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James M. Ling v. Michael J. Astrue

July 14, 2011

JAMES M. LING, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER

INTRODUCTION

Pending before the Court are cross-motions for judgment on the pleadings (Dkt. Nos. 6, 7) that the parties have filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("FRCP"). Plaintiff James M. Ling commenced the instant action pursuant to 42 U.S.C § 405(g) on February 18, 2010, seeking review of a final determination of the Commissioner of Social Security (the "Commissioner") denying Plaintiff disability insurance benefits under Title II of the Social Security Act. Plaintiff claims to be disabled due to lower back impairments after a car accident in March 2003. The Commissioner counters that substantial evidence supports the denial of benefits and the finding that Plaintiff can perform other work in the national economy.

The Court has deemed the motions submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court grants the Commissioner's motion and denies Plaintiff's cross-motion.

PROCEDURAL HISTORY

Plaintiff filed an application for Social Security disability insurance benefits on February 7, 2007. Plaintiff asserts an amended period of disability from March 19, 2003 through April 1, 2007. His application was denied on July 27, 2007. ALJ William Straub held an administrative hearing on Plaintiff's application on June 2, 2009. In a decision dated June 18, 2009, ALJ Straub denied Plaintiff's application. The Appeals Council denied Plaintiff's request for review on January 29, 2010.

BACKGROUND

Plaintiff was born on January 14, 1977. On March 19, 2003, Plaintiff sustained lower back injuries in a car accident. Prior to the accident, Plaintiff was employed at UPS as a pre-loader, which involved heavy lifting. Plaintiff did not work from the date of the accident, March 19, 2003, until April 2007, when Plaintiff opened a pizza parlor, where he still worked as of the date the action was commenced. Plaintiff was twenty-six years old at the time of the accident. He has at least a high school education and is able to communicate in English.

Soon after the accident, on May 20, 2003, Plaintiff was treated by Dr. Patrick J. Hughes, who opined that Plaintiff could walk for four hours and could not lift more than ten pounds. (Tr. 112-14)*fn1 . In April 2004, he was treated by Dr. P. Jeffrey Lewis, Plaintiff's treating physician, who recommended surgery for him. (Tr. 145). Prior to surgery, images of Plaintiff's lumbar spine indicated minimal degenerative joint disease. (Tr. 130, 134, 198). In July 2004, Dr. Lewis performed two surgeries. On March 2, 2005, Dr. Lewis indicated Plaintiff had good relief of pain, and the fusion was solid.

On April 12, 2005, Dr. Lewis indicated Plaintiff was getting along much better and that physical therapy had resolved the thoracic pain. (Tr. 139). He also agreed to increasing the amount of weight Plaintiff could lift so that he could return to work where Plaintiff was required to lift seventy pounds. Id. On August 22, 2005, Dr. Lewis indicated that Plaintiff complained of having more pain; however, a CT scan showed a good fusion, and an MRI showed "very little subtle abnormality with no significant findings such as significant disk herniation." (Tr. 137-38). He further indicated Plaintiff had chronic back pain but did not think there were other studies that would be helpful to Plaintiff. Lastly, he recommended that Plaintiff should continue on total disability. On October 11, 2005, Dr. Lewis indicated an MRI scan was unremarkable and that the fusion looked normal. (Tr. 136). He also referred Plaintiff to a doctor for holistic pain management, and stated there were no further surgical options for him but recommended that he should continue on total disability. Id. On April 14, 2006, Dr. Lewis wrote Plaintiff complained of chronic back pain and consequently was unable to return to work or perform normal daily activities. He also stated x-rays indicated "excellent position of interbody cages and pedicle screws." (Tr. 135).

Plaintiff alleges that his disability ceased in April 2007, when he opened a pizza parlor, where he continued to work as of the date the action was commenced. On April 3, 2007, after the closed period of disability, Plaintiff indicated he could not sit, bend, walk, lift or stand for a long period of time. (Tr. 80-87). On April 19, 2007, a consultative medical examination performed by Dr. Fenwei Meng indicated Plaintiff had mild limitations with pushing, pulling, standing, walking and going up stairs. (Tr. 150-51). Dr. Meng also noted Ling had moderate limitations with bending, extension, twisting, and heavy lifting. Id. On April 19, 2007, Dr. Lewis also opined that Plaintiff was in stable condition regarding his lumbar spine, stating he had an "excellent fusion." Dr. Lewis also prescribed Lortab for Plaintiff and indicated he would reevaluate Plaintiff once an MRI was completed. (Tr. 162, 184). On June 27, 2007, Dr. Lewis stated an MRI scan showed central disc herniation and annular tearing with bulges, but the neck pain did not bother Plaintiff "all that much." (Tr. 160, 182). Dr. Lewis recommended an EMG, which produced normal results in September 2007. (Tr. 161, 181). In the meantime, a July 25, 2007 residual functional capacity ("RFC") assessment performed by a Disability Determination Services ("DDS") State agency medical consultant indicated Plaintiff could: occasionally lift twenty pounds; frequently lift ten pounds; stand and walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours; and had an unlimited push and pull. (Tr. 164-69). Lastly, the July RFC assessment noted Plaintiff's statement that Plaintiff could only stand, walk, and sit for up to thirty minutes did not appear consistent with the medical records on file.

Dr. Lewis confirmed the EMG of upper extremities was negative on September 10, 2007. (Tr. 181). He further indicated Plaintiff did not really have neck pain and that Plaintiff was not interested in cervical spine surgery. Id. Plaintiff appeared to have a very small disc herniation at C6-7. Id. According to Dr. Lewis, Plaintiff was doing fairly well regarding the lumbar fusion but indicated Plaintiff did not feel he could return to work at UPS. On September 11, 2007, Dr. Lewis filled out a lumbar spine RFC questionnaire indicating Plaintiff had several limitations, such as the inability to: walk more than two city blocks without rest or severe pain; sit for more than ten to fifteen minutes before needing to get up; and stand at one time for more than thirty minutes before needing to sit down. He further opined that Plaintiff needed to include ten to fifteen minute walks every thirty minutes during an eight-hour workday, that Plaintiff needed "a job that permits shifting positions at will from sitting, standing or walking," and that Plaintiff would need to take unscheduled breaks for fifteen to thirty minutes five to ten times a day during an eight-hour workday. He also indicated Plaintiff could frequently lift less than ten pounds, occasionally lift ten pounds, and never lift over twenty pounds. Moreover, according to Dr. Lewis, Plaintiff could rarely twist, stoop, crouch, climb ladders or stairs, and was likely to be absent from work for more than four days per month as a result of Plaintiff's limitations. (Tr. 177-80). On March 6, 2008, Dr. Lewis stated Plaintiff was getting along relatively well and was denied Social Security disability. (Tr. 193). He opined that there were no further surgical treatments to recommend for Plaintiff; also, he noted an excellent fusion and benefit from the surgery. He then discharged Plaintiff from his follow up.

On February 5, 2009, Dr. Lewis was asked to comment on the degree of Plaintiff's disability. (Tr. 208). He indicated he did not consider Plaintiff disabled because he was able to run a business. Id. On February 10, 2009, Dr. Lewis wrote that Plaintiff had two lumbar surgeries during July 2004, and that Plaintiff was unable to return to his heavy job at UPS. He further opined that Plaintiff would be unable to do any further heavy type work. (Tr. 209). During the June 2, 2009 administrative hearing, Plaintiff stated he had pain every day. He further indicated doctors said bone growth and everything around the fusion was good, but Plaintiff did not feel he could lift or bend like he used to. He stated he tries to lift only around thirty pounds and works around six hours a day. In ...


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