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Herman P. Rouse v. Michael J. Astrue

December 16, 2010


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge


Plaintiff Herman P. Rouse ("plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking reversal of the Commissioner of Social Security's ("the Commissioner") final decision finding that he was not entitled to Disability Insurance and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. The plaintiff claims he is disabled due to herniated discs, foot deformation, knee pain, a torn right shoulder, and depression. The Commissioner found that the plaintiff was not disabled because, although he was not capable of performing any past relevant work, he could perform light work that exists in significant numbers in the national economy. A vocational expert found the plaintiff could still perform the occupations of packer, inspector packer, and fruit cutter. (Tr. 27-28). On December 23, 2009, both the plaintiff and the Commissioner moved for judgment on the pleadings. For the reasons stated, the Commissioner's motion for judgment on the pleadings is granted and petitioner's motion is denied.


On March 30, 2005, the plaintiff applied for disability benefits and SSI claiming that he has been unable to work as of November 6, 2005. The plaintiff's application was denied. The plaintiff subsequently requested a hearing before an Administrative Law Judge (ALJ), which took place on November 15, 2007 before ALJ Bruce Mazzarella. In a decision dated January 14, 2008, ALJ Mazzarella found that the plaintiff was not disabled because his residual functional capacity (RFC) was consistent with light work that exists in significant numbers in the national economy such as a packer, inspector packer, and fruit cutter.

The plaintiff claims he is disabled due to herniated discs, foot deformation, knee pain, a torn right shoulder, and depression. (Tr. 132). The plaintiff was 54 years old on the date of the Commissioner's final decision. He completed the eighth grade and was able to communicate and read in English. (Tr. 132, 138, 496). Between 1980 to 2003, the plaintiff worked in janitorial maintenance, as a construction laborer, for a tree service, in a hose factory, and as a dishwasher; farm hand, and mechanic. (Tr. 83-84, 494-96). He has been unemployed since June of 2003.

The plaintiff cooked and shopped for groceries, dressed and bathed himself, took medications on his own, watched television, listened to the radio, and cared for a puppy. (Tr. 525-26, 533). The plaintiff walked one mile every day to and from his brother's house. (Tr. 529). Plaintiff state that his sister-in-law did his housework, helped him keep track of his appointments, and sometimes picked up his prescription medications. (Tr. 525, 533).

The plaintiff testified his worst condition was his back problem, and could no longer "lift anymore." (Tr. 498). He attested he could not do anything due to constant pain, medication had helped his pain "a little bit," and walking/standing made the pain worse. (Tr 501-02, 505-07). The plaintiff claimed he used a cane when his pain got worse, and the last time he used the cane was six months prior to his hearing. (Tr. 508).

The plaintiff first stated his neck pain interfered with his ability to work around 2006, then corrected himself and said the disabling neck pain began in 2003 as a result of cutting firewood. (Tr. 516-18). The plaintiff's first and second toes of his left foot and the fourth toe of his right foot were amputated as a result of injuries. (Tr. 273, 279). He claimed phantom pain from his amputated toes worsened since 1996, and caused him to lose balance. (Tr. 519-20). He received no treatment for his toe condition, and wore no special inserts or special shoes. (Tr. 519-20). The plaintiff stated that he had knee pain but was not receiving treatment for his knee and used no assistive devices to walk. (Tr. 520). The plaintiff testified to being suicidal, although he had not been hospitalized for any mental problems other than when he was younger, and had never been to the emergency room for suicidal tendencies. (Tr. 521).

On April 22, 2003, Dr. Bruce MacKellar submitted a medical report employability assessment to the New York State Office of Temporary and Disability Assistance stating the plaintiff was "unable to work due to back problems, knee problems, [and] loss of toes." (Tr. 305). Dr. MacKellar noted the plaintiff was moderately limited with sitting, and very limited with walking, standing, lifting-carrying, pushing, pulling, bending, and climbing. (Tr. 305). There was no evidence of limitations with his mental functioning. (Tr. 305).

A computerized axial tomography (CAT) scan of the plaintiff's lumbosacral spine, performed on December 18, 2003, showed slight spinal stenosis and mild generalized annular disc bulge, but no identifiable herniations. (Tr. 304). On January 5, 2004, Dr. MacKellar diagnosed the plaintiff with low back pain, noting mildly herniated disks on the CAT scan. (Tr. 303). Dr. MacKellar ordered a magnetic resonance imaging (MRI), performed on January 23, 2004, which revealed small disc bulges from L1-2 through L4-5 without significant mass effect and with a mild degree of bilateral neural foraminal narrowing at the L3-4 and L4-5 levels, a posterior annular tear at the L1-2 level, but no discreet herniations. (Tr. 302-03). In the subjective portion of the examination report, Dr. MacKellar wrote than the plaintiff had "significant abnormality including multiple small disk herniations at various levels," he assessed "[l]ow back pain with potentially herniated disk," and recommended that the plaintiff not resume work and that he refrain from any significant lifting. (Tr. 301).

Neurosurgeon Dr. Robert Bakos examined the plaintiff on June 2, 2004. (Tr. 223-24). Dr. Bakos agreed that the plaintiff's January 2004 MRI showed some bulging disks, but concluded that the plaintiff's symptoms were not attributable to any nerve root compression identified on the MRI. Dr. Bakos referred the plaintiff for an electromyogram (EMG) and nerve conduction studies of the lower extremities, which came back essentially normal, although a very mild lower lumbar/sacral radiculopathy below the detection threshold of testing was a possibility. (Tr. 221).

On July 8 and October 12, 2004, Dr. John Cusick performed internal consultative examinations of the plaintiff. He found the plaintiff was in no acute distress, his gait was normal, he could walk on his heels and toes and rise out of a chair without difficulty, as well as fully squat. (Tr. 273-74, 279-80). The plaintiff's cervical and lumbar spines showed full flexion, extension, lateral flexion, and full rotary movement; his straight leg raising was 10 degrees bilaterally in the supine position, and 90 degrees in the sitting position without pain; his extremities had full range of motion; in addition, his affect was normal and he denied suicidal ideation. (Tr. 275-76, 280-81). Dr. Cusick diagnosed the plaintiff with degenerative arthritis of the back and knees, and depression. (Tr. 276, 281). He further concluded the plaintiff was amplifying his symptoms. (Tr. 276, 281).

Also on July 8, 2004, psychologist Dr. John Thomassen performed a psychiatric consultative evaluation on the plaintiff. (Tr. 213-17). Dr. Thomassen diagnosed the plaintiff with anxiety disorder, dysthymic disorder, cannabis abuse, and alcohol dependence in full sustained remission. (Tr. 216). Dr. Thomassen noted that the plaintiff's allegations on psychiatric disability did not appear to be fully consistent with his examination findings. (Tr. 216).

State Agency psychiatrist Dr. Hillary Tzetso prepared a psychiatric review technique and mental residual functional capacity assessment on the plaintiff on July 21, 2004. (Tr. 226-44). Dr. Tzetso opined that the plaintiff had a mild limitation for daily activities, moderate difficulties maintaining social function and with concentration, persistence, or pace, and no episodes of decompensation. (Tr. 236). Dr. Tzetso concluded the plaintiff should be able to understand and follow work directions in a low contact work setting, maintain ...

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