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Hesse v. Commissioner of Social Security

September 29, 2010

STEVEN HESSE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Pursuant to 42 U.S.C. § 405(g), plaintiff Steven Hesse, represented by counsel, is before the Court seeking review of the final decision of the Social Security Administration denying him Supplemental Security Income (SSI) pursuant to 42 U.S.C. § 1382, Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423, or even a Period of Disability (POD) pursuant to 42 U.S.C. § 416(i). (Doc. 2.) In addition to submitting the administrative record (Doc. 14), plaintiff and defendant have fully briefed their positions. (Docs. 18 and 26.)

Plaintiff Hesse's physical ailments are not in dispute, per se. Rather, this appeal centers around the sufficiency of the evidence and legal analysis by Administrative Law Judge ("ALJ") Sally C. Reason. Plaintiff claims ALJ Reason's finding that plaintiff is not disabled is not supported by substantial evidence. More specifically, plaintiff argues:

1. The ALJ improperly assessed plaintiff's credibility; and

2. The ALJ did not afford proper weight to the opinion of plaintiff's treating physicians, Dr. Davidson, and Dr. Ballesteros.

(Doc. 18.)

Brief Summary of the Evidence and Procedural History

Plaintiff applied for SSI and DIB on August 31, 2005, alleging the onset of disability as of March 1, 2002, after a post-laminectomy bad back became excessively painful. (Doc. 14-5, pp. 2-4 and 8-10; Doc. 14-2, p. 28; and Doc. 14-2, p. 29.) At the time of alleged onset, plaintiff was 46 years old; he was 49 years old at the time of decision. (See Doc. 14-2, p. 23.) Plaintiff has a 10th grade education (or less), and he was last employed as an iron worker. (Doc. 14-2, pp. 29 and 41.) From a vocational perspective, that work is heavy, as performed. (Doc. 14-2, pp. 42-43.)

Plaintiff does not take issue with ALJ Reason's factual recitation, per se. Rather, plaintiff disagrees with the ALJ's focus on and interpretation of certain evidence, leading to the conclusion that plaintiff is not credible. (See Doc. 18, pp. 2-6.) Therefore, only an outline of plaintiff's most relevant medical history will be included in this order; the Court will generally adopt the ALJ's factual recitation (Doc. 14-2, pp. 17-21), and cite to specific evidence as necessary for a more detailed analysis of plaintiff's arguments.

In brief, in 1994, plaintiff had a broken arm surgically repaired with steel rods; he subsequently returned to work. (Doc. 14-7, p. 73.) 1998, plaintiff had a laminectomy at L4-5 and L5-S1; he returned to work three months after the operation. (Doc14-7, pp. 47 and 59.) In March 2002, plaintiff began experiencing back pain again, which radiated down his left leg.

(Doc. 14-7, p. 47.) Plaintiff has not worked since March 2002, the alleged onset date.

In March 2002, imaging studies revealed a pseudomeningocele or cystic-like structure on the lumbar spine. (Doc. 14-7, pp. 50-62.) At that time, plaintiff described his untreated pain as 8 on a 10-scale. (Doc, 14-7, p. 62.) Nerve root block injections initially helped relieve plaintiff's pain, down to a 3 on a 10-scale, but that relief was short-lasting. (Doc. 14-7, pp. 62 and 89.) In mid-May 2002, plaintiff underwent surgery to decompress the nerve roots and close the pseudomeningocele, which relieved the pain, but plaintiff continued to experience headaches, which were relieved by Tylenol with codeine. (Doc. 14-7, pp. 35 and 87.) In September 2002, plaintiff was released to work, but restricted to no bending from the waist, and no lifting more than 25-30 pounds. (Doc. 14-7, p. 35.) An October 2002 MRI showed reestablishment of the pseudomeningocele, but the cyst was characterized as "essentially asymptomatic;" radicular pain had ceased, preoperative discomfort and the neurological deficit had cleared. (Doc. 14-7, p. 94.)

An independent medical examination performed by Dr. John A. Gragnani, M.D., in October 2002, indicates plaintiff described his pain as 6-7 on a 10-scale, with periods where pain reached the level of 10. (Doc. 14-7, p. 31.) The doctor opined that plaintiff's physical limitations stemmed from the 1998 surgery, and subsequent surgery to attempt to repair a dura tear, all of which resulted in a current pseudo cyst. (Doc. 14-7, p. 32.) Apparent depression was also noted. (Doc. 14-7, p. 32.) The doctor noted the aforementioned work restrictions, but did not note any other substantial physical deficit.

In February 2003, plaintiff had another surgery on his back. (Doc. 14-7, p. 22 (medical records of this operation are not in the record, but the surgery is otherwise noted in Dr. Davidson's records).)

In October 2005, Dr. Adrian Feinerman, M.D., performed a 30-minute consultative exam and record review. (Doc. 14-7, pp. 121-125.) According to Dr. Feinerman's report, plaintiff claimed he could walk 3/4 of a mile, stand for 30 minutes, sit for an hour, lift approximately 25 pounds, squat and bend, albeit with some back pain. The doctor's examination revealed no limitations of motion in the spine, normal ambulation, the ability to sit, walk, stand, squat and bend without difficulty, a full range of motion in all weight bearing joints; and strength and neurological tests were normal.

In November 2005, Dr. Paul Smalley issued a residual functional capacity assessment, indicating plaintiff was capable of lifting and carrying 50 pounds occasionally and 25 pounds frequently, sitting, standing and walking for six hours during an eight hour day; and no limitations were perceived. (Doc. 14-7, pp. 109-116.)

In December 2005, Dr. Robert J. Davidson, M.D., plaintiff's treating physician, completed a source statement regarding both plaintiff's mental and physical condition. From a physical standpoint, Dr. Davidson opined that plaintiff was capable of lifting and carrying no more than 10 pounds occasionally due to herniated discs and post-operative complications, lower spine defects and sciatica; plaintiff could stand for one hour during an eight hour work day due to low back pain and a need to lie down; and plaintiff could sit for two to three hours (45 minutes at a time), needing to shift position and take breaks; furthermore, plaintiff was completely restricted from climbing, balancing, stooping, crouching, kneeling and crawling due to his medication and the affects on his equilibrium and coordination; and due to the affects of medication, plaintiff was to avoid heights, moving machinery, temperature extremes, chemicals, dust, noises, fumes, humidity and vibration. (Doc. 14-8, pp. 30-32.) Dr. Davidson characterized plaintiff's pain as being severe and constant-- plaintiff is never out of pain. (Doc. 14-8, p. 32.)

Dr. Davidson opined that, with regard to plaintiff's mental status, plaintiff had a fair ability to make occupational adjustments, although medication affects his cognitive ability, he has poor memory and concentration, and he gets short tempered and frustrated; in terms of performance adjustments, plaintiff had poor or no ability to understand, remember and carry out complex job instructions, and a fair ability relative to non-complex instructions; and plaintiff was judged as poorly relating in social situations, unable to maintain emotional stability in a work place, but still able to perform the activities of daily living, including managing his finances. (Doc. 14-8, pp. 26-28.)

Plaintiff continued to regularly see Dr. Davidson through mid-2008, after the close of the evidentiary record. Plaintiff also visited the emergency room on at least 18 occasions between 2002 and 2007 seeking medication for pain, generally when his medication was insufficient for pain control, or when medication was stolen or had run out prior to his next appointment with Dr. Davidson. (Doc. 14-7, pp. ...


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