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Darrel A. Oliphant v. Michael J. Astrue

August 14, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:


Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Darrel

A. Oliphant ("plaintiff") appeals the final decision of defendant Michael Astrue, Commissioner of Social Security ("defendant" or the "Commissioner"), who denied plaintiff's application for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits under Title II and Title XVI, respectively, of the Social Security Act (the "Act"). Plaintiff contends that because he is disabled within the meaning of the Act, he is entitled to receive the aforementioned benefits.

Presently before the court are (1) defendant's motion and (2) plaintiff's cross-motion for judgment on the pleadings. For the reasons set forth below, the court denies plaintiff's cross-motion for judgment on the pleadings, grants defendant's cross-motion for judgment on the pleadings, and affirms the Commissioner's decision.


I. Procedural History

Plaintiff protectively filed an application for SSD on May 17, 2007, and an application for SSI on May 25, 2007. (ECF No. 21, Administrative Record ("Tr.") at 12, 119.) In both applications, plaintiff alleged that he was unable to work beginning October 20, 2006, due to "medical, orthopedic, and psychiatric impairments." (ECF No. 1, Complaint ("Compl.") ¶ 4). Specifically, plaintiff cited "[h]igh blood pressure, heart failure, high cholesterol, [and] pain all over body" as disabling conditions on a Disability Report.*fn1 (Tr. 143.) On September 17, 2007, both of plaintiff's applications for benefits were denied. (Id. at 12, 68.) Plaintiff requested and was granted a hearing before an administrative law judge ("ALJ"). (Id. at 12, 76-77.)

On June 24, 2009, plaintiff appeared with his attorney, Marc Strauss, Esq., before ALJ Gal Lahat. (Id. at 12, 28.) Plaintiff testified at the hearing, and medical expert Dr. Louis Lombardi and vocational expert Andrew Pasternak, testified via post-hearing interrogatory. (Id. at 12, 194-98, 933-37.)

On February 16, 2010, ALJ Lahat found that plaintiff was not disabled pursuant to the five-step sequential evaluation for determining whether an individual is disabled.*fn2 (Id. at 14-17.) Specifically, the ALJ found that plaintiff had the residual functional capacity ("RFC")*fn3 to perform a broad range of sedentary work.*fn4 (Id. at 17.) Consequently, although the ALJ concluded that plaintiff was not able to perform his past relevant work, the ALJ determined that plaintiff could perform jobs that exist in significant numbers in the national economy, considering plaintiff's age, education, employment experience, and RFC. (Id. at 26-27.)

The ALJ's decision became the final decision of the Commissioner on April 25, 2011, when the Appeals Council denied plaintiff's request for review. (Id. at 1-6; Compl. ¶ 8.) Plaintiff filed the instant action on May 17, 2011, challenging the ALJ's decision to deny disability benefits. (See generally Compl.)

II. Non-Medical Facts

Plaintiff was born on March 16, 1966. (Tr. 38, 41.) He was forty years old at the alleged onset of disability (October 20, 2006). (See Compl. ¶ 5.)

Plaintiff completed no schooling beyond eleventh or twelfth grade. (Tr. 41, 148.) From 1991 to 2004, plaintiff worked for a gunsmith, buffing and polishing guns. (Id. at 42, 144.) He also worked as a cashier and a forklift operator during an unknown time period. (Id. at 42.)

Plaintiff last worked as a delivery truck driver for twelve to eighteen months, ending in October 2006, the alleged onset of his disability. (Id. at 41-42, 144.) The reason for plaintiff's departure from his employment is unclear, as his testimony on this subject has been inconsistent. Plaintiff alternately testified that he: (1) "originally left [his] job because [he] had an [automobile] accident" (id. at 55); (2) "was fired due to [his] disability" and calling in sick "to[o] many times" (id. at 143); and (3) stopped working in October 2006 due to a "sharp pain . . . under [his] heart, . . . [that] took [him] off of work for a couple of days" before he had surgery*fn5 (id. at 43). It appears that plaintiff stopped working after he suffered acute injuries, including back pain, from a work-related automobile accident.*fn6 (Id. at 231-32, 881, 887.)

In October 2007, and from October 8, 2008, to June 2009, plaintiff was incarcerated at Rikers Island Prison ("Rikers") for heroin possession with intent to sell. (Id. at 47, 51-52, 131, 436.) Plaintiff testified that he used heroin "three times a day" for "about two years" until his incarceration on October 8, 2008. (Id. at 52, 131.) He entered a drug rehabilitation program while incarcerated and has continued to struggle with drug addiction. (Id. at 53, 364 (noting that plaintiff was abusing "cocaine, heroin, [and] alcohol").)

Plaintiff currently resides in his mother's basement. (Id. at 50.) When he leaves home, plaintiff reports that he walks, uses public transportation, or rides in a car, but he does not drive. (Id. at 157.) Although plaintiff shops for groceries with his mother, he does not perform household chores. (Id. at 50.) Plaintiff testified that he cannot do household chores because if he did, "[he]'d be going up and down steps a lot" and would experience "shortness of breath and probably get dizzy." (Id.) Conversely, examining consultant Dr. Wahl reported that "[w]ith the cooking, cleaning, and laundry, when there is heavy lifting, [plaintiff] needs help; otherwise he can do it by himself." (Id. at 282.)

With regard to his daily activities, plaintiff sits, watches television, listens to the radio, reads, eats, and socializes. (Id. at 46, 282.) He also reports that he lies down for about three or four hours each day to relieve dizziness, lightheadedness, and chest pain. (Id. at 47.) Plaintiff is able to shower, bathe, and dress by himself. (Id. at 156, 282.)

III. Medical Facts

A.Plaintiff's Medical History Prior to Alleged Onset Date of October 20, 2006 Plaintiff's medical history prior to the alleged onset date, October 20, 2006, reflects only pre-existing hypertension. (Tr. 887.) Prior to October 20, 2006, however, plaintiff did not take medication for this or any other condition. (Id. at 888.)

B.Plaintiff's Testimony Regarding Symptomatic Limitations At plaintiff's June 24, 2009 hearing before ALJ Lahat, plaintiff testified that he suffers from shortness of breath, back pain, chest pain, and tingling or numbness in his extremities. (Tr. 43-45, 54.) Plaintiff also reported that he can sit for approximately two hours, but "sometimes [his] legs will get numb," requiring him to stretch or walk around. (Id. at 46.) Plaintiff further stated that he is able to walk for thirty minutes before stopping to catch his breath. (Id.) In addition, plaintiff testified that he can stand for approximately one hour, although he sometimes experiences lightheadedness or dizziness thereafter. (Id.) Plaintiff expressed his belief that he can lift and carry about ten or twenty pounds, but back pain limits his ability to bend. (Id. at 50, 57.) Plaintiff also testified that his medications occasionally make him feel "jittery," and on occasion, he continues to experience symptoms of depression. (Id. at 50, 54.)

C.Treating Sources for Plaintiff's Physical Impairment

On October 27, 2006, plaintiff was involved in a work-related automobile accident. (See Tr. 887.) The next day, plaintiff went to Jamaica Hospital Medical Center (JHMC) complaining of back pain arising from the car accident. (See id. at 231-32, 887.) Cervical spine x-rays at JHMC revealed that plaintiff suffered mild degenerative disc disease limited to C5 and C6. (Id. at 231.) The x-rays also showed a normal chest with a heart "normal in size and configuration." (Id. at 232.) 1.Arkadiy Shusterman, D.O., Internist (October 2006 -- September 2008)

Four days after the car accident, Dr. Arkadiy Shusterman, an internist, examined plaintiff, who complained of dizziness, neck pain and stiffness, mid/lower back pain, lower back stiffness, and anterior chest wall pain/soreness. (See Tr. 887-90.) Dr. Shusterman recorded clinical findings typical of someone recently injured in a car accident. (Id.)

Specifically, Dr. Shusterman observed that plaintiff exhibited a limping gait and a tender anterior chest wall. (Id. at 888.) The cervical and lumbosacral spine had muscle spasms, trigger points, decreased range of motion, and tenderness; and the thoracic spine had muscle spasms with trigger points. (Id. at 889.) In plaintiff's upper and lower extremities, range of motion was normal, motor strength was somewhat limited (4/5), and deep tendon reflexes were normal, except for deficits in the brachialis and right patellar reflexes.*fn7 (Id. at 888-89.) Sensation was diminished bilaterally along the skin supplied by spinal nerves from C5 and L5. (Id. at 888.)

As a result of his findings, Dr. Shusterman diagnosed: blunt trauma to head, anterior chest wall contusion, acute strain/sprain of the cervical and lumbosacral spine, and muscle spasm along the thoracic (T1-T7) spinal column. (Id. at 889.) Dr. Shusterman also ruled out intervertebral disc displacement and cervical and lumbosacral radiculopathy.*fn8 (Id.) In concluding his report, Dr. Shusterman described plaintiff as "totally disabled" and recommended physical therapy ("PT"). (Id. at 889-90.)

Dr. Shusterman continued to see plaintiff every four to six weeks from October 2006 until September 2008. (See id. at 887-926.) During each visit, Dr. Shusterman reported very similar findings and made seemingly routine recommendations. (See id.) Specifically, Dr. Shusterman often noted that plaintiff reported mild improvement and compliance with PT, but still complained of neck and back pain. (See id.) Dr. Shusterman also recorded spasms or tenderness along plaintiff's spine and decreased range of motion in the cervical and lumbosacral spines, sometimes quantifying the degree. (See id.; see also, e.g., id. at 872.) Plaintiff's motor strength was often full (5/5) throughout plaintiff's body, but sometimes limited (4/5) in one or more extremity. (See id. at 887-926.)

In addition, Dr. Shusterman sometimes noted that plaintiff's straight leg raising was limited, usually at a 50-degree angle. (See id.)

Dr. Shusterman concluded each treatment report with the following recommendations: "[c]ontinue PT 3 times per week and upgrade appropriately" and "[f]ollow-up appointment in 4 weeks." (Id.) In many of the reports, he described plaintiff as "[t]otally disabled." (See, e.g., id. at 916.) At Dr. Shusterman's direction, plaintiff attended PT intermittently until September 2008. (See id. at 928-32.) Plaintiff's physical therapist reported that plaintiff typically had a "good" response to PT. (Id.)

2.Marc Rosenblatt, D.O., Rehabilitation (November 2006)

On November 15, 2006, Dr. Marc Rosenblatt, a specialist in rehabilitation medicine, examined plaintiff regarding plaintiff's complaints of neck and back pain. (Tr. 871-73.) At the time, plaintiff was taking ibuprofen, muscle relaxants, and anti-hypertensives. (Id. at 872.)

Dr. Rosenblatt observed that sensation was generally intact and motor strength was full (5/5) throughout plaintiff's body. (Id. at 872.) Deep tendon reflexes were normal and symmetric. (Id.) Limitations in straight leg raising and in the cervical and lumbosacral spine range of motion were noted.

(Id.) Like Dr. Shusterman, Dr. Rosenblatt ruled out cervical and lumbar radiculopathy. (Id. at 872-73; see id. at 889.) Dr. Rosenblatt recommended rehabilitation, MRI, and electrodiagnostic studies. (Id. at 872-73.)

3.Mark Shapiro, M.D., Radiologist (January 2007)

Dr. Mark Shapiro, a radiologist, examined plaintiff on January 8, 2007, and performed MRIs. (Tr. 875-76.) A cervical spine MRI revealed focal central herniations at C5-C6 and C6-C7 with no bulge, spinal stenosis, or foraminal encroachment. (Id. at 876.) Likewise, a lumbar spine MRI revealed a central disc herniation at L5-S1 with no bulge, spinal stenosis, or foraminal impingement.*fn9 (Id. at 875.)

4.Marc Rosenblatt, D.O., Rehabilitation (January 2007)

On January 31, 2007, Dr. Rosenblatt's comprehensive electrodiagnostic studies (to test nerve conduction and electromyography) of plaintiff's major nerves, extremities, and cervical and lumbosacral paraspinal (adjacent to the spine) musculature were all within normal limits. (Tr. 878-79.) The studies did not reveal evidence of nerve damage. (Id. at 879.)

5.Jonathan Wahl, M.D., Internist (August 2007)

In August 2007, internist Dr. Wahl's consultative examination of plaintiff revealed normal clinical findings without physical limitations in movement, spinal range of motion, or straight leg raising. (Tr. 283; see infra Part III.F.2.) Plaintiff's motor strength was full (5/5), deep tendon reflexes were equal, and there were no sensory deficits. (Id.)

6.Elmhurst Hospital: Hospitalization for Pneumonia (October 2007)

On October 2, 2007, while hospitalized for pneumonia, plaintiff exhibited full range of motion, normal neurological function, and no back, neck, or limb pain. (Tr. 426-44.)

7.Grace Chow, M.D., Internist (May and July 2008)

On May 29, 2008, internist Dr. Grace Chow conducted a neurological examination of plaintiff that revealed normal sensation, normal motor function, and equal deep tendon reflexes. (Tr. 1257-58.) Dr. Chow prescribed a Lidocaine patch for plaintiff's shoulder pain. (Id. at 1258.) During plaintiff's follow-up visit on July 10, 2008, plaintiff indicated to Dr. Chow that the Lidocaine patch resolved his shoulder pain. (Id. at 1251.)

8.Medical Examinations Conducted During Plaintiff's Incarceration at Rikers (October 8, 2008 -- June 8, 2009)

Medical examinations conducted during plaintiff's incarceration at Rikers generally revealed no clinical findings or medical imaging results to support plaintiff's occasional complaint of back pain, and following each medical examination, plaintiff received conservative treatment. (See Tr. 303, 309, 321, 381-84.) Specifically, plaintiff's medical examinations revealed the following:

* On October 10, 2008, plaintiff's intake physical revealed normal motor strength, sensation, reflexes, and gait, and no neurological deficits. (Id. at 381-84.)

* Similarly, on October 21, 2008, plaintiff had full range of motion in his neck and extremities, and a neurological exam revealed no deficits. (Id. at 303.)

* On October 24, 2008, a lumbosacral x-ray was negative, revealing no notable abnormality. (Id. at 309.)

* On November 18, 2008, P.A. Nance and Dr. Desroches diagnosed stable chronic low back pain and prescribed Naprosyn (anti-inflammatory) and Robaxin (muscle relaxant). (Id. at 322.) During a separate follow-up exam conducted the same day, plaintiff had full range of motion, non-tender extremities, and some tenderness in the lumbosacral region. (Id. at 321.)

* On January 2, 2009, plaintiff complained of chest and lower back pain and shortness of breath after excessive exercise. (See id. at 340, 343.) He was transported from Rikers to Elmhurst Hospital, and then to Bellevue Hospital for treatment. (Id. at 452, 463.) Clinical testing revealed that plaintiff had acute rhabdomyolysis, the breakdown and release of muscle fibers into the bloodstream. (See id. at 329, 332.) Drs. Stephanie Wang and Edra Stern determined that rigorous exercise, heavy weightlifting, and overexertion prior to onset of chest or back pain caused plaintiff's episode of rhabdomyolysis. (See id. at 330, 520, 561, 564, 565-67, 572.) Aggressive fluid hydration stabilized plaintiff (id. at 520), and he returned to Rikers on January 8, 2009. (Id. at 329.)

* On March 5, 2009, plaintiff's last medical visit for back pain during incarceration, plaintiff experienced tightness in the muscle surrounding the thoracolumbar spine. (Id. at 368.) Plaintiff's straight leg raising was not limited. (Id.) The orthopedist noted a history of lower back pain and sciatica (pain or numbness in the leg due to injury or compromise of the sciatic nerve) and recommended that plaintiff begin PT, which plaintiff attended only once on March 11, 2009. (Id.; see id. at 423.)

9.Medical Examinations Conducted After Plaintiff's Incarceration (June 2009 -- October 2009)

At the hearing before ALJ Lahat on June 24, 2009, plaintiff reported that he was seeing a chiropractor and taking ibuprofen twice a week for back pain. (Tr. 56-57.)

On July 30 and September 22, 2009, Dr. Chow examined plaintiff regarding his complaints of neck and back pain. (Id. at 1240-44.) Dr. Chow did not record any positive clinical findings (id. at 1240-44), but prescribed Flexeril and Roaxin in accordance with plaintiff's request for muscle relaxants. (Id. at 1240, 1244.) Dr. Chow scheduled pain management, which she cancelled when plaintiff reported that the pain resolved with medication. (Id. at 1238, 1240.)

On October 12, 2009, an x-ray revealed normal radiographs of the chest with only "mild degenerative changes of the ...

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