United States District Court, N.D. New York
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Claimant Matthew Baker brought this suit under § 205(g) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Claimant's application for Social Security Disability Insurance benefits. Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying the application for benefits is not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision is supported by substantial evidence and made in accordance with the correct legal standards. The parties have filed their briefs, including the administrative record on appeal, and the matter has been submitted for decision without oral argument. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.
I. PROCEDURAL HISTORY
Claimant filed both an application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits on November 7, 2006, alleging that he has been disabled since January 23, 2006 due to a back condition. Soc. Sec. Admin. Rec., ECF No. 8 ("R."), at 95-99. Claimant's claim for DIB was initially denied on March 19, 2007. Id . at 64-79. On December 9, 2009, Claimant requested a hearing before an Administrative Law Judge ("ALJ"), which was held on January 5, 2009. Id . at 19. The ALJ issued a partially favorable decision on March 3, 2009, finding a closed period of disability from January 23, 2006 to September 30, 2007. Id . at 14-27. On May 1, 2009, the Claimant filed a request for review by the Appeals Council. Id . at 4-10. The Appeals Council denied Claimant's request for review on May 6, 2009, making the ALJ's decision the final decision of the Commissioner. Id . at 1-3.
Thereafter, Claimant filed a Complaint in this Court seeking review of the ALJ's determination that Claimant had made a medical improvement as of October 1, 2007, which was remanded for a new hearing on December 8, 2009. Id . at 402-406. On April 8, 2010, the Appeals Council issued an Order directing that the basis of a finding of medical improvement needed to be specified showing the decrease in the severity of the Claimant's condition and that the ALJ's decision failed to note such a distinction. Id . at 407-11.
On January 26, 2011, a new administrative hearing was held, followed by a third hearing on April 7, 2011. The claimant and a vocational expert testified. Id . at 345-50; 351-83. Following the third hearing, the ALJ made the same administrative decision as the prior administrative decision on June 9, 2011. Id . at 321-44.
The Claimant again filed a request for review by the Appeals Council on July 12, 2011. Id . at 313-20. The Appeals Council again denied Claimant's request for review on September 26, 2012, thereby making the ALJ's second and identical determination the final decision of the Commissioner. Id . at 309-11.
Claimant filed a second complaint in this Court on November 21, 2012, alleging the decision by the Commissioner "is not based on substantial evidence insofar as the Commissioner found a medical improvement as of October 1, 2007" and that "there is not sufficient evidence to support a finding of a medical improvement on or after October 1, 2007 as well as that there was a failure to utilize the services of a vocational expert under the applicable law." Pl.'s Br., ECF No. 11, at 4.
The Claimant is 44 years old and was born on January 27, 1969. R. at 24. He has an eleventh grade education and does not have a high school equivalency diploma. Id . at 32. He has past relevant work as an industrial parts material handler. Id . at 33. The Claimant has a disability arising out of a severe back condition. Id . at 34. He has not engaged in substantial gainful employment since January 23, 2006. Id . at 23.
The Claimant initially underwent an interior lumbar interbody fusion at L5-S1 on February 1, 2006. Id . at 197-98. Eric Seybold, M.D., performed this surgery. Id . at 197. Follow up on February 17, 2006 revealed ongoing low back pain. Id . at 214. While x-rays of the lateral and AP view of the lumbar spine showed good position of the interbody cage as well as the interior plate, the Claimant had ongoing symptomatology as well as hamstring and quadriceps tightness. Id . at 214. On April 28, 2006, it was noted that x-rays at that time were compared to the February 17, 2006 x-rays. Id . at 210. The x-rays of April 28, 2006 revealed that there was some evidence of delayed union and loss of fixation on the fusion interbody cage. Id . at 210. The cage appeared to have subsided approximately 3 to 4 millimeters more as compared to the February 17, 2006 x-rays. Id . at 210. There was not a significant amount of bone growing in the cage. Id . at 210. A further MRI of the lumbar spine was recommended at that point. Id . at 210. Records from June 6, 2006 contain some reference and discussion of Claimant attempting to return to work; however, his condition had worsened by August 18, 2006. Id . at 207, 205. On August 18, 2006, Dr. Seybold determined that he would have a second surgery for posterior stabilization at the L5-S1 with pedicle screws as well as decompression and a Gill procedure. Id . at 205.
The Claimant ultimately underwent a second surgery on September 26, 2007. Id . at 191-93. Despite the subsequent surgery, Claimant's problems with leg symptomatology continued through January of 2007. On July 10, 2007, PT Mansfield performed a Residual Functional Capacity assessment. Id . at 236-51. Specifically, in that RFC assessment, PT Mansfield found the Claimant was not able to return to work at that time. Id . at 236. PT Mansfield found significant spinal scarring appeared, as well as a failed lumber fusion with repeated fusion. Id . at 236-51. Sitting, standing and walking tolerances were limited. Id . at 236-51. The Claimant had difficulty performing the full range of sedentary activities on a frequent basis. Id . at 236-51.
On October 9, 2007, Claimant visited Domingo Jimenez, M.D. Id . at 282. Claimant described his back pain as aching and dull. Id . Dr. Jimenez noted no radiation of Claimant's back pain. Id . Upon physical examination, the Claimant had mild tenderness to the lumbosacral spine, no kyphosis or scoliosis, intact balance and gait, no sensory loss, and no motor weakness. Id . at 284. On October 12, 2007, Claimant visited Dr. Seybold for assistance in completing paperwork. Id . at 281. During the visit, Dr. Seybold noted that Claimant was not taking pain medication for his lumbar spine. Id . He complained of some stiffness, but denied any severe low back or leg pain. Id . Claimant could stand upright, forward flex and extend without pain, and had no evidence of footdrop or neurologic deficit. Id . at 281.
On April 9, 2010, Claimant experienced only mild lumbosacral tenderness and was instructed by Dale Fluegel, F.N.P. to use ice therapy to reduce lumbar spine symptomatology. Id . at 597. On August 10, 2010, Claimant saw Pranab Datta, M.D. Id . at 585-88. Dr. Datta noted Claimant's scar was healed and he experienced no tenderness, spasm, scoliosis, kyphosis, or trigger points; his gait and station were normal; he did not need assistance getting on and off the exam table; was able to rise from the chair without difficulty; and had a full range of motion. Id . at 586-87. ...