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Mark A. Newman v. Michael J. Astrue

June 15, 2011

MARK A. NEWMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") gave proper consideration to Plaintiff's testimony. (AR at 4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I

THE ALJ PROPERLY CONSIDERED PLAINTIFF'S SUBJECTIVE TESTIMONY, AND CORRECTLY INCORPORATED CERTAIN LIMITATIONS INTO THE RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT

Plaintiff sets forth one disputed one disputed issue, denominated, "Whether the ALJ gave proper consideration to the testimony of Mark Newman." (JS at 4.) As the Commissioner notes, based on the argument contained in Plaintiff's portion of the JS, it may well be that Plaintiff is also challenging the ALJ's residual functional capacity ("RFC") assessment, and although the Court knows Plaintiff's counsel to be highly experienced in this area, and would expect a separate delineation of such issues, it will address both, in an abundance of caution.

The ALJ determined that Plaintiff has the following severe impairments: "degenerative disc disease of the lumbosacral spine, L4-L5 and L5--S1 with disc bulges, more a [sic] the L4-L5 level, with bilateral radiculitis with neuralgia paresthetica; lumbar strain/sprain; cervical thoracic strain/sprain; bilateral hand numbness with carpal tunnel release on the right in December 2008; arthritis of the right shoulder; and hepatitis C., and the following non-severe impairments: history of rectal bleeding, history of hypertension and dyslipidemia (20 CFR 404.1520(c) and 416.920(c))." (AR 15.)

Based on this analysis, the ALJ determined that Plaintiff has the following RFC: "... to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except for standing and/or walking for more than four hours in an eight-hour day; occasional climbing of ramps and stairs and occasional balancing, stooping, kneeling, crouching and crawling; no climbing of ladders, ropes or scaffolds; no forceful gripping/grasping with either hand; frequent, but not constant use of the hands; no exposure to extreme cold, vibration, unprotected or hazardous machinery." (AR 15.)

At the next step of the sequential evaluation, the ALJ determined that Plaintiff is unable to perform any of his past relevant work (Id.), and at Step Five, identified other jobs in the national economy which Plaintiff can perform, thus finding him to be not disabled. (AR 15-16.)

Citing Plaintiff's testimony at the hearing before the ALJ (see, generally, AR 20-42), his counsel notes Plaintiff's testimony that the right carpal tunnel release did not help; that his back condition had not improved; that he could sit 45 to 60 minutes but would need to stay out of a chair for 15 to 20 minutes combining standing and walking before resuming sitting; that he can stand for 30 to 45 minutes at a time; that he has a very occasional lifting capacity of 25 pounds twice a day; and that he continues to get muscle spasms in his neck.

Assuming that the correctness of the ALJ's RFC finding is in play in this litigation, the Court will first address it. None of Plaintiff's treating physicians ever indicated that he had any impairments which would be disabling. (AR 131, 140, 168-270, 273-296.)

In determining Plaintiff RFC, the ALJ explicitly relied upon a December 2007 consultative examination ("CE") by orthopedist Dr. Bilezikjian (AR 13, 155-159); and the opinions of non-examining ...


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