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Gregory R. Scott v. Michael J. Astrue

August 8, 2011

GREGORY R. SCOTT, 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

Plaintiff Gregory R. Scott ("Plaintiff") commenced this action on April 10, 2010, pursuant to § 42 U.S.C. 405(g), seeking review of a final decision by Michael J. Astrue, the Commissioner of Social Security (the "Commissioner"), denying disability benefits under the Social Security Act (the "Act"). The plaintiff sought disability insurance benefits for a lower back injury. In a decision dated September 17, 2009, the Administrative Law Judge ("ALJ") determined that the plaintiff retained the capacity to perform a full range of sedentary work and found the plaintiff not disabled under the Act. On February 26, 2010, the Appeals Council affirmed.

Pending now before the Court are cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The plaintiff seeks judgment on the pleadings to reverse the findings of the Commissioner on the grounds that the denial of disability benefits was not supported by substantial evidence. Specifically, the plaintiff contends that the ALJ did not properly evaluate the plaintiff's subjective complaints, failed to consider the testimony of a vocational expert, and did not accord the appropriate weight to medical reports of Physician Assistants ("PA") Scott Taylor and Jolene Griffith. The Commissioner also seeks judgment on the pleadings on the grounds that the determination by the Commissioner that the plaintiff was not disabled for the evaluating period was supported by substantial evidence. The Commissioner contends in particular that substantial evidence supports the ALJ's finding that the plaintiff's subjective complaints were less than credible, that the ALJ was not required to elicit the testimony of a vocational expert, and appropriate weight was apportioned to each medical report.

For the reasons stated herein, the Court finds that the Commissioner's determination that the plaintiff was not disabled for the relevant time period is supported by substantial evidence in the record. Therefore, the Commissioner's cross-motion for judgment on the pleadings is granted and the ALJ's determination is affirmed.

BACKGROUND

Plaintiff filed for disability insurance benefits on April 8, 2007 with an alleged onset date of September 22, 2002. (Tr. 39). In his application for benefits, plaintiff stated that he was unable to work due to stabbing back pain that radiates to his upper back and through his legs. (Tr. 98). The plaintiff had not worked since September 22, 2002. (Tr. 82). The plaintiff also alleged that his daily activities were restricted due to his continuous pain. (Tr. 90). He resided with his mother and brother and did not participate in any housework and seldom prepared his own meals. (Tr. 92). The plaintiff also alleged that his mobility was restricted and he could not walk 10-20 feet without stopping to rest. (Tr. 96). When he did move around his residence, he needed to use a cane or furniture to support himself and maintained that he was primarily dependant on others to function on a daily basis. Id. On July 11, 2007, the plaintiff's claim for benefits was denied and the plaintiff requested a hearing. (Tr. 40-43). Plaintiff's request was granted and a hearing was set for August 10, 2009 before ALJ Michael Friedman.

The plaintiff appeared and testified at a hearing on August 10, 2009. (Tr. 20-36). The following information emerged at the hearing. The plaintiff was 44 years old at the time his date last insured expired and claimed he could not perform any work that required physical exertion because of his constant back pain. (Tr. 13). The plaintiff received his general equivalency diploma ("GED") and completed one year of college. (Tr. 34, 88.). His primary past relevant work was as a metal worker and included employment as a grocery clerk after his injury. (Tr. 83, 101-07). The plaintiff alleged that he initially injured his back while working on a construction job site in 1994 or 1995 and re-injured his back while pushing an orange juice cart as a grocery clerk. (Tr. 26). The plaintiff has not engaged in any work since re-injuring his back because the pain and the side effects from his medication prevented him from holding down steady employment. (Tr. 26 and 31-32). His alleged side effects included nausea, itching, and grogginess. (Tr.31).

In reference to his daily activities and functional abilities, the plaintiff alleged that he could stand for ten minutes, sit for fifteen minutes, and walk less than half a block. (Tr. 28). During the relevant period of evaluation, the plaintiff resided at a boarding house and participated in cooking, cleaning, laundry, and grocery shopping. (Tr. 90, 295). At the time of the hearing, the plaintiff resided with his mother and brother and seldom participated in household chores and sometimes needed assistance getting dressed. (Tr. 28). His daily activities consisted of laying down, watching television, and reading. (Tr. 29-30). He also alleged that he often had difficulty concentrating because of the side effects of his medication. Id.

During the relevant evaluation period, the plaintiff attended Vocational and Educational Services for Individuals with Disabilities ("VESID"). (Tr. 34). The plaintiff did not complete the job placement process due to back pain. Id. The plaintiff also attended physical therapy to reduce his pain but testified that he stopped treatment because it was making his condition worse. (Tr. 24, 98).

Additionally, the plaintiff refused surgery that was recommended by his physicians. (Tr. 25).

Following the hearing, the ALJ concluded in a written decision on September 17, 2009 that the plaintiff was not disabled and was not entitled to receive disability insurance benefits. The ALJ found that the plaintiff retained a residual functional capacity ("RFC") to perform a wide range of sedentary work. (Tr. 16). The medical evidence in the record did not establish that the plaintiff possessed a mental or physical impairment that would prevent him from engaging in any substantial activity. Id. Additionally, the plaintiff's allegations as to the intensity and persistence of pain were not supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. In the present case, the ALJ found that the plaintiff did not perform any substantial gainful activity from the alleged onset date of September 22, 2002 through the date last insured of September 30, 2007, and had a severe impairment of lumbar degenerative disk disease. (Tr. 10). While the impairments presented a significant limitation on the plaintiff's ability to perform basic work and were found to be severe under the regulations, the impairment did not rise to the level of disability. (Tr. 11). Upon evaluation of the medical evidence, the ALJ found that the plaintiff did not suffer an impairment, standing alone or combined with other impairments, that met or medically equaled any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. In the fifth step of the evaluation process, the ALJ determined that through the date last insured the plaintiff maintained the ability to perform a full range of sedentary work. Id.*fn1 The plaintiff appealed the ALJ decision and the Appeals Council affirmed.

DISCUSSION

Following exhaustion of the administrative proceedings, the plaintiff brought this action. The plaintiff alleges that the ALJ erred as a matter of law in determining that the plaintiff was not disabled. Plaintiff contends the ALJ did not appropriately consider the plaintiff's subjective complaints, failed to hear the testimony of a vocational expert, and did not apportion the proper weight to medical reports. The Commissioner counters that the ALJ properly found that the plaintiff's subjective complaints were less than credible and unsupported by medical evidence in the record. Furthermore, the Commissioner supports that the ALJ did not need to hear the testimony of a vocational expert because the ...


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