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Pease v. Astrue

September 17, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Ronald L. Pease brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny his application for disability benefits. This matter was referred to United States Magistrate Judge David E. Peebles for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Peebles recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's claims. Presently before the Court is plaintiff's objection to the Report and Recommendation.*fn2


Plaintiff has not objected to the Magistrate Judge's recitation of the background in this case. Accordingly, the Court adopts the portion of the Report and Recommendation entitled "Background" in its entirety:

Plaintiff was born on February 24, 1957; at the time of issuance of the ALJ's determination in this matter, he was forty-eight years old. Administrative Transcript at 20, 70, 488. At the relevant times the plaintiff, together with his wife and two children, ages sixteen and fourteen, resided in a single floor dwelling located in Bridgeport, New York. AT 70-72, 489. Plaintiff is a high school graduate, and while he has taken some college courses, he has been unable to complete his college education. AT 100, 112, 491.

Plaintiff has not worked since March 5, 2003. AT 107, 492. Prior to that date, Pease was employed at various times as a home health aide, housekeeping supervisor, jail guard, and nuclear biological chemical specialist. AT 107, 123-35, 492. Plaintiff also served as a member of the National Guard until December of 1997, when his physical condition then precluded him from participating in required drills. AT 492.

Plaintiff began experiencing back pain in November 1994. AT 181. Plaintiff was initially referred by Dr. James Telonis, his general care physician, to Dr. Patrick Connolly, an orthopedic surgeon at the State University of New York Health Science Center in Syracuse, New York, for a consultative diagnosis and treatment of his back condition. AT 181-83, 327. Over the following year, Dr. Connolly pursued several non-operative courses of treatment, including epidural steroid injections; those efforts, however, failed to alleviate plaintiff's back pain. AT 184-85.

On January 24, 1996, plaintiff underwent back surgery, thereafter showing some improvement with the assistance of post-operative exercises. AT 186-89, 327.

While the severity of plaintiff's back symptoms after the surgery fluctuated over the 1997-2002 time period, he was able to return to his previous job in the Onondaga County Sheriff's Department in 1999, with accommodation, in the form of a job duty modification allowing him to work sitting at a desk without being required to have any inmate contact. AT 194-202, 235-42.

Beginning in 2002, Dr. Connolly discerned that plaintiff's back condition was progressively worsening to a point where, in his view, a second operation might be required. AT 202-06. Magnetic Resonance Imaging testing of the plaintiff, conducted at Dr. Connolly's request on February 14, 2002, revealed bilateral neural foraminal narrowing at the L3-4, L4-5, and L5-S1 levels. AT 223-25. A radiological examination conducted on July 12, 2002, also upon referral from Dr. Connolly, revealed the existence of "a question of degenerative change at L5 and the transitional vertebrae." AT 226.

In late 2002, Dr. Connolly recommended that the plaintiff undergo additional surgery on his back, and noted that plaintiff was not able to continue working. AT 205-06. Plaintiff ultimately underwent anterior posterior spinal fusion from L3 to S1 on July 23, 2003. AT 208-09, 212, 355-63.

On August 6, 2003, following plaintiff's second back surgery, Registered Nurse Practitioner ("RNP") Donna Schermerhorn reported that he was "doing well with his pain pattern, with control of his diabetes and his blood pressure." AT 210. In a report dated September 8, 2003, Dr. Connolly documented excellent improvement in plaintiff's condition, noting that there were no signs of nerve tension, the numbness in plaintiff's legs was virtually gone, and there was "good relief of the back pain." AT 211. Those findings were reiterated in a report of a November 17, 2003 follow-up visit. AT 212. On that occasion, Dr. Connolly noted that plaintiff should increase his activities and exercises, but opined that he would not be employable any time in the near future. Id. Dr. Connolly further stated his belief that plaintiff qualified for Social Security benefits "in that he is unable to work in any capacity for any job description in a predictable fashion." Id.

RNP Schermerhorn again examined the plaintiff on February 12, 2004, on that occasion reporting that he had improvement with his back pain due to physical therapy, though he continued to complain of discomfort. AT 213. RNP Schermerhorn further indicated that plaintiff was neurologically intact, although his range of motion was limited, and that he had normal gait and was not taking any medications. Id.

On May 6, 2004, RNP Schermerhorn examined plaintiff's back and reported that he was neurologically intact, his range of motion was limited, he had normal gait and he could walk short distances without difficulty but walking long distances aggravated his back pain. AT 213.

Dr. Bruce Fredrickson, who replaced Dr. Connolly when he left Health Science Center, reported on July 8, 2004 that while plaintiff complained of an acute flare-up of his back pain, x-rays revealed a solid fusion, and there was no other evidence of instability or pathology, concluding that plaintiff had reached his probable maximum medical improvement. AT 212, 214. A few days later, on July 12, 2004, Dr. Fredrickson expressed his view in a letter to Dr. Jeffrey Kahn that plaintiff was doing "reasonably well" and solicited the doctor's opinion as to whether plaintiff was capable of returning to some type of limited working environment. AT 215.

In a report of a visit to Dr. Frederickson's office on September 15, 2004, RNP Schermerhorn noted that plaintiff remained neurologically intact, his range of motion was limited, and he had a normal gait. AT 216. RNP Schermerhorn later observed on December 8, 2004, that plaintiff was improving, but also noted that Pease claimed to experience lower back pain when standing or sitting for prolonged periods. AT 217. The nurse practitioner further found, however, that plaintiff had a normal gait and could heel and toe walk, and that there were no significant neurological deficits, although plaintiff was still limited in his range of motion. Id.

On March 2, 2005, Dr. Fredrickson again evaluated plaintiff, noting that his condition remained unchanged from his previous examination. AT 219. Upon referral from Dr. Frederickson, plaintiff was examined by a rehabilitation specialist, Dr. Stephen Lebduska, on April 1, 2005. In a report generated as a result of that examination, Dr. Lebduska observed that plaintiff had a minimally asymmetric gait, with diminished stance on the left lower extremity. AT 478-81. Dr. Lebduska also noted there was moderate tenderness in plaintiff's mid lumbar level, that active range of motion in the lumbar spine was limited, there was full knee extension with some pain on the left, sensory testing revealed diminished sensation in the left leg, there was good hip flexion, manual muscle testing was 5/5 except for the ankle on the left side, and Pease could balance on one leg with assistance. AT 479-80. Dr. Lebduska concluded by stating that while he felt plaintiff had a permanent partial disability and that there was no more that could be offered in the sense of conservative care, he also believed plaintiff was capable of performing sedentary work. AT 480.

RNP Schermerhorn again examined the plaintiff on April 13, 2005, reporting that during the examination plaintiff manifested sensory deficits in his left lateral thigh, normal gait, decreased range of motion with flexion and extension, and no nerve tension signs, with positive straight leg raises where the left was greater than the right. AT 221. RNP Schermerhorn further noted, however, that plaintiff could heel and toe walk with some discomfort in his back, and that his strength was maintained in his lower extremities at 5/5. Id.

In addition to his back condition, at times relevant to his claim for benefits plaintiff has suffered from diabetes and depression. During the course of 2002, plaintiff was prescribed insulin and Actose for his diabetes, and Zoloft for his depression. AT 257-66. In November 2003, plaintiff received a refill of Actose for his diabetes, and in December 2003, a notation was made that plaintiff requested a refill of the Zoloft and Actose prescriptions for his depression and diabetes, respectively. AT 275-76. In March and April of 2004, plaintiff again complained of feeling depressed, and was prescribed Zoloft by medical personnel. AT 280, 283. On August 3, 2004, plaintiff received another yet [sic] refill of Zoloft and Actose for his depression and diabetes problems, respectively. AT 286.

In addition to his various treating sources the plaintiff, and in some cases his medical records alone, have been examined by various consultants. On January 28, 2004, Dr. Sury Putcha, a state agency consultant, completed a physical residual functional capacity assessment, opining that plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; is capable of standing and walking for at least six hours in an eight hour workday; can sit for six hours in a similar period; and has an unlimited ability to push and/or pull. AT 377-82. Dr. Putcha further reported that plaintiff has occasional postural limitations, but discerned no manipulative, visual, communicative, or environmental limitations. AT 379-80. Dr. Jeanne Shapiro, a state agency psychiatrist, conducted a psychiatric examination of the plaintiff on February 4, 2004. AT 383-87. As a request of her examination, Dr. Shapiro found that plaintiff's manner of relating, social skills, and overall presentation was adequate; his thought process was coherent; he was oriented, calm, and relaxed; his attention, concentration, recent, and remote memory skills were intact; and his judgment was good. AT 385-86. Dr. Shapiro concluded that while plaintiff may suffer from some psychiatric problems, they are not "significant enough to interfere with [his] ability to function on a daily basis." AT 386.

On March 10, 2004, disability analyst M. Connelly noted findings that plaintiff did not display any abnormalities in his understanding or remembrance of simple instructions, use of judgment, response to supervisors or co-workers in usual work situations, in dealing with changes to routine work settings. AT 389.

On March 19, 2004, Dr. M. Morog, another state agency psychiatrist, prepared a psychiatric review technique form regarding plaintiff, noting his finding that plaintiff's diagnosed impairment of depressive disorder not otherwise specified ("NOS") neither meets nor equals any of the presumptively disabling mental impairments listed in the controlling regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1, including specifically section 12.04. AT 390-403. Dr. Morog further concluded that plaintiff does not suffer from any limitations in his ability to perform the activities of daily living, maintain social functioning, or maintain concentration, persistence or pace, and has experienced no known episodes of decompensation. Id.

On August 23, 2004, Dr. Michael Maselly, another state agency consultative examiner, examined the plaintiff and completed a report regarding plaintiff's physical impairments, which were noted to include lower back problems, diabetes, glaucoma, hypercholesteremia, and high blood pressure. AT 419-23. In conducting his physical examination, Dr. Maselly found that plaintiff's gait was normal, he could walk on heels and toes without difficulty, squat was full and his stance was normal; no assistive devices were used by him; he did not need help changing for the exam nor did he need help getting on and off the examination table, and he was able to rise from a chair without difficulty. AT 420. Dr. Maselly also reported that plaintiff had full cervical and lumbar spine flexion, extension, and rotary movement bilaterally, straight leg raise was positive, there was a full range of motion in the upper and lower extremities, joints were stable, no muscle atrophy was evident, hand and finger dexterity was intact with grip strength 5/5 bilaterally, and he was neurologically intact. AT 421-22. Dr. Maselly concluded that plaintiff has marked restrictions in standing, walking, squatting, kneeling, as well as lifting and carrying heavy objects as a result of his back surgeries, but noted no restrictions in activities requiring fine manipulation of his hands. AT 422. On August 24, 2004, Dr. Kristen Barry, another state agency consultative examiner, conducted a psychiatric evaluation of the plaintiff. AT 424-28. In her report of that examination, Dr. Barry noted that plaintiff had no history of psychiatric treatment, apart from a prescription for Zoloft -- a medication which the plaintiff had been taking for two years. AT 424. Dr. Barry reported that plaintiff felt somewhat discouraged and helpless, but that his attention, concentration, and memory skills were intact and his insight and judgment were good. AT 426. She further assessed that plaintiff could follow and understand simple directions, maintain attention and concentration, and though he had some "depressive symptomology," he was able to make appropriate decisions and relate well with others. AT 427.

On September 9, 2004, Dr. Thomas Harding, another state agency consultant, prepared a psychiatric review technique form in which he noted his opinion that plaintiff's diagnosed impairments of depression NOS and substance abuse neither meet nor equal any of the presumptively disabling impairments listed in the regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1, including listings 12.04 and 12.09.12 AT 436-47. Dr. Harding further opined that plaintiff suffers from mild limitations in his abilities to perform the activities of daily living, ...

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