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Gennardo v. Astrue

March 25, 2008

PATRICK GENNARDO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



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

MEMORANDUM AND ORDER

Pro se Plaintiff Patrick Gennardo ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g), challenging the Defendant Commissioner of Social Security's (the "Commissioner") denial of his application for disability insurance benefits. Presently pending are Plaintiff's and the Commissioner's motions for Judgment on the Pleadings. For the reasons explained below, the Commissioner's motion is GRANTED and Plaintiff's motion is DENIED.

BACKGROUND

I. Procedural History

In March 2004, Plaintiff filed an application for disability benefits with the Social Security Administration ("SSA"), claiming that a cardiovascular condition, chronic angina, acute cellulitus of right leg, and prostate cancer precluded him from working since December 2003. (Record of Proceedings 32, 39.) By letter dated, June 21, 2004, SSA denied Plaintiff's application for disability benefits. (R. 17-20.) After being denied benefits, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"), which was held on April 20, 2006 before ALJ Seymour Rayner. (R. 21, 209.) Plaintiff was represented by counsel, Cindy Apetaker, Esq., at the hearing. (R. 209.) Pursuant to an order, dated May 19, 2006, ALJ Rayner found that Plaintiff was not disabled and, therefore, not entitled to disability benefits. (R. 15.) Plaintiff then appealed ALJ Rayner's determination (R. 7.) When the Appeals Council denied Plaintiff's request for review on August 14, 2006, ALJ Rayner's decision became the final decision of the Commissioner. (R. 3-6.)

II. Factual Background

A. Work History

Plaintiff is a sixty-eight year old male who has completed some college. (R. 213.) At one point, Plaintiff possessed licenses as a stockbroker, real estate broker and insurance broker, but never renewed them. (R. 213-14; Pl.'s Mem. 5-6.) The majority of Plaintiff's work experience is as a salesperson. Specifically, in the 15 years prior to December 23, 2003, the last day he worked, Plaintiff held jobs as a real estate broker, salesperson, and manager in a personal security business.

(R. 40.) For approximately seven and one-half years prior to December 2003, Plaintiff was an account executive, for two different companies, selling medical software and radiology equipment. (R. 40, 72, 214.) As an account executive, Plaintiff was required to travel by car daily to meet prospective clients, and the job involved varying amounts of walking, standing, and sitting. (R. 73, 214.) From approximately January 1994 to April 1996, Plaintiff was chief operations manager for a personal security business, which provided security to high-profile individuals. (R. 40, 72, 215.) For approximately five years prior to his job in personal security, Plaintiff was a telephone salesperson in the food distribution industry, which required Plaintiff to sit eight hours per day. (R. 72, 77.) Prior to that, Plaintiff worked as a commercial real estate broker for approximately three and one-half years, from June 1985 to January 1989. (R. 72.)

Plaintiff stopped working on December 23, 2003 because of cellulitis of his right leg and contends that, although the cellulitis improved, he was unable to return to work as a salesperson because of side effects from his various other conditions and medications, namely, shortness of breath, hot flashes, lack of physical stamina, and vision problems. (R. 219-220.)

B. Medical History

1. Prior To Onset Of Alleged Disability

In 1995, Plaintiff was diagnosed with prostate cancer. He was treated with radioactive seed implantation in 1996 and Viodor implants in 2003 and 2004. (R. 155.) In addition, Plaintiff has received, and continues to receive, hormonal therapy of different sorts since before 2000. (R. 202.) Dr. Eric Thall, Plaintiff's current urologist, has been treating Plaintiff since June 1998, and states that as of April 2006, Plaintiff "continues to be stable with advanced prostate cancer." (R. 154, 202.)

On November 13, 2001, Plaintiff was admitted to Winthrop University Hospital complaining of chest pain radiating to both arms. (R. 135.) After undergoing a cardiac catheterization, Plaintiff was diagnosed with severe coronary artery disease and moderate left ventricular systolic dysfunction. (R. 147.) As a result, Plaintiff had a quadruple bypass on November 15, 2001. (R. ...


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