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John Paul Dirosa v. Michael J. Astrue

July 13, 2012

JOHN PAUL DIROSA PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER

The plaintiff, John DiRosa, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§423(d)(2). Mr. DiRosa asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I. PROCEDURAL HISTORY

Mr. DiRosa applied for DIB on April 24, 2006, alleging that he had been disabled since May 10, 2004, due to discogenic and degenerative disorders of the back and affective mood disorders. (Administrative Record ("R.") 96). His application was denied initially on September 14, 2006 (R.105-09), and upon reconsideration on November 9, 2006. (R. 111-13). Mr. DiRosa then filed a timely request for a hearing in pursuit of his claim on November 30, 2006. (R. 114).

The administrative law judge ("ALJ") convened a hearing on March 18, 2009, at which Mr. DiRosa, represented by counsel, appeared and testified. (R. 49-94). At this hearing, Dennis Gustafson testified as a vocational expert ("VE"). (R. 49). Mr. DiRosa and his attorney had planned on having Mrs. DiRosa testify as well, but after an off-the-record discussion, she did not testify. (R. 85). On August 31, 2009, the ALJ issued an unfavorable decision, denying Mr. DiRosa's application for DIB because he was not under a disability within the meaning of the Act. (R. 29). In making this decision, the ALJ went through the five-step sequential evaluation process to determine whether a claimant is disabled. (R. 30). 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009).

The ALJ found that, while Mr. DiRosa's impairments may be expected to cause the alleged symptoms, the statements that he made regarding the intensity, persistence, and limiting effects of the impairments were not credible when considered with the residual functional capacity assessment ("RFC"). (R. 38). The ALJ concluded that Mr. DiRosa could engage in a limited range of light work that involves simple routine tasks. (R. 37). The ALJ's decision became the Commissioner's final decision on September 10, 2010, when the Appeals Council denied Mr. DiRosa's request for review of the August 31, 2009, decision. (R. 1-3). See 20 C.F.R. §§404.955; 404.981. Mr. DiRosa appealed that decision by filing suit in this Court under 42 U.S.C. §405(g), and both parties consented to jurisdiction of a magistrate judge pursuant to 28 U.S.C. §636(c).

II. THE RECORD EVIDENCE

A.

The Vocational Evidence Mr. DiRosa was born on January 12, 1960, making him forty-nine years old at the time of the ALJ's decision. (R. 53,153). He is 5'8 feet tall and weighs 259 pounds. (R. 53). Mr. DiRosa attended school through the tenth grade, and he has his GED. (R. 60). He was employed at a veteran's home for four years prior to the hearing, during which time he was a cook and then a housekeeper. (R. 55). He was injured at his job in May of 2004 when he attempted to take a TV off of the wall, and it fell on top of his neck and shoulder. (R. 56). This employment ended in 2004 on the date of his injury. (R. 55). Following this injury, Mr. DiRosa has received weekly benefits from worker's compensation. (R. 57).

B.

The Medical Evidence Mr. DiRosa contends that he is eligible for DIB due to discogenic and degenerative disorders of his back. (Memorandum in Support of Plaintiff's Motion for Summary Judgment ("Plaintiff's Memorandum"), at 2). Additionally, he contends that his diabetes and depression diagnosis should be considered along with his medical impairments. (Plaintiff's Memorandum, at 2). After his injury in 2004, Mr. DiRosa had several surgeries to alleviate the pain of his injury, including a C6-7 decompression and anterior fusion, a right shoulder arthroscopy and subcromial decompression, and a disc clavicle excision. (R. 320-348, R. 716-760).

Following Mr. DiRosa's most recent surgery in January of 2006, a diagnostic and surgical arthroscopy, he still reported having pain in his right shoulder. (R.973-76). His doctor at the time, Dr. Mark Kelly, noted that he was making "no progress at all with his therapy and having difficulty with activities of daily living" in April of 2006. (R. 976). In a progress note by another doctor, Dr. Linda Li, that was made in July of 2006, she noted that he had recurrent pain that occurred particularly in his right shoulder. (R. 1072). In August of 2006, Dr. Phillip Budzenski performed an evaluation of Mr. DiRosa and concluded that it would not be appropriate for him to have a job that required extended range of motion of his cervical spine or required him to do overhead lifting, but that he should be able to do medium work for eight hours each day. Additionally, he noted that he would not have him climb ladders, scaffolding, or ropes, or work around unprotected heights. (R. 1090). Also in August of 2006, Dr. Mark B. Langgut performed an evaluation of Mr. DiRosa and diagnosed him as having moderate to severe Major Depressive Disorder.

At the request of the Agency, Dr. Delano Zimmerman completed a physical residual functional capacity assessment ("RFC") on August 30, 2006, reviewing all of the medical records submitted by Mr. DiRosa in support of his application for DIB. (R. 1095-1102). Dr. Zimmerman concluded that Mr. DiRosa could occasionally lift or carry fifty pounds, frequently lift or carry twenty-five pounds, stand or walk about six hours in an eight-hour work day, sit about six hours in an eight-hour work day, and push and pull without limits. (R. 1096). He also concluded that Mr. DiRosa should have the postural limitations of only occasionally crawling or climbing ramps and stairs, and never climbing ladders, ropes, or scaffolds. (R. 1097). Mr. DiRosa was also limited in reaching in all directions, but had no visual limitations. (R. 1098). For his environmental limitations, Mr. DiRosa was limited to avoiding extreme cold, vibration, and hazards. (R. 1099).

The physical RFC completed by Dr. Zimmerman was followed by a mental RFC completed by Dr. Phyllis Brister on September 13, 2006. (R. 1119). Through this assessment, Dr. Brister concluded that Mr. DiRosa was moderately limited in his ability to understand and remember detailed instructions, his ability to carry out detailed instructions, his ability to maintain attention and concentration for extended periods, and his ability to work in coordination with or in proximity to others without being distracted by them. (R. 1117). ...


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