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Nicola v. Astrue

April 28, 2010

PHILIP NICOLA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act ("Act"). In his motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") in this case erred by:

(1) rejecting the opinion of one of plaintiff's treating physicians without a legitimate basis for doing so; (2) failing to properly assess plaintiff's residual functional capacity as a result of the improper rejection of that treating physician's opinion; and (3) failing to utilize the services of a vocational expert. (Dkt. No. 19.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 23.)

For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.*fn1

I. BACKGROUND

A. Procedural Background

On September 19, 2005, plaintiff filed an application for Disability Insurance Benefits, alleging a disability onset date of October 11, 2003. (Administrative Transcript ("AT") 79-84.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 62-66, 70-74.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on plaintiff's claims. (AT 59, 29-53.) Plaintiff, who was represented by counsel, was the only person to testify at the hearing.

In a decision dated November 16, 2007, the ALJ denied plaintiff's application, finding that plaintiff could return to his past work as a driving instructor with some limitations noted in his residual functional capacity.*fn2 (See AT 13-20.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 3-5.)

B. Summary of Relevant Medical History and Evidence

At the time of his hearing before the ALJ, plaintiff was 59 years old. (AT 32.) He had worked as a driving instructor, the president and shuttle driver for a transportation company, and then as an "instructor" or care attendant who assisted mentally challenged people live more independently at a group care home. (See AT 32-34.) Plaintiff left his position in the group home after an October 11, 2003 accident in which he tripped and fell over a parking block while carrying laundry and suffered back and neck problems. (AT 34, 201.)

Plaintiff first sought treatment on October 13, 2003, from a chiropractor, Ron Rudometkin, D.C. (AT 34, 140, 149.) Dr. Rudometkin ordered a February 17, 2004 MRI, which revealed: (1) a "mild posterior subluxation*fn3 of L2 upon L3, which is likely congenital"; (2) a "mild bulge of disc posteriorly at L4-5; and (3) no frank disc herniation or spinal canal stenosis."*fn4

(AT 148, 203.) Dr. Rudometkin returned plaintiff to modified duty with a limitation of working no more than three hours per day, starting February 19, 2004. (AT 148.) He eventually referred plaintiff to James Wallace, D.C., a chiropractor, for a consultative evaluation. (Id.)

On June 16, 2004, Dr. Wallace issued a report based on a consultative examination of plaintiff and review of the medical record. (AT 141-49.) He opined that plaintiff had "[m]oderate level degenerative disc disease of the lumbar spine" and had lost 50% of his "pre-injury capacity for lifting, bending, stooping, pushing, pulling, and other activities involving comparable physical effort." (AT 146.) Dr. Wallace also stated that plaintiff was precluded from any heavy work. (Id.)

On June 17, 2004, Dr. Rudometkin signed a letter adopting Dr. Wallace's report as accurately reflecting the overall disability levels he had seen in treating plaintiff. (AT 140.)

On August 16, 2004, David M. Perez, D.C., conducted a qualified medical exam, ordered an x-ray, and issued a report dated September 10, 2004. (AT 150-59, 205.) Dr. Perez diagnosed plaintiff with: (1) "Chronic retrolisthesis of L2 over L3,"*fn5 (2) "Chronic facet syndrome at L2/3," and (3) "Chronic pelvic strain/sprain." (AT 154.) He concluded that plaintiff was unable to perform activities that required him to "do repeated forward bending, stooping, squatting, lifting >25 lbs or activities of comparable physical effort." (AT 155 ("Mr. Nicola's disability is consistent with a No Heavy Lifting, Repeated Bending or Stooping work restriction.").) Dr. Perez opined, however, that plaintiff could still perform the majority of his duties at the group home. (Id.)

On November 11, 2005, Steve McIntire, M.D., performed an orthopedic evaluation of plaintiff.*fn6 (AT 169-72.) He diagnosed plaintiff with "[p]robable osteoarthritis/degenerative disc disease of lumbar spine," and he "[q]uestion[ed] history of vertebral fracture."*fn7 (AT 171.) After detailing his examination findings, Dr. McIntire summarized plaintiff's functional limitations:

Given the loss of range of motion [of the lumbar spine], the claimant would have functional limitations. He would be limited in terms of heavy lifting or carrying activities to not more than 20 pounds frequently or 40 pounds occasionally. The current examination itself does not point to additional specific functional limitations. There are not limitations in terms of time sitting, standing or ...


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