing and physical activity." Dr. Inserra diagnosed the plaintiff as suffering from chronic discogenic type pain syndrome of the lumbosacral spine; osteoarthritis; spondylolysis at L-5; and herniated disc disease at L5-S1.

  Dr. Inserra requested authorization for epidural steroid injections and recommended exercise at home. In an evaluation conducted on June 26, 1998, Dr. Inserra recommended epidural steroid injections to the lumbosacral spine and physical therapy three times a week for six weeks.

  Dr. Inserra continued to treat the plaintiff at about six week intervals until May 21, 1999. Examinations showed diffuse tenderness in the lower back; range of motion was limited about 10 percent with stiffness and pain; and flexion was possible to 50 degrees and lateral flexion was possible to 10 degrees. Dr. Inserra repeatedly assessed degenerative disc disease in the lumbosacral spine with bulging discs at L4-L5 and L5-S1, chronic myofascial spasm and pain syndrome. Each examination revealed that straight leg raising, deep tendon reflexes, and motor and sensory examination were normal. Dr. Inserra noted that Joseph denied any dysesthesia or radiation of pain to the lower extremities. Dr. Inserra continued to request authorization for epidural steroid injections and to recommend home exercises. In workers compensation forms he completed, Dr. Inserra indicated that Joseph was disabled from any type of work. Page 6

  b. Dr. Kester Dragon

  On July 10, 1999, Dr. Kester Dragon, an orthopedic surgeon in Grenada, began treating the plaintiff. His notes indicate a total of five visits with Joseph from July 10, 1999 through October 2000. At that time, the plaintiff complained of back pain that disturbed his sleep. An examination revealed that his lower back had spasm and tenderness. In undated notes, Dr. Dragon reported that the plaintiff's sensation and reflexes were intact and that his spinal motion was reduced. Dr. Dragon ordered x-rays and prescribed Norflex and physical therapy. At the next visit, he reported that the plaintiff again complained of pain. Dr. Dragon noted that there was less spasm. He also recommended that the plaintiff start physical therapy.

  In or about October 1999, Dr. Dragon noted that the plaintiff had shown some improvement with therapy. On June 3, 2000, Dr. Dragon reviewed x-rays which revealed degenerative changes at L5-S1. In August 2000, Dr. Dragon completed a Medical Assessment of Ability to do Work Related Activities form, indicating that, due to the spasm in his lower back, the plaintiff could lift or carry 15 pounds occasionally or 4 pounds frequently. According to Dr. Dragon, Joseph could stand and/or walk a total of 3 hours and sit for a total of 3 hours in an eight-hour workday. Dr. Dragon stated that the plaintiff could stand and/or walk one hour without interruption and sit one hour without interruption. He Page 7 further opined that Joseph could occasionally climb, crouch, crawl and stoop and frequently kneel and balance during an eight-hour workday. Dr. Dragon added that he would need to lie down during the day due to fatigue.

  On October 20, 2000, Dr. Dragon reported that the plaintiff continued to complain of lower back pain, with cramps down both legs. An examination revealed that Joseph's gait was normal, but that "spinal flexion and extension were significantly limited by pain." Dr. Dragon observed that the plaintiff's reflexes and sensation were intact. He recommended that the plaintiff avoid frequent and prolonged bending and lifting. Dr. Dragon opined that constant standing and sitting ...

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