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CROSBY v. APFEL

December 9, 1999

CLIDE R. CROSBY, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Clide R. Crosby ("Crosby") brings this action pursuant to 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security ("Commissioner") denying Crosby's claim for Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 416(i), 423, 1381a. The Administrative Law Judge ("ALJ") found that Crosby was not disabled. (A.R. at 10-17.) The Appeals Council denied Crosby's request for review. (A.R. at 3-4.)

This matter comes before the Court on cross motions for summary judgment. The Court held oral argument on November 29, 1999. The issues to be decided are whether substantial evidence in the record supports the ALJ's finding that Crosby was not disabled and that there were a significant number of jobs in the national economy that Crosby could perform. For the reasons set forth below, the Court grants Defendant's motion for summary judgment, denies Crosby's motion for summary judgment and affirms the ALJ's decision.

I. FACTUAL BACKGROUND

A. Testimony

1. Crosby's Testimony

Crosby appeared with counsel and testified at a hearing before the ALJ on June 20, 1996. (A.R. at 25-60.) Crosby was 37 years old at the time of the hearing. (A.R. at 30.) Crosby received a high school diploma and had carpentry training. (A.R. at 30-31.) Crosby served in the United States Army from 1982 to 1990. (A.R. at 31). After leaving the Army, Crosby worked for one year with Nina Enterprises (A.R. at 31-32), and for approximately three years with R.I. Bussey Company. (A.R. at 32-33.) Crosby's position at R.I. Bussey required him to be on his feet for approximately eight hours at a time lifting debris off a conveyer belt. (A.R. at 50-51.) This required lifting weights as much as 25 pounds, occasionally more, and constant bending and reaching. (A.R. at 32-33, 35). The position is classified as semiskilled, medium exertional work. (A.R. at 35.) Crosby stopped working at R.I. Bussey in 1994. He now supports himself with public aid. (A.R. at 51.)

Crosby claims he is disabled because he has back and shoulder pain that prevents him from working. (A.R. at 37.) Crosby claims he has pain in his lower back and shoulders that comes and goes. (A.R. at 37, 39.) He has problems sitting and his pain requires him to sit on an angle with his left leg extended. (A.R. at 44, 46). When in this position he is able to sit for a period of time but must stand to relieve his pain. (A.R. at 44.) He could probably stand for a couple of hours at a time, but would still experience pain. (A.R. at 47.) He could not stand for eight hours a day. (A.R. at 47.) He walks with a limp. (A.R. at 44-46.) He can walk several blocks and may even be able to walk a mile if permitted to stop for breaks. (A.R. at 46.) He can reach and lift with his hands and arms, although heavy lifting causes pain. (A.R. at 37-38.) He does not bend because he is scared that he might further injure himself. (A.R. at 39.) He suffers from asthma which he treats with an inhaler. (A.R. at 55.)

Crosby takes 600 milligrams of Ibuprofen as needed, up to four times a day, to relieve his pain. (A.R. at 35.) The Ibuprofen works and lessens the pain. (A.R. at 36, 52.) He also uses a TNS unit which provides electrical stimulation and heat to his back. (A.R. at 36, 52.) He took part in limited physical therapy. (A.R. at 52.) He has not been prescribed any other medicines for his injury and does not use any other assistive devices. (A.R. at 36.)

Crosby lives with his wife and five children. (A.R. at 51.) He occasionally helps with preparing meals (A.R. at 41), but is unable to help with the housework or grocery shopping. (A.R. at 42). He enjoys reading and watching television. (A.R. at 43-44). He attends church every other Sunday. (A.R. at 44). Although Crosby does not follow a set exercise regimen, he swims and attempts to follow prescribed exercises. (A.R. at 43.)

2. Vocational Expert's Testimony

Dr. William G. Fisher, the Vocational Expert ("VE"), testified at the hearing. (A.R. at 53-59.) The VE stated that Crosby's past work was classified as semiskilled and the exertional level was medium in physical demand. (A.R. at 35.)

The ALJ asked the VE to give his opinion under a hypothetical situation. (A.R. at 54-56.) The VE opined that Crosby could perform sedentary level work. (A.R. at 57.) The VE described the job of cashier as sedentary, with approximately 7,000 positions in the region. (A.R. at 57.) The VE also described the job of surveillance system monitor as sedentary, with approximately 5,000 positions in the region. (A.R. at 57.) According to the VE both positions allow the employee the freedom to sit or stand at will. (A.R. at 57.) In addition, the VE described the positions of machine operator as light and entrance attendant as sedentary, both allowing the employee to sit or stand at will. (A.R. at 57.) The VE stated that there were approximately 7,000 machine operator positions and 6,000 gate attendant positions in the region. (A.R. at 57.)

The VE was also asked to consider a hypothetical Claimant who could not lift any weight regularly, unable to either sit or stand for a full eight hours. (A.R. at 58.) The VE stated that there was no substantial gainful activity that such a Claimant could do. (A.R. at 58.)

B. Medical Evidence

1. Dr. C. Orfei, Treating Physician

Dr. C. Orfei first saw Crosby upon his admission to Westside VA Hospital on January 27, 1995. Crosby was admitted to the Emergency Room with a complaint of low back pain. (A.R. at 116.) Dr. Orfei's medical report indicates that a lumbosacral spine x-ray documented a degenerative disk at L3-4 without destructive lesions. (A.R. at 117.) During his five days of inpatient treatment, Crosby was treated for his pain with Demerol and Vistaril. (A.R. at 117.) Crosby was discharged on February 1, 1995 after his pain subsided. (A.R. at 117.) At the time of discharge Crosby was not prescribed any additional Demerol, but was given a prescription for Robaxin and placed on Motrin for pain. (A.R. at 118.) Upon Crosby's discharge, Dr. Orfei scheduled an out-patient MRI. (A.R. at 118.) Dr. Orfei noted that Crosby was not able to return ...


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