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Farley v. Commissioner of Social Security

November 25, 2009


The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

Memorandum, Decision and Order

I. Introduction

By this action, plaintiff William H. Farley ("plaintiff") timely seeks judicial review of a final decision by defendant, Commissioner of Social Security ("the Commissioner"), denying his application for Social Security Disability Insurance ("SSDI") benefits for lack of disability, pursuant to 42 U.S.C. §§ 405(g). Presently before the court is a motion for judgment on the pleadings by plaintiff, and a cross-motion for judgment on the pleadings by the Commissioner, pursuant to Fed. R. Civ. P. 12(c). Plaintiff seeks an order granting his motion for judgment on the pleadings, reversing the Commissioner's decision that he is not disabled within the meaning of the Social Security Act and remanding this case to the Social Security Administration ("SSA") for calculation and payment of benefits. The Commissioner opposes, and seeks an order affirming its decision. The parties have filed their respective briefs, including the Administrative Record on Appeal, and the matter has been submitted and considered without oral argument. For the reasons set forth below, the Commissioner's finding that plaintiff is not disabled within the meaning of the Social Security Act is affirmed.

II. Procedural Background

Plaintiff initially applied for SSDI benefits on June 25, 2003. (R. 48-50). The application was denied, and plaintiff timely requested a hearing, which was held before an Administrative Law Judge ("ALJ") on March 11, 2004. (R. 218-270). On August 12, 2004, the ALJ issued a decision, finding that plaintiff is not disabled, (R. 13-28), which became the final decision of the Commissioner on April 28, 2005 when the Appeals Council denied plaintiff's request for review. (R. 5-8). This timely civil action followed.

III. Factual Background

Plaintiff Farley, born August 16, 1969, was 34 at the time of the Commissioner's decision at issue here. (R. 48). Plaintiff, who reads at a third or fourth grade level, completed his education through the twelfth year of high school, where he participated in special education classes. (R. 64, 225-226). Plaintiff has past relevant work experience as a heavy machine operator. (R. 59). Plaintiff alleges that he has been unable to work due to a disability since July 8, 2002 (R. 58, 228). According to plaintiff, several medical conditions keep him from working, including traumatic and degenerative disc disease with epidural injection site scarring, hypertension, obesity, and chronic depression. (R. 127).

Plaintiff alleges that he can lift only five to ten pounds frequently or occasionally and that he can stand or walk two hours and sit two hours out of an eight hour workday. (R. 91). Plaintiff also alleges that he can walk a half mile and then rest ten minutes before continuing. (R. 86, 91). During his hearing, plaintiff testified that he can stand, sit or walk between thirty to forty-five minutes at a time, but that he can only rotate standing, sitting or walking for a couple of hours because he will have to lay down. (R. 246-247). Plaintiff testified that he lays down in the morning and in the afternoon for approximately an hour at a time. (R. 247). Plaintiff also testified that the heaviest weight he can lift amounts to about two bags of groceries and a one gallon bottle of water. (R. 248).

Regarding activities of daily living, plaintiff prepares two meals per day and helps with preparing a third meal. (R. 81-82, 92). Plaintiff also does some house cleaning, such as dishes and laundry, although he is unable to lift laundry baskets and cannot always take laundry out of the dryer if his back is hurting. (R. 82, 92). In addition, plaintiff goes grocery shopping one to two times per week, typically for one to two hours at a time. (R. 84, 90). At his hearing, plaintiff testified that he drives half of the week for ten to fifteen minutes at a time, but that his wife does all long distance driving. (R. 248). Plaintiff took two trips to Myrtle Beach, South Carolina, traveling once by car the second time by air. (R. 249, 252-53). The flight took two hours, with a two hour layover. (R. 252-53). The drive took about two to three days in order for plaintiff and his family to make frequent stops in order for plaintiff to be able to rest. (R. 249).

Plaintiff alleges that he is in constant pain on a daily basis. (R. 89, 231). On a scale of one to ten, plaintiff states that his pain is always at a level five, but on a bad day, it's a level eight. (R. 231). Plaintiff testified that his pain is in his lumbar region and travels down his left leg. (R. 231). Plaintiff also testified that his pain is aggravated by the weather, and that medication dulls the pain but does not make it go away. (R. 89, 231). In addition to blood pressure medication and medication for his depression, plaintiff takes 550 milligrams of Hydrocodone every six hours for pain. (R. 236-238). Side affects include sleepiness and irritability. (R. 238). Plaintiff testified that in addition to taking medication, he has seen a chiropractor, and used heat, topical medications, and a TENS unit to treat his pain. (R. 240-243.) Plaintiff also lays down for an hour or so every day to help relieve his pain. (R. 241).

On September 17, 2003, Berton Shayevitz, M.D., an orthopedic consultative examiner, concluded that plaintiff's prognosis is "stable to poor" and that due to plaintiff's back and leg pain, he is "just about markedly limited in terms of sitting, standing, walking, carrying, lifting, and climbing[,]" and that plaintiff's degenerative arthritis in his left knee "possibly moderately limit[s] him in mobility and ability to climb, squat and kneel." (R. 166). In March 2003, Clifford B. Soults, M.D., plaintiff's treating neurosurgeon, opined post surgery that plaintiff "can work with light duty, less than 20 pounds at this time" and that plaintiff "will need job retraining." (R. 146) In August 2003, after noting a return of plaintiff's pain post surgery, Dr. Soults took plaintiff out of work and began job retraining. (R. 142). In October 2003, Dr. Soults noted that he suspects plaintiff "will never be able to return to his previous line of employment." (R. 201).

Regarding plaintiff's mental impairment, consultative psychiatric examiner Kristen Barry, Ph.D., opined that he is able to follow and understand simple directions and instructions and maintain attention and concentration. (R. 157-158, 161-162 ). Richard B. Weiss, M.D., who completed a mental RFC assessment of plaintiff, noted that plaintiff is moderately limited in his ability to carry out detailed instructions and his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, as well as his ability to set realistic goals or make plans independently of others. (R. 183-185). In all other respects, Dr. Weiss found plaintiff's mental abilities are not significantly limited. (R. 183-185).

According to Thomas Spath, M.D., plaintiff's treating physician, plaintiff is able to walk ten to fifteen minutes, sit thirty minutes and lift twenty pounds. Dr. Spath noted that plaintiff is unable to return to his prior occupation, and "remains disabled at [the] present time." (R. 137-138). Dr. Spath further indicated that plaintiff is limited in his abilities in that he can stand and/or walk less than two hours per day, sit up to six hours per day, and is limited (without specification) in his ability to push and/or pull. (R. 140).

After a July 2003 evaluation of plaintiff, Ronald Naumann, M.D. concluded that pursuant to Workers' Compensation guidelines, plaintiff has a marked, partial disability. (R. 196). Dr. Naumann further recommended that plaintiff be referred to VESID as soon as possible. (R. 197).

Finally, plaintiff's chiropractor, Dr. Eric Szatko, opined that plaintiff can stand and/or walk as well as sit less than two hours per day, that plaintiff cannot push or pull more than ten pounds, cannot use foot controls on his left side due to ...

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