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Roquemore v. Astrue

September 14, 2008

JOHN D. ROQUEMORE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; (Doc. No. 15) and (2) GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT. (Doc. No. 16.)

Plaintiff John D. Roquemore, proceeding by and through counsel, has filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying his application for Social Security Disability Benefits under Title II of the Social Security Act. Plaintiff moves the Court for summary judgment reversing the Commissioner's decision and ordering an award of benefits. (Doc. No. 15.) The Commissioner has filed a cross-motion for summary judgment, asking the Court to affirm the denial of benefits. (Doc. No. 16.) These motions are appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). Upon review, for the reasons explained below, Plaintiff's motion for summary judgment is DENIED and the Commissioner's cross-motion is GRANTED.

BACKGROUND

Procedural History

Plaintiff applied for Disability Insurance Benefits under Title II of the Social Security Act on April 14, 2005. (Administrative Record Transcript ("Tr.") at 14.) Plaintiff alleged he became disabled on January 7, 2005, due to degenerative arthritis. (Tr. at 15.) The Social Security Administration had previously denied plaintiff's applications for Disability Insurance Benefits in 1990, 1992, 1995, and 2004. (Tr. at 317.) The Social Security Administration denied plaintiff's 2005 application initially and upon reconsideration. At plaintiff's request, an Administrative Law Judge ("ALJ") held a hearing on April 6, 2006. (Tr. at 308-22.) On May 25, 2006, ALJ Bernard A. Trembly issued an unfavorable written decision finding plaintiff was not disabled. (Tr. at 11.) Plaintiff requested review by the Appeals Council of the ALJ's decision. The Appeals Council denied Plaintiff's request for review on November 7, 2007. (Tr. at 4-6.) Plaintiff filed a complaint for judicial review on January 14, 2008. (Doc. No. 1.)

Factual Background

Plaintiff is a 52-year-old man with a high school education and past relevant work as a laborer and janitor. (Tr. at 20.) Plaintiff testified he hurt his back while serving in the military. (Tr. at 19.) He alleges a disability due to degenerative arthritis in his back. Plaintiff has not engaged in any gainful activity since January 7, 2005, the alleged onset date of his disability.

Plaintiff's treating physician is Dr. Poornima Khanna. (Tr. at 18.) Dr. Khanna concluded plaintiff was disabled due to back strain on March 14, 2005, with an estimated return of July 13, 2005. He recommended physical therapy. (Tr. at 258.) Dr. Khanna cited back pain as the reason for plaintiff's continued disability on September 30, 2005, but opined plaintiff would be ready to return to work January 1, 2006. (Tr. at 255.)

On August 9, 2005, plaintiff attended physical therapy at Paradise Valley Hospital. The record shows a series of back stretches the therapist instructed plaintiff to perform at home. (Tr. at 231.) The physical therapist performed an evaluation citing major functional limitations but indicated plaintiff had "good" potential with rehabilitation. (Tr. at 234.) Plaintiff could not bend forward. (Tr. at 235.) The therapist discharged plaintiff on June 24, 2006, after he missed four sessions out of ten in a two month period. (Tr. at 281.)

On December 14, 2005, Dr. John S. Gillick, a Veteran's Administration physician, performed an evaluation. Dr. Gillick noted in his interview that plaintiff was laid off January 7, 2005, but had been struggling with back problems and had been receiving social security benefits since late January of 2005. (Tr. at 248.) Dr. Gillick examined plaintiff and found he was limited in forward flexion to 80 degrees and fatigued quickly when doing a forward bending exercise. With respect to shoulder pain, Dr. Gillick found plaintiff had significant tenderness and pain along with some muscle disfunction that could be the cause of the numbness in his right index finger. (Tr. at 248-52.) In his analysis, Dr. Gillick opined plaintiff was limited to performing light or sedentary work. (Tr. at 252.)

On December 29, 2005, Dr. Willaim Synder reviewed plaintiff's Magnetic Resonance Imaging and found mild levoscoliosis and mild to moderate narrowing of the lower lumbar spine related to degenerate changes. Dr. Snyder also noted a cyst in the right lobe of the liver, for which he suggested further evaluation. (Tr. at 241).

On June 6, 2005, Dr. Thomas J. Sabourin performed an orthopedic consultation for the Social Security Administration. Dr. Sabourin noted plaintiff received "conservative" treatment from his private doctor in the past. (Tr. at 195.) Plaintiff claimed to use a cane all the time. (Tr. at 195.) Dr. Sabourin found plaintiff appeared comfortable and exhibited normal gait and posture. (Tr. at 196.) Plaintiff experienced pain with forward flexion, extension, and lateral flexion through the lumbar spine upon examination and was tender to the touch, but there was no spasm, swelling, or warmth. Plaintiff experienced tenderness in the right shoulder through the range of motion but there was no warmth, swelling, or instability. (Tr. at 197.) Dr. Sabourin diagnosed plaintiff with lumbar spondylosis and mild right shoulder bursitis and found he had numbness at the tip of the right index finger and thoracic spondylosis. (Tr. at 198.) Dr. Sabourin issued a Medical Source Statement which indicated plaintiff could do the following: (1) carry twenty pounds occasionally and ten pounds frequently, (2) stand and walk up to six hours in an eight hour work day and sit for six in an eight hour work day, and (3) climb, stoop, kneel, or crouch occasionally. Plaintiff is unable to walk on uneven terrain. (Tr. at 199.)

On June 16, 2005, Dr. Karolyn Mauro reviewed the evidence on the behalf of the Social Security Administration in plaintiff's Personal Capacity Statement and opined that while the symptoms were attributable to a medically determinable impairment, the "severity or duration of the symptom(s)" was "disproportionate" to expected outcomes of the diagnosed conditions. (Tr. at 206.)

On February 28, 2006, Nurse Amy Hecht suggested plaintiff try pool exercises. (Tr. at 262.) In September of 2005, she suggested plaintiff try daily exercise such as swimming, walking, or biking. (Tr. at 273.) In November of 2005, Nurse Hecht suggested plaintiff try to lower his blood pressure by doing a daily aerobic workout. (Tr. at 269.)

DISCUSSION

Standard of Review

To qualify for disability benefits under the Social Security Act ("the Act"), an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to result in death or has lasted, or can be expected to last, for a continuous period of twelve months or more; and (2) the impairment renders the applicant incapable of performing the work that the applicant previously performed and incapable of performing any other substantially gainful employment that ...


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