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Juliano v. Astrue

April 12, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Albert Juliano, represented by counsel, brings this action pursuant to the Social Security Act (the "Act"),*fn1 seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") denying his claim for disability insurance benefits ("DIB").

Juliano argues that the Administrative Law Judge ("ALJ") erred and misapplied the applicable regulations by: 1) failing to consider the combined effects of his impairments, including pain; 2) failing to follow the treating physician rule; 3) inaccurately evaluating his credibility; 4) erroneously evaluating the testimony of the vocational witness and posing hypothetical questions that failed to reflect all of his limitations; and 5) failing to do a function-by-function analysis of his impairments and inaccurately evaluating his residual functional capacity ("RFC"). Juliano requests a finding that he is entitled to DIB, or in the alternative, a remand of his case for further administrative proceedings.*fn2 He also requests an award of attorneys' fees pursuant to the Equal Access to Justice Act.*fn3

The Commissioner has cross-moved for judgment on the pleadings, arguing that the ALJ's finding that Juliano was not disabled and, therefore, not entitled to DIB during the period under review is supported by substantial evidence and should be affirmed. For the following reasons, the Commissioner's motion is granted, the decision denying benefits is affirmed, and the case is dismissed.


A. Procedural History

The evidence, which is contained in the administrative record, has been summarized by the ALJ in his decision denying DIB.*fn4 I will recount only those facts pertinent to this motion. On November 28, 2006, Juliano filed an application for DIB, alleging disability beginning on November 17, 2003.*fn5
Juliano's application was initially denied on April 11, 2007.*fn6 Juliano requested a hearing before an ALJ*fn7 which took place on September 11, 2008, where Juliano was represented by an attorney.*fn8 On April 1, 2009, the ALJ found that Juliano was not disabled.*fn9 Juliano requested review of the ALJ's decision by the Appeals Council.*fn10 That request was denied on February 3, 2011.*fn11

B. The Administrative Record

The administrative record consists of non-medical evidence, medical evidence, and vocational expert testimony.

1. Non-Medical Evidence

Juliano, who is forty-one years old, was thirty-three at the alleged onset of his disability on November 17, 2003.*fn12 He received a degree in police science in 1993.*fn13 Beginning in 1995, and through the alleged onset date, Juliano was a police officer, most recently in the Port Chester Police Department.*fn14 Prior to becoming a police officer, Juliano held several jobs in the construction industry and as a security guard.*fn15

In 1999, Juliano was injured while arresting a suspect.*fn16 He returned to work after surgery and was reinjured in 2003 in the course of active police duty.*fn17 His most recent injuries included a ruptured disc in his neck, a spinal infection, a shoulder injury that required additional surgery in 2004, a bone growth in his neck, and carpal tunnel syndrome.*fn18 At his hearing, Juliano claimed that his injuries prevent him from sitting or standing for more than a few hours at a time*fn19 and his pain medication affects his concentration, rendering him unable to focus for long periods of time.*fn20 Further, Juliano complained of difficulty writing due to numbness in his right hand and the inability to lift heavy objects.*fn21 Juliano testified that he lives in a house with his wife and nine-month old child.*fn22 Juliano did not report any problems with personal care, such as showering and dressing himself.*fn23

In describing his daily activities, Juliano stated that he prepared small meals for himself, drove locally, cared for his nine-month-old daughter, helped with the laundry, watched television, and took quarter-mile walks to the end of his driveway.*fn24 Juliano noted that the longest car trip he had taken in the past year was driving fifty minutes each way to visit family in Connecticut.*fn25 Juliano testified that he was capable of fastening buttons and zippers, tying his shoelaces, picking up coins from a table, write "a little bit"*fn26 , and unscrew caps, although if it was on tight, would use his left hand.*fn27 He noted that he could only use a computer in limited durations of about ten minutes before he felt pain. Further, Juliano stated that many things exacerbated his pain, including sleeping the wrong way or sneezing too hard, and that these incidents would lead to pain that lasted two or three days at a time.*fn28 Moreover, Juliano testified that he had difficulty sleeping and sitting and standing for long stretches.*fn29

2. Medical Evidence

a. Treating Physicians

Medical records indicate that Juliano has a cervical sprain, a degenerative spondylosis cervical spine, post-traumatic impingement syndrome in his right shoulder, a rotator cuff tear in his right shoulder, and subacromial decompression.*fn30 These impairments have led several doctors to advise Juliano not to return to police work.*fn31 Juliano was first examined by Dr. Richard Freeman, an orthopedic examiner/consultant, on February 4, 2004.*fn32 Dr. Freeman noted that Juliano had reported some improvement following physical therapy and acupuncture. In light of Juliano's past surgery and current complaints, Dr. Freeman described Juliano's prognosis as guarded.*fn33 On August 9, 2004, Juliano returned to Dr. Freeman for a follow-up examination. Dr. Freeman noted that there had been no significant changes since his last examination and that Juliano continued to perform "light work-outs" at a gym four times a week, using a treadmill, exercise ball, and various machines.*fn34 The examination showed no sensory deficits, swelling, deformity or atrophy of the right shoulder, and Juliano's reflexes in his upper extremities remained equal and active.*fn35 Dr. Freeman recommended a continued course of treatment of physical therapy and acupuncture.*fn36

Dr. Gregory Garner, a treating Chiropractor, treated Juliano on August 11, 2004. He found that Juliano was extremely limited in the use of his upper extremities and that he experienced both exacerbations of pain as well as chronic pain.*fn37 Dr. Garner opined that Juliano would be unable to return to work as a police officer.*fn38

On March 29, 2006, Dr. Maryanne Wysell, Juliano's treating orthopedist, examined him for complaints of neck pain and stiffness, as well as headaches. Dr. Wysell noted that Juliano also complained of occasional knee, ankle and lower back stiffness, and that he took over-the-counter medications such as Advil and Tylenol PM to alleviate the pain.*fn39 Dr. Wysell stated that Juliano's muscle strength was full (5/5) throughout, but that he was "a little weaker" in his right arm.*fn40 Juliano was diagnosed with a cervical spasm and was prescribed Mobic.*fn41 Zoloft, an antidepressant, was suggested for his headaches and muscle spasms.*fn42 Juliano returned to Dr. Wysell on April 26, 2007.*fn43 Dr. Wysell stated that Juliano was "doing much better," that the Mobic helped Juliano's fibromyalgia-like symptoms, and that he was feeling "quite well."*fn44

Dr. Wysell next examined Juliano on December 23, 2008.*fn45 Her report indicated that Juliano "feels quite well," and that he was "doing very well on Neurontin up to 1200 mg a day, and Mobic 15 mg a day."*fn46 Additionally, Dr. Wysell noted that Juliano could always take a higher dose of Neurontin if his neck was really bothering him, and that she would suggest possibly adding Cymbalta. For now, however, Juliano "seems pretty well controlled."*fn47
Juliano continues to experience pain from these injuries and takes medication to manage this pain.*fn48 During a July 2007 examination with Dr. Samuel Kozner, Juliano's treating neurologist, Dr. Kozner noted that all of Juliano's neurological and mental status examinations were normal and that, with the help of the medication Neurontin, Juliano was tolerating the pain.*fn49 Two separate independent orthopedic examinations by ...

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