Perry v. Astrue
Filing
14
MEMORANDUM OPINION After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision Is supported by substantial evidence, therefore, by Judgment Order entered this day, the final decision of the Commissioner is Affirmed and this matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 10/20/2011. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
RODNEY PERRY,
Plaintiff,
v.
Case No.: 3:10-cv-01248
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social
Security (hereinafter the “Commissioner”) denying Claimant’s application for a period
of disability and disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 13811383f.1 (Docket No. 2). The case is presently pending before the Court on the parties’
cross motions for judgment on the pleadings as articulated in their briefs. (Docket Nos.
12 and 13). Both parties have consented in writing to a decision by the United States
Magistrate Judge. (Docket Nos. 7 and 8).
The Court has fully considered the evidence and the arguments of counsel. For
the reasons set forth below, the Court finds that the decision of the Commissioner is
supported by substantial evidence and should be affirmed.
Plaintiff’s brief references only DIB. (Pl. Br. at 1). However, the record indicates that Plaintiff filed
applications for SSI and DIB that were previously addressed by the Social Security Administration.
1
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I.
Procedural History
On May 1, 2007, Plaintiff, Rodney Perry (hereinafter “Claimant”) filed the
present Title II application for a period of disability and disability insurance benefits
and a Title XVI application for supplemental security income (hereinafter “SSI”).2 (Tr. at
95–106). Both applications alleged a disability onset date of September 21, 1998. The
Social Security Administration (hereinafter “SSA”) denied both claims on June 15, 2007,
and, upon reconsideration, on August 7, 2007. (Tr. at 54–63). Claimant filed a written
request for an administrative hearing on August 14, 2007. (Tr. at 67–68). Claimant’s
request was granted and a hearing by video conference was held on November 14, 2007.
(Tr. at 18–40). The Honorable Harry C. Taylor, II, Administrative Law Judge
(hereinafter “ALJ) presided over the hearing from Charleston, West Virginia. Claimant,
with counsel, appeared at the hearing by video from Huntington, West Virginia. The
ALJ denied Claimant’s claims by notice and opinion dated February 7, 2008. (Tr. at 5–
17). On February 27, 2008, Claimant petitioned the Appeals Council for a review of the
ALJ’s decision. (Tr. at 4). The ALJ’s decision became the final decision of the
Commissioner on August 28, 2010 when the Appeals Council denied Claimant’s
petition. (Tr. at 1–3). Claimant timely filed the present civil action seeking judicial
review of the administrative decision pursuant to 42 U.S.C. §405(g). (Docket No. 2). The
Commissioner filed an Answer and a Transcript of the Administrative Proceedings, and
both parties filed their Briefs in Support of Judgment on the Pleadings. (Docket Nos. 9–
12). Consequently, the matter is ripe for resolution.
Claimant previously filed an application for DIB on March 15, 2001 alleging a disability onset date of
September 21, 1998. The SSA denied Claimant’s application on April 5, 2001 and on reconsideration on
August 24, 2001. Claimant requested an administrative hearing. The request was granted and the
Administrative Law Judge denied Claimant’s DIB application on March 7, 2002. Claimant subsequently
requested Appeals Council review on March 18, 2002. On April 17, 2002, the Appeals Council denied
Claimant’s request. Claimant did not challenge the Appeals Council’s decision.
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II.
Summary of ALJ’s Decision
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the
burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972). A disability is defined as the “inability to engage in any substantial gainful activity
by reason of any medically determinable impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. 423(d)(1)(A).
The Social Security Regulations establish a five step sequential evaluation process
for the adjudication of disability claims. If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§
404.1520, 416.920. The first step in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If
the claimant is not, then the second step requires a determination of whether the
claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If severe
impairment is present, the third inquiry is whether this impairment meets or equals any
of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations
No. 4. Id. §§ 404.1520(d), 416.920(d). If the impairment does, then the claimant is
found disabled and awarded benefits.
However, if the impairment does not, the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the next
step is to ascertain whether the claimant’s impairments prevent the performance of past
relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the
performance of past relevant work, then the claimant has established a prima facie case
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of disability, and the burden shifts to the Commissioner to prove, as the final step in the
process, that the claimant is able to perform other forms of substantial gainful activity,
when considering the claimant’s remaining physical and mental capacities, age,
education, and prior work experiences. Id. §§ 404.1520(g), 416.920(g); see also McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish
two things: (1) that the claimant, considering his or her age, education, skills, work
experience, and physical shortcomings has the capacity to perform an alternative job,
and (2) that this specific job exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration
(“SSA”) “must follow a special technique at every level in the administrative review.” 20
C.F.R. §§ 404.1520a, 416.920a. First, the SSA evaluates the claimant’s pertinent signs,
symptoms, and laboratory results to determine whether the claimant has a medically
determinable mental impairment. If such impairment exists, the SSA documents its
findings. Second, the SSA rates and documents the degree of functional limitation
resulting from the impairment according to criteria specified in 20 C.F.R. §§
404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from
the claimant’s impairment(s), the SSA determines the severity of the limitation. A rating
of “none” or “mild” in the first three functional areas (activities of daily living, social
functioning, and concentration, persistence or pace) and “none” in the fourth (episodes
of decompensation) will result in a finding that the impairment is not severe unless the
evidence indicates that there is more than minimal limitation in the claimant’s ability to
do basic work activities. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the
claimant’s impairment is deemed severe, the SSA compares the medical findings about
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the severe impairment and the rating and degree and functional limitation to the criteria
of the appropriate listed mental disorder to determine if the severe impairment meets or
is equal to a listed mental disorder. 20 C.F.R. § 404.1520a(d)(2), 416.920a(d)(2).
Finally, if the SSA finds that the claimant has a severe mental impairment, which
neither meets nor equals a listed mental disorder, the SSA assesses the claimant’s
residual function. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
The Regulation
further specifies how the findings and conclusion reached in applying the technique
must be documented at the ALJ and Appeals Council levels as follows:
The decision must show the significant history, including examination and
laboratory findings, the functional limitations that were considered in
reaching a conclusion about the severity of the mental impairment(s). The
decision must include a specific finding as to the degree of limitation in
each functional areas described in paragraph (c) of this section.
20 C.F.R. §§ 404.1520a(e)(2), 416.920a(e)(2).
Here, the ALJ determined at the first step of the sequential evaluation that
Claimant had not engaged in substantial gainful activity since September 21, 1998, the
alleged disability onset date. (Tr. at 10, Finding No. 2). The ALJ acknowledged that
Claimant had worked since the alleged onset date, but found that Claimant’s efforts at
work activity were short-lived and, therefore, constituted unsuccessful work attempts.
(Id.). Turning to the second step of the evaluation, the ALJ determined that Claimant
had the following severe impairments: degenerative disc disease of the lumbar spine,
obesity and sensorineural hearing loss (20 CFR 404.1520 (c)). (Tr. at 11, Finding No. 3).
The ALJ further concluded that Claimant’s peritonsillar abscess,3 fractured thumb,
history of kidney stones, and history of leg burns were nonsevere impairments. (Id.).
Under the third inquiry, the ALJ determined that Claimant did not have an impairment
3
A collection of infected material around the tonsils. www.nih.gov.
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or combination of impairments that met or medically equaled any of the impairments
detailed in the Listing. (Tr. at 12, Finding No. 4). Accordingly, the ALJ assessed
Claimant’s RFC, finding that Claimant had the residual functional capacity to perform
sedentary work with certain postural and environmental limitations. (Tr. at 12–13,
Finding No. 5). The ALJ described Claimant’s limitations as follows:
[Claimant] can occasionally climb, balance, stoop, kneel, crouch or crawl.
Also, he must avoid concentrated exposure to extreme heat, extreme cold,
vibration, respiratory irritants and hazards, such as machinery and
heights.
(Id.).
The ALJ then analyzed Claimant’s past work experience, age, and education in
combination with his RFC to determine his ability to engage in substantial gainful
activity. (Tr. at 22–24, Finding Nos. 6–10). The ALJ considered that (1) Claimant was
unable to perform any past relevant work; (2) he was born in 1962, and at age 36, was
defined as a younger individual age 17–44 at the time of the alleged disability onset date
(20 CFR 416.963); (3) he had a limited education and could communicate in English;
and (4) transferability of job skills was not an issue because Claimant’s past relevant
work was unskilled. (Tr. at 15–16, Finding Nos. 6–9). Using the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 as a framework and considering
the opinion of a vocational expert, the ALJ found that Claimant could make a successful
adjustment to employment positions that existed in significant numbers in the national
economy. (Tr. at 15–16, Finding No. 10). At the sedentary level, the ALJ found that
Claimant could work as a surveillance system monitor, hand packer, and dispatcher.
(Id.) Therefore, the ALJ concluded that Claimant was not disabled and, thus, was not
entitled to benefits. (Tr. at 16, Finding No. 11).
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III.
Scope of Review
The issue before the Court is whether the final decision of the Commissioner is
based upon an appropriate application of the law and is supported by substantial
evidence. In Blalock v. Richardson, the Fourth Circuit Court of Appeals defined
“substantial evidence” to be:
[E]vidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966)). This Court is not charged with conducting a de novo
review of the evidence. Instead, the Court’s function is to scrutinize the totality of the
record and determine whether substantial evidence exists to support the conclusion of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The decision
for the Court to make is “not whether the claimant is disabled, but whether the ALJ’s
finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434
F. 3d 650, 653 (4th Cir. 2005) (citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 2001)).
If substantial evidence exists, then the Court must affirm the decision of the
Commissioner “even should the court disagree with such decision.” Blalock, 483 F.2d at
775. A careful review of the record reveals that the decision of the Commissioner is
based upon an accurate application of the law and is supported by substantial evidence.
IV.
Claimant’s Background
Claimant was 36 years old at the time of the alleged disability onset date, 43 years
old at the time he was last insured for Title II benefits, and 46 years old at the time of his
administrative hearing. Claimant had previous experience working as a glass plant
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laborer. (Tr. at 15). Claimant had limited education and was proficient in English. (Id.).
V.
Relevant Evidence
The undersigned has reviewed the Transcript of Proceedings in its entirety,
including the medical records in evidence, and summarizes below Claimant’s medical
treatment and evaluations to the extent that they are relevant to the issues in dispute.
A.
Treatment Records
Progress notes from an unknown treating source indicate that Claimant suffered
from pain in his lower back and groin area as early as July 27, 1992 when he suffered an
injury at work. (Tr. at 246). On July 31, 1992, Claimant asked for a release so that he
could return to work. (Id.). Claimant next returned for treatment on February 26, 1996
with complaints of back pain. (Id.). Claimant took off work on February 27, 1996 due to
his back pain and was prescribed Vicodin and Lodine4 for the pain. (Id.).
On January 20, 1998, Claimant completed a Worker’s Compensation form,
indicating he injured his back and groin at work on January 13, 1998. (Tr. at 561). On
January 20, 1998, Claimant was evaluated at Huntington Urological Association, Inc. by
William E. Bloch, MD. Claimant stated that he felt as though he pulled his groin at work
and was experiencing pain in his scrotum. (Tr. at 252). Claimant also complained of a
history of chronic lower back pain. (Id.). Dr. Bloch noted that Claimant was taking
hydrocodone to alleviate his pain. (Id.). Claimant was diagnosed with epididymitis5
with prostatitis.
4 Lodine is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis and
rheumatoid arthritis (arthritis caused by swelling of the lining of the joints). www.nih.gov.
Epididymitis is swelling (inflammation) of the epididymis, the tube that connects the testicle with the
vas deferens. Prostatitis is the swelling of the prostate. www.nih.gov.
5
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On September 21, 1998, Claimant was examined by John M. Iaquinto, MD, at
Scott Orthopedic Center for complaints of back and groin pain. (Tr. at 248–49).
Claimant stated that he was at work at Blenko Glass Company when he felt a pop in his
back and immediately started to experience pain in his lower back. (Tr. at 248). Shortly
after the injury, Claimant explained that he began to experience scrotal pain. Claimant
stated that he experienced pain whenever he squatted down, stood up, or sat for long
periods of time. (Id.). Further, Claimant noted that he slept on a regular mattress and
was unable to sleep on his stomach. (Id.). Dr. Iaquinto found that x-rays of Claimant’s
lumbar spine showed normal spinal architecture in alignment with well-maintained disc
spaces. (Id.). Dr. Iaquinto noted that Claimant could not touch the floor with straight
knees but that tension signs were negative other than moderate hamstring tightness.
(Tr. at 249). Claimant was diagnosed with chronic lumbosacral pain with hamstring
tightness. (Id.). Dr. Iaquinto recommended that Claimant continue to work and begin
supervised physical therapy. (Tr. at 249, 560).
Claimant returned to Scott Orthopedic three weeks later on October 12, 1998. Dr.
Iaquinto noted that Claimant’s tightness in his hamstrings had improved. (Tr. at 563).
Claimant was able to bend forward and touch his fingertips to the floor and bend back
and look up at the ceiling. (Id.). Nevertheless, Claimant stated that his pain was
increasing, particularly in his scrotum. (Id.). Dr. Iaquinto explained that it was not
unusual for the pain to persist and that Claimant should continue physical therapy and
his work activities. (Id.). A month later on November 27, 1998, Dr. Iaquinto completed
an Attending Physician’s Report for Claimant’s Worker’s Compensation claim. (Tr. at
562). Dr. Iaquinto diagnosed Claimant with a lumbar pain and described his treatment
plan for Claimant as “conservative.” (Id.). Dr. Iaquinto also referred Claimant to Dr.
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Bloch to evaluate Claimant’s groin pain. (Id.). Ultimately, Dr. Iaquinto concluded that
Claimant was temporarily and totally disabled. (Id.).
On December 8, 1998, Claimant returned to Huntington Urological Association
for treatment concerning his persistent groin pain. (Tr. at 568). Dr. Bloch noted that
Claimant had been waking up at night with pain in his testicles. (Id.). Dr. Bloch
instructed Claimant to continue seeing Dr. Iaquinto and confirmed his earlier diagnosis
of epidiymitis. (Id.). Claimant was prescribed Cipro,6 Indocin,7 and Lortab8 to alleviate
his symptoms. (Id.). Claimant returned to Scott Orthopedic Center on December 21,
1998 for a follow up appointment with Dr. Iaquinto. (Tr. at 567). He reported that his
pain was a ten on a scale of 0-10 prior to taking Cipro but that the Cipro reduced his
pain to a seven. (Id.). Dr. Iaquinto noted that if Claimant’s pain symptoms did not
improve by the New Year that he should be re-evaluated by Dr. Bloch. (Id.). Further, Dr.
Iaquinto recommended that Claimant remain off of work until January 11, 1999, when
his job was scheduled to resume after a holiday break. (Id.). Following this examination,
Dr. Iaquinto submitted another Attending Physician’s Report to the Workers’
Compensation state agency. (Tr. at 566). In that report, Dr. Iaquinto noted that he
diagnosed Claimant with a lumbar sprain and that he was implementing a conservative
treatment plan, including re-evaluation by Dr. Bloch. (Id.). No rehabilitation services
were recommended and January 11, 1999 was set as the date for Claimant’s trial return
to work. (Id.).
6
Ciprofloxacin is used to treat or prevent certain infections caused by bacteria. www.nih.gov.
7
Indocin is used to relieve moderate to severe pain, tenderness, swelling, and stiffness. www.nih.gov.
Lortab is a narcotic analgesic agent under the hydrocodone class used to treat moderate and severe pain.
www.nih.gov.
8
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On January 7, 1999, Dr. Bloch re-evaluated Claimant at Huntington Urological
Association. (Tr. at 251). Dr. Bloch noted that Claimant’s pain had “eased up somewhat”
but that Claimant still experienced intermittent uncomfortable feeling in the testicles.
(Id.). Claimant was diagnosed as suffering from left orchalgia or epididymitis and
instructed to continue to take Cipro. (Id.). Dr. Bloch referred him to a pain clinic to see if
they could perform a nerve block. (Id.). Following his re-evaluation of Claimant, Dr.
Bloch sent an update letter to the Workers’ Compensation agency, seeking authorization
for Claimant’s treatment at the pain clinic at St. Mary’s Hospital. (Tr. at 573).
On February 11, 1999, Claimant visited the Center for Pain Relief at St. Mary’s
Medical Center for a consultation and evaluation with Felix Muniz, MD. (Tr. at 407–
20). Claimant’s chief complaints were bilateral leg pain, bilateral scrotal pain, and lower
back pain. (Tr. at 407). Claimant stated that his pain had gotten progressively worse
over the year since his back was injured and that it was a constant seven to eight on the
numerical pain rating scale. (Id.). Claimant stated that standing exacerbated the pain
but did not note any other postural limitations. (Tr. at 408). Analgesics were found to
decrease Claimant’s pain levels. (Id.). Dr. Muniz noted that Claimant had a good energy
level, good appetite, and did not complain of depression. (Id.). While Claimant was
previously able to sleep eight hours at a time, he stated that he was only able to sleep for
five to six hours a night and would awake in the middle of the night because of pain in
his back and scrotal area. (Id.). Dr. Muniz found no symptoms of lumbar hyperlordosis
but observed some vertebral tenderness. (Tr. at 415). Claimant experienced pain when
attempting to bend forwards or backwards, but otherwise had no range of motion
limitations. (Tr. at 415–16). Claimant was diagnosed with a lumbar sprain or strain. (Tr.
at 418). In his patient history, Claimant indicated that his pain was constant when lying
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down, sitting, driving, bending, standing, walking, and changing positions. (Tr. at 419).
Dr. Muniz completed an Attending Physician Report for the Workers’ Compensation
agency in which he noted Claimant suffered from a lumbar sprain. (Tr. at 574). In his
report, Dr. Muniz concluded that Claimant was temporarily disabled and proposed June
29, 1999 as the trial return to work date for Claimant. (Tr. at 578).
On March 18, 1999, a MRI of Claimant’s lumbar spine was performed at Tri State
MRI. (Id.). Hans Dransfeld, MD, reviewed the results of the MRI and concluded that the
MRI evidenced dessication of the L5-S1 intervertebral disc with a moderate sized disc
bulge at the L5-S1 level. (Tr. at 237). No stenosis of the spinal canal was evident and no
focal lumbar disc herniation was identified. (Id.).
From March to October of 1999, Claimant underwent a series of fluoroscopies9 of
his lumbar spine to ensure the proper placement of hypogastric nerve blocks. (Tr. at
509–24). Dr. Muniz performed the fluoroscopies and concluded that they confirmed his
earlier diagnosis that Claimant suffered from bilateral orchialgia. (Id.). On May 11, 1999,
Dr. Muniz sought permission to prescribe Tylenol #2 to relieve Claimant’s persistent
pain. (Tr. at 580). On June 19, 1999, Dr. Muniz requested authorization for four more
hypograstric nerve blocks. (Tr. at 581).
On July 13, 1999, Claimant was examined at Huntington Urological Association.
(Tr. at 582). Dr. Bloch noted that the spinal blocks were helping as Claimant no longer
was experiencing chronic pain. (Id.). However, Claimant did complain of intermittent
pain. (Id.). Dr. Bloch recommended that Claimant continue treatment with St. Mary’s
Pain Clinic. (Id.).
The dates of Claimant’s fluoroscopies and accompanying operation reports were: March 29, 1999; April
19, 1999; May 3, 1999; May 21, 1999, June 11, 1999; August 23, 1999; September 28, 1999; and October 15,
1999.
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On October 28, 1999, Paula Reale, M.Ed., and Kathryn Davis, an employee of
Blenko Glass, completed an on-site job analysis of Claimant’s position for Vocational
Rehab Services, Inc. (Tr. at 553–55). The results of the analysis indicated that
Claimant’s job required him to stand, walk, and sit in equal parts. (Tr. at 553). The job
required Claimant to stoop, bend, or squat on a “minimal basis” to perform his job
duties. (Id.). Further, the job required Claimant to lift and carry less than 25 pounds
occasionally to perform job duties. (Tr. at 554). The evaluators concluded that
Claimant’s job could not be modified temporarily or permanently but that additional
light duty positions might be available in other departments. (Tr. at 555).
On November 15, 1999, Claimant returned to the Center for Pain Relief for
treatment of lower back and groin pain. (Tr. at 465–66). Claimant stated that each nerve
block seemed to last for one to two weeks and then wear off. (Tr. at 465). Claimant
further claimed that Tylenol #3 did not help alleviate the pain and that he continued to
have problems sleeping. (Id.). Dr. Muniz diagnosed Claimant as continuing to suffer
from chronic lower back pain and lumbar degenerative disc disease with bilateral groin
pain. (Tr. at 467).
On December 21, 1999, Claimant was admitted to Columbia Putnam General
Hospital for complaints of a sore throat, difficulty breathing and swallowing, being
unable to open his mouth, and severe pain. (Tr. at 232-33). Salvador Portugal, MD,
diagnosed Claimant with a right peritonscillar abscess. (Tr. at 232). Dr. Portugal drained
the abscess and started Claimant on IV antibiotics. (Tr. at 231). Upon discharge,
Claimant was prescribed Augmentin10 and Lortab to alleviate pain. (Tr. at 229).
10
Augmentin is used to prevent bacterial infections. www.nih.gov.
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On February 28, 2000, Linda Reichenbecher, MS, PT, at HPT Physical Therapy
Specialists completed a functional capacity evaluation of Claimant at the request of Dr.
Muniz. (Tr. at 545–552). After completing her evaluation, Ms. Reichenbecher concluded
that Claimant had moderate range of motion deficits in his lumbar spine. (Tr. at 545).
Based on her findings concerning Claimant’s motion restrictions and functional
limitations, Ms. Reichenbecher found that Claimant could perform sedentary work.
(Id.). Ms. Reichenbecher further emphasized that she believed that Claimant had not
given physical therapy sufficient opportunity to work and recommended that he enter a
six week program of physical therapy. (Tr. at 546).
On February 29, 2000, Claimant returned to St. Mary’s Center for Pain Relief for
an appointment with Dr. Muniz to receive his first epidural steroid injection. (Tr. at
463–44). Claimant complained of intense pain in his lower back and groin area and
stated that a couple weeks prior to his appointment, the pain was so severe that he was
unable to walk. (Tr. at 463). Claimant received his second epidural steroid injection on
March 17, 2000, (Tr. at 462.), and a third injection on March 31, 2000. (Tr. at 556). On
April 27, 2000, Claimant returned for a follow up appointment with Dr. Muniz. (Tr. at
455). Claimant stated that his back pain had decreased after the steroid injections, but
he had reinjured it working on his furnace the previous night. (Id.). Claimant rated his
pain as an eight or nine out ten on a numerical scale. (Id.). Dr. Muniz explained to
Claimant that he wanted to start Claimant on Vioxx.11 Further, Dr. Muniz instructed
Claimant to take Lortab sparingly. (Id.). Dr. Muniz requested a functional capacity
evaluation for Claimant and expressed support for starting Claimant on a work
hardening program. (Id.).
11
Vioxx was used as an anti-inflammatory to relieve pain and tenderness. www.nih.gov.
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On June 14, 2000, Claimant returned for treatment on his lower back and groin
pain with Dr. Muniz. (Tr. at 452–54). Claimant continued to take Lortab two to three
times per day. He reported that he could not get authorization for Vioxx. (Tr. at 452).
Dr. Muniz noted that Claimant continued to sleep poorly. (Id.). Dr. Muniz summarized
the Functional Capacity Evaluation conducted at Generations Physical Therapy (GPT)
on June 8th and 9th, stating: “[Claimant] is capable of performing at the sedentary
physical demand characteristics level as defined by the U.S. Department of Labor. . . .
However, . . . [Claimant’s] test results should be considered invalid and unreliable,
representing submaximal effort.” (Tr. at 452). GPT further concluded that the potential
for significant improvement with a work hardening program was poor. (Id.). Dr. Muniz
asked Claimant if he was able to go back to work at his previous job, even on a trial
basis, and Claimant replied that he was unable to do that. (Id.). Consequently, Dr.
Muniz recommended that Claimant begin looking for other jobs. (Id.). If Claimant was
unable to find a job appropriate for him, Dr. Muniz recommended that he be placed in
vocational rehabilitation. (Id.).
Claimant returned for treatment of his lower back and groin pain with Dr. Muniz
on July 19, 2000. (Tr. at 451). Claimant stated that he had not been taking Lortab every
day, but when the pain was severe, even Lortab was not helping. (Id.). Claimant also
noted that the pain was consistently interrupting his sleep. (Id.). Dr. Muniz reiterated
his belief that Claimant could return to work. (Id.). Claimant’s complaints were the same
when he returned to Dr. Muniz’s office on September 20, 2000. (Tr. at 448–50). Dr.
Muniz increased Claimant’s dosage of Lortab and encouraged Claimant to attend his
scheduled neurosurgical evaluation with Jerry Day, MD. (Tr. at 449). Dr. Muniz
emphasized that if Claimant had no surgical options, he would need continuing
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vocational rehabilitation and medication to keep his pain under control and facilitate his
return to work. (Id.).
On October 23, 2000, Claimant was evaluated at Tri State Neuroscience Center
by Dr. Day for treatment options regarding his back pain. (Tr. at 540–42). On
November 7, 2000, Dr. Day reviewed a MRI of Claimant’s lumbar spine and found that
Claimant had a minor bulge at L5-S1, mild disc space degeneration at L5-S1, and
otherwise healthy discs with normal spinal alignment. (Tr. at 543–44). Dr. Day
concluded that Claimant was limited in his exertional capability because of pain and
that Claimant would be unable to return to his prior occupation. (Tr. at 544). Dr. Day
further noted that Claimant would have a lasting disability and no surgical option was
available to him. (Id.). Therefore, Dr. Day found that Claimant would need long term
narcotic medication and to pursue vocational rehabilitation directed towards a field or
position with a sedentary work classification. (Id.).
Following his visit to Dr. Day, Claimant returned to treatment with Dr. Muniz on
December 6, 2000. (Tr. at 444–47). Dr. Muniz reviewed Dr. Day’s letter with Claimant
and explained to Claimant that he had reached maximum medical improvement. (Tr. at
444). Therefore, Dr. Muniz recommended that Claimant be formally entered into a
vocational rehabilitation program. (Id.). Claimant returned to the Center for Pain Relief
for a follow up appointment with Dr. Muniz on February 21, 2001. (Tr. at 441–43).
Claimant’s complaints were consistent with previous complaints of groin and back pain.
(Tr. at 441). Claimant emphasized that the pain was more severe than in the past and
rated his pain as a nine out of ten. (Id.). Dr. Muniz noted that Claimant took Lortab
twice a day, but that it provided little relief for Claimant’s pain symptoms. (Id.).
Explaining that he believed Claimant would have to learn to live with some of the pain,
- 16 -
Dr. Muniz offered to try and help with new medications and re-emphasized his belief
that Claimant needed to be enrolled in a vocational rehabilitation program. (Id.). Dr.
Muniz discontinued Claimant’s Lortab and started Claimant on a trial of Duragesic.12
On March 13, 2001, Dr. Muniz met with Gene Teams from Vocational
Rehabilitation Services (VRS) regarding Claimant’s prospects for re-entering the work
force. (Tr. at 439–40). Mr. Teams informed Dr. Muniz that VRS recognized that
Claimant had reached maximum medical improvement and was capable of sedentary to
light work. (Tr. at 439). Claimant’s employer had seven positions available in the
category of sedentary to light work, including repairing lamps and operating a
mechanical lifter. (Id.). Although these jobs paid less, the company agreed to keep
Claimant on at his higher previous salary. (Id.). Dr. Muniz stated that he thought this
was a “great opportunity” for Claimant and released him to go back to work in a
sedentary to light duty position. (Id.).
On March 25, 2001, Claimant was treated at St. Mary’s Medical Center for
complaints of pain in wrist and thumb that resulted from physically striking another
person. (Tr. at 507–08). An x-ray of Claimant’s left wrist and thumb revealed a fracture
at the base of the thumb at the metacarpal area. (507–08). Hospital staff placed a splint
on Claimant’s thumb and prescribed Lortab to alleviate Claimant’s pain symptoms. (Tr.
at 507).
On April 11, 2001, Claimant returned to the Center for Pain Relief for treatment
of his lower back and groin pain. (Tr. at 437–38). Claimant rated his pain level as an
eight out of ten. (Tr. at 437). Dr. Muniz noted that Claimant continued to use Duragesic
Duragesic is used to relieve moderate to severe pain that is expected to last for some time, that does not
go away, and that cannot be treated with other pain medications. www.nih.gov.
12
- 17 -
patches and Vioxx for his pain symptoms. (Id.). Claimant reported that that these
medications were moderately helpful. (Id.). When Dr. Muniz inquired regarding
Claimant’s return to work, Claimant indicated that he was unaware that he had been
released to return to work. (Id.). Dr. Muniz noted that as a result of Claimant’s fractured
thumb, Claimant would not be able to begin to work until his cast was off. (Id.).
Claimant followed up with Dr. Muniz two months later on June 13, 2001. (Tr. at 434–
36). At this time, Claimant’s cast had been removed and he was ready to return to work
at a sedentary to light duty position. (Tr. at 434). Dr. Muniz did not see Claimant again
until September 19, 2001 when Claimant returned for treatment of his lower back pain.
(Tr. at 430–33). Claimant rated his pain as a nine out of ten and noted that his
medication was not providing much relief from his pain. (Tr. at 430). Claimant further
stated that he was only sleeping about two hours per night because of the pain and,
consequently, was very tired at work. (Id.). By this time, Claimant was working full time.
(Id.). Dr. Muniz increased Claimant’s dosage of Duragesic and started Claimant on
Vistaril to help him sleep at night. (Id.). Claimant was diagnosed as suffering from
chronic lumbar pain and lumbar degenerative disc disease. (Id.). Dr. Muniz instructed
Claimant to continue working full time. (Id.).
On November 20, 2001, Claimant returned to the Center for Pain Relief for
treatment with Dr. Muniz. (Tr. at 426). Claimant complained of lower back pain,
bilateral leg pain, and constipation, which he believed was a side effect of the Duragesic
patches. (Id.). Dr. Muniz noted that Claimant’s insomnia was still a problem and that
the Vistaril did not seem to be helping. (Id.). Claimant did not feel the Vioxx was helping
much either. (Id.). Ultimately, Dr. Muniz concluded that Claimant “does not realize that
he is functioning fairly well and able to continue working full time.” (Tr. 426). On
- 18 -
February 20, 2002, Dr. Muniz again treated Claimant for his lower back pain, bilateral
leg pain, and groin pain. (Tr. at 424–25). Claimant complained of continued lower back
pain and bilateral leg pain, rating his pain as an eight out of ten. (Tr. at 424). Claimant
stated that he continued to work full time but that he would be laid off soon because of a
lack of demand. (Id.). Claimant estimated that he would be laid off for two to four
months until tourist season began and demand increased. (Id.). Claimant resumed
taking Lortab, instead of Duragesic patches, because of “personality changes and
irritability.” (Id.). Dr. Muniz found that Claimant’s post lumbar strain had not grossly
deteriorated from the original baseline findings. (Id.).
Charles Abraham, MD, examined Claimant on April 23, 2002 for complaints of
hearing loss and tinnitus. (Tr. at 242–43). Claimant reported having difficulty hearing
his television and in group situations which had increased over the past several years.
(Id.). Dr. Abraham described the results of an ENT ear exam as “unremarkable” and
diagnosed Claimant with sensorineural hearing loss. (Id.). Dr. Abraham concluded that
Claimant had suffered .55% loss of function for “noise induced hearing loss.” (Id.).
On May 22, 2002, Claimant returned to the Center for Pain Relief for a follow up
appointment with Dr. Muniz. (Tr. at 405–06). Claimant stated that his pain was
constant even with medication and rated it as an eight out of ten. (Tr. at 405). Dr. Muniz
noted complaints of pain radiating mostly down his left leg. (Id.). Claimant attempted to
control the pain with the use of Lortab, hot baths, and tanning beds. (Id.). Dr. Muniz
found that Claimant had an allowable Workers’ Compensation diagnosis, discontinued
Claimant’s use of Lortab, and prescribed methadone13 to treat Claimant’s pain
Methadone is used to relieve moderate to severe pain that has not been relieved by non-narcotic pain
relievers.
13
- 19 -
symptoms. (Id.). Dr. Muniz requested a repeat MRI to rule out disc herniation. (Id.).
The MRI was performed on June 10, 2002 at Tri State MRI and showed a normal spine
with the exception of decreased signal intensity and mild central and bilateral bulging at
L5-S1. (Tr. at 238). The remaining disc spaces were unremarkable with no evidence of
herniated discs or significant spinal stenosis. (Id.). On August 1, 2002, Claimant
returned to Dr. Muniz for follow-up on the MRI results. (Tr. at 401–03). Claimant
stated that the Methadone helped alleviate pain but caused him to stay awake at night.
(Tr. at 401). Claimant provided a letter to Dr. Muniz from his employer stating that he
had been laid off as they did not have the need for sedentary-light duty workers. (Id.).
Dr. Muniz requested a functional capacity evaluation and suggested that Claimant begin
a work hardening program. (Id.). After reviewing Claimant’s MRI, Dr. Muniz noted that
it showed no significant changes from the prior MRI in 1999 and reflected only mild
degenerative changes. (Id.). On September 12, 2002, Claimant returned to Dr.
Abraham’s office for a follow up appointment regarding his hearing loss. (Tr. at 240–
41). Dr. Abraham noted that Claimant was not experiencing dizziness or suffering from
any ear pain, but that he complained of constant bilateral tinnitus. (Tr. at 240).
On January 28, 2003, Claimant was examined by Steven Nelson, Physician
Assistant, Certified, under the supervision of David Caraway, MD, at the Center for Pain
Relief. (Tr. at 398–400). Claimant complained of lower back and groin pain, noting that
over the previous three months the pain had started to radiate and was becoming
progressively worse. (Tr. at 398). Claimant was prescribed Neurontin14 and Vioxx in
addition to his continuing prescription for Lortab. (Tr. at 399). Mr. Nelson diagnosed
Claimant as suffering from an unspecified sacroiliac strain and lumbar radiculopathy.
14
Neurontin is used as a pain reliever for moderate to severe pain. www.nih.gov.
- 20 -
(Tr. 398). On March 12, 2003, Claimant returned to the Center for Pain Relief for an
appointment with Mr. Nelson. (Tr. at 395–97). Claimant stated that the pain in his legs
was increasing with alternating burning and numbness sensations. (Tr. at 395). Mr.
Nelson noted that Claimant requested to have his Lortab prescription rewritten. (Id.).
Mr. Nelson also discussed starting Claimant on anti-depressants and requesting
authorization from Workers’ Compensation for another series of epidural steroid
injections. (Tr. at 396). Claimant began a series of epidural steroid injections under
fluoroscopy on April 22, 2003.15 (Tr. at 493–506).
On April 30, 2003, Dr. Caraway of the Center for Pain Relief completed a
Workers’ Compensation Controlled Substance form regarding Claimant’s medical
treatment. (Tr. at 472). Dr. Caraway noted that Claimant’s pain was chronic and
concentrated in his lower back. (Id.). Psychological factors were not found to be relevant
to Claimant’s treatment. (Id.). Dr. Caraway found that opioids and injections improved
Claimant’s condition. (Id.). Claimant was again examined by Dr. Caraway on July 16,
2003 for complaints of lower back. (Tr. at 392–94). Although Claimant had re-injured
his back, Claimant stated that the epidural steroid injections had provided him with “the
best relief ever.” (Tr. at 392). Dr. Caraway informed Claimant that there was little that
he could do and that Claimant had reached maximum medical improvement. (Id.). Dr.
Caraway recommended that Workers’ Compensation provide Claimant with vocational
rehabilitation. (Id.). Subsequently, on August 19, 2003, Claimant was treated by an
unknown source for burns on his leg. (Tr. at 244). The treating source prescribed an
antibiotic, Keflex, to treat the burns. (Id.). On September 17, 2003, Claimant returned to
15 Claimant received additional injections on May 20, 2003; June 10, 2003; April 27, 2004; June 1, 2004;
and June 14, 2005
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the Center for Pain Relief for an appointment with Dr. Caraway. (Tr. at 389–91).
Claimant stated that he was in severe pain and that his Lortab prescription had been
denied by Workers’ Compensation. (Tr. at 389). Claimant stated that Vioxx and
Neurontin helped to a limited extent and that he continued to sleep poorly because of
the pain. (Id.). Dr. Caraway reviewed Claimant’s MRI from the previous year and
concluded that there was nothing medically significant in the MRI. (Id.). Claimant
returned to Dr. Caraway’s office for treatment two months later on November 12, 2003.
(Tr. at 387–88). Claimant complained of lower back pain and leg pain, which had
increased over the previous two months as Workers’ Compensation denied his
authorization for use of Neurontin, Vioxx, and Lortab. (Tr. at 387). Dr. Caraway noted
that Claimant’s MRI was “unimpressive” and that a physical examination of Claimant
revealed no significant motor or sensory deficits. (Id.). Further, Dr. Caraway concluded
that Claimant had a good range of motion of the cervical and lumbar spine and all of his
extremities. (Id.). Claimant was found to be at maximum medical improvement. (Id.).
Dr. Caraway submitted a Medical Statement to the Workers’ Compensation agency,
stating that he believed Claimant should be authorized to undergo vocational
rehabilitation as he was physically unable to return to his previous occupation. (Tr. at
474).
On February 11, 2004, Claimant returned to Dr. Caraway’s office for an
appointment regarding treatment of his lower back pain. (Tr. at 385–86). Dr. Caraway
noted that Claimant’s physical condition remained the same and that Claimant was
having a variety of psychosocial and financial issues. (Tr. at 385). Claimant requested an
increase in Lortab and another round of steroid injections; Dr. Caraway noted that he
would consider one or two injections to determine if this provided a significant
- 22 -
reduction in pain. (Id.). Again, Dr. Caraway emphasized that Claimant’s MRI was
unimpressive, stating “all [Claimant] has is a bulging disc without any significant spinal
stenosis. Certainly, this is not of the surgical variety.” (Id.). Dr. Caraway then had a
“frank discussion” with Claimant regarding Claimant’s use of opioids. (Id.). Claimant
denied any diversion or abuse of the medication and explained that they helped
significantly in alleviating his pain. (Id.). Claimant subsequently received two epidural
steroid injections on July 22, 2004, which Claimant described as helping considerably
with his leg pain. Claimant remarked that he was able to perform some yard and house
work following the two injections he received. (Tr. at 383–84). Claimant added,
however, that his lower back pain continued despite the injections. (Tr. at 383). Dr.
Caraway noted that Claimant got up slowly from his chair, but was able to stand and
squat without assistance. (Id.). Concluding that Claimant was at maximum medical
improvement, Dr. Caraway decided to begin weaning Claimant off Neurontin and Vioxx
since they did not seem to adequately alleviate his pain symptoms. (Id.). Dr. Caraway reevaluated Claimant on September 27, 2004. (Tr. at 380–81). Claimant stated that
injections provided him with about three months worth of relief and that the Zanaflex16
he had been prescribed helped with his range of motion. (Tr. at 380). Dr. Caraway noted
that Claimant had a hearing scheduled with Workers’ Compensation for October 6,
2004. (Id.).
Claimant’s pain increased over the winter of 2004-2005. (Tr. at 376–79). Dr.
Caraway noted on March 23, 2005 that Claimant appeared to be doing much worse as
evidenced by his pain and difficulty getting out of the chair to the exam table. (Tr. at
376). Dr. Caraway again found that Claimant had reached maximum medical
16
Zanaflex is used as a muscle relaxant. www.nih.gov.
- 23 -
improvement. (Id.). On July 27, 2005, Claimant again presented to Dr. Caraway with
complaints of lower back pain. (Tr. at 374). Claimant stated that the epidural injections
had provided him with three weeks relief from pain. (Id.). Claimant indicated that he
was having financial problems, reporting that his temporary total disability had been
discontinued and he had spent all of his retirement money. (Id.). Claimant asked Dr.
Caraway to fill out a form to re-open his Workers’ Compensation claim and to order a
repeat MRI. (Id.). Upon examination, Dr. Caraway observed that Claimant could move
all of his extremities without difficult, had a good range of motion of his cervical and
lumbar spine, and had no focal neurological deficits. (Id.). Explaining to Claimant that
he was at maximum medical improvement, Dr. Caraway informed Claimant that
adequate grounds to re-open a Workers’ Compensation claim did not exist. (Id.). Dr.
Caraway further explained that a MRI would not be helpful as there were no surgical
options available to Claimant. (Tr. at 374).
On September 28, 2005, Dr. Caraway met with Claimant and explained again
that he did not think a MRI would be helpful. (Tr. at 371). However, Dr. Caraway did
agree to complete a request to re-open Claimant’s Workers’ Compensation claim. (Tr. at
371). Other than some symptoms of depression, Dr. Caraway did not find any
remarkable changes in Claimant’s health status. (Id.). On January 4, 2006, Claimant
returned for an appointment with Dr. Caraway. (Tr. at 368–69). Dr. Caraway noted that
Claimant had begun part-time work at a car wash, but that this work aggravated
Claimant’s pain significantly. (Tr. at 368). Dr. Caraway reemphasized that Claimant was
at maximum medical improvement with no neurological deficits. (Id.). Claimant
subsequently received one epidural steroid injunction in his lumbar spine on February
17, 2006. (Tr. at 491–492). At Claimant’s next visit on March 22, 2006, no changes in
- 24 -
his condition were found and Claimant continued to work part-time at the car wash. (Tr.
at 363–64).
Claimant returned again on June 26, 2006 for an appointment at the Center for
Pain Relief. (Tr. at 353–54). Andrea Zekan, APRN, examined Claimant and found no
change in his medical condition. (Tr. at 354). Claimant indicated that he was no longer
working at the car wash and asked Ms. Zekan about the status of his Workers’
Compensation claim. He also requested an increase in his Lortab prescription. (Id.).
Ms. Zekan informed Claimant that he would need to speak with Dr. Caraway about
those issues and that she would be scheduling a drug screen for Claimant at his next
appointment. (Id.). Claimant stated that he had not taken or used any controlled
substances. (Id.). Ms. Zekan noted that the steroid injections had been very beneficial
for Claimant and suggested that he receive another one. (Id.). Claimant’s drug screen
was positive for cannabinoid and opiate (specifically hydrocode and hydromorphone)
usage. (Tr. at 359).
On July 13, 2006, Claimant returned to the Center for Pain Relief for a follow up
appointment. (Tr. at 347–52). Claimant was examined by Steven Nelson, PA-C, for
continuing complaints of back pain. (Tr. at 347). Mr. Nelson discussed the results of
Claimant’s drug screen and discussed another series of steroid injections. (Id.). On
November 3, 2006, Claimant was seen at the Center for Pain Relief by Jessica Riddle,
PAC, for a follow up appointment. (Tr. at 337–38). Claimant was unable to receive an
injection or medications as his authorization from Workers’ Compensation had expired
out since his last visit. (Tr. at 337.) Accordingly, Ms. Riddle explained to Claimant that if
his drug screen that day came back positive for the use of controlled substances they
would no longer be able to provide him with narcotics for his pain management. (Tr. at
- 25 -
338). Claimant admitted that he had used marijuana two weeks prior to that day. (Tr. at
337). Ms. Riddle explained that they would continue with a conservative treatment plan
for his back injury. (Tr. at 338). Claimant subsequently received a epidural steroid
injection on January 16, 2007. (Tr. at 489–90). Claimant returned to the Center for Pain
Relief shortly thereafter on January 22, 2007 with complaints of increased radicular
pain. (Tr. at 323–26). Claimant stated that the steroid injection had helped with his
lower back pain, but that the pain in his groin and legs was severe. (Tr. at 323). Claimant
requested that Ms. Riddle prescribe him something stronger, as he was taking more
Lortab than prescribed. (Id.). Ms. Riddle informed Claimant that she would not refill his
Lortab before it was due and would not increase his pain medication. (Id.). However,
Ms. Riddle noted that she would seek Workers’ Compensation to authorize prescriptions
for Neurontin, Zanaflex, and Lortab for his pain complaints. (Id.).
On February 15, 2007, Claimant presented to the Emergency Room at St. Mary’s
Medical Center with complaints of pain in his right flank; a CT scan of his abdomen
confirmed the diagnosis of a kidney stone. (Tr. 485–88). Claimant returned to the
Emergency Room at St. Mary’s five days later on February 20, 2007. (Tr. at 476–84).
Claimant’s pain had increased significantly and the kidney stone had not passed. (Tr. at
478–79). Rocco Morabito, MD, performed a cystoscopy and removed Claimant’s kidney
stone. (Tr. at 482).
On March 13, 2007, Claimant returned to the Center for Pain Relief for treatment
with Ms. Riddle. (Tr. at 304–15). Claimant complained of lower back and bilateral groin
pain and emphasized that he was experiencing significant radicular pain. (Tr. at 304).
Further, Claimant stated that the steroid injection was not as helpful as they had been in
the past. (Id.). Claimant again tested positive for the use of hydrocodone,
- 26 -
hydromorphone, and oxycodone. (Tr. at 308). Ms. Riddle documented that Claimant
should not have oxycodone in his system and that Claimant’s use of that drug would
need to be discussed at his next appointment. (Tr. at 312). Claimant’s medical condition
was the same at his follow up appointment on April 16, 2007. (Tr. at 293–94). Claimant
requested another steroid injection; Ms. Riddle agreed that this would be an appropriate
course of treatment. (Id.). Claimant ultimately received the injection on July 10, 2007.
(Tr. at 475).
B.
Agency Assessments
On June 11, 2007, Fulvio Franyutti, MD, a state agency physician, reviewed the
medical evidence of record and completed an RFC assessment of Claimant. (Tr. at 283–
90). Dr. Franyutti concluded that Claimant could occasionally lift 20 pounds, frequently
lift 10 pounds, stand or walk about six hours a day, sit for six hours a day, and was
unlimited in his ability to push or pull. (Tr. at 284). Dr. Franyutti identified numerous
postural limitations. Claimant could only occasionally engage in activities that required
climbing ramps or stairs, balancing, stooping, or kneeling. (Tr. at 285). Claimant could
never engage in activities that required the climbing of ladders, ropes, or scaffolds;
crouching; or crawling. (Id.). Dr. Franyutti noted no manipulative, communicative, or
visual limitations for Claimant, but determined that Claimant was subject to several
environmental limitations. (Tr. at 286-87). Dr. Franyutti concluded that Claimant
should avoid concentrated exposure to extreme cold; fumes, odors, dusts, gases, and
poor ventilation; and hazards such as machinery or heights. (Tr. at 287). Dr. Franyutti
referenced Claimant’s reports of stabbing and burning pain in his lower back and groin
area which was aggravated by moving and prolonged sitting and standing; difficulty
lifting anything heavier than five pounds, squatting, bending, standing, sitting, kneeling,
- 27 -
walking, stair climbing, concentrating, hearing, and sleeping; and occasional difficulty
putting on pants and socks although he was able to do the laundry and clean his
bathroom sink. (Tr. at 290). Dr. Franyutti opined that Claimant was partially credible
and that his allegations were only partially supported by the medical record. (Tr. at
288).
On August 2, 2007, Uma Reddy, MD, a state agency physician, reviewed the
medical evidence of record and completed an RFC assessment of Claimant. (Tr. at 529–
36). Dr. Reddy concluded that Claimant could occasionally lift 50 pounds, frequently lift
25 pounds, stand or walk about six hours a day, sit for six hours a day, and was
unlimited in his ability to push or pull. (Tr. at 530). Claimant was limited to occasionally
climbing ramps, stairs, ladders, ropes, and scaffolds; balancing; stooping; kneeling;
crouching; and crawling. (Tr. at 531). Dr. Reddy noted no manipulative, communicative,
or visual limitations for Claimant. (Tr. at 532–33). Claimant was required to avoid
concentrated exposure to extreme cold, extreme heat, vibration, and hazards such as
machinery and heights. (Tr. at 533). Dr. Reddy opined that Claimant was partially
credible and that Claimant’s allegations regarding his back pain were only partially
supported by the record. (Tr. at 534). Dr. Reddy further noted that she evaluated
Claimant’s hearing loss and found no significant limitations. (Id.).
VI.
Claimant’s Challenges to the Commissioner’s Decision
Claimant alleges that the Commissioner’s decision was not supported by
substantial evidence. He argues that the ALJ (1) failed to fully and fairly develop the
record, (2) failed to recognize the severity of Claimant’s impairments when considered
in combination, and (3) gave an improper hypothetical to the vocational expert at
Claimant’s administrative hearing. (Pl. Br. at 12–16).
- 28 -
VII.
Analysis
Having thoroughly considered the evidence and the arguments of counsel, the
Court rejects Claimant’s contentions as lacking merit. Additionally, the Court finds that
the decision of the Commissioner is supported by substantial evidence and should be
affirmed.
A.
Duty to Develop Record
Claimant contends that the ALJ failed to fully develop the record with regard to
Claimant’s complaints of pain resulting from degenerative disc disease of the lumbar
spine and sensorineural hearing loss in the right ear. (Pl. Br. 13–14). Further, Claimant
argues that the ALJ failed to fully develop the record regarding Claimant’s depression,
constituting reversible error under the regulations. (Pl. Br. 14). These arguments are
unpersuasive.
An ALJ has the duty to fully and fairly develop the record, but is not required to
act as Claimant’s counsel. Clark v. Shalala, 28 F.3d 828 (8th Cir. 1994). See also U.S.—
Reed v. Massanari, 270 F.3d 838 (9th Cir. 2001); Haley v. Massanari, 258 F.3d 742
(8th Cir. 2001); Smith v. Apfel, 231 F.3d 433 (7th Cir. 2000). To the contrary, an ALJ
has the right to presume that Claimant’s counsel presented Claimant’s strongest case for
benefits. Nichols v. Astrue, 2009 WL 2512417 *4 (7th Cir. 2009) (citing Glenn v. Sec’y of
Health and Human Servs., 814 F.2d 387, 391 (7th Cir. 1987)). Moreover, an ALJ’s duty
to develop the record does not mandate that he or she order a consultative examination
“as long as the record contain[ed] sufficient evidence for the administrative law judge to
make
an
informed
decision.”
Ingram
v.
Commissioner
of
Social
security
Administration, 496 F.3d 1253, 1269 (11th Cir. 2007). See also, Weise v. Astrue, 2009
WL 3248086 (S.D. W.Va.). Ultimately, “[a]lthough the ALJ has the duty to develop the
- 29 -
record, such a duty does not permit a claimant, through counsel, to rest on the record . .
. and later fault the ALJ for not performing a more exhaustive investigation.” Maes v.
Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008). See also Social Security Act, §
223(d)(5)(B), 42 U.S.C.A. § 423(d)(5)(B); 20 C.F.R. § 404.1512(d).
“An ALJ's duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of
the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). When
considering the adequacy of the record, the Court must look for evidentiary gaps that
result in “unfairness or clear prejudice” to the claimant. Brown v. Shalala, 44 F.3d 931,
935 (11th Cir. 1995). A remand is not warranted every time a claimant alleges that the
ALJ failed to fully develop the record. Brown, 44 F.3d at 935 (finding that remand is
appropriate when the absence of available documentation creates the likelihood of
unfair prejudice to the claimant.). The decision of an ALJ will not be overturned for
failure to fully and fairly develop the record “unless the claimant shows that he or she
was prejudiced by the ALJ's failure. To establish prejudice, a claimant must demonstrate
that he or she could and would have adduced evidence that might have altered the
result.” Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000).
i.
Back Pain and Hearing Loss
If there were evidentiary gaps that resulted in unfairness or prejudice to
Claimant, the ALJ would have been required to develop the record as to Claimant’s pain
resulting from degenerative disc disease of the lumbar spine and sensorineural hearing
loss in the right ear. However, in this case, the ALJ had detailed records of
examinations, assessments, consultations, laboratory and radiological studies that
spanned the period from January 1998 through August 2007. These records provided
- 30 -
substantial evidence of the status of Claimant’s medical conditions as they existed
during the alleged period of disability. Notably, neither Claimant nor his counsel raised
any concerns regarding the adequacy of the medical record at the administrative
hearing. (Tr. at 18–40). The extensive treatment records from the Center for Pain Relief
at St. Mary’s Medical Center, various emergency room visits, Workers’ Compensation
evaluations, and RFC assessments all addressed Claimant’s complaints of back and
groin pain and provided a chronological history of Claimant’s pain symptoms. This
extensive documentation created a more than adequate record from which the ALJ
could evaluate the persistence and severity of Claimant’s complaints of back and groin
pain. In addition, the questioning of Claimant by his attorney and the ALJ during the
administrative hearing further developed the record as to Claimant’s complaints of back
and groin pain. (Tr. at 28–31, 33–34). Claimant had ample opportunity to describe the
pain that resulted from certain physical activities, his use of pain medications, and his
regimen of injections. The ALJ thoroughly reviewed these complaints in his opinion
denying Claimant’s applications for benefits. (Tr. at 14). To the extent that Claimant’s
hearing loss was discussed, neither Claimant’s treatment records nor his testimony
suggested that he suffered from any significant impairment. As such, the Court cannot
identify any evidentiary gaps in the medical record or unfair prejudice; consequently,
the ALJ’s actions were appropriate in this case.
ii.
Depression
Claimant’s argument that the ALJ failed to fully develop the record regarding
Claimant’s depression fails for similar reasons. Claimant had the ultimate responsibility
to prove his disability. 20 C.F.R. §404.1512(a) and §416.912(a). See also Stahl v.
Commissionr of Social Security Administration, 2008 WL 2565895 *4 (N.D. W.Va.)
- 31 -
(citing Highland v. Apfel, 149 F,3d 873 (8th Cir. 1998)). Title 42 U.S.C. § 423(d)(5)(B)
states:
In making any determination with respect to whether an individual is
under a disability or continues to be under a disability, the Commissioner
of Social Security shall consider all evidence available in such individual's
case record, and shall develop a complete medical history of at least the
preceding twelve months for any case in which a determination is made
that the individual is not under a disability. In making any determination
the Commissioner of Social Security shall make every reasonable effort to
obtain from the individual's treating physician (or other treating health
care provider) all medical evidence, including diagnostic tests, necessary
in order to properly make such determination, prior to evaluating medical
evidence obtained from any other source on a consultative basis.
However, as the United States Supreme Court noted in Bowen v. Yuckert, the :
severity regulation does not change the settled allocation of burdens of
proof in disability proceedings . . . the claimant first must bear the burden
. . . of showing that . . . he has a medically severe impairment or
combination of impairments. . . . It is not unreasonable to require the
claimant, who is in a better position to provide information about his
own medical condition, to do so.
482 U.S. 137, 146 (1987) (emphasis added).
Citing Dr. Caraway’s “diagnosis” of depression, Claimant argues that the ALJ
failed to develop the record regarding his mental condition. (Pl. Br. 14). Dr. Caraway
provided Claimant with a two-week sample of Lexapro on March 12, 2003. (Tr. 396). At
Claimant’s next appointment on July 16, 2003, there was no discussion of his use of
Lexapro, no prescription was signed, and no further diagnosis of depression was noted.
(Tr. at 393). No subsequent mention of depression was made until July 27, 2005 when
Dr. Caraway noted in passing that Claimant exhibited signs of “some depression.” (Tr. at
374). The medical records are essentially devoid of documentation substantiating the
ongoing diagnosis and treatment of depression. Claimant’s argument that the ALJ failed
to develop the record with respect to his alleged depression requires some factual
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foundation upon which to discern a gap in the evidentiary record that would be
prejudicial to Claimant. “To establish prejudice, a claimant must demonstrate that he or
she could and would have adduced evidence that might have altered the result.” Carey
v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). Claimant makes no reference to the existence
of additional evidence that might have altered the result of the ALJ’s decision.17
Accordingly, the Court has no basis upon which to conclude that the ALJ failed to
adequately develop the record and finds Claimant’s argument to be without merit.
B.
Impairments in Combination
Claimant argues that his impairments when considered in combination “clearly”
equal a listed impairment. A determination of disability may be made at step three of
the sequential evaluation when a claimant’s impairments meet or medically equal an
impairment included in the Listing. The purpose of the Listing is to describe “for each of
the major body systems, impairments which are considered severe enough to prevent a
person from doing any gainful activity.” See 20 C.F.R. § 404.1525. Because the Listing is
designed to identify those individuals whose medical impairments are so severe that
they would likely be found disabled regardless of their vocational background, the SSA
has intentionally set the medical criteria defining the listed impairments at a higher
level of severity than that required to meet the statutory standard of disability. Sullivan
v. Zebley, 493 U.S. 521, 532 (1990). Inasmuch as the Listing bestows an irrefutable
presumption of disability, “[f]or a claimant to show that his impairment matches a
[listed impairment], it must meet all of the specified medical criteria.” Sullivan, 493
U.S. at 530.
Of note, Claimant did not raise the issue of depression in his applications for SSI or DIB, his request for
reconsideration, his request for an administrative hearing, or at the administrative hearing itself.
17
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To establish medical equivalency, a claimant must present evidence that his
impairment, unlisted impairment, or combination of impairments, is equal in severity
and duration to all of the criteria of a listed impairment. Id. at 520; See also 20 C.F.R. §
404.1526. In Title 20 C.F.R. § 404.1526, the SSA sets out three ways in which medical
equivalency can be determined. First, if the claimant has an impairment that is
described in the Listing, but (1) does not exhibit all of the findings specified in the
listing, or (2) exhibits all of the findings, but does not meet the severity level outlined for
each and every finding, equivalency can be established if the claimant has other findings
related to the impairment that are at least of equal medical significance to the required
criteria. § 404.1526(b)(1). Second, if the claimant’s impairment is not described in the
Listing, equivalency can be established by showing that the findings related to the
claimant’s impairment are at least of equal medical significance to those of a similar
listed impairment. § 404.1526(b)(2). Finally, if the claimant has a combination of
impairments, no one of which meets a listing, equivalency can be proven by comparing
the claimant’s findings to the most closely analogous listings; if the findings are of at
least equal medical significance to the criteria contained in any one of the listings, then
the combination of impairments will be considered equivalent to the most similar
listing. See, e.g., § 404.1526(b)(3).
As the Supreme Court clearly explained in Sullivan, “[f]or a claimant to qualify
for benefits by showing that his unlisted impairment, or combination of impairments is
‘equivalent’ to a listed impairment, he must present medical findings equal in severity to
all the criteria for the one most similar listed impairment . . . A claimant cannot qualify
for benefits under the ‘equivalency’ step by showing that the overall functional impact of
his unlisted impairment or combination of impairments is as severe as that of a listed
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impairment.” Sullivan, 493 U.S. at 531.18 Ultimately, to determine whether a
combination of impairments equals the severity criteria of a listed impairment, the
signs, symptoms, and laboratory data of the combined impairments must be compared
to the severity criteria of the Listing. “The functional consequences of the impairments .
. . irrespective of their nature or extent, cannot justify a determination of equivalence.”
Id. at 532 (citing SSR 83-19).19
Here, the ALJ determined that Claimant had the following severe impairments:
degenerative disc disease of the lumbar spine, obesity and sensorineural hearing loss
(20 CFR 404.1520 (c)). (Tr. at 11,). The ALJ further concluded that Claimant’s
peritonsillar abscess, fractured thumb, history of kidney stones, and history of leg burns
were non-severe impairments. (Id.). Claimant did not explicitly identify any listed
impairment that he might satisfy based upon his combination of severe and non-severe
impairments. In this case, as Claimant’s severe impairments involve the musculoskeletal
system or the auditory system, it is appropriate to examine Claimant’s impairments in
combination under Listing 1.04 (Disorders of the spine) or Listing 2.10 (Hearing loss
not treated with a cochlear implant). To satisfy the criteria for Listing 1.04 Claimant
must demonstrate that his impairments in combination are medically equal to a
disorder of the spine, which results in compromise of a nerve root and shows evidence
of nerve root compression, spinal arachnoidistis, or lumbar spinal stenosis. The ALJ
18 The Supreme Court explained the equivalency concept by using Down’s syndrome as an example.
Down’s syndrome is “a congenital disorder usually manifested by mental retardation, skeletal deformity,
and cardiovascular and digestive problems.” Id. At the time of the Sullivan decision, Down’s syndrome
was not an impairment included in the Listing. Accordingly, in order to prove medical equivalency to a
listed impairment, a claimant with Down’s syndrome had to select the single listing that most resembled
his condition and demonstrate fulfillment of the criteria associated with that listing.
SSR 83-19 has been rescinded and replaced with SSR 91-7c, which addresses only medical equivalence
in the context of SSI benefits for children. However, the explanation of medical equivalency contained in
Sullivan v. Zembly remains relevant to this case.
19
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compared Claimant’s clinical findings to Listing 1.04 and concluded that his medical
findings, signs, and laboratory data did not meet the criteria of the listing specifically
because there evidence existed of neurological deficits necessary to meet or equal a
Listing under Section 1.04. (Tr. at 12).
The ALJ’s conclusion that Claimant did not satisfy Listing 1.04 is supported by
substantial evidence. Claimant was treated for back and groin pain over the course of
ten years. During the course of his treatment, no physician ever diagnosed Claimant
with a neurological disorder of the spine or its equivalent. Claimant was consistently
diagnosed as suffering from chronic lumbosacral strain with radicular pain to his groin,
but wihtout nerve root compression, arachnoidistis, or stenosis. No physician ever
recommended that Claimant have surgery on his back. Moreover, Claimant’s other
impairments (obesity, hearing loss, peritonsillar abscess, fractured thumb, history of
kidney stones, and history of leg burns) do not implicate a neurological disorder that
would affect the spine. Claimant simply cannot satisfy the severity criteria of Listing
1.04.
Similarly, Claimant is unable to meet or equal the criteria of Listing 2.10. To
satisfy the criteria for Listing 2.10 Claimant must demonstrate that his impairments in
combination are medically equal to:
A.
An average air conduction hearing threshold of 90 decibels or
greater in the better ear and an average bone conduction hearing
threshold of 60 decibels or greater in the better ear; or
B.
A word recognition score of 40 percent or less in the better ear
determined using a standardized list of phonetically balanced
monosyllabic words.
The ALJ examined Claimant’s clinical findings and concluded that his medical findings,
signs, and laboratory data did not meet the criteria of this listing specifically because
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there was no evidence of the requisite average air conduction hearing threshold or word
recognition score under Listing 2.10.20 (Tr. at 14).
The ALJ’s conclusion is supported by substantial evidence. Charles Abraham,
MD, examined Claimant on April 23, 2002 for complaints of hearing loss and tinnitus.
(Tr. at 242–43). Claimant reported having difficulty hearing his television and trouble
hearing in group situations. (Tr. at 242). Dr. Abraham described the results of an ENT
ear exam as “unremarkable” and diagnosed Claimant as suffering from sensorineural
hearing loss. (Id.). Dr. Abraham concluded that Claimant had suffered .55%
(approximately ½ of 1 percent) loss of function for “noise induced hearing loss.” (Id.).
On August 2, 2007, Uma Reddy, MD, a state agency physician, reviewed the medical
evidence of record and completed an RFC assessment of Claimant. (Tr. at 529–36). Dr.
Reddy assessed the evaluation of Claimant’s hearing loss and concluded that he had no
significant limitations. (Tr. at 534). No further hearing loss examinations were
conducted.
Claimant’s other impairments (obesity, chronic back pain, peritonsillar
abscess, fractured thumb, history of kidney stones, and history of leg burns) do not
implicate a loss of hearing. Therefore, Claimant has failed to present evidence to support
a finding that Claimant’s average air conduction hearing score exceeded the threshold
score or word recognition score and, therefore, Claimant has not satisfied Listing 2.10.
Assuming arguendo that Claimant’s argument is not that his impairments are
medically equivalent to a listed impairment, but that the overall functional consequence
of his combined impairments meets the statutory definition of disability, the analysis
shifts from the Listing to the ALJ’s RFC findings and the remaining steps of the
sequential evaluation. As the Fourth Circuit Court of Appeals stated in Walker v.
20
At the time of the administrative hearing, the current Listing 2.10 was found under Listing 2.08.
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Bowen, “[i]t is axiomatic that disability may result from a number of impairments
which, taken separately, might not be disabling, but whose total effect, taken together, is
to render claimant unable to engage in substantial gainful activity.” 889 F.2d 47, 50 (4th
Cir. 1989). The social security regulations provide:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard to
whether any such impairment, if considered separately, would be of
sufficient severity.
20 C.F.R. § 404.1523. Where there is a combination of impairments, the issue “is not
only the existence of the problems, but also the degree of their severity, and whether,
together, they impaired the claimant’s ability to engage in substantial gainful activity.”
Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974). The ailments should not be
fractionalized and considered in isolation, but considered in combination to determine
the impact on the ability of the claimant to engage in substantial gainful activity.
Reichenbach v. Heckler, 808 F.2d 309 (4th Cir. 1985). The cumulative or synergistic
effect that the various impairments have on claimant’s ability to work must be analyzed.
DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Here, the ALJ took into account the exertional and non-exertional limitations
that resulted from Claimant’s medically determinable impairments in determining
Claimant’s RFC. The ALJ restricted Claimant to sedentary work based upon his
musculoskeletal condition, obesity, and loss of hearing. (Tr. at 12–15). Further, the ALJ
found that Claimant could not work in noisy environments and was subject to mild
postural and environmental limitations. (Id.). The ALJ provided a thorough review of
the objective medical evidence, the subjective statements of Claimant, and the opinion
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evidence. (Id.). Moreover, at the administrative hearing, the ALJ presented the
vocational expert with a hypothetical question that required the expert to take into
account Claimant’s impairments in combination. He asked the expert to assume that
Claimant had the exertional limitations identified in his RFC assessment, as well as
additional postural and environmental limitations. Despite being asked to assume all of
these restrictions, the vocational expert opined that Claimant could perform certain jobs
that existed in significant numbers in the economy. (Tr. at 36).
The ALJ’s conclusion that Claimant’s combination of impairments was not so
severe as to preclude Claimant from engaging in substantial gainful activity is amply
supported by the medical record. No physician or therapist found that Claimant’s
impairments separately or in combination prevented him from engaging in substantial
gainful activity. Claimant’s main treating physicians, Dr. Muniz and Dr. Caraway,
consistently encouraged him to look for work and to participate in vocational
rehabilitation. In both RFC assessments, the reviewing physicians found that Claimant
could engage in “light” to “medium” exertional work with mild postural and
environmental limitations. In light of this substantial evidence, the Court is satisfied
that the ALJ adequately considered and accounted for the overall functional impact of
Claimant’s combined impairments.
C.
Hypothetical Posed to the Vocational Expert
Finally, Claimant argues that “[d]ue to the ALJ ignoring or giving very little
weight to substantial, objective evidence of record, the ALJ proposed and adopted an
hypothetical to the vocational expert which did not wholly and completely address the
symptoms and problems suffered by [Claimant].” (Pl. Br. at 15). It is well-established
that for a vocational expert's opinion to be relevant, it must be in response to a proper
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hypothetical question that sets forth all of the claimant's impairments. Walker v.
Bowen, 889 F.2d 47, 50–51 (4th Cir. 1989). “[I]t is difficult to see how a vocational
expert can be of any assistance if he is not familiar with the particular Claimant's
impairments and abilities-presumably, he must study the evidence of record to reach
the necessary level of familiarity.” Walker, 889 F.2d at 51. While questions posed to the
vocational expert must fairly set out all of the claimant's impairments, the question need
only reflect those impairments supported by the record. See Chrupcala v. Heckler, 829
F.2d 1269, 1276 (3rd Cir. 1987). Finally, the hypothetical question may omit non-severe
impairments, but must include those that the ALJ finds to be severe. Benenate v.
Schweiker, 719 F.2d 291, 292 (8th Cir. 1983).
The undersigned finds that the hypothetical, which fully incorporated and
paralleled the ALJ’s RFC finding, is supported by substantial evidence. The ALJ posed
the following hypothetical to the vocational expert:
I ask you then to hypothetically consider a person who’s age is 39 at onset.
His education, training and work experience as in the present case. And
assuming that I should find that the person suffers from lower back pain,
secondary to [inaudible]. The pain goes into his leg. It is aggravated by
movement and activity. He apparently also suffers from a hearing loss for
which he wears a hearing aide. He can communicate okay. But the hearing
loss, he would be precluded from working around very noisy
environments. Consistent with the back condition, he probably only
occasionally can do postural movements, climbing, balancing, stooping,
kneeling, crouching and crawling. He wants to avoid concentrated
exposure to extreme cold and to extreme heat, concentrated exposure to
vibrations, fumes, odors, dust, gases and poor ventilation, and hazards and
should not work at unprotected heights [inaudible]. With [these]
restrictions, would there be any work such an individual could perform . . .
at the sedentary exertional level?
(Tr. at 36). The hypothetical posed to the vocational expert, and as stated in the RFC
finding, described sedentary work with additional postural and environmental
restrictions. (Tr. at 12, 36). This hypothetical accurately reflects the medical records.
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Furthermore, the hypothetical and RFC finding indicate that although the ALJ
discounted Claimant’s statements of intensity and persistence of symptoms, the ALJ
fairly accommodated Claimant’s alleged impairments and complaints to the extent that
they were supported by the record. In light of the medical evidence before the Court, the
undersigned concludes that the ALJ posed a proper hypothetical to the vocational
expert.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, by Judgment
Order entered this day, the final decision of the Commissioner is AFFIRMED and this
matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to transmit copies of this Order to the Plaintiff
and counsel of record.
ENTERED: October 20, 2011.
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