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Robert Gonzalez v. Michael J. Astrue

July 11, 2012

ROBERT GONZALEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

Plaintiff Robert Gonzalez seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits and supplemental security income under the Social Security Act (the "Act"). Both parties move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, the Commissioner's motion is granted and Gonzalez's is denied.

I.

Gonzalez has previously worked as a truck driver and, more recently, as a bartender. On March 17, 2002, he badly injured his back in a parachuting accident, suffering a "severe L2 burst fracture with a large piece of retropulsed bone fragment in the spinal canal." AR at 141. The injury required major surgery, arthrodesis of L1 to L4 -- fusion of the vertebrae -- through insertion of screws and rods and a bone graft.

Gonzalez filed his application for benefits on May 13, 2002, alleging disability since the date of the accident due to a "broken back." Following a hearing and ALJ finding of non-disability, a judge of this Court remanded the case for further administrative proceedings. See Gonzalez v. Astrue, 07-cv-2766 (E.D.N.Y. April 17, 2008).

A supplemental hearing was held on remand, and the ALJ issued a decision on December 2, 2008, again finding Gonzalez not disabled. The ALJ determined that Gonzalez met the insured status requirement through December 31, 2002; that he had not engaged in substantial gainful activity since the date of his injury; that he suffered a "severe impairment" in the form of a "burst fracture of L2 "; and that he could not perform his past relevant work. These points are not disputed. The ALJ further concluded, however, that Gonzalez did "not have an impairment or combination of impairments that meets or medically equals one of the listed impairments," AR at 299; that, within a year of the onset date, he had the residual functional capacity ("RFC") to "perform the full range of sedentary work," AR at 300; and that "there are jobs that exist in significant numbers in the national economy" that he could perform, AR at 307.*fn1

The ALJ's decision is final, as it was a decisionon remand and the Appeals Counsel did not assume jurisdiction. See 20 C.F.R. § 416.1484(a). Gonzalez filed this action on April 27, 2011.

II.

The Court reviews the Commissioner's decision denying disability benefits to determine whether it is supported by substantial evidence and made under the correct legal standard. See Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir. 2007). Gonzalez contends that the ALJ erred in finding that his impairment did not meet or equal a listed impairment and that he could perform the full range of sedentary work.

A. Whether the condition meets or equals a listed impairment

At step three of the disability evaluation, a claimant whose impairment "meets or equals" one of the listed impairments is "conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995); see also 20 C.F.R. §§ 404.1520(a)(4) (iii) ("If you have an impairment(s) that meets or equals one of our listings . . . and meets the duration requirement, we will find that you are disabled."), 416.920(a)(4)(iii) (same).

Gonzalez contends that his back injury meets or equals listing 1.04, "[d]isorders of the spine . . . resulting in compromise of a nerve root . . . or the spinal cord." The listing requires either (A) "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test"; (B) "Spinal arachnoiditis . . . manifested by severe burning or painful dysesthesia . . ."; or (C) "Lumbar spinal stenosis resulting in pseudoclaudication . . . manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively."

The ALJ's determination that Gonzalez's condition is not equivalent to the 1.04 listing is supported by substantial evidence. While some of the 1.04(A) criteria is met -- there is evidence of nerve root compression, pain, limited spinal motion, and positive straight-leg raising tests -- the ALJ reasonably determined that Gonzalez lacked the requisite motor loss. Gonzalez's treating physician, neurosurgeon Arnold Goran, M.D., noted in May 2002 that Gonzalez had "no motor weakness,"AR at 135, and reached a similar conclusion in March 2005, when he found the motor examination for Gonzalez's lower extremities to be "within normal limits." AR 168. Kyung Seo, M.D., a state agency orthopedist, examined Gonzalez in August 2002 and noted "some muscular atrophy of the thigh or lower leg," but did not provide any details and further observed that muscle strength in both legs was 5 out of 5. AR at 151-152. Without motor loss, Gonzalez's impairment differs significantly from the criteria of 1.04(A). Listing 1.04(B) is similarly inapplicable because there is no evidence in the record of spinal arachnoiditis. And, with respect to listing ...


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