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Martell v. Astrue

March 31, 2009


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



On April 1, 2003, Plaintiff filed an application for disability insurance benefits under Title II and Part A of Title XVIII of the Social Security Act ("Act"), in which he alleged that September 1, 1999, was the date of onset of his disability. See Administrative Transcript ("Tr.") at 64-66. On May 6, 2003, the defendant, Commissioner of the Social Security Administration ("SSA"), denied Plaintiff's application. See id. at 39-42. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on May 30, 2003. See id. at 46.

Plaintiff's hearing occurred in two parts before ALJ Steven A. De Monbreum. The ALJ began the hearing on January 19, 2005, via teleconference between Roanoke, Virginia, and Rochester, New York, at which time Plaintiff appeared but did not testify; Plaintiff's counsel requested a continuance to obtain additional medical evidence. See id. at 16, 243-54. The ALJ completed the hearing on July 12, 2005, in Rochester, New York. See id. at 255-305. On December 23, 2005, the ALJ issued a decision affirming the defendant and denying Plaintiff's application. See id. at 13-27.

On January 20, 2006, Plaintiff filed a request for review of the ALJ's decision. See id. at 11-12. On July 19, 2006, the Appeals Council denied Plaintiff's request for review of the ALJ's decision; and, thus, the Commissioner's determination became final. See id. at 5-7.

On September 13, 2006, Plaintiff commenced this action, seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). See Dkt. No. 1. In support of his argument that the Court should reverse the ALJ and award him benefits, Plaintiff asserted that substantial evidence did not support the ALJ's determination that his impairments did not prevent him from performing substantial gainful activity. Plaintiff argued that (1) the ALJ erred in rejecting the opinions of his treating physicians, Dr. Stefanos and Dr. Whitbeck, and in attributing to Dr. Stefanos "some kind of desire to help the Plaintiff by slanting his report towards a finding of disabled," see Dkt. No. 5, Plaintiff's Brief, at 10-12; (2) the ALJ "punished" Plaintiff for performing routine day-to-day activities, see id. at 12-13; and (3) the ALJ failed to give proper weight to the subjective evidence of pain and disability given its consistency with the objective medical evidence, see id. at 13-14.

In opposition, the defendant moved for judgment affirming the ALS's decision and dismissing Plaintiff's complaint. See Dkt. No. 4, Answer; Dkt. No. 7, Defendant's Brief, at 1.


A. Personal History

Plaintiff was forty-six years old at the time of the administrative hearing. See Tr. at 64, 263. Plaintiff worked in the tool and die maker trade as a pattern maker at Frazer and Jones, a malleable iron foundry, from 1980 through June of 1992. See id. at 90, 107. In April of 1995, Plaintiff began work as a self-employed handyman, working three to four hours per day, two to five days per week. From April through October of 1999, he worked at Brown's Berry Patch, a fruit farm, as a handyman. See id. at 78, 265. Plaintiff indicated that his job with Frazer and Jones was his longest term of employment. See id. at 78, 90. Plaintiff asserted that he became unable to work on September 1, 1999, due to lower back and leg pain. See id. at 64, 77. Finally, Plaintiff alleged disability due to impairments resulting from a lower back injury and degenerative disc disease. See id. at 89.

B. Medical Evidence in the Record

Plaintiff's initial injury occurred on October 17, 1989, while he was working for Frazer and Jones. Plaintiff was lifting a metal plate pattern weighing approximately fifty to sixty pounds, and it began to fall off of Plaintiff's elevated work surface. Plaintiff attempted to catch the falling metal plate, which caused him to twist and bend simultaneously. Plaintiff, thereafter, experienced the onset of low back pain and some left leg pain. See Tr. at 131, 151, 267-68.

1. Bedros Bakirtzian, M.D.

Plaintiff received treatment from Dr. Bakirtzian, an orthopaedic surgeon, for his lower back pain. Upon examination on December 5, 1995, Dr. Bakirtzian found that Plaintiff's muscle power, sensation and reflexes were all within normal limits. His impression was chronic mechanical lower back pain with a possible sciatic component. On January 12, 1996, Dr. Bakirtzian noted that Plaintiff had a magnetic resonance imaging scan ("MRI") of his lumbosacral spine, which revealed degeneration of his L5-S1 disc without any frank disc herniation. He continued to note normal muscle power, sensation and reflexes and continued his diagnosis of mechanical lower back pain. See Tr. at 129.

On February 15, 1996, Dr. Bakirtzian noted that Plaintiff's chronic lower back pain seemed to respond positively to physical therapy. On March 28, 1996, he noted Plaintiff's steady improvement with physical therapy. Plaintiff, however, claimed that his lower back pain prevented him from doing any form of physical work. Dr. Bakirtzian explained to Plaintiff that he would benefit from a vocational rehabilitation program. See id. at 130.

Dr. Bakirtzian referred Plaintiff to the Seaway Orthopedics Physical Therapy and Rehabilitation Center. On January 22, 1997, Physical Therapist Kathleen Snouffer*fn2 found that Plaintiff could occasionally lift 22.3 pounds, frequently lift 11.1 pounds and constantly lift 5.6 pounds. Ms. Snouffer found that Plaintiff had no limitation with respect to fine motor coordination of his hands, and she noted no restrictions with respect to Plaintiff's "heavy grasp" as tested on a hand dynamometer. See Tr. at 132. Ms. Snouffer also found that Plaintiff could occasionally perform bending and stooping activities, climbing activities, walking activities and crawling activities. She found that Plaintiff could frequently perform squatting and crouching activities, reaching activities, kneeling activities, and repetitive leg movements involving the hip.

In addition, Ms. Snouffer found that Plaintiff could constantly perform repetitive arm movements and repetitive leg movements involving the knee and ankle joints but not the hip. She found that Plaintiff could stand, sit and drive for three to four hours with breaks every forty-five minutes. Ms. Snouffer concluded that Plaintiff belonged in the light to medium lifting category. Finally, she suspected that Plaintiff did not lift to his full ability during the examination due to fear of reinjury: "[i]t seemed that he had a preconceived notion of what his capabilities were before he reinjures himself or causes himself increased pain." See Tr. at 133.

2. Stephen Bogosian, M.D.

On September 8, 2003, Dr. Bogosian evaluated Plaintiff's back and lumbar spine. Dr. Bogosian assessed low back pain, lumbar spondylosis*fn3 with no myelopathy*fn4 and LS spine degenerative arthritis. He ordered X-rays of Plaintiff's lumbar spine, which revealed evidence of facet degeneration at L4/5 and L5-S1 with degenerative spurring and decreased disc space at L5-S1. Dr. Bogosian recommended that Plaintiff return to his orthopedist in Rochester, New York, and opined that Plaintiff had a permanent disability in reference to his low back. See Tr. at 174.

3. P. Stephen Curtis, M.D.

Dr. Curtis, an orthopedic surgeon, examined Plaintiff on February 24, 1998. Dr. Curtis observed that Plaintiff walked on his heels and toes with adequate strength. He noted full range of motion of Plaintiff's hips, knees and ankles bilaterally and no evidence of motor or sensory deficit in the lower extremities. See Tr. at 154-55. Dr. Curtis' impression was that Plaintiff's condition was chronic low back pain with bilateral sciatica, suggesting a possible S1 distribution and degenerative disc disease at L5-S1. See id. at 155-56.

4. Stephen B. James, M.D.

On February 4, 1999, Dr. James, an orthopaedic spine consultant, examined Plaintiff for low back pain. Dr. James noted normal gait and that Plaintiff was able to perform tandem gait without difficulty but that he had difficulty with toe and heel walking. See Tr. at 157. He reviewed X-rays taken of Plaintiff's lumbar spine, which showed evidence of natural lumbar lordosis. Plaintiff's disc space heights were maintained with the exception of L5-S1, which was severely degenerated. There was evidence of anterior spur formation at the superior end plate of S1 and inferior end plate of L5. There was no evidence of spondylolithesis*fn5 or spondylolysis.*fn6 Dr. James' impression was degenerative disc disease at L5-S1 and low back pain with bilateral lower extremity radiculopathy, secondary to the disc disease.

Dr. James suggested that an anterior lumbar interbody fusion would probably benefit Plaintiff. Dr. James also discussed the possibility of Plaintiff's return to work, but Plaintiff "was not anxious about re-entering the work force in any capacity." See Tr. at 158. Dr. James noted that Plaintiff was focused on his current pain and that Plaintiff felt that he should continue his use of chronic narcotic pain medication, for which he wanted a prescription. Dr. James explained that he would not prescribe narcotic medication for any patient of his, but especially not for one on whom he had not performed surgery. Dr. James concluded by noting that Plaintiff would consider surgery with the "understanding that surgical intervention is multifaceted and would include not only [a] decrease of low back pain and lower extremity radiculopathy but [also] a probable return to the work force and a cessation of narcotic use." See id. at 158.*fn7

5. George R. Stefanos, M.D.

On February 5, 1999, Dr. Stefanos began his treatment of Plaintiff. Plaintiff's chief complaint was back and leg pain. Dr. Stefanos' impression was low back pain secondary to disc herniation. He directed Plaintiff to continue taking as small a dose of Darvocet as possible. See Tr. at 207, 231. On April 8, 1999, Dr. Stefanos treated Plaintiff for back pain and continued his prescription for Darvocet. See id. at 205, 232. On July 20, 1999, he noted low back pain secondary to lumbar disc disease and referred Plaintiff for an MRI and neurologic evaluation. He noted that Plaintiff "remains disabled at his current level of disability." See id. at 201, 237.

On October 12, 1999, Dr. Stefanos noted that Plaintiff's back symptoms had worsened, and he prescribed Darvon. See id. at 199, 236. On March 21, 2000, Dr. Stefanos noted that Plaintiff was suffering from back pain, and he continued his prescription for Darvon three times a day; he noted, however, that Plaintiff was "quite ambulant with the current dosing." See id. at 195, 234. On May 1, 2000, Dr. Stefanos noted that Plaintiff was suffering from back pain but had "good pain relief" with his prescription of Darvon. See id. at 194, 196, 233. On December 7, 2000, Dr. Stefanos again treated Plaintiff for low back pain and continued Plaintiff's prescription for Darvon. See id. at 193, 235.

On November 19, 2002, Dr. Stefanos treated Plaintiff for congestion and low grade temperature. He noted that Plaintiff was taking Darvon on a pro re nata -- as needed ...

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