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Milewski v. Commissioner of Social Security

July 30, 2008




A. Procedural History

Plaintiff Michael D. Milewski ("Plaintiff") filed an application for Disability Insurance Benefits ("DIB") on November 14, 2003. Administrative Transcript ("AT") 40-42. The application was denied initially. AT 26-29. A request was made for a hearing. AT 31. A hearing was held before an Administrative Law Judge ("ALJ") on March 16, 2005. AT 382-403. In a decision dated May 27, 2005, the ALJ found that Plaintiff is not disabled. AT 9-22. The Appeals Council denied Plaintiff's request for review on September 10, 2005. AT 4-7. Plaintiff commenced this action on November 9, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Dkt. No. 1.

B. Contentions

Plaintiff makes the following claims:

(1) The Commissioner erred in finding that neither of Plaintiff's severe impairments, either alone or in combination, meets or equals the level of severity of any listed impairment. Dkt No. 6 at 9-10.

(2) The Commissioner erred in failing to find that Plaintiff's depression with anxiety and/or pain disorder are severe impairments imposing significant limitations within the meaning of the Social Security Act. Dkt. No. 6 at 10-11.

(3) The Commissioner did not make a proper credibility determination regarding Plaintiff's statements of disabling pain and daily physical and mental limitations in this case. Dkt. No. 6 at 11-12.

(4) The Commissioner's determination that the claimant is "not disabled" at step five in the sequential analysis must be reversed as it is not supported by substantial evidence in the record. Dkt. No. 6 at 13-14.

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 9.

C. Facts

Plaintiff was forty-nine years old at the time of the hearing. AT 385. Plaintiff reached the tenth grade in high school. AT 386. Plaintiff's past work experience includes working as an automobile mechanic. AT 386-87. Plaintiff alleges that he became unable to work on December 19, 2002. AT 40. He alleges disability due to heart bypass surgery, chest pain, a hernia, and back pain. AT 67. Plaintiff also testified that he experiences depression and anxiety. AT 392, 395.

1. Physical Condition

a. Heart

i. Binoy Singh, M.D.

On October 15, 2002, Plaintiff started treatment with Binoy Singh, M.D., a cardiologist. AT 173. Dr. Singh diagnosed Plaintiff as suffering from, inter alia, chest pain and coronary artery disease. Id. On December 20, 2002, Plaintiff underwent coronary artery bypass graft surgery, with a quadruple bypass.*fn1 AT 67, 71, 106-16.

On September 30, 2003, Plaintiff underwent an exercise stress test and a stress echocardiograph ("ECG"). AT 179-81. The stress test was negative for angina and negative for atypical chest pain. AT 179. The ECG was normal. AT 181.

On January 16, 2004, Dr. Singh indicated that Plaintiff is limited in his abilities to lift and carry, and specifically that Plaintiff is able to lift and carry ten pounds occasionally. AT 176. Dr. Singh found no limitations in Plaintiff's abilities to stand and/or walk, and sit. Id. Dr. Singh indicated that Plaintiff is limited in his abilities to push and/or pull using his upper extremities. Id.

ii. Robert Roche, D.O.

From August 25, 2003 to November 11, 2004, Plaintiff treated with Robert Roche, D.O. AT 250-93, 312-15, 318, 327-60. Dr. Roche diagnosed Plaintiff as suffering from, inter alia, chest wall pain. Id. Dr. Roche referred Plaintiff to pain management and prescribed various pain relief medications, including Ultram, Vicodin, and Percocet. Id.

During an exercise stress test performed on November 10, 2003, Plaintiff showed an excellent exercise duration and capacity for Plaintiff's age. AT 203. There was no evidence of ischemia. Id.

A nuclear stress test performed the same day showed a "[n]ormal LV cavity size with mildly depressed LV global systolic function without scintigraphic evidence of an irreversible or a reversible perfusion defect consistent with a prior myocardial infarction or exercise induced myocardial ischemia." AT 202, 359.

iii. David Gamburg, M.D.

Plaintiff was referred for pain management to David Gamburg, M.D., who Plaintiff saw on October 8, 2003. AT 189. Dr. Gamburg prescribed Vicodin, "since the patient states that it works best for him." Id. Dr. Gamburg also prescribed Lidoderm patches, "for temporary relief." Id.

iv. Alan Auerbach, M.D.

On February 19, 2004, Alan Auerbach, M.D., a state agency review physician, completed a Request for Medical Advice form. AT 294-95. Dr. Auerbach reviewed medical evidence and concluded that Plaintiff "should be capable of [performing] medium work." AT 295.

v. Manar Hanna, M.D.

On April 2, 2004, Plaintiff underwent an internal medicine examination by Manar Hanna, M.D. AT 296-99. Dr. Hanna diagnosed Plaintiff as suffering from sternum pain secondary to bypass surgery, possible sympathetic reflux dystrophy, lower back pain of unknown etiology, depression, and a history of a myocardial infarction. AT 299. An x-ray of Plaintiff's lumbo-sacral spine showed disc space narrowing at L4-5 and L5-S1. AT 300. Dr. Hanna concluded that Plaintiff "is restricted from activities requiring heavy lifting and carrying because of the reproducible pain in the sternum. He has a mild restriction for activities requiring great exertion because of the history of bypass surgery in the past." AT 299.

b. Hernia

On November 24, 2003, Plaintiff underwent a right inguinal hernia repair, which was performed by Julia Sone, M.D. AT 200-01. Plaintiff tolerated the procedure well. AT 201. On December 11, 2003, Dr. Sone noted that Plaintiff's surgical incision was clean with no signs of ...

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