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Rizzo v. Astrue

October 13, 2009

SALVATORE RIZZO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

MEMORANDUM OF DECISION AND ORDER

Salvatore Rizzo ("Rizzo" or "the Plaintiff") commenced this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging a final determination by the Commissioner of Social Security ("the Commissioner") that he was ineligible for benefits. Currently before the Court are cross-motions for judgment on the pleadings by the Commissioner and the Plaintiff pursuant to FED. R. CIV. P. 12(c). For the reasons discussed below, the Commissioner's cross-motion for judgment on the pleadings is granted.

I. BACKGROUND

A. Procedural History

On March 10, 2005, Rizzo filed an application for social security disability benefits, alleging a disability and inability to work since February 2, 2004, due to thoracic and cervical spinal derangements, right shoulder pain, and abdominal hernias. His application and request for reconsideration were both denied and a timely request for a hearing before an Administrative Law Judge ("ALJ") was made on July 23, 2005.

On July 12, 2007, a hearing was held before ALJ Andrew Weiss ("ALJ Weiss"). Following the hearing, in a decision dated August 22, 2007, ALJ Weiss denied Rizzo's claim for disability benefits. The Appeals Council denied Rizzo's request for review on June 26, 2008, making ALJ Weiss's decision the final decision of the Commissioner. Rizzo commenced this civil action on February 5, 2009.

B. The Record

1. The Plaintiff's Background and Testimony

Rizzo was born on February 3, 1972, and was 33 years old at the time he filed his claim for benefits. He has a high school diploma and was working as an auto mechanic for Northport Ford, a car dealership, when he sustained the injury that forms the basis of his claim. His employment required him to use machinery in the course of fixing cars. At the hearing before ALJ Weiss, Rizzo testified that he injured his thoracic and cervical spine, and his right shoulder, when a machine he was using to perform a "pull and flush" on a car exploded, forcing him back against a cart.

The Plaintiff sought medical treatment from St. Catharine's of Siena Medical Center emergency room on the date of the accident.No fractures were noted, he was given muscle relaxants and discharged. After a visit with Dr. Joseph White, the Plaintiff's family practitioner, he was ordered to begin a physical therapy regimen. In addition, the Plaintiff began treatment with Dr. Michael Sauter, a neurologist, for his back pain. Although Dr. Sauter cleared the Plaintiff to return to work on April 11, 2005, he was never able to do so. At no time since the date of the Plaintiff's injury has he been employed.

The Plaintiff testified that after the injury to his back he has suffered radiating pain in his arms and legs which prevents him from being able to work in any capacity. In addition, prior to his accident the Plaintiff had a history of suffering from hernias, which he continues to experience. The Plaintiff stated that he is incapable of standing or sitting upright for any extended period of time without having to switch positions, and cannot carry more than ten pounds at any given time. He further stated that as a result of his back pain, he has trouble sleeping, and often gets no more than a few hours of sleep each night. The Plaintiff testified that he has been approved for and receives Workers' Compensation benefits.

2. Relevant Medical Evidence

a. Joseph White, M.D. - Family Doctor

Dr. White met with Rizzo shortly after his discharge from St. Catharine's, and ordered him to begin physical therapy on February 18, 2004. (R.132-34). Dr. White is Rizzo's primary care physician, and treats him for his hypertension and routine medical conditions. Id.

b. Gerard D'Ariano, M.D. - Spine Specialist

Dr. D'Ariano examined Rizzo on February 20, 2004, to review his claims of left-sided neck pain, and right-sided shoulder pain. Dr. D'Arian diagnosedan acute cervical and shoulder strain, and possible right arm radiculopathy. (R.114). He recommended an MRI and a neurological evaluation. (R.115).

c. Michael Sauter, M.D. - Neurologist

Rizzo sought treatment from Dr. Sauter for upper back and neck pain from February 23, 2004 through April 2005. (R.268-76). In a written report, Dr. Sauter noted that Rizzo demonstrated a limited range of motion in his neck by 10-20%, but that he had a full range of motion in his back. (R.269). Dr. Sauter also found that Rizzo had a hyperextension injury to his neck, a mild concussion with post concussion symptomatology, cervical sprain/strain, and cervical radiculopathy on the right side. Id. He recommended that Rizzo receive physical therapy treatments. (R.270).

Dr. Sauter also completed a medical questionnaire on March 31, 2005, opining that Rizzo could sit for up to six hours over an eight hour work day, stand/walk for up to six hours over an eight hour work day and lift 10-20 pounds. (R.257). He also noted that Rizzo could return to work on April 11, 2005, and that he had no work-related ...


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