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Mustin v. Astrue

April 3, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff filed an application for supplemental security income ("SSI") and disability insurance benefits ("DIB") on March 22, 2005, alleging that he became disabled on July 15, 2003. See Administrative Transcript ("Tr.") at 105. Plaintiff's application was initially denied. See id. at 75. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 11, 2006. See id. at 23. On May 24, 2006, the ALJ issued a decision denying Plaintiff's application for disability benefits. See id. at 23-30. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on July 21, 2006. See id. at 10.

On August 10, 2006, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) to review that final decision. In support of his argument that the Court should reverse Defendant's decision and award his benefits, Plaintiff asserts that (1) the ALJ erred in finding that Plaintiff's right foot and ankle impairment could not be expected to last for more than twelve months; (2) the ALJ failed to follow the treating physician rule; (3) the ALJ erred in assessing Plaintiff's non-exertional limitations; and (4) the ALJ should have elicited vocational expert testimony in this case. See Plaintiff's Brief at 5-15. Defendant contends that there is substantial evidence in the record to support the ALJ's decision and that, therefore, the Court should dismiss Plaintiff's complaint.


A. Procedural History

Plaintiff was forty-five years old at the time of the administrative hearing in 2006. See Tr. at 26. He has a GED and past relevant work experience as a welder. See id. at 132. Plaintiff alleges disability due to a right foot impairment, alcohol abuse, hepatitis C, status post reconstructive osteotomy of the right ankle, and depressive disorder. See id. at 105.

B. Medical Evidence in the Record

1. Treating and Examining Physicians -- Physical

On April 9, 2005, Plaintiff sustained a calcaneus fracture which caused right ankle and foot pain and swelling. See Tr. at 379, 446. Plaintiff treated for this foot condition with Dr. Beth Dollinger from approximately July 14, 2005, until December 5, 2005. See id. at 503-31. On September 14, 2005, Dr. Dollinger performed a reconstructive osteotomy to repair the fracture. See id. at 505. On October 8, 2005, Dr. Dollinger noted that Plaintiff's surgery wound was well-healed with mild to moderate amount of soft tissue swelling and little pain. See id. at 507. X-rays showed that the surgery had gone well and that the screw was in a good position. See id. On December 5, 2005, Dr. Dollinger again noted that the surgery site was well-healed. See id. at 508. On March 23, 2006, Dr. Dollinger completed a medical source statement and opined that Plaintiff could stand and walk for up to one hour in an eight-hour workday, sit for six to eight hours in an eight-hour workday, and would need unscheduled breaks to alleviate his pain. See id. at 631. She also indicated that Plaintiff could never balance, stoop, crouch, or kneel. See id. at 632.

Plaintiff injured his lower back and left buttock in the summer of 2000. See id. at 618. An MRI dated March 13, 2006, showed small herniated discs at the L3-4 and L4-5 level that did not contact the nerve roots or thecal sac and would not likely produce symptomatic improvement with surgery. See id. at 620. An aquatic exercise program was ordered. See id. Dr. Anthony Sanito treated Plaintiff for his back condition from approximately November 21, 2005, through January 5, 2006. See id. at 546-59. During this time, Plaintiff received epidural steroid injections for treatment of his back pain. See id. Plaintiff reported that he experienced good pain relief from these injections. See id. at 547-49.

Plaintiff saw Dr. Andrew Jenis on March 20, 2005. See id. at 317. Dr. Jenis noted a normal physical examination, with an active range of motion ("ROM") and negative straight leg raising ("SLR") test. See id. at 318. Plaintiff was diagnosed with chronic sciatica and was prescribed Xanax and Percocet. See id. Plaintiff was also noted to have Hepatitis C, which caused fatigue. See id.*fn2

The record also reflects multiple visits to the emergency room over the time period from January 2004 through February 2006; the primary purpose for these visits was to receive prescription narcotic medication. See id. at 182-95, ...

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