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Buffolino v. Colvin

United States District Court, Northern District of Illinois, Western Division

March 20, 2015

Joseph A. Buffolino, Plaintiff,
v.
Carolyn W. Colvin, [1]Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTON, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Joseph A. Buffolino brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision denying him social security disability benefits. For the following reasons, the decision is affirmed.

I. BACKGROUND[2]

On February 25, 2008, Plaintiff filed an application for disability insurance benefits and supplemental security income, alleging a disability beginning on June 30, 2006. R. 40-41, 551. He was 42 years old at the time of the alleged onset date. R. 21. On November 30, 2010, the Administrative Law Judge (“ALJ”) held a hearing to review the Social Security Administration’s denial of Mr. O’Neill’s request for benefits. R. 546-80. The same attorney representing Plaintiff in this action also represented him at the hearing. Plaintiff and Vocational Expert Margaret Ford (“VE”) testified at the hearing.

Plaintiff testified that he was 46 years old at the time of the hearing. R.549. He received his GED and had lived with his mother for the past 14 years. R. 550. Plaintiff last worked in 2002, citing problems with his eye and neck. R. 552, 554. Plaintiff’s work history from 1999 to 2002 included jobs as a sorter in a factory, grass cutter, forklift driver, and landscaper. R.554-57. Additionally, while Plaintiff was incarcerated from December 2006 until February 2008, he worked in the kitchen serving food. R. 568-69.

Plaintiff testified that around 2000, he lost his right eye, which resulted in problems with his depth perception. R. 552, 565. This sometimes caused Plaintiff to hit his head on low ceilings or drop things. R. 565. Plaintiff also testified that around the same time, he injured his neck when he lifted 300 pounds on his shoulder, which resulted in the need for a cervical spine fusion at C6-7. R. 552, 557, 570. Following the fusion, he suffered from persistent neck pain. R. 552. Plaintiff testified that the pain occurred on a daily basis, and he described it as “pins and needles” that occurred when he turned his neck or looked upward. R. 563. Plaintiff rated the pain, even with pain medication, at a six or seven out of ten since 2009. R. 563-64. Due to the pain, he would lie in bed and watch television for seven and a half hours a day between the times of 8 a.m. and 5 p.m. R. 558. As of June 2006, Plaintiff spent four or five hours lying down during the day. R. 559.

Plaintiff also testified that for the past few years he has had pain in his left shoulder. R. 564-65. He explained that his left arm would go numb if he moved his neck in a certain direction. R. 564. Plaintiff also complained about fatigue, night sweats and dizziness, which started sometime in 2009. R. 566, 568. The dizziness occurred once or twice a month. R. 571. Plaintiff also suffered from hepatitis C, stage III kidney disease and reported a constant ringing in his ears, though the ringing did not hinder his ability to hear and understand those around him. R. 567-68, 572. Plaintiff also testified that in 2009 he broke his left wrist, cracked his rib and received a laceration to his head when he fell. He was also in a car accident in 2009 and received whip-lash to his neck and a bruised leg. R. 553-54.

According to Plaintiff, at the time of the hearing he could walk or stand for 30 to 45 minutes before getting tired. R. 566, 573. His doctor told him not to lift more than 10 pounds. R. 572. Additionally, Plaintiff could only sit for 30 minutes at a time before his “butt gets numb.” R. 572. He did not do any household chores, but he would accompany his mother shopping once every few months. R. 549-50, 559-60. Plaintiff would also leave the house two or three times a month for doctors’ appointments. R. 561.

The VE testified that Plaintiff’s past relevant work would be considered unskilled and ranged from light to heavy exertion. R. 579-80. The ALJ posed the following hypothetical to the VE: can lift and carry 20 pounds occasionally and 10 pounds frequently, may sit, stand and walk with normal breaks for up to six hours in an eight-hour workday, cannot climb ladders, ropes or scaffolds, may climb ramps or stairs, balance, stoop, kneel, crouch and crawl occasionally, may use the left upper extremity to perform overhead work occasionally, may use the left hand for fine manipulative tasks such as fingering or pinching frequently, must avoid concentrated exposure to extreme cold, has no vision in the right eye, and must avoid exposure to unprotected heights or excavations and exposed, unprotected dangerous moving machinery. R. 581-82. In providing this hypothetical, the ALJ specifically asked Plaintiff if he was right or left-handed. R. 581. Plaintiff indicated he was right-handed. Id.

The VE opined that the hypothetical person would not be able to perform any past relevant work, but there would be unskilled jobs at a light and sedentary exertion level available. R. 582-83. In a second hypothetical offered by the ALJ, the claimant, in addition to the restrictions previously listed, could lift and carry 10 pounds occasionally, lift and carry lighter items on a frequent basis, stand and walk with normal breaks for a combined total of two hours in an eight-hour workday and for no more than 30 minutes at a time. R. 584. The VE opined that the hypothetical person would be limited to sedentary, unskilled work. The VE explained that such positions allow the person to stand and sit at will, but that the standing and sitting requirement was dependent upon the specific job. R. 584-85. The jobs were at eye level and would not require a person to look upward. R. 588. Additionally, the VE explicitly stated that she accommodated for work that did not require normal depth perception. R. 584. The VE identified two jobs at the sedentary level, namely a telephone solicitor, with 2, 050 jobs regionally and 6, 150 jobs in Illinois, and an order clerk, with 19, 250 jobs in Illinois. R. 583, 586.

Plaintiff’s counsel asked the VE if the skill level of the telephone solicitor job was semiskilled. R. 587. The VE responded, incorrectly, that the job was unskilled with an SVP of 2. R. 588.

The relevant medical evidence presented to the ALJ revealed that in 1999, Plaintiff suffered an injury to his neck and left arm after carrying a railroad tie at work. R. 266. A magnetic resonance imaging (“MRI”) revealed a large lateral disk herniation at C6-7 with narrowing and dehydration of the C6-7 disk. R. 291. Plaintiff also had moderate diffuse dorsal disk bulging and endplate spurring. Id. In 2000, Plaintiff underwent cervical spine fusion at the C6-7 level. R. 161, 236. In 2002, Plaintiff lost his right eye to glaucoma and later received a prosthetic eye. R. 153, 175, 236.

In 2004, Plaintiff reported chronic neck pain and paresthesia of the face and left arm for the past six months. R. 161. An x-ray from 2004 revealed degenerative changes at the base of the cervical spine. R. 170. In February 2005, he reported discomfort following the fusion in his neck and occasional tingling in his face. R. 155. In October 2005, Plaintiff fell while attempting to pour concrete into a basement and hurt his head, arm, ribcage and leg and fractured his left wrist. R. 151, 168, 254. Plaintiff reported no neck pain, and an examination revealed that his neck was supple with no anterior or posterior tenderness. R. 254-55. In December 2005, Plaintiff again fell and injured his left wrist. R. 252. Plaintiff reported neck pain, but he did not have numbness or tingling in his extremities. Id. Plaintiff’s examination revealed that his neck was soft and supple. Id. Plaintiff had pain and swelling in his wrist, but had normal sensation. Id. X-rays from 2004 through 2007 revealed mild degenerative changes at C5-6 with hypertrophic spurring from C3-4 through C5-6. R. 211, 273, 275, 277. In 2006, Plaintiff reported to the emergency room with complaints of neck and throat pain when he turned his head. R. 250. The emergency room doctor opined that Plaintiff’s pain was attributable to an exudative pharyngitis. Id. An evaluation from February 2007 revealed Plaintiff’s neck and spine were in normal condition and he had full strength and range of motion in his extremities. R. 181. In October 2009, Plaintiff was involved in a car accident and reported to the emergency room with complaints of head and neck pain. R. 245. The emergency room doctor opined that Plaintiff suffered a closed head injury and a cervical strain. R. 246. An x-ray in April 2010, revealed no degenerative changes in the C5-6, C6-7 and C7-T1 levels since June 2006 and October 2009. R. 271-72. An examination from September 2010 revealed that Plaintiff had tenderness in his cervical spine and his range of motion reduced by one-third. R. 455.

On June 9, 2008, Dr. Kamlesh Ramchandani performed a consultative examination of Plaintiff. R. 214. The report stated that Plaintiff complained of neck pain for the last 10 years and numbness in his left hand. Id. Plaintiff’s physical examination showed that Plaintiff was in no acute physical distress and his gait was normal and unassisted. R. 215. Plaintiff was unable to look upward and was limited in his ability to rotate his neck to either side. R. 217. His grip strength on his left side was “4/5” while his right side was “5/5.” R. 215. Plaintiff lacked sensation in his left fourth and fifth fingers and his neck was stiff. Id. However, ...


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