Rossi v. Astrue

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge William Connelly on 02/28/2014. (nk, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
____________________________________ 
MICHAEL A. ROSSI
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
)
Defendant.
)
____________________________________)

Civil Action No. WGC-12-3354

MEMORANDUM OPINION

Plaintiff Michael A. Rossi (“Mr. Rossi” or “Plaintiff”) brought this action pursuant to 42
U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying his claims for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act, 42 U.S.C. §§ 401433, 1381-1383f. The parties consented to a referral to a United States Magistrate Judge for all
proceedings and final disposition. See ECF Nos. 5-7.1 Pending and ready for resolution are
Plaintiff’s Motion for Summary Judgment or in the Alternative, Motion for Remand (ECF No.
13) and Defendant’s Motion for Summary Judgment (ECF No. 18). No hearing is deemed
necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Defendant’s
Motion for Summary Judgment will be granted and Plaintiff’s Motion for Summary Judgment
(or in the Alternative, Motion for Remand) will be denied.

1

  The case was subsequently reassigned to the undersigned.   

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1. Background.
On November 9, 20092 Mr. Rossi protectively filed applications for DIB3 and SSI
alleging a disability onset date of May 22, 20084 due to acute intermittent porphyria5, depression,
anxiety, chronic rectal bleeding, chronic pancreatitis, chronic abdominal pain, chronic fatigue,
insomnia, nausea and diarrhea. See R. at 90-94, 103. Mr. Rossi’s applications were denied
initially on March 19, 2010.

R. at 71-75.6

On March 26, 2010 Mr. Rossi requested

reconsideration. R. at 76. On August 4, 2010 the claims were denied again. See R. at 77-80.
On August 12, 2010 Mr. Rossi requested a hearing by an Administrative Law Judge (“ALJ”). R.
at 81-82.
On September 13, 2011 an ALJ convened a hearing. R. at 28-64. Mr. Rossi was
represented by counsel. During the hearing the ALJ obtained testimony from Mr. Rossi and a
vocational expert (“VE”). In the October 28, 2011 decision the ALJ found Mr. Rossi has not
been under a disability, as defined in the Social Security Act, from May 22, 2008 through the
2

    R.  at  12,  121,  206.    The  Application  Summary  for  Disability  Insurance  Benefits  lists  November  10,  2009  as  the 
filing date.  See R. at 90.  Mr. Rossi filed the Application Summary for Supplemental Security Income on December 
11, 2009.  See R. at 92. 

3
 “The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.”  R. 
at 14.  See R. at 95, 122, 187, 206. 

4
 Mr. Rossi declared June 5, 2007 as the date he became unable to work on the Application Summary for Disability 
Insurance Benefits.  R. at 90. 

5
  “Porphyrias are a group of genetic disorders caused by problems with how your body makes a substance called 
heme.  Heme is found throughout the body, especially in your blood and bone marrow, where it carries oxygen. 

      There are two main types of porphyrias.  One affects the skin and the other affects the nervous system.  People 
with the skin type develop blisters, itching, and swelling of their skin when it is exposed to sunlight.  The nervous 
system  type  is  called  acute  porphyria.    Symptoms  include  pain  in  the  chest,  abdomen,  limbs  or  back;  muscle 
numbness,  tingling,  paralysis,  or  cramping;  vomiting;  constipation;  and  personality  changes  or  mental  disorders.  
These systems come and go.” 

MedlinePlus, http://www.nlm.nih.gov/medlineplus/porphyria.html (last visited Feb. 26, 2014). 

6
 The administrative file contains the denial letter for Supplemental Security Income but not the denial letter for 
Disability Insurance Benefits. 

2

date of the decision. R. at 20. On November 11, 2011 Mr. Rossi requested a review of the
hearing decision. R. at 7-8. On September 14, 2012 the Appeals Council denied Mr. Rossi’s
request for review, R. at 1-6, thus making the ALJ’s determination the Commissioner’s final
decision.
2. ALJ’s Decision.
The ALJ evaluated Mr. Rossi’s claims for DIB and SSI using the sequential evaluation
process set forth in 20 C.F.R. '' 404.1520, 416.920.

Mr. Rossi bears the burden of

demonstrating his disability as to the first four steps. At step five the burden shifts to the
Commissioner. If Mr. Rossi’s claims fail at any step of the process, the ALJ does not advance to
the subsequent steps. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At step one the ALJ
found Mr. Rossi has not engaged in substantial gainful activity since May 22, 2008, the alleged
onset date of disability. R. at 14. The ALJ concluded at step two that Mr. Rossi has the
following severe impairments: “gastroenteritis7; headaches; adjustment disorder with depressed
mood; panic attacks; and residuals from prior right patella dislocation[.]” Id. At step three the
ALJ found Mr. Rossi does not have an impairment or combination of impairments which meets
or medically equals a listed impairment. The ALJ specifically considered Listing 1.02A8 for Mr.
Rossi’s residuals from prior right patella dislocation. “Despite recurrent pain in his knee with
walking, the claimant has a normal gait and walks unaided. Therefore, he fails to meet this
listing.” R. at 15.
Regarding Mr. Rossi’s headaches and gastroenteritis, the ALJ noted these conditions are
not listing level impairments based on the medical evidence found in the administrative record.
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    “Gastroenteritis  means  inflammation  of  the  stomach  and  small  and  large  intestines.”    CDC,  Division  of  Viral 
Diseases, http://www.cdc.gov/ncidod/dvrd/revb/gastro/faq.htm (last visited Feb. 26, 2014). 

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 Major dysfunction of a joint(s) (due to any cause).  Paragraph A requires “[i]nvolvement of one major peripheral 
weight‐bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively as defined in 1.00B2b[.]”   

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The ALJ nevertheless would consider limitations imposed by these impairments when
determining Mr. Rossi’s residual functional capacity.
The ALJ next considered Listings 12.049 and 12.0610 regarding Mr. Rossi’s depression
and anxiety. In accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special
technique to evaluate the severity of Mr. Rossi’s depression and anxiety. The four broad
functional areas — (1) activities of daily living; (2) social functioning; (3) concentration,
persistence or pace and (4) episodes of decompensation — are known as the “paragraph B”
criteria for most of the mental disorders listed in Appendix 1. The ALJ determined Mr. Rossi
has moderate restriction in activities of daily living.
The claimant testified that on a good day he is able to perform light
chores around the house such as doing laundry. He is able to
drive. He can take care of his personal needs. For fun, the
claimant watches television, plays video games on an X-Box or
uses his computer (See also Ex. 36F). The claimant does not cook.
The undersigned finds the claimant has moderate restriction in this
area because when he has “bad days” he is unable to perform most
of these activities. It is important to note that the claimant’s
in[]ability to perform these activities at a given time stems from his
physical, and no mental limitations.
R. at 15.
With regard to social functioning, the ALJ found Mr. Rossi has moderate difficulties.
He lives with his mother and brother. The claimant reports that
when he worked he related well with co-workers and supervisors;
and was considered a valued employee. When he is depressed, he
feels worthless and will tend to isolate himself and stay in his
room. He goes out with a friend once a week to get out of the
house. However, consultative physician Dr. Shakuntala Dhir,
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    “Affective  Disorders:  Characterized  by  a  disturbance  of  mood,  accompanied  by  a  full  or  partial  manic  or 
depressive syndrome.  Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves 
either depression or elation.”   20 C.F.R. Pt. 404, Subpt. P, App 1, § 12.04 (2011). 

10
  “Anxiety Related Disorders:  In these disorders anxiety is either the predominant disturbance or it is experienced 
if  the  individual  attempts  to  master  symptoms;  for  example,  confronting  the  dreaded  object  or  situation  in  a 
phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders.”  Id. § 12.06. 

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M.D. opined that the claimant’s ability to interact with others has
been severely affected by his illness.
Id.
As for concentration, persistence or pace, the ALJ determined Mr. Rossi has moderate
difficulties. “Consultative physician Dr. Dhir opined that the claimant’s sustained concentration
and memory during his mental status examination was adequate. However, he occasionally will
have difficulty with concentration and memory due to side effects from medications.” Id.
Fourth, the ALJ found Mr. Rossi has not experienced any episodes of decompensation. Because
Mr. Rossi’s mental impairments do not cause two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation, the “paragraph B” criteria are not
satisfied. The ALJ then proceeded to consider the “paragraph C” criteria. “[T]he evidence fails
to establish the presence of “paragraph C” criteria because the record is devoid of evidence of
episodes of decompensation, potential episodes of decompensation, or the inability to function
outside a highly supportive living arrangement or outside the area of the claimant’s home.” R. at
16.
Having completed the special technique for evaluating Mr. Rossi’s mental impairments,
the ALJ proceeded to determine Mr. Rossi’s residual functional capacity (“RFC”).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) with the ability to lift 20 pounds occasionally and 10
pounds frequently. He can sit, stand and walk six hours total each
in an eight-hour workday. He can occasionally climb ramps and
stairs, but never climb ladders, ropes, and/or scaffolds. He [can]
perform work overhead occasionally with his non-dominant left
upper extremity, otherwise he can frequently reach in all other
directions. He can handle and finger frequently. He is able to
understand, remember, and carry out simple instructions and use
appropriate judgment to make simple work related decisions. He
is able to maintain sufficient attention and concentration to
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perform simple repetitive tasks and adapt to routin[e] changes
which accompany simple unskilled work. He can have occasional
contact with co-workers, peers and the general public, which
would only be incidental to the work performed.
Id.
At step four the ALJ found, in light of the VE’s testimony, the demands of Mr. Rossi’s
past relevant work (an auto body mechanic; a department head [home improvement store]; a
receiving clerk [home improvement store]; a warehouse laborer and a box deliverer) exceed Mr.
Rossi’s RFC. R. at 19. At step five the ALJ considered Mr. Rossi’s age (32 years old on the
alleged disability onset date), his education (high school; able to communicate in English), past
work experience (transferability of job skills is not material to determination of disability) and
his RFC (less than the full range of light work; postural and manipulative limitations; restricted
to simple, routine work). The ALJ found the Social Security Administration met its burden of
proving that Mr. Rossi is capable of performing various other jobs11 that exist in significant
numbers in the national economy, relying on the testimony of the VE.

R. at 20, 59-61.

Accordingly, the ALJ concluded that Mr. Rossi has not been under a disability, as defined by the
Act, from May 22, 2008 through the date of the decision. R. at 20.
3. Standard of Review.
The role of this court on review is to determine whether substantial evidence supports the
Commissioner=s decision and whether the Commissioner applied the correct legal standards. 42
U.S.C. ' 405(g); Pass v. Chater, 65 F.3d at 1202; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Substantial evidence is Asuch relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.@ Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less
11

  A router, a mail clerk (not Post Office), and a printed circuit board installer.  R. at 20, 59‐61. 

6

than a preponderance, of the evidence presented, Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984) (citations omitted), and it must be sufficient to justify a refusal to direct a verdict if the
case were before a jury. Hays, 907 F.2d at 1456. This court cannot try the case de novo or
resolve evidentiary conflicts, but rather must affirm a decision supported by substantial evidence.
Id.
4. Discussion.
At the macro level, Mr. Rossi argues the ALJ erroneously assessed his (Mr. Rossi’s)
RFC. At the micro level, Mr. Rossi identifies multiple instances where the ALJ allegedly
committed error. The court addresses these issues as follows.
A.

Alleged Unsupportable Residual Functional Capacity

Mr. Rossi contends, while the ALJ described in detail the most Mr. Rossi can still do
despite his impairments, i.e., RFC, “there is no discussion whatsoever setting forth any rationale
as to how the evidence supports each conclusion.” ECF No. 13-1 at 6. The court disagrees. Mr.
Rossi’s medical records comprise the vast majority of the administrative record. See R. 227-830.
In reading carefully this voluminous record, the court noted some reports are included two, and
in some instances, three times in the administrative record. The ALJ thoroughly discussed the
evidence of record. With over 500 pages of medical record, it is not surprising that the ALJ did
not summarize or identify every office visit or every visit to the emergency room. It is apparent
from reading the decision what evidence the ALJ considered and why, based on such evidence,
the ALJ determined what Mr. Rossi remains capable of doing. See R. at 17-18.

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B.

Residuals from Prior Right Patella Dislocation

Mr. Rossi contends the ALJ failed to include any limitation related to the severe
impairment of residuals from prior right patella dislocation in assessing his RFC. ECF No. 13-1
at 7. The court disagrees.
As part of the very detailed RFC determination, the ALJ included the following
limitation: “[h]e can occasionally climb ramps and stairs, but never climb ladders, ropes, and/or
scaffolds.” R. at 16. The ALJ summarized the evidence regarding Mr. Rossi’s right knee.
The claimant also alleged disability due to problems with his right
knee. In January 2007, the claimant slipped and fell causing his
kneecap to pop out (Ex. 13F, 31F). The claimant was referred to
an orthopedist because he expressed concern over multiple
kneecap dislocations since he was 14. X-rays of knee revealed
some calcification in the medial patelloformoral ligament.
Otherwise, the claimant’s knee was normal. The orthopedist
recommended that the claimant wear a brace. A year later, the
claimant started using pain patched for his knee with positive
results (Ex. 19F). He walks with a normal gait (Ex. 36F).
R. at 18.
The court finds the ALJ specifically considered Mr. Rossi’s residuals from prior right
patella dislocation in the RFC assessment. The restrictions (occasionally climb ramps and stairs
but never climb ladders, ropes and/or scaffolds) obviously relate to Mr. Rossi’s residuals from
prior right patella dislocation. Those restrictions are not limiting effects from Mr. Rossi’s
gastroenteritis, headaches, adjustment disorder with depressed mood or panic attacks.
C.

Overlooked Neck Condition

Mr. Rossi claims the ALJ failed to address his neck condition in any manner. Mr. Rossi
notes an MRI of his cervical spine taken in August of 2011. The MRI “revealed a bulging disc at
C4-5, with ventral flattening of the thecal sac, a disc protrusion at C5-6, with flattening of the
cervical cord, and a disc bulge at C6-7, with flattening of the cervical cord. (Tr. 805-806).” ECF
8

No. 13-1 at 12-13. The medical evidence further shows Mr. Rossi complained of numbness in
his left thumb and index finger as well as tingling and burning in his triceps. A physical
examination revealed Mr. Rossi’s grip was slightly diminished on the left. Mr. Rossi was
diagnosed with a herniated disc in his cervical spine and with left upper extremity radiculitis. Id.
at 13. Mr. Rossi complains the ALJ failed to consider this evidence and did not evaluate his
neck condition at any step of the sequential evaluation process.
Two sets of medical records, 48F (R. at 797-807) and 49F (R. at 808-20), document Mr.
Rossi’s reporting of issues with his neck and left arm. Initially Mr. Rossi could not identify what
triggered the painful symptoms in his neck and left arm during a June 28, 2011 visit with his
primary care physician’s office. R. at 815. During a subsequent visit on July 6, 2011 Mr. Rossi
recalled falling off a chair at home. R. at 820. When Mr. Rossi consulted Greater Washington
Orthopaedic on July 15, 2011, he reported these ailments surfaced in May of 2011 when he fell
out of a chair. R. at 798.
In his brief Mr. Rossi described the findings of the MRI concerning the severity of his
neck. Mr. Rossi however failed to disclose the impression of the doctor who reviewed the MRI:
“1. Mild degenerative changes. 2. Mild degenerative disk disease noted within the cervical
spine, described in detail in both of report level by level.” R. at 806. Because the radiologist
found mild degenerative changes and mild degenerative disk disease, the court finds the ALJ did
not commit a reversible error by not mentioning the results of this MRI.
Third, Mr. Rossi omits any reference to his primary care physician’s office referring him
to physical therapy to address his neck pain. R. at 814. Further, a medical record from a
subsequent office visit on July 6, 2011 reports,
Neck pain Referred to Physical Therapy, informed patient that
there is nothing further we can do if he does not go. I will not
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prescribe any more pain medication for this problem, suspect
patient may be drug seeking, is not following up with specialists as
he needs to, exam is benign and does not match well with patient’s
story of severe pain.
R. at 819.
The above office note is mentioned in the ALJ’s decision. See R. at 17. Despite Mr.
Rossi’s own doctor questioning the severity of his neck pain, the ALJ did include limiting effects
from the neck pain (and residually related to the left arm) with the following restriction: “[h]e
[can] perform work overhead occasionally with his non-dominant left upper extremity, otherwise
he can frequently reach in all other directions.” R. at 16. The court finds no reversible error by
the ALJ.
D.

Improperly Evaluated Chronic Abdominal Pain

Mr. Rossi argues his voluminous medical records document the severity of his
debilitating chronic abdominal pain. Despite this overwhelming evidence, “the Administrative
Law Judge made no determination regarding the frequency, severity, or duration of the
Plaintiff’s chronic abdominal pain[]” in assessing his RFC. ECF No. 13-1 at 13.
In the decision the ALJ addressed Mr. Rossi’s chronic abdominal pain.
At the hearing, the claimant alleged disability due to
gastroenteritis, a condition that causes him to have episodic
abdominal pain and bloody stools, among other symptoms. The
record supports the claimant’s history of unspecified gastroenteritis
(Ex. 31F, 32F). The claimant has appeared multiple times in
various emergency rooms with complaints of bloody stools and
abdominal pain (Ex. 8F, 9F, 10F, 12F, 36F).
Between 2008 and 2011, the claimant has undergone a series of
blood and urine tests, colonoscopies and endoscopies, and was
even admitted to Johns Hopkins University Hospital for month
long evaluation. However, all tests were normal findings without
evidence of disease (Ex. 8F, 9F, 12F, 18F, 20F, 21F, 22F and,
23F).

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Doctors even thought the claimant had porphyria, a rare hereditary
disorder causing a deficiency of a specific enzyme involved in the
synthesis of heme (a substance important to many body functions)
(Ex. 47F). This condition is known to cause abdominal pain
followed by vomiting and constipation. However, unlike persons
with a severe form of this rare disorder, the claimant’s porphyria
levels were low, indicating that this was not the primary cause of
his abdominal pain and bleeding.
Throughout his treatment history, the claimant was put on a clear
liquid diet and used Dilaudid to manage his pain, yet his
discomfort continued.
In 2008, the claimant was sent to be evaluated by Dr. Daniel
Anderson, M.D. F.A.C.P. (Ex. 20F). Dr. Anderson suggested the
claimant’s chronic stomach problems were likely related to his
narcotic pain medication usage, and recommended that the
claimant come off these medications.
R. at 17.
Dr. Anderson was not the only physician to raise a concern about the possible link
between Mr. Rossi’s abdominal pain and drug addiction. Jude Alexander, MD’s discharge
summary of October 28, 2009 states in pertinent part, “[t]he patient’s abdominal pain is most
likely not due to porphyria and is most likely due to withdrawal from opioids, since he was on
such high doses. The patient, I believe, is suffering from addiction to opioids and he was
counseled on opioid dependence.” R. at 255; see R. at 538. Similarly, following a pain
management consultation on May 27, 2009, Stuart Hough, MD determined “[p]robable
functional abdominal pain/irritable bowel syndrome. This is usually exacerbated by narcotic use
in that, with narcotic withdrawal, patients experienced an increase in cramping and then the
narcotics cause constipation which magnifies pain associated with the dysmotility.” R. at 681,
777. Mr. Rossi even reported to his primary care physician that he was allegedly caught
“palming” his pain medication and was dismissed from the hospital. R. at 335. The court finds

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the ALJ carefully considered the evidence of record. The ALJ properly considered Mr. Rossi’s
chronic abdominal pain in assessing Mr. Rossi’s RFC.
E.

Opinions of Jesse Sadikman, M.D.

Dr. Jesse Sadikman is Mr. Rossi’s primary care physician. On August 28, 2009 Dr.
Sadikman completed a Medical Report Form 402B. R. at 408-10. Dr. Sadikman did not identify
any physical restrictions (sit, stand, walk, climb, bend, squat, reach, or crawl). R. at 409. Dr.
Sadikman opined Mr. Rossi has a medical condition which lasted or can be expected to last at
least 12 months. Dr. Sadikman identified the beginning date as July 1, 2008 to indefinite. R. at
410.

Further Dr. Sadikman opined this condition prevents Mr. Rossi from working.

Dr.

Sadikman elaborated,
Patient has chronic abdominal pain and fatigue. His symptoms are
severe and debilitating. He is in the process of being evaluated for
possible porphyria at JHU [Johns Hopkins University].
Hopefully he will obtain a proper diagnosis and receive
appropriate treatment and will have resolution of his symptoms
and be able to work in the future.
Id.
Mr. Rossi asserts the ALJ (a) failed to weigh this opinion of his treating physician and (b)
failed to accord controlling weight to this opinion. The court finds no reversible error. Whether
Mr. Rossi’s abdominal pain and fatigue are severe and debilitating are matters reserved to the
Commissioner.
Under 20 C.F.R. 404.1527(e) . . . some issues are not medical
issues regarding the nature and severity of an individual’s
impairment(s) but are administrative findings that are dispositive
of a case; i.e., that would direct the determination or decision of
disability. The following are examples of such issues:

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1.
Whether an individual’s impairment(s) meets or is
equivalent in severity to the requirements of any impairment(s) in
the listings;
2.

What an individual’s RFC is;

*
5.

*

*

Whether an individual is “disabled” under the Act.

SSR 96-5p12, 1996 WL 374183, at *2 (Jul. 2, 1996). Moreover, since Dr. Sadikman opined on
matters reserved to the Commissioner, these opinions are not entitled to controlling weight.
“[T]reating source opinions on issues that are reserved to the Commissioner are never entitled to
controlling weight or special significance.” Id.
5. Conclusion.
Substantial evidence supports the decision that Mr. Rossi is not disabled. Accordingly,
Defendant’s Motion for Summary Judgment will be granted and Plaintiff=s Motion for Summary
Judgment (or Alternative Motion for Remand) will be denied.

Date: February 28, 2014

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________________/s/________________
WILLIAM CONNELLY
UNITED STATES MAGISTRATE JUDGE

 Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner 

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