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Viall v. Astrue

February 5, 2008

ROBERT VIALL, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. BACKGROUND

A. Procedural History

Plaintiff Robert Viall ("Plaintiff") protectively filed an application for Supplemental Security Income ("SSI") on October 25, 1999. Administrative Transcript ("AT") 98-99, 100 (Dkt. No. 9). The application was denied initially and on reconsideration. AT 25-28, 31-34. A request was made for a hearing. AT 35-36. A hearing was held before an Administrative Law Judge ("ALJ") on November 6, 2000. AT 379-404. In a decision dated February 12, 2001, the ALJ found that Plaintiff was not disabled. AT 59-66. Upon Plaintiff's request for review, the Appeals Council issued an Order dated July 26, 2002, remanding the matter back to an ALJ. AT 79-83. A supplemental hearing was held on March 4, 2003. AT 405-36. On May 15, 2003, the ALJ issued a decision finding that Plaintiff was not disabled. AT 11-22. The Appeals Council denied Plaintiff's request for review on February 25, 2005. AT 3-6. Plaintiff commenced this action on April 29, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Compl. (Dkt. No. 1).

B. Contentions

Plaintiff makes the following claims:

(1) The ALJ failed to give appropriate weight to Plaintiff's subjective complaints of symptoms and failed to recognize the severity of Plaintiff's anxiety disorder. Plntf's Brief (Dkt. No. 10) at 18-21.

(2) The ALJ erred by relying on the testimony of the vocational expert ("VE"). Plntf's Brief at 21-23.

(3) The ALJ failed to consider Plaintiff's impairments in combination. Plntf's Brief at 23-24.

(4) The ALJ's decision is against the substantial weight of the evidence and is incorrect. Plntf's Brief at 24-25.

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Deft's Brief (Dkt. No. 11).

C. Facts

1. Non-Medical Evidence

Plaintiff, who was forty-three years old at the time of the supplemental hearing, lives with his mother. AT 124, 408. Plaintiff obtained his high school degree and underwent training in auto body repair. AT 113, 384. Plaintiff last worked on a seasonal basis as a laborer/park aide at a golf course. AT 108, 388. He previously worked as driver and assembly worker. AT 108. He last worked on November 11, 1998 because it was the end of a seasonal job. AT 107. He alleges disability due to short bowel syndrome.*fn2 Id.

2. Medical Evidence

a. Physical Condition

In 1977, Plaintiff apparently underwent an appendectomy and small bowel resection. AT 114, 162, 173, 210. The small bowel resection was apparently due to a "kink" in his intestine that resulted in gangrene. Id.

From June of 1995 to February of 2004, Plaintiff saw Steven Balsamo, D.O., who he identifies as his "general doctor." AT 152-58, 229-46, 291-308, 329-37, 351-65, 391-92. Dr. Balsamo noted Plaintiff's complaints of, inter alia, "stomach problems," shoulder pain, back pain, shortness of breath, blurred vision, dizziness, hyperlipidemia, and possible seizures. Id. Dr. Balsamo prescribed various medication, gave Plaintiff a cortisone injection in his right shoulder, discussed smoking cessation, and administered periodic shots of vitamin B-12. Id.

Dr. Balsamo referred Plaintiff to James Litynski, M.D., who Plaintiff identifies as a gastrointestinal specialist. AT 154, 391-92. From June 30, 1998 to August 12, 2003, Plaintiff saw Dr. Litynski. AT 160-94, 199-200, 210-12, 309-10, 326-28, 338-50. Dr. Litynski noted Plaintiff's complaints of heartburn, diarrhea, and weight loss. Id. He diagnosed Plaintiff as suffering from, inter alia, short bowel syndrome, with diarrhea, and mild peptic esophagitis.*fn3 Id. Dr. Litynski treated Plaintiff with various medications. See AT 167, 169, 171, 174, 179, 181, 184, 212.

On July 27, 1999, Dr. Litynksi noted that Plaintiff was having difficulty performing his job due to his need to make frequent trips to the bathroom. AT 181. He opined that Plaintiff "could work, but his work would have to be within close proximity to toilet facilities." Id. Similarly, on June 13, 2000, Dr. Litynski found that Plaintiff "should be able to do work as long as he will be allowed frequent access to toilet facilities." AT 200. However, on August 6, 2001, Dr. Litynski opined that Plaintiff's short bowel syndrome "undoubtedly will make it very difficult for him to do most types of work." AT 210.

On October 26, 1998 and June 25, 1999, Plaintiff was seen at Seton Health Urgent Care for treatment of his left shoulder. AT 197-98. He was diagnosed as suffering from bursitis and tendonitis. Id.

From September 9, 1999 to September 20, 2002, Plaintiff saw Matthew Hall, D.D.S. AT 257-69, 278-90. Plaintiff was treated for generalized gingivitis and moderate periodontitis. AT 258. Dr. Hall noted, "To my knowledge, there have been no scientific studies done which would link periodontal disease to short bowel syndrome." Id. Dr. Hall instead attributed Plaintiff's condition to "poor oral hygiene and smoking." Id.

On January 18, 2000, Alan Auerbach, M.D., a state agency medical consultant, completed a "Non-Severe Impairment Checklist." AT 195. He indicated that the medical evidence did not show more than a slight abnormality in Plaintiff's ability to perform basic work related activities. Id.

From March 12, 2001 to July 2, 2001, Plaintiff saw Matthew Daily, M.D. for treatment of nasal obstructive symptoms. AT 213-18. Dr. Daily performed a nasal septoplasty. AT 215. Following surgery, Plaintiff was doing well and advised to return on an "as needed" basis. Id.

From May 31, 2001 to December 19, 2001, Plaintiff saw Michael Martynik, M.D., a urologist. AT 250-56, 271-77. Plaintiff complained of pain in his left testicle. Id. An ultrasound showed a small cyst in the left epididymis. AT 251. Dr. Martynik prescribed anti-inflammatory medication and recommended other conservative treatment measures. Id.

On November 22, 2002, Plaintiff underwent an internal medicine examination at the request of the agency by Susan Kerlinsky, M.D. AT 311-14. Dr. Kerlinsky diagnosed Plaintiff as suffering from short bowel syndrome with secondary anemia, chronic low back pain, asthma, and testicular cysts. AT 314. Dr. Kerlinsky found that Plaintiff "is restricted from activities requiring strenuous exertion . . . and [from] heavy lifting and carrying. He should avoid smoke, dust, and known respiratory irritants." Id. She noted that Plaintiff's "complaints of pain are mostly consistent with the clinical and laboratory findings." Id.

In a Medical Source Statement form, Dr. Kerlinsky opined that Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently; had no limitations in standing and walking; must periodically alternate sitting and standing; and was limited in his abilities to push and pull using his upper and lower extremities to the extent that the weight must be less than fifty pounds. AT ...


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