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Napierala v. Astrue

December 11, 2009

FREDERICK R. NAPIERALA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

Introduction

Plaintiff Frederick R. Napierala ("Plaintiff") brings this action pursuant to the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the final decision of the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits.*fn1 Specifically, Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") Alan L. Bergstrom, as affirmed by the Social Security Appeals Council ("Council"), denying his application for benefits was against the weight of substantial evidence contained in the record and was contrary to applicable legal standards.

The Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) ("Rule 12(c)"), on grounds that the ALJ's decision was supported by substantial evidence contained in the record and was based on the correct application of appropriate legal standards. Plaintiff cross-moves for judgment on the pleadings pursuant to Rule 12(c), seeking reversal of the Commissioner's ruling or, in the alternative, remand of the matter for a new hearing. For the reasons set forth below, I find that the decision of the Commissioner is supported by substantial evidence, and is in accordance with applicable law. I therefore grant the Commissioner's motion for judgment on the pleadings.

Background

I. Procedural History

On March 31, 2003, Plaintiff, who was then 54 years old and a garbage collector and garbage truck driver, filed an application for Disability Insurance Benefits under Title II, §§ 216(i) and 223 of the Social Security Act ("the Act"). Plaintiff claimed a disability since August 28, 2002, due to "dominant [right] shoulder impairment, bilateral knee impairment, and lumbar neurogenic claudication". (Transcript of the Administrative Proceedings at page 72) (hereinafter "Tr."). On July 15, 2003, the Social Security Administration ("the Administration") found Plaintiff to be disabled commencing March 12, 2003. (Tr. at 31). Plaintiff filed a timely request for hearing on September 15, 2003. (Tr. at 44).

Thereafter, Plaintiff appeared via video conference, with counsel, at an administrative hearing before ALJ Alan L. Bergstrom on February 8, 2005. (Tr. at 167). In a decision dated February 22, 2005, the ALJ determined that Plaintiff's period of disability commenced on September 12, 2003. (Tr. at 26). Plaintiff filed a timely request for a review of the hearing decision on April 7, 2005. (Tr. at 12). The ALJ's decision became the final decision of the Commissioner when the Social Security Appeals Council denied Plaintiff's request for review on August 29, 2007. (Tr. at 5). On October 23, 2007, Plaintiff filed this action.

II. The Evidence

A. EMG and Examining Physician Dr. Hoffman's Reports

Examining physician Dr. Hoffman reported the results of the nerve conduction and electromyographic studies ("EMG") of Plaintiff's legs dated June 12, 2001, which suggested both lumbar radiculopathies and axonal polyneuropathy, mild distal sensory loss, no distal paresthesias, lumbar neurogenic claudication of both legs, and a mild lateral cutaneous neuropathy. (Tr. at 103, 104).

On May 6, 2004, Dr. Hoffman again examined Plaintiff and reported to the Worker's Compensation Board that Plaintiff consulted him regarding leg numbness and accordingly, he requested authorization for a lumbar MRI. (Tr. at 146). Dr. Hoffman reported the results of the MRI to the Worker's Compensation Board on June 22, 2004 which showed degenerative disc disease and spondylosis resulting in spinal stenosis. (Tr. at 145). Dr. Hoffman noted that Plaintiff's symptoms were consistent with his findings and opined that Plaintiff was "totally and permanently disabled from working." Id.

B. MRI

An MRI of Plaintiff's left knee dated October 29, 2001 showed abnormality of the anterior cruciate ligament ("ACL"), degenerative or post-traumatic changes, moderately severe abnormal softness of the cartilage, and a small build up of fluid. (Tr. at 96, 97).

C. Treating Orthopedic Surgeon Dr. Wild's Reports

On November 19, 2001, Dr. Wild referred to an on-the-job injury suffered by Plaintiff on January 10, 2001 in a report to the Worker's Compensation Board. (Tr. at 102). Dr. Wild reported that Plaintiff complained of left knee pain, a sensation of buckling in the knee, and pain when using stairs. Id. Upon examination, Dr. Wild noted modest effusion, tender medial joint line, very slightly limited range of motion, and stable collateral ligaments. Id. Dr. Wild opined Plaintiff was symptomatic with torn cartilage and recommended arthroscopic knee surgery which Plaintiff declined. Id. Plaintiff stated that he would continue to work with the help of anti-inflammatories. Id.

Dr. Wild reported to the Worker's Compensation Board the results of his examination of Plaintiff on February 4, 2002, due to pain, stiffness and loss of mobility in Plaintiff's right shoulder as a result of the January 10, 2001, injury. (Tr. at 100). Dr. Wild noted that Plaintiff suffered from advanced glenohumeral arthritis with an intact rotator cuff. Id. Dr. Wild reported that Plaintiff was not interested in surgery at that time but wanted to work until he could retire before pursuing surgical treatment. Id. Plaintiff would continue to take the pain medications Celebrex and hydrocodone as needed. Id.

On April 12, 2002, Dr. Wild reported to the Worker's Compensation Board that Plaintiff had an 80% loss of use of his right shoulder and would require a shoulder prosthesis to relieve future pain. (Tr. at 99). Dr. Wild noted that Plaintiff continued to take pain medication and to work everyday. Id. On June 7, 2002, Dr. Wild again reported to the Worker's Compensation Board that Plaintiff continued to complain of pain and loss of mobility in his right shoulder and was working using exclusively his left shoulder. (Tr. at 98). Dr. Wild stated that Plaintiff "has virtually absent internal and external rotation of his shoulder" and was "symptomatic from traumatic arthritis" of his shoulder. Id. Dr. Wild recommended Plaintiff continue taking the pain medications Celebrex and hydrocodone and continue to work in spite of his "prominent disability due to arthritis of his shoulder." Id.

D. Examining Consultative Internist Dr. Holland's Report

On May 21, 2003, Dr. Holland reported that Plaintiff complained of right shoulder pain, decreased range of motion, decreased ability to dress himself, legs going numb with prolonged standing and walking, falls resulting from leg numbness, and left knee pain, burning, and swelling with increased pain when walking. (Tr. at 110). Dr. Holland reported Plaintiff took hydrocodone, Motrin and Celebrex as needed for the pain, used prescribed crutches and a cane. (Tr. at 111).

Plaintiff reported to Dr. Holland that his daily activities included showering and dressing himself, watching TV, listening to the radio, reading, going out for coffee and socializing but did not include cooking, cleaning, ...


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