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Verhow v. Astrue

October 29, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Siragusa, J. This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner"), which denied the application of plaintiff Alan Verhow ("Plaintiff") for disability insurance benefits. Now before the Court is the Commissioner's motion (Docket No. 4) and Plaintiff's cross-motion (Docket No. 6) both for judgment on the pleadings. The Commissioner seeks an order affirming the decision of the administrative law judge ("ALJ") denying Plaintiff disability insurance benefits, while Plaintiff seeks a reversal of the Commissioner's decision, or in the alternative, an order directing the matter to be remanded for a new hearing. Although, the Commissioner in his motion papers argues that substantial evidence supported the ALJ's decision, he has not filed a response to the issues raised in Plaintiff's cross-motion and memorandum of law. For the reasons that follow, Plaintiff's application in granted in part, denied in part, the Commissioner's application is denied, and this matter is remanded for a new hearing.


Procedural History

On August 9, 2005, Plaintiff applied for disability benefits, claiming an onset date of March 12, 2005. (Record at 26-27.) The Commissioner initially denied the application on October 28, 2005, and Plaintiff requested a hearing before an ALJ. (Record at 14.) The hearing was held on August 24, 2006. (Record at 255-302.) On September 12, 2006, the ALJ issued a decision finding that Plaintiff was not disabled. (Record at 4-6.) The ALJ's decision became the final decision of the Commissioner on September 8, 2008 when the Appeals Council denied Plaintiff's appeal.

Plaintiff's Vocational and Educational Background

Plaintiff was born on May 27, 1962 and was forty-six years old on the day of the ALJ's decision. He completed the eighth grade, and he reads on a seventh grade level. (Record at 265.) His past relevant work includes over twenty-five years as a laborer. (Record at 54.) In his decision, the ALJ determined that Plaintiff was not disabled and jobs existed that Plaintiff could perform. (Record at 24.)


At the hearing, Plaintiff testified that he was classified as permanent partial disabled by Workers' Compensation in March 2006. (Record at 267.) He stated that he tried to find employment, however he was unsuccessful because of his medical problems. (Record at 269.) He said that he could only drive for about fifteen to twenty minutes at a time because of sciatic nerve damage. (Record at 262.) Plaintiff testified that he also had a learning disability that interfered with his ability to work. (Record at 270.) He also indicated that he suffers from constant pain in his back, which is made worse if he sits or stands too long. (Record at 271-273.) Plaintiff added that he could not take medication to alleviate the pain because he suffers from a chemical imbalance. (Record at 273.) He stated that when his pain becomes severe, he uses a back brace and occasionally a cane. (Record at 275.)

Regarding his activities of daily living, Plaintiff testified that he was able to wash dishes, grocery shop, do laundry and cook meals, but that he required assistance. (Record at 278-279.) As part of his disability application, Plaintiff submitted an activities of daily living questionnaire. (Record at 112-123.) On the questionnaire, Plaintiff stated that he: took care of his own personal hygiene and grooming needs; drove his car; grocery shopped; and socialized. Id. He also wrote that he did not have difficulty paying attention, finishing what he started, remembering things, and dealing with stress. (Record at 119-120.) He further indicated on the questionnaire that he could follow instructions, had no difficulty getting along with bosses or others in authority, and had not lost a job due to difficulty getting along with people. Id.

Medical Evidence

On December 17, 2003, well prior to his March 12, 2005 onset date, Plaintiff was treated by Binod Shah, M.D., for lumbar vertebral radiculopathy in the right side and right sacroiliac joint dysfunction, and, as a consequence, was unable to work. (Record at 149.) However, on March 22, 2004, after Plaintiff's condition improved, Dr. Shah allowed him to return to work. (Record at 147.)

On October 6, 2004, Plaintiff was examined by Steven Lasser, M.D., an orthopaedic surgeon. (Record at 160.) Dr. Lasser determined that Plaintiff suffered from right sciatica and degenerative lumbar disk disease. Id. In a follow-up examination on March 30, 2005, Dr. Lasser opined that Plaintiff's lumbar disease was located in the L3-L4, and L4-L5 back discs. (Record at 159.) Dr. Lasser concluded that Plaintiff should follow a non-invasive course of treatment and that Plaintiff did not require surgery, Id.

On October 8, 2004, Plaintiff was examined by Paul Povinelli, Ph.D., a licensed psychologist and consultative examiner. (Record at 151-158.) Dr. Povinelli's diagnosis was:

Axis I:

Learning disorder, NOS.

Attention deficit disorder.

Alcohol dependence in remission.

Axis II: Borderline intellectual ...

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