The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Plaintiff Misael Hernandez commenced this action pursuant to 42 U.S.C. § 405(g), on January 29, 2008, seeking review of a final determination of the defendant, Michael J. Astrue, the Commissioner of Social Security (the "Commissioner"), denying his claim for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act. The plaintiff claims to be disabled as a result of back problems, a right elbow condition, asthma, and arthritis. (Tr. 71). The Commissioner moved for judgment on the pleadings on grounds that the decision of the administrative law judge ("ALJ") was supported by substantial evidence and the plaintiff opposed that motion.
For the reasons stated herein, the Court finds that substantial evidence in the record supports the ALJ's determination that the plaintiff is not disabled within the meaning of the Social Security Act. Therefore, the Commissioner's motion for judgment on the pleadings is granted and the ALJ's determination is affirmed.
The plaintiff filed an application for Social Security DIB and SSI on November 10, 2003, alleging disability since November 7, 2003. (Tr.13). A hearing was held before Administrative Law Judge ("ALJ") James J. Pileggi on August 8, 2007, in which the plaintiff's attorney represented him via telephone from Buffalo, New York and a vocational expert appeared. (Tr. 303-318). The plaintiff waived his right to appear at the hearing because he was incarcerated at the Federal Correctional Institution at Elkton, Ohio. (Tr. 305). ALJ Pileggi evaluated the plaintiff's claim de novo, and on September 6, 2007 found that he was not disabled. (Tr. 13-21). On December 14, 2007, the Appeals Council denied the plaintiff's request for review and, thus, the ALJ's decision became the final decision of the Commissioner. (Tr. 4-7). The plaintiff then commenced this action.
The plaintiff was 44 years old at the time of his alleged onset of disability date and 48 at the time of the ALJ's decision. He has a 7th grade education. He can communicate effectively in English and has a previous work history as a construction worker, truck driver, and landscape laborer. He alleges that his disability began on November 7, 2003, as a result of back problems, a right elbow condition, asthma, and arthritis. (Tr. 71).
The plaintiff applied for benefits after undergoing two surgeries in 2003. Prior to surgery, the plaintiff was diagnosed with disc herniations, lumbar degenerative changes, a locked right elbow, and a joint mouse in his right elbow.
In June 2003, Dr. Kevin Lanighan, an orthopedic surgeon, examined the plaintiff. Dr. Lanighan referred the plaintiff for a CT scan of his right elbow, which revealed degenerative changes and osteophytes. (Tr. 163).
On August 23, 2003 Dr. Raul Vazquez, a physician at Millard Fillmore Hospital, examined the plaintiff for complaints of right elbow pain. (Tr. 135-136). The plaintiff reported a medical history which included herniated lumbar discs, migraine headaches, asthma, and early ischemia with no mitral insufficiency. (Tr. 135). Upon examination, Dr. Vazquez observed that the plaintiff's right elbow exhibited a limited range of motion and tenderness. (Tr. 136). The plaintiff's lungs were clear to auscultation except for a slight wheeze. His heart demonstrated a regular rhythm and rate. Id. An x-ray of the plaintiff's chest revealed no acute cardiopulmonary disease. (Tr. 140). Dr. Vazquez assessed right elbow osteoarthritis; early ischemia; migraine headaches; mild-to-moderate asthma; and herniated lumbar discs. (Tr. 136).
Dr. Lanighan diagnosed degenerative arthritis of the right elbow and performed right elbow surgery on September 12, 2003. (Tr. 133). Post-operatively, Dr. Lanighan prescribed Lortab and advised the plaintiff to avoid strenuous activities. (Tr. 132).
Dr. Lanighan performed follow-up examinations from September through October 2003. (Tr. 161-62). He observed that the plaintiff's right elbow was benign and neurovascularly intact in September 2003. (Tr. 162). Right elbow x-rays revealed no osteophytes. Id. The plaintiff told Dr. Lanighan that he was "doing well and [not] having any difficulties" in October 2003. (Tr. 161). Dr. Lanighan observed that the plaintiff was able to move his elbow fairly well but could not bring it to full extension. The doctor recommended physical therapy. Id.
Dr. Castiglia, a surgeon at Sisters of Charity Hospital, assessed lumbar radiculopathy for which he performed a lumbar decompression and diskectomy on November 7, 2003. (Tr. 170-171).
On January 28. 2004, Dr. Christine Holland, a consultative physician with Industrial Medicine Associates, P.C., performed a disability examination on the plaintiff. (Tr. 179-183). She noted that he appeared to be in pain, did not need assistance during the examination, and although he used a cane to ambulate, there was no change without it. (Tr. 181). He was also on many prescription medications such as Codeine for pain, Hydrocodone for pain, Singulair for asthma, and Methylprednisolone for arthritis. (Tr. 180). Dr. Holland found the plaintiff's lungs and chest to be clear, full flexion in his cervical spine, and tenderness without spasm near the recently healed incision over his spine. Id. He had difficulty with straight leg raises, but Dr. Holland also opined that he made a poor effort. (Tr. 182). The doctor diagnosed the plaintiff with a stable asthma condition, ...