Clark v. Astrue

Filing 18

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 2/15/2012. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

)

RICHARD CLARK,

)

)

Plaintiff,

)

v.
MICHAEL ASTRUE, Commissioner,
Social Security Administration,
Defendant.

) Civ. No. 10-492-SLR
)
)
)
)
)

John S. Grady, Esquire of Grady & Hampton, LLC, Dover, Delaware. Counsel for
Plaintiff.
Charles M. Oberly Ill, Esquire, United States Attorney, District of Delaware, and Dina
White Griffin, Esquire, Special Assistant United States Attorney, District of Delaware,
Counsel for Defendant. Of Counsel: Eric P. Kressman, Esquire, Regional Chief
Counsel, and Kimberly Varillo, Assistant Regional Counsel of the Office of General
Counsel, Philadelphia, Pennsylvania.

MEMORANDUM OPINION

Dated: February 15, 2012
Wilmington, Delaware

RJ.ttiN,
I. INTRODUCTION
Richard Clark ("plaintiff') appeals from a decision of Michael J. Astrue, the
Commissioner of Social Security ("defendant"), denying his application for disability
insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401433. Plaintiff has filed a motion for summary judgment asking the court to award DIB.
(D.I. 13) Defendant has filed a cross-motion for summary judgment, requesting the
court to affirm his decision and enter judgment in his favor. (D.I. 15) The court has
jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). 1

II. BACKGROUND
A. Procedural History

Plaintiff applied for DIB on August 19, 2005 alleging disability beginning August
5, 2003 due to a car accident in 2003 and problems with his back, hip and knees. (D.I.
12 at 73) Plaintiff was 44 years old on the onset date of his alleged disabilities. (!d. at
9, 28) Plaintiffs initial application was denied on February 23, 2006 and upon his
request for reconsideration on April 16, 2007. (/d. at 14) Plaintiff requested a hearing,
which took place before an administrative law judge ("ALJ") on August 12, 2008. (/d.)

1

Under§ 405(g),

[a]ny individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party ... may obtain a
review of such decision by a civil action commenced within sixty days after
the mailing to him of notice of such decision .... Such action shall be
brought in the district court of the United States for the judicial district in
which the plaintiff resides ....
42 U.S.C. § 405(g).

After hearing testimony from plaintiff and a vocational expert (''VE"), the ALJ decided on
September 19, 2008 that plaintiff is not disabled within the meaning of the Social
Security Act, specifically, that plaintiff can perform other work that exists in the national
economy. (!d. at 29) Plaintiff's subsequent request for review by the Appeals Council
was denied. (!d. at 11) On June 8, 2010, plaintiff brought the current action for review
of the final decision denying plaintiff 018. (0.1. 1)

B. Plaintiff's Non-Medical History
Plaintiff was born August 10, 1958 and is currently 53 years old. He has a high
school education and past work experience as an auto body mechanic and a tile
installer. (0.1. 12 at 28) He lives with his fiancee and son, who was 19 years old at the
time of the hearing. (!d. at 43)
Plaintiff has suffered several injuries, which will be discussed in further detail in
the context of his medical history, infra. He was involved in an auto accident (as an
unrestrained passenger) in a head-on collision on August 5, 2003, where he sustained
a fractured left acetabulum, as well as bruising and scraping. (/d. at 17) This accident
marks plaintiff's onset of alleged disability. Thereafter, on February 27, 2004, plaintiff
sustained a crushed wrist injury to his left wrist. (/d.) Plaintiff's last insured date for
purposes of DIB eligibility was December 31, 2005. (/d. at 25) On February 26, 2006,
plaintiff was a restrained passenger in a motor vehicle rollover accident, wherein he
sustained multiple spinal fractures. (/d. at 19) Plaintiff has not worked since the 2003
accident due to pain. (/d. at 35)

C. Medical Evidence

2

On July 18,2003, Dr. Jay Fried, M.D. of the Center for Neurology MRI P.A.
conducted a physical examination of plaintiff. At that time, Dr. Fried noted that plaintiff
has had back problems since 1996, as well as leg pain, and that he had not worked for
over a year. (D.I. 12 at 227) Plaintiff was taking Percocet, Soma, Flexeril and Motrin
which helped "somewhat." (/d.) Dr. Fried assessed lumbar radiculopathy, refilled
plaintiff's prescriptions for Soma and Percocet, and "[d]iscussed the use of narcotics
and his functioning at home." (/d.)
Plaintiff was admitted to Beebe Medical Center on August 5, 2003, following a
significant motor vehicle accident wherein plaintiff was an unrestrained passenger in a
pickup truck that was hit head-on by a tractor trailer. 2 (!d. at 17, 217, 225) No injuries
to plaintiff's neck or chest were detected, however, plaintiff sustained a significant injury
to his left hip (fracture of the acetabulum) which required surgery. (/d. at 221-23, 225)
The surgeon noted that plaintiffs sciatic nerve was "injured under direct visualization
with eccymosis[3 ] but there was no evidence of sciatic nerve dysfunction either
preoperatively or postoperatively, except for a previous sciatica that he had from a bad
disc." (/d. at 226) Plaintiff was discharged on August 8, 2003, with Dr. David Sopa,
D.O. noting that he had achieved excellent x-rays, and that plaintiff was able to stand
and walk shortly after surgery (with ambulatory assistance). (/d. at 215)
On September 2, 2003, plaintiff presented to Beebe Medical Center with low
back and hip pain (at a claimed "1 0/1 0" level). (!d. at 202) The emergency room record

2

The accident was a fatal one; plaintiff's boss, the truck's driver, was killed next
to him. (D. I. 12 at 35, 215)
3

Tissue injury, such as bruising.

3

indicates that plaintiff stated that he had recently ran out of pain medication. (!d. at
200) Plaintiff was deemed to be in only "mild" distress on physical examination by the
physician and had a painless range of motion for his back. (/d. at 202) Plaintiff was
discharged to Dr. Fried. (/d. at 201)
The next day, Dr. Fried noted that plaintiff continued to have severe hip pain and
that he was taking more Percocet and also methadone, that plaintiff was out of
medication, and that the emergency room did not help him much. (/d. at 228) Dr. Fried
"[d]iscussed the need to contact [him] about increased use of the narcotics," increased
plaintiff's methadone prescription, and ordered a hip x-ray to make sure it was still in
place. (/d.)
Dr. Fried examined plaintiff on September 10, 2003, where he noted that plaintiff
had continued hip pain and more numbness in his buttock since the accident. (/d. at
229) Dr. Fried noted some pain upon physical examination, tenderness, and
decreased sensation over his left anterior leg and dorsal foot, whereupon he assessed
"[p]ossible nerve injury [which] could be sciatic neuropathy." (/d.) Dr. Fried noted that
plaintiff saw Dr. Damouri who put him on Lexapro and trazodone at night, and that
plaintiff "forgets a lot of things he has read about." (/d.) Dr. Fried refilled plaintiff's pain
medications, stopped Soma, continued Lexapro and Flexaril, and discussed getting an
EMG with plaintiff. He also noted that plaintiff "[a]greed with seeing a psychologist,"
which "might be useful [for] dealing with multiple issues." (/d.)
On September 26, 2009, Dr. Fried examined plaintiff who reported left hip pain,
as well as left leg and foot pain. (/d. at 231) Plaintiff reported that his pain "has been a

4

lot worse recently with a history of lumbar surgery." (/d.) Plaintiff "fe[lt] that the pain
from the hip fracture is improving," and had stopped the Lexapro due to hives. (/d.) Dr.
Fried noted that plaintiff was feeling "anxious" and was "worried about getting a
paycheck again," as he was having financial troubles. (/d.) Dr. Fried assessed "[s]ciatic
neuropathy versus lumbar radiculopathy," refilled plaintiff's pain medications,
recommended a MRI and an EMG, and discussed a change in plaintiff's
antidepressant. (/d.) He also discussed with plaintiff the fact that he had not been
compensated for the car accident and suggested that plaintiff "could talk to his lawyer
about trying to get a check earlier" as Dr. Fried "[s]uspect[ed] that this [was] increasing
the stress." (/d.)
On October 15, 2003, Dr. Fried noted that an EMG of plaintiff's lower left
extremity "showed spontaneous activities in the sciatic nerve distribution, especially in
the peroneal nerve distribution[.]" (/d. at 237) Nerve conduction studies of the lower
extremeties were normal. (/d.) Plaintiff reported numbness in the left leg, as well as
burning, which he stated had been occurring ever since the accident. (/d.) Plaintiff lost
20 pounds since the accident and was having trouble sleeping. (/d.) Dr. Fried noted a
"5/5 strength" in plaintiff's lower left extremity upon examination, and refilled plaintiff's
pain medication, as well as trazodone for sleep. He stated that plaintiff "has a good
prognosis for recovery of motor strength" and that plaintiff "is in fairly good strength at
this point and [has] preserved nerve conduction velocities." (/d.) Dr. Fried also noted
that plaintiff was expecting forthcoming disability compensation. (/d.)
On November 12, 2003, Dr. Fried treated plaintiff for left leg pain, at which time

5

he noted plaintiff's frustration with not being back to his original functional level. (/d. at
239) Dr. Fried refilled plaintiff's pain medications and discussed with plaintiff going to
physical therapy for conditioning. (!d.)
On December 5, 2003, Dr. Fried noted that plaintiff was still having lower back
pain, which was "the same pain since 1998," but that "[s]ince his last accident, it has
been a lot worse." (/d. at 240) He noted that plaintiff has been taking extra doses of
methadone, was not sleeping well and is almost out of medications. (/d.) Dr. Fried
increased plaintiff's methadone, prescribed Remeron for sleep, but decreased Percocet
and noted that he wanted to try to get plaintiff off Percocet in the future. (/d.) Dr. Fried
also discussed with plaintiff that it would be difficult for him to get back to competitive
work again given his problems, including "chronic back pain." (/d.) Shortly thereafter,
on December 17, 2003, Dr. Fried noted that plaintiff's medications were "working well."
(/d.)

On January 14, 2004, Dr. Fried treated plaintiff for back and hip pain, noting that
Dr. Sopa had ordered a MRI of plaintiff's hip. (/d. at 243) He noted that Remeron was
helping with plaintiff's mood. (/d.) Dr. Fried noted that plaintiff "has started to get
around a little bit again, but [is] still quite limited," and commensurately noted that
plaintiff "is starting to get better again." (/d.) He also noted that plaintiff's mother was
very ill. (/d.) Dr. Fried noted very diminished movement of the left hip with pain, and
refilled plaintiff's medications pending results of the MRI. (/d.)
A MRI taken February 6, 2004 revealed "[d]egenerative disc disease, with mild
broad protrusion at L3/4 and L4/5 with marked central disc herniation, seen as

6

extrusion at L5/S1. Associated central lumbar stenosis is present at L5/S1." (!d. at
262) Also on that date, plaintiff was examined by Dr. Fried for back and hip pain. He
reported that plaintiff stopped taking methadone because it was giving him cognitive
problems, which did get "a little bit better" when he stopped. (/d. at 244) Dr. Fried
increased plaintiff's Percocet, noting that plaintiff "has not had much depression" and
still had some decreased movement in his right hip. (/d.) He also prescribed Duragesic
patches for pain. (/d.)

Dr. Fried again noted some pain and tenderness on February

20, 2004, and that plaintiff was "getting around a little bit better." (/d. at 245) Plaintiff
had a "5/5" for strength in his lower right extremity, but had decreased sensation. (/d.)
Dr. Fried noted that "[h]erniated nucleus pulposus [were] seen at multiple levels on
[plaintiff's] back," probably caused by "the L5-S1." (!d.) Dr. Fried discussed surgical
options with Dr. Sopa and refilled plaintiff's pain medications. (!d.)
On February 27, 2004, plaintiff presented to Beebe Medical Center with a
crushed wrist injury. The nurse's intake notes that plaintiff had a washing machine fall
on his left hand the day prior, while the physician's notes indicate that plaintiff's wrist
was crushed between the washer and a wall. (/d. at 192, 194) He reported a "7/1 0"
pain level and was noted to be in "no acute distress." (/d.) After a negative x-ray,
plaintiff was placed in a splint and discharged to Dr. Sopa. (!d. at 192-93)
On March 5, 2004, Dr. Fried treated plaintiff for back pain. Dr. Fried noted that
plaintiff "was lifting a heavy object with a friend the other day and [it] slipped and hit his
left arm," after which he treated with Dr. Sopa. (!d. at 246) Plaintiff utilized Duragesic
patches for pain. (/d.) Dr. Fried noted a positive straight leg raise on the left side,

7

however, decreased sensation. He discussed with plaintiff "finding ways to modify his
activities at home. I would like him to stay active but needs to avoid heavier activities,
which could worsen his problems even further." (/d.) Plaintiff treated again with Dr.
Fried on March 17, 2004, at which time Dr. Fried refilled plaintiff's Percocet and, as
plaintiff had stopped using Duragesic patches, switched plaintiff to OxyContin. (/d.)
On April 7, 2004, Dr. Fried noted that, despite plaintiff's having some pain in his
back and hip and some tenderness in his back, the medicines were working "a little bit
better" and plaintiff "is trying to get around better." (/d. at 248) On May 5, 2004, Dr.
Fried noted that plaintiff was still experiencing back pain and had run out of OxyContin
because he was taking extra doses. (/d. at 249) Plaintiff was scheduled for surgery
with Dr. Sopa and discussed that as well as stresses at home (in caring for his mother)
with Dr. Fried, who noted that an antidepressant might be beneficial depending on
plaintiff's progression. (/d.)
On May 3, 2004, plaintiff was examined by Dr. Fadi Damouni, M.D. to obtain
"[p]reoperative clearance for lumbar disc disease surgery." (/d. at 207) Plaintiff
reported "no chest pain, no shortness of breath, no headache, no palpitations" and
"good exercise tolerance," in that he "walks 2 to 3 miles without any problems." 4 (/d.)
Dr. Damouni also reported that plaintiff "can also climb stairs on an average of 20 to 30
stairs at a time without any problems." (/d.) Plaintiff was using a cane to ambulate due
to pain in his right leg. (/d. at 208) Plaintiff's physical examination was not notable
outside of an elevated blood pressure. (/d. at 208-09) Dr. Damouni included
4

Piaintiff is a lifetime smoker. Dr. Damoudi noted later that plaintiff reported
history of shortness of breath and cough only "on very rare occasion." (D. I. 12 at 208)
8

"depression" in his overall assessment, and stated that he "would recommend
aggressive IV hydration prior to his surgery and good pain control." (!d. at 209)
Plaintiff treated with Dr. Fried on June 2, 2004 for his ongoing physical issues,
and also discussed with Dr. Fried his stress in caring for his mother at home. (!d. at
250) Plaintiff continued on his pain medications, as well as Valium for sleep. (/d.) On
July 2, 2004, Dr. Fried again noted plaintiff's back pain (as well as some tenderness),
and that plaintiff was awaiting surgery. He continued plaintiff's medications. (!d. at
251) A similar visit took place on July 28, 2004, whereafter Dr. Fried also noted that he
"[d]iscussed [with plaintiff] normal activities at home as tolerated." (/d. at 252)
On August 6, 2004, plaintiff treated with Dr. Fried who reported that plaintiff was
experiencing worsening back pain and "was climbing up the ladder to help his friend[.]" 5

(/d. at 253) Dr. Fried noted that plaintiff's radiculopathy was "probably aggravated by
increased activities." (/d.) Dr. Fried discussed increasing plaintiff's OxyContin, but did
not prescribe additional medications in view of the upcoming surgery with Dr. Sopa.

(/d.) The day before surgery, August 18, 2004, Dr. Fried again examined plaintiff,
refilled his medications, and noted that "[t]his motor vehicle accident has increased his
problems significantly relating to the hip fracture and increasing back problems." (!d. at
254)
On August 19, 2004, plaintiff underwent back surgery with Dr. Sopa for
"degenerative disc disease at L5/S1 with foramina! stenosis at L4 and L5." (!d. at 212)

5

Dr. Fried subsequently noted that plaintiff "has not been able to handle those as
well," and it is not clear from the context whether he is referring to handling increasing
back pain, or handling ladders. (D. I. 12 at 253)

9

Specifically, Dr. Sopa performed a "laminectomy[6 ] at L4/5 and L5/S1 with bilateral
foraminotomy[ 7] at L4/5 and L5/S1 application of a posterior oblique spinal cage at
L5/S1; and pedicle screw application at L5/S1." (/d.) On September 9, 2004, Dr. Fried
stated that plaintiff's surgery was healing "pretty well" despite continued pain in his
back, and that plaintiff "is starting to get around a little bit more." (/d. at 255) On
September 23, 2004, Dr. Fried noted as follows:
Mr. Clark is still having some pain in his leg. It has gotten a lot better since the
surgery. He is ready to cut down the OxyContin again. He is helping out his
mother and starting to play a little bit of pool. He gets out with his friends on
occasion.
(/d. at 256) At that time, Dr. Fried decreased plaintiff's OxyContin and refilled his other

medications, and "[d]iscussed gradually getting back to activities for fun and enjoyment
again." (/d.)
On October 15, 2004, Dr. Fried noted that plaintiff's surgery seemed to be
helping, and that plaintiff will need sedentary work if he is going to enter the workplace
upon his legal settlement. (/d. at 257) Dr. Fried noted on November 12, 2004 that
plaintiff's back pain was "slowly getting better" and that plaintiff was trying to assist his
ailing mother. (/d. at 258) On December 10, 2004, Dr. Fried noted that plaintiff's
mother passed away two weeks prior, that plaintiff had to do some traveling, and that
his back pain has been a little worse recently. (!d. at 259) Dr. Fried discussed with
plaintiff "stress and how it can affect pain" and recommended counseling. He also

6

Generally, the removal of a disc fragment, bone spur or other source of nerve
compression.
7

Generally, decompression surgery performed to enlarge the passageway where
a spinal nerve exits the spinal canal.
10

noted that plaintiff planned to seek vocational counseling, and is "pretty limited in what
he can do," as he cannot sit or stand "for too long" or do "much lifting." (/d.) On
December 17, 2004, Dr. Fried noted that plaintiffs medications have not been working
very well, and that plaintiff was going to Philadelphia for vocational counseling. They
discussed "not overdoing it so much and get hiring [sic] some help," as well as getting a
urine drug test. (/d. at 261)
Dr. Fried described plaintiff's stress from personal issues on January 7, 2005,
refilled his pain medications, and ordered a drug screen. 8 (/d. at 263) On January 28,
2005, plaintiff reported knee pain, but that "[t]he pain medications seem to be working
well" and that "he can cut down on the medicines somewhat since he has been doing
better." (/d. at 264) Following plaintiff's urine test results (indicating the presence of
benzodiazepine and narcotics), Dr. Fried discussed "being on probation and following
all of the rules to get out of trouble," 9 and refilled plaintiff's medications. (/d.) On
February 16, 2005, Dr. Fried noted that plaintiff has some pain in his left arm, and has
"had a few bad days," but that "[h]e was instructed to get on with his life again." (/d. at
265) Plaintiff treated with Dr. Fried again on March 16, 2005 for leg pain, and received
pain medications. (/d. at 266) A similar visit occurred on April 13, 2005, during which
Dr. Fried also noted that plaintiff was still trying to settle his legal issues, and was
uncertain what he wants to do in the future. (/d. at 267)

8

Dr. Fried noted that "the patient will need to go to [get it] done at this point in
order to continue to follow [sic] in our office." (D.I. 12 at 263)
9

lt is not clear why plaintiff was counseled in this regard insofar as Valium (a
benzodiezapine) and OxyContin and Percocet (narcotics) were prescribed by Dr. Fried;
the quantities revealed in testing were not discussed in Dr. Fried's note. (D. I. 12 at 264)
11

On May 11, 2005, Dr. Fried noted that plaintiff was experiencing "a lot of pain in
his legs" that had been getting "a little bit worse," and that plaintiff "has been trying to
stay busy at home." (/d.) On June 8, 2005, Dr. Fried again treated plaintiff for leg pain,
and stated that plaintiff asked to increase his OxyContin. (/d. at 269) Dr. Fried noted
that plaintiff was still trying to stay busy at home, and "is still doing some exercising."
(!d.) They discussed getting additional education and learning about computers, and

Dr. Fried increased plaintiff's OxyContin and decreased his Percocet prescription. (/d.)
On July 6, 2005, Dr. Fried noted that plaintiff's "[m]edicines are working a lot better."

(/d. at 270)
On August 3, 2005, Dr. Fried noted again that, while plaintiff still has some back
pain, the medicines seem to be working. (/d. at 271) Dr. Fried discussed
antidepressants with plaintiff on August 31, 2005, as well as "finding activities of
enjoyment again and dealing with family issues." (ld. at 272) On September 28, 2005,
Dr. Fried noted that plaintiff wanted to increase his dosage of medicines, and "is not
doing a whole lot at home." (/d. at 273) They discussed "exercise at home" including
doing "more regular walking," and plaintiff's legal issues ("to try to settle and make him
happy again."). (!d.)
On October 5, 2005, Dr. Sopa noted that plaintiff had continued left leg pain and
mild numbness, but "no evidence of neuropathy despite his drinking or drug habits."
(!d. at 280) Dr. Sopa stated that plaintiff has "true sciatica," but that "[t]he sciatica has

been ameliorated significantly by his surgery, but he still has some mild problems." (/d.)
In sum, plaintiff "had improvement from surgery and worsening after the motor vehicle

12

accident." (/d.)
On October 26, 2005, Dr. Fried examined plaintiff and noted that plaintiff's
medicines seem to be helping, that plaintiff was still seeking to settle his legal issues,
and that they discussed "long-term looking at lighter duty work, administrator type
work." (/d. at 274) On November 16, 2005, Dr. Fried noted that plaintiff was
experiencing stress in dealing with his son, who was having a lot of health and
behavioral problems; they discussed "getting more professional help." (/d. at 275)
Plaintiff remained on his medications during this period. (/d.)
On December 13, 2005, plaintiff completed a "Function Report- Adult" wherein
he reported his daily activities. Therein, plaintiff stated that he feeds and walks his dog
around the yard if the pain allows him to. (/d. at 142) He reported that he wakes up
every 2-4 hours at night, and that dressing, bathing and grooming takes "longer to do
because of pain." (/d.) Plaintiff prepares his own meals, though this also takes longer.
(!d. at 143) He reported being able to do house and yard work, again, "but it takes

longer to do due to back [and] hip pain." (/d.) He drives when his pain permits and can
shop for about an hour, every other week. (/d. at 144) Plaintiff reported being able to
pay bills and handle his finances. (/d.) Under "hobbies and interests," plaintiff listed
"watching tv," "shooting pool" and "dancing." (/d. at 145) While he can watch television
every day (with breaks in sitting due to pain), the latter activities, however, "depend on
[his] pain." (/d.)
Plaintiff also reported at this time that the time he could spend with friends was
dependant on his pain levels, and that he sometimes forgets appointments "due to pain

13

and med[ication]s." (/d.) He occasionally gets moody and does not socialize overall as
much as he did before his conditions. (/d. at 146) With respect to his abilities, plaintiff
reported that he is right-handed, cannot walk "to[o] far," needs 10-15 minute breaks
when walking, and can pay attention for 15-20 minutes. (/d.) He reported "good and
bad days" with stress and a fear of large trucks. (/d.) Plaintiff also noted that he uses a
cane "[w]hen [he is] going to be on [his] legs for any length of time or going to walk
more than [he] needs to." 10 (/d. at 147)
Plaintiff also completed a "pain questionnaire" on December 13, 2005 wherein
he reported that he had lower back and hip pain all of the time, as well as left leg pain.

(/d. at 149) He reported that his medications were not controlling his pain. (/d.)
Plaintiff noted that there were "no side effects" from the medications. (/d.)
On December 21, 2005, Dr. Sopa stated that plaintiff was "doing well at this time;
he says that the back is not giving him much trouble and he is pleased with the way it
came out." (/d. at 279) Additionally, "[t]he acetabulum does not seem to give him much
trouble[.]" (/d.) On February 13, 2006, Dr. Fried noted that plaintiff had recently
enjoyed a vacation to the Carribean, that he was "getting around pretty good," and that
he had cut down on his medications. (!d. at 371)
On February 20, 2006, after plaintiff's date last insured (December 31, 2005),
state agency physician Dr. M. H. Borek examined plaintiff and concluded as follows:
plaintiff can occasionally lift and/or carry 10 pounds; frequently lift and/or carry 5
pounds; stand and/or walk (with normal breaks) for a total of at least 2 hours in an 8-

10

Piaintiff noted that the cane was prescribed in "9/03," but there is no medical
evidence of record corroborating this account. (D.I. 12 at 147)
14

hour workday; and sit (with normal breaks) for a total of at least 2 hours in an 8-hour
workday. (/d. at 282) Plaintiff can not utilize a rope, ladder or scaffolds, but can
occasionally climb a ramp or stairs, balance, stoop, kneel, crouch or crawl. (/d. at 283)
A "limited" manipulative limitation was checked off for "handling (gross manipulation)"
and "fingering (fine manipulation)," without further explanation. (/d. at 284) Dr. Borek
found that plaintiff should avoid concentrated exposure to extreme cold and vibration,
and avoid moderate exposure to hazards (machinery, heights, etc.). (/d. at 285) He
also noted that plaintiff bent forward and to the side when he walked and seemed to be
very uncomfortable when seated for the interview. 11 (/d. at 288) Dr. Borek concluded
that plaintiff is partially credible for his inability to do any work activity, and his maximum
residual functional capacity ("RFC") is for sedentary work. 12 (!d.)
Shortly after Dr. Borek's examination, plaintiff treated with Dr. Fried who
discussed with plaintiff the dangers of narcotics and plaintiff's continuing with "ANA
meetings." (!d. at 377) Two days later, on February 26, 2006, plaintiff was involved in a
rollover motor vehicle accident, whereafter he was evaluated by Christiana Care Health
Services. (/d. at 296) Blood chemistry taken at the hospital revealed a positive result
for opiates and cocaine. (/d. at 300) Plaintiff admitted to the use of alcohol prior to
admittance to the emergency department. (/d. at 312) ACT study of plaintiffs chest
and abdomen revealed "evidence of incidental T4 to T8 spinous process fractures and

11

Piaintiff utilized a cane, which Dr. Borek noted was not mentioned by any
doctors, and thus did not appear to be a medical necessity. (D. I. 12 at 288)
12

0n March 23, 2007 and April 13, 2007, state agency physicians Karen
Sarpolis, M.D. and Henry Scovern, M.D. reviewed and agreed with Dr. Borek's
assessment. (D.I. 12 at 387-90)
15

left-sided L2 transverse process fracture." (/d. at 297) On physical examination,
plaintiff had a motor strength assessment of 5/5 except for 3+ for the iliopsoas muscles,
which Dr. Kennedy Yalmanchili attributed to "pain rather than true deficit." (!d.) Dr.
Yalmanchili requested additional spinal studies to assess plaintiff's injuries. (!d.)
Discharge papers dated February 27, 2006 state that plaintiff's discharge
diagnoses were as follows: (1) acute alcohol intoxication; (2) cocaine positive on
toxicology screen; (3) right 4th through 8th rib fractures and right 8th through 1Oth
posterior rib fractures; (4) left L2 transverse process fracture; and (5) T4 through T8
spinous process fractures. (/d. at 312) The discharge note states that, after
consultation with Dr. Yalmanchili, plaintiff was noncompliant with his spinal precautions,
taking off his collar and sitting upright, and "at times was very verbally abusive to staff
members and was refusing certain treatments and medications." (/d. at 313) After
consultation with Dr. Fried, plaintiff was placed on his prior pain medications with
additional Percocet for breakthrough pain. (/d.) Plaintiff did not comply with doctors'
wishes to be fitted for a TLSO brace and was discharged against medical advice. (!d.)
On June 27, 2006, plaintiff provided a "disability report" to the agency wherein he
reported that he has problems dealing with the pain from his accidents. (!d. at 166)
With respect to his current medications (Diazepam, Napxon, "Ocyccda," OxyContin and
Remeron), plaintiff reported no side effects aside from sleepiness (from Remeron).
(!d. at 168) Plaintiff also reported that it was hard for him to complete everyday tasks

due to pain and the mental stress associated with it. (/d. at 169) He stated that he has
trouble sleeping due to "nightmares and depression" and that he cannot sit or stand for

16

a length of time. (!d. at 170)
The record contains several records from Dr. Fried post-dating the February
2006 accident. On August 28, 2006, Dr. Fried noted that plaintiff was still experiencing
back pain, but he "has been really busy with moving into his house and this has made it
harder to handle things," but "[h]e is getting by better." (/d. at 422) Dr. Fried renewed
plaintiff's prescriptions and requested an additional urine drug screening. (!d.) On
September 25, 2006, Dr. Fried noted that plaintiff was still having back pain, that the
medications were helping, and that plaintiff had completed his move and "has been
very happy." Plaintiff's drug screen results were normal. (!d. at 423) On October 24,
2006, Dr. Fried again noted that plaintiff's medicines seem to be helping with his back
pain and that "[h]e is going to start [a] job doing painting and then as a foreman." (!d. at
424) In December, Dr. Fried noted that plaintiff "tried to go back to work, which is a
pretty light duty work. He could not do very well with it." (/d. at 426) In February 2007,
Dr. Fried noted that plaintiff was experiencing back pain and left leg pain, and
occasionally, back cramps lasting about a day, resulting from physical activity. (!d. at
428) They discussed returning to light duty work. (/d.)
The additional 2007 in 2008 records indicate that, while plaintiff still reported
pain, he was doing well with medications. (!d. at 429-43) A disability report completed
by plaintiff on July 25, 2007 indicates that plaintiff had "constipation and itchiness" from
some of his medications (OxyContin, Percocet and Valium) and no side effects from
Prozac. (/d. at 178) Plaintiff also reported at that time severe pain with "cooking and
driving." (!d. at 179)

17

D. Hearing Before the ALJ
1. Plaintiff's testimony
Plaintiff testified at the hearing that he was in a wheelchair following the 2003
surgery for about two to three months, and then used a walker after that. (/d. at 36)
Plaintiff had been treating with Dr. Fried since before the 2003 accident. (/d. at 38) In
2001, plaintiff broke his collarbone and has a plate with screws in his collarbone. (/d. at
39) He testified that his shoulder bothered him "off and on" in 2005, and that surgery
alleviated some of his hip pain. (/d.) Plaintiff's knees were also bothering him in 2005,
from hitting them on the dashboard in the 2003 accident. (/d.) Plaintiff stated that it is
very hard for him to bend down on his knees at all and, if he does, he has difficulty
getting up. (/d. at 40) Plaintiff's typical daily activities in 2005 were as follows. He
would wake up and take his medication, after which he might doze off for a little while.
(!d. at 40-41) He would lay down on the couch for the rest of the morning until
lunchtime, when he would take additional medication, and sleep again. (/d.) He stated
that he could not sit at a job during the working day because he could not sit long
enough and would also fall asleep with the medication. (!d. at 41) Plaintiff testified that
he "very seldom[ly]" socializes or goes out of the house, and is depressed because he
cannot work. (/d. at 42) Plaintiff's fiancee does "a good 99%" of the cleaning and
cooking, and his son does the yardwork. (!d. at 43) Plaintiff testified that he can walk
about a block, and can sit 15 or 20 minutes at a time. (!d. at 47) He denied having
alcohol or drug problems and stated that he did not know where the drugs came from in
his bloodwork. (/d. at 48-49) Finally, plaintiff testified that he could not work at a desk

18

job because looking down at paperwork for any length of time would bother his neck,
and that he cannot drive very far without taking a break. (!d. at 50)

2. Fiancee's testimony
Plaintiff's fiancee, Patricia Dade, also testified at the hearing. She stated that
plaintiff was "unstable" after the 2003 accident, in that he would toss and turn at night,
have flashbacks, never get a full night's sleep, and get only 1-2 hours of relief from pain
with medications at a time. (/d. at 51) She works as a house cleaner and calls plaintiff
every day in between her cleaning jobs, finding that he is usually sleeping. (!d. at 52)
Ms. Dade confirmed that she does all of the cooking and housework and stated that
plaintiff is uncomfortable in the evenings. (/d. at 53) "For the majority of the time
[plaintiff] stays in a groggy position to where he's not alert 100 percent." (/d.) Plaintiff
would forget how to make out a bill after 24 hours of her instructing him how to do it.
(/d.) Ms. Dade also stated that plaintiff: is always sitting or lying down; gets migrane
headaches 4 times per week; suffers from severe depression; has no self esteem or
social life; and has a life consisting of "watching TV and sleeping." (/d. at 54-55)

3. Son's testimony
Plaintiff's son, Michael, was 19 at the time of the hearing and living at home. He
testified that his father was in a wheelchair for two to three months after the 2003
accident, and that he helped him in and out of bed and the wheelchair and with
cooking, shopping, and other tasks. (/d. at 56) His role did not change after the 2004
accident. (/d. at 57) Plaintiff's son also testified that he takes care of the outside of the
house (yard and pool). His father sleeps and lays down most of the day; there has

19

been no significant difference between 2005 and the present time. (!d. at 57 -58) He
does not believe that his father can work because plaintiff cannot stand or sit for long
periods of time and has bathroom and sleeping problems. (/d. at 58-59)

4. Vocational expert testimony
The hypothetical question that was asked by the ALJ is as follows:
I'd like for you to assume if you would a person who is 44 years of age on his
onset date which he puts at 8/05/03. His date last insured appears to be
12/31/05. He has a twelfth grade education and the past relevant work as just
indicated [body and fender man per the DOT]. .. Suffering from the status post
effects of a motor vehicle accident in [08/03], and he injured his back and [ ] left
hip fracture, some knee problems caused him to have moderate pain and
discomfort, severe on occasion. He had some sciatic problems which was pretty
much rectified in August of '04 by way of operation. All of his conditions are
somewhat relieved by his medication without significant side effects, but he
indicates that he derives some sleepiness from one or a combination. He also
indicated by testimony through witnesses that he has some mild depression,
takes Zoloft. He sees no treatment doctors for that, however. And if I find that
he needs to have simple routine unskilled jobs due to his pain, SVP jobs, low
stress, low concentration, low memory, is able to attend tasks and complete
schedules, however. If I find that he can lift 10 pounds occasionally, lesser
amounts frequently, can sit for 15 or 20 minutes, stand 15 or 20 minutes
consistently on an alternate basis during an 8 hour day, 5 days a week, but
would have to avoid heights and hazardous machinery due to those medications,
avoid temperature and humidity extremes, no prolonged climbing, balancing, or
stooping and by that I mean no more than once or twice an hour, avoid
vibrations, ladders, ropes, stairs, scaffolds, and would be mildly limited as to
push and pull in that right upper extremity due to a previous injury, but would
seem to be able to do sedentary work activities with his limitations. Are there
jobs that would exist out there in the national economy in significant numbers
such a person could do in your opinion as a vocational expert?

(/d. at 61-62) Based on this hypothetical, the VE testified that plaintiff could perform
two light, unskilled jobs: an assembler; and a sedentary (unarmed) security guard. (/d.
at 62) Both jobs would allow plaintiff to sit and stand as the ALJ indicated and exist in
significant numbers in the local and national economies. (/d. at 62-63) The VE agreed

20

that plaintiff would not be able to do any of his past, relevant work. (/d. at 63) On
cross-examination, the VE admitted that it is difficult to place people that are on
narcotics, and that if the ALJ found all of plaintiff's and his witnesses' testimony as to
his limitations entirely credible, there would be no jobs plaintiff could perform. (/d. at
64-65)

Ill. STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are
conclusive, if they are supported by substantial evidence. Accordingly, judicial review of
the ALJ's decision is limited to determining whether "substantial evidence" supports the
decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In
making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence of record. See id. In other words,
even if the reviewing court would have decided the case differently, the ALJ's decision
must be affirmed if it is supported by substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the
evidence, but more than a mere scintilla of evidence. As the United States Supreme
Court has noted, substantial evidence "does not mean a large or significant amount of
evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil
Procedure 56. The inquiry performed is the threshold inquiry of determining whether

21

there is the need for a trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This standard mirrors the standard for a directed verdict under Federal Rule of
Civil Procedure 50( a), "which is that the trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict. If
reasonable minds could differ as to the import of the evidence, however, a verdict
should not be directed." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986) (internal citations omitted). Thus, in the context of judicial review under

§ 405(g), "[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed by other evidence-particularly certain types of
evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence
but mere conclusion." See Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986)
(quoting Kentv. Schweiker, 710 F.2d 110,114 (3d Cir. 1983)). Where, for example,
the countervailing evidence consists primarily of the plaintiff's subjective complaints of
disabling pain, the ALJ "must consider the subjective pain and specify his reasons for
rejecting these claims and support his conclusion with medical evidence in the record."

Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).

IV. DISCUSSION
A. Regulatory Framework

Social Security Administration regulations incorporate a sequential evaluation

22

process for determining whether a claimant is under a disability. 20 C.F.R. § 404.1520.
The ALJ first considers whether the claimant is currently engaged in substantial gainful
activity. If he is not, then the ALJ considers in the second step whether the claimant
has a "severe impairment" that significantly limits his physical or mental ability to
perform basic work activities. If the claimant suffers a severe impairment, the third
inquiry is whether, based on the medical evidence, the impairment meets the criteria of
an impairment listed in the "listing of impairments," 20 C.F.R. pt. 404, subpt. P, app. 1
(1999}, which result in a presumption of disability, or whether the claimant retains the
capacity to work. If the impairment does not meet the criteria for a listed impairment,
then the ALJ assesses in the fourth step whether, despite the severe impairment, the
claimant has the RFC to perform his past work. If the claimant cannot perform his past
work, then step five is to determine whether there is other work in the national economy
that the claimant can perform. Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000)
(citing 20 C.F.R. § 404.1520). If the ALJ finds that a claimant is disabled or not
disabled at any point in the sequence, review does not proceed to the next step. 20
C.F.R. § 404.1520(a). It is within the ALJ's sole discretion to determine whether an
individual is disabled or "unable to work" under the statutory definition. 20 C.F.R. §
404.1527(e)(1 ).
The ALJ is required to evaluate all of the medical findings and other evidence
that supports a physician's statement that an individual is disabled. The opinion of a
treating or primary physician is generally given controlling weight when evaluating the
nature and severity of an individual's impairments. However, no special significance is
given to the source of an opinion on other issues which are reserved to the ALJ, such
23

as the ultimate determination of disablement. 20 C.F.R. §§ 404.1527(e)(2) &
404.1527(e)(3). The ALJ has the discretion to weigh any conflicting evidence in the
case record and make a determination. 20 C.F.R. §§ 404.1527(c)(2).

B. The ALJ's Decision
The ALJ considered the medical evidence of record and testimony received at
the hearing, and concluded that plaintiff retains the capacity for work and is not disabled
as defined by the Social Security Act. The ALJ made the following enumerated
findings.
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2005.
2. The claimant has not engaged in substantial gainful activity since August 5,
2003, the alleged onset date (20 C.F.R. 404.1520(b) and 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc
disease, osteoarthritis, depression, status post left acetabulum fracture, sciatic
neuropathy and lumbar radiculopathy (20 C.F.R. 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 202.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform simple, unskilled, low
concentration, low stress, low memory, sedentary work as defined in 20 C.F.R.
404.1567(a) except that he could lift 10 pounds occasionally, less than 10
pounds frequently, sit for 15 to 20 minutes, stand for 15 to 20 minutes,
consistently on an alternate basis during an 8 hour day, 5 days a week, with no
prolonged climbing, balancing or stooping, mildly limited to push and pull in the
upper right extremity, avoiding exposure to heights and hazardous machinery,
temperature extremes, humidity, vibrations and no climbing of ladders, ropes,
scaffolds and stairs.
6. The claimant is unable to perform any past relevant work (20 C.F.R.
404.1565).
7. The claimant was born on August 10, 1958 and was 44 years old, which is
24

defined as a younger individual age 18-49, on the alleged disability onset date
(20 C.F.R. 404.1563).
8. The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is "not disabiled," whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 C.F.R. 404.1560(c) and 404.1566).
(D.I. 12 at 16-28)

C. Analysis
1. Manipulative limitations
With respect to the medical evidence, plaintiff's primary argument on appeal is
that the ALJ did not properly consider his limitations to his hand and wrist (manipulative
limitations). (D.I. 14 at 14-15) Plaintiff calls out a notation in Dr. Borek's notes, wherein
he references" ... djd w/ non union navicular It wrist. .. ";while Dr. Borek said that the
maximum RFC was for sedentary work, there is no explanation of what this notation
means, or how it played (if at all) into Dr. Borek's conclusion. (D .I. 12 at 288) As noted
above, hospital records indicate that plaintiff sustained a wrist injury in February 2004.

(!d. at 192-94) Plaintiff submitted an affidavit (dated October 6, 2008) to the Appeals
Council that plaintiff was not lifting the washing machine, but was holding a door when
the washing machine his son was helping a friend lift fell and crushed his wrist. 13 (!d. at

13

The ALJ did not have this affidavit, and the wrist injury did not come up at the
hearing. That the ALJ ultimately noted in his opinion that plaintiff was "helping a friend
lift a washing machine" is not of moment, given the lack of evidence regarding plaintiff's
25

191)
Plaintiff acknowledges that the ALJ noted that Dr. Borek checked boxes
indicating that plaintiff was limited in his ability to handle and finger. (!d. at 27) He
argues, however, that the ALJ erred in affording these limitations "little weight as they
are not consistent with the medical record as a whole." (!d.)
According to the guidelines, "[a]ny significant manipulative limitation of an
individual's ability to handle and work with small objects with both hands will result in a
significant erosion of the unskilled sedentary occupational base." S.S.R. 96-9p (July 2,
1996) (emphasis added). Plaintiff points to no record evidence that his manipulative
limitations were "significant," and Dr. Borek only characterized plaintiff's "handling
(gross manipulation)" and "fingering (fine manipulation)" as "limited" (in contrast with
"unlimited"), without further explanation. (D. I. 12 at 284) As defendant points out,
plaintiff did not testify as to wrist pain or dextral or manipulative limitations at the
hearing. Plaintiff did not complain to his treating physicians about problems with
manipulation (or wrist pain). Plaintiff does not call out any evidence omitted by the ALJ
relating his wrist injury to a decrease in functioning, or any impact on daily life activities.
(D.I. 14 at 14-15)

2. Hypothetical question to the VE
Plaintiff next argues that the hypothetical to the ALJ was critically deficient, in
that it failed to acknowledge plaintiff's restrictions to handle and work with small objects
with both hands, and also failed to acknowledge that medications that plaintiff was

manipulative limitations, as discussed infra.
26

using would prevent him from working. (0.1. 14 at 15-16) In view of the scarcity of
medical evidence regarding plaintiff's dextral limitations, 14 the ALJ did not err in omitting
such limitations from the hypothetical question. See Rutherford v. Barnhart, 399 F.3d
546, 554 (3d Cir. 2005) ("We do not require an ALJ to submit to the vocational expert
every impairment alleged by a claimant"; "the ALJ must accurately convey to the
vocational expert all of a claimant's credibly established limitations") (emphasis in
original) (citation omitted).
The record is replete with references to plaintiff's medications for pain, and
plaintiff is correct that the ALJ did not suggest that the medications were inappropriate.
While plaintiff reiterates that he had pre-existing back problems and a very serious
injury in 2003, necessitating surgery in 2004, plaintiff does not cite to evidence of record
that his medications diminished his capacity to do work (or other tasks). (0.1. 14 at 1516) On the contrary, plaintiff consistently reported that he had little (if any) side effects
from his medications. (0.1. 12 at 149, 168, 178); 15 See Bums v. Barnhart, 312 F.3d
113, 130-31 (3d Cir. 2002) (finding the ALJ's decision to discount plaintiff's allegations
of side effects was supported by substantial evidence, where the state agency

14

The court rejects plaintiff's suggestion in his answering/reply paper that an
"obvious" reason there is little in the record concerning the wrist injury is that he was
treating primarily for other injuries, and "[i]f there was nothing that could be done for the
wrist, then it is not surprising that there is nothing found in the record concerning the
wrist." (0.1. 17 at 8) Such a conclusion is both speculative, and inconsistent with the
fact that plaintiff treated for his other injuries far beyond his surgery date (if only to
continue on his maintenance medication).
15

ln addition to this subjective evidence, Dr. Fried also reported on several
occasions that plaintiff was doing well on his medications. (0.1. 12 at 240, 264, 270,
271, 274)
27

physician noted plaintiff did not seem drowsy during his examination, plaintiff did not
seem drowsy at the hearing, and there was "no medical evidence as to any physical
limitations resulting from any side effects from medication").

3. Witness credibility
Finally, plaintiff argues that the ALJ erred in finding plaintiff's testimony, as well
as the testimony of his witnesses, only partially credible. (D.I. 14 at 17-19) Specifically,
the ALJ stated that plaintiff's
statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment for the reasons explained below. The
undersigned credits Ms. Vied's and Mr. Clark's testimony to the extent that their
testimony is consistent with the claimant's residual functional capacity as
assigned. However, in general, the undersigned concludes that their testimony
is not consistent with the claimant's Adult Function Report dated December 13,
2005 or the medical record as a whole. Ms. Vied and Mr. Clark may have been
recalling periods following the claimant's February 2006 accident when he
required pain medication for his fresh injuries. However, their testimony reflects
a more impaired individual that the claimant represented.
(D.I. 12 at 26) Plaintiff points out that his son affirmed on the stand that his testimony
was relevant to the August 2003- December 2005 time period, and that there is no
suggestion that either witness was talking about plaintiff's condition in 2006. (/d. at 56)
As defendant points out, both witnesses generally testified in the present tense.
Even if the ALJ were incorrect in interpreting plaintiff's witnesses' testimony as vague
as to the time periods, "[i]nconsistencies in a claimant's testimony or daily activities
permit an ALJ to conclude that some or all of the claimant's testimony about [his]
limitations or symptoms is less than fully credible," and "allegations of pain and other
subjective symptoms must be supported by objective medical evidence." Salles v.

28

Comm'rof Social Sec., 229 Fed. Appx. 140, 146 (3d Cir. 2007) (citing Burns v.
Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002) and 20 C.F.R. § 404.1529).

Upon review, there are several notable inconsistencies between the witness
testimony and plaintiffs December, 2005 self-assessments, as well as the medical
evidence. Plaintiff testified that the bulk of his days (in 2005) were spent sleeping. (D.I.
12 at 40-41) Ms. Dade testified similarly, adding that plaintiff is mostly groggy and not
fully alert. (/d. at 52-53) Plaintiff's son stated that plaintiff lays down most of the day.
(/d. at 57 -58) Plaintiff's commensurate report, however, indicates that he prepared his

own meals and groomed himself, and that he walked his dog, shopped, played billiards
and danced when his pain was tolerable. (/d. at 142-45)
The medical records also indicate that plaintiff was accomplishing more than was
testified to at the hearing. Dr. Damouni reported in 2004 (prior to surgery) that plaintiff
"walks 2 to 3 miles without any problems," could climb 20-30 stairs without issue, and
that he reported good exercise tolerance. (/d. at 207) Dr. Fried noted that plaintiff had
aggravated his symptoms by participating in "increased activities" (including climbing a
ladder) in August 2004. (/d. at 253) Dr. Fried noted in September 2004 that plaintiff
was helping his mother, playing a little bit of pool, and getting out with friends on
occasion. (/d. at 256) In June 2005, Dr. Fried reported that plaintiff was doing "some
exercising" at home. (/d. at 269) Dr. Sopa reported in December 2005 that plaintiff's
back was not giving him trouble and that he was "doing well" at that time. (/d. at 279)
Plaintiff vacationed in 2006 in the Carribean. (/d. at 371)
Ms. Dade testified that plaintiff had no social life. (/d. at 54-55) Plaintiff himself

29

indicated in 2005 that he continued to socialize with friends, though the time spent
socializing was diminished due to pain. (/d. at 145) Plaintiff specifically reported having
no difficulty in paying bills, handling accounts and the like, which contrasts with Ms.
Dade's testimony that plaintiff could not recall how to make out a bill after she explained
it to him. (/d. at 53, 144) In sum, there was sufficient inconsistency in the record (and
conflicting subjective as well as medical evidence) from which the ALJ could conclude
that plaintiff and his witnesses were not entirely credible with respect to plaintiff's
functional capacity during the disability period.

V. CONCLUSION
For the aforementioned reasons, the court finds that the ALJ's opinion was
supported by substantial evidence of record.

Plaintiff's motion for summary judgment

is denied and defendant's motion for summary judgment is granted. Judgment shall be
entered in favor of defendant. An appropriate order shall issue.

30