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Acevedo v. Colvin

United States District Court, W.D. New York

May 19, 2014

JOSE HECTOR MERINO ACEVEDO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 378

Jose Hector Merino Acevedo, Plaintiff, Pro se, Brockport, NY.

For Commissioner of Social Security, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

Page 379

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

I. INTRODUCTION

Pro se plaintiff Jose Hector Merino Acevedo (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security (" the Commissioner" )[1] denying his application for Social Security Disability benefits (" SSD" ). (Dkt. 1). Presently before the Court is the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 9). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. As a result, judgment is entered in favor of the

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Commissioner and Plaintiff's complaint is dismissed.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Overview

On December 1, 2008, Plaintiff filed an application for SSD, alleging a back injury beginning April 1, 2007. (Transcript of Administrative Record (hereinafter " Tr." ) at 225-30, 249). At the time of the hearing, Plaintiff was 39 years old, had a ninth grade education, and previously worked in construction. (Tr. 56-57, 257-58). Plaintiff is from El Salvador, and at the time of the hearing, Plaintiff had been in the United States for 11 years. (Tr. 56-57). Plaintiff spoke little English. (Tr. 57).

Plaintiff's initial request for SSD was denied on February 6, 2009. (Tr. 105). Plaintiff timely requested a hearing and appeared, without counsel, to testify at the hearing held on April 29, 2010, before Administrative Law Judge (" ALJ" ) Thomas Mercer Ray. (Tr. 7, 47-73).[2] Plaintiff was assisted by a Spanish translator. ( Id.). Vocational expert (" VE" ) Kathleen Sanbeck also testified at the hearing. (Tr. 65-70).

On February 17, 2011, the ALJ issued a decision determining that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 8-22). In making this determination, the ALJ found that " the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 22). The Appeals Council denied review on August 7, 2012, and the ALJ's decision became the final decision of the Commissioner. (Tr. 1-3). Plaintiff then filed this action on October 3, 2012. (Dkt. 1).

B. Non-Medical Evidence

1. Plaintiff's Testimony

Plaintiff testified that he injured his back while working with an air hammer on a construction site. (Tr. 58). He received Workers' Compensation benefits for three years following the incident. (Tr. 58-59). Plaintiff testified that his back pain prevents him from working. (Tr. 59). According to Plaintiff, he experiences permanent pain in his back and has shaking in his legs. (Tr. 58). Plaintiff reported a " pinching" feeling when he bends over, showers, or brushes his teeth. (Tr. 61). He indicated that he has difficulty sleeping, but that over the counter pain medications, such as Advil or Tylenol, relieve the pain. (Tr. 61-62). Additionally, Plaintiff stated that he has diabetes and injects himself with insulin. (Tr. 61). Plaintiff testified that he lives on a first floor apartment with friends. (Tr. 60-61). Plaintiff stated that he is able to cook, clean, drive, dress, and bathe independently. (Tr. 64). Additionally, Plaintiff said that he did not think it would be " impossible" for him to work at a job where he could " sit most of the time for eight hours a day," indicating that " if it were that job, I would try to do it, and I will try to move when I feel bad, when I feel pain." (Tr. 70).

2. Testimony of the Vocational Expert

VE Sanbeck testified that Plaintiffs past relevant work as a construction laborer is considered an unskilled position performed at a very heavy exertional level. (Tr. 66-67). She opined that a hypothetical person with the same age, residual functional capacity (" RPC" ), educational history, and

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vocational profile as Plaintiff could not perform Plaintiffs past relevant work. (Tr. 68). However, the VE identified other jobs existing in the national economy that Plaintiff could perform, including laundry folder, finish inspector, and small product assembler. (Tr. 68-69). The VE noted that adding illiteracy to the hypothetical profile would reduce the potential job openings by approximately ten percent. (Tr. 69-70).

3. Plaintiff's Self-Reported Disability Reports and Functional Capacity Assessments

In one undated Disability Report, Plaintiff stated that he became disabled on April 1, 2007, because of a " Car accident back injury" that led to " . . . difficulty bending, lifting, [and] standing up for long periods of time." (Tr. 249). Plaintiff indicated that he stopped working on his alleged disability onset date because he had difficulty bending, lifting, and standing for long periods of time. ( Id.). Plaintiff also stated that he stopped working because he was laid off after the light duty work that his employer provided for three months was no longer available. ( Id.).

On January 19, 2009, Plaintiff completed a Function Report. (Tr. 265). In this report, Plaintiff indicated that a typical day would begin with a shower and back exercises, followed by studying English, cleaning his room, and taking an early afternoon walk around his neighborhood. ( Id.). Plaintiff stated that he could clean, shave, eat, and generally care for himself, albeit with some back pain. (Tr. 268). Plaintiff claimed that he could not work or play soccer and that everyday tasks would take longer because of his back pain. (Tr. 266). Plaintiff indicated that back pain would wake him up in the night. ( Id ). Plaintiff claimed that he could not lift more than ten pounds, stand for more than 25 minutes, or walk for more than 30 minutes without experiencing pain. (Tr. 270). However, Plaintiff stated that he did walk, use public transportation, drive, shop, and prepare meals. (Tr. 268). Plaintiff indicated that he read, watched sports on television, and listened to music for enjoyment. (Tr. 269).

On January 19, 2009, Plaintiff completed a Pain Questionnaire. (Tr. 274). Plaintiff complained of a stabbing pain in his lower back whenever he bent, knelt down, or tried to pick items up off of the floor. (Tr. 274-75). Plaintiff claimed the pain would last for approximately 10 minutes and go away slowly. (Tr. 274). Plaintiff did indicate that Advil provided pain relief. (Tr. 275).

4. Workers' Compensation Order

On May 23, 2008, Workers' Compensation ALJ Gerald Roberson issued a Compensation Order finding that Plaintiff was entitled to benefits for a " temporary and total disability with a total wage loss" for the period of December 4, 2006, through January 8, 2007 for " differential incurred when [Plaintiff] returned to light duty and payment for loss of wages due to attending medical appointment." (Tr. 220). ALJ Roberson relied on the opinions of insurance physician Dr. Gardiner and the physical therapists from Rehab At Work to find that Plaintiff was self-limiting, and " voluntarily limited his income by failing to accept employment within his physical abilities. . . ." (Tr. 213-14, 220). ALJ Roberson added that Plaintiff testified at his April 10, 2008 workers' compensation hearing that he could perform the duties of a light work assignment. (Tr. 215). Further, ALJ Roberson indicated that Plaintiff briefly returned to light duty work with his employer but was terminated

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due to insubordination. (Tr. 210).[3]

C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On January 30, 2007, Plaintiff started a four-week work hardening program with Rehab at Work after Dr. Mark Scheer, M.D. referred Plaintiff to the program. (Tr. 297, 319). The goal of the treatment was to enable Plaintiff to return to heavy exertional work. (Tr. 321).

Physical therapist Valerie Center performed an initial functional capacity evaluation on January 30, 2007, and found that Plaintiff made a " submax effort" for numerous tasks and was " self-limiting" due to his low back pain. (Tr. 319). Ms. Center opined that Plaintiff was able to meet the physical demands of a light exertional level for an eight hour workday. ( Id.). Because of Plaintiff's self-limiting behavior, Ms. Center noted that Plaintiff's performance was not a valid representation of his true functional capacity. (Tr. 321). She further noted that Plaintiff perceived his abilities as less than sedentary, but was performing within a light physical demand level. (Tr. 320). Ms. Center indicated that Plaintiff had full lumbar flexion, did not show signs of leg trembling, and " demonstrated 10 out of 19 possible findings for Symptom Magnification, which is within the Moderate range and indicates a potential to improve." (Tr. 321). Ms. Center reported that Plaintiff was managing his symptoms with Advil and rest. (Tr. 320).

After his first session with Rehab At Work, physical therapists Angie Teymourian and Carolina Diaz indicated that Plaintiff delivered " submax effort" in performing tasks. (Tr. 317). However, Ms. Teymourian and Ms. Diaz noted that Plaintiff had " potential to improve" in three of the four areas of symptom management and in all three areas of symptom magnification. ( Id.). Further, they noted that Plaintiff " demonstrates qualities necessary for successful placement in gainful employment." (Tr. 318).

Following the first full week of the program, Ms. Teymourian and Ms. Diaz reported that Plaintiff had gained the ability to lift an additional 10 pounds, carry an additional 10 pounds, and lift an additional six pounds over his head. (Tr. 315). The physical therapists noted no musculoskeletal deficits, but opined that Plaintiff was still ...


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