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Jose Jesus Coronado v. Michael J. Astrue

August 2, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge




Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Title II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1958 and previously worked as a handyman. (Administrative Record ("AR") 96, 109.) Plaintiff has obtained a General Education Development ("GED") certificate, but has had no further education or training. (AR 26.) Plaintiff filed the current applications for DIB and SSI on January 24, 2007. (AR 15, 83-93.) Plaintiff alleges that he became unable to work on June 1, 2006, due to "slipped discs" in his back, a "bad right knee," a spur on his right heel, and arthritis (AR 83, 108.)*fn2

A. Medical Evidence

Plaintiff asserts that his inability to work is due to an injury that occurred on December 14, 2004, which resulted in back pain. (AR 108, 144.) Plaintiff also suffers from right knee pain and arthritis. (AR 108.) Plaintiff saw Dr. San Tso, his treating physician, for general medical treatment between 2005 and 2008. (AR 175-196.)

1. Medical Records Prior to June 1, 2006

Plaintiff began seeing Dr. San Tso on February 4, 2005, due to knee pain he had been experiencing during the prior month and a half. (AR 196.) Plaintiff reported taking Vicodin*fn3 and Codeine*fn4 during this visit. (AR 196.) On February 7, 2005, an x-ray of his right knee revealed inflammation, but no other significant impairments. (AR 209.) Following a magnetic resonance imaging ("MRI") scan of his lumbar spine on February 16, 2005, Plaintiff was diagnosed with degenerative disc disease by Dr. Hamid Javaherian. (AR 207-08.) Plaintiff returned to Dr. Tso on February 25, 2005, for a follow-up appointment and reported that his pain was better. (AR 195.)

Plaintiff was referred to Dr. Karl Gregorius, a treating physician, on March 15, 2005, for degenerative disc disease treatment. (AR 205.) In a March, 23, 2005, letter, Dr. Gregorius stated that Plaintiff had a pain level of four out of ten localized to his lumbar spine, less pain in his right leg, no pain in his left leg, had undergone no physical therapy, and was not "a surgical candidate because his pain ha[d] improved significantly since it was severe a month ago." (AR 140, 204.) Dr. Gregorius noted that Plaintiff would begin physical therapy and return in six weeks. (AR 140, 204.) He also noted that he would extend Plaintiff's temporary total disability ("TTD") by eight weeks. (AR 140, 204.)

On April 15, 2005, Plaintiff saw Dr. Tso for a follow-up appointment and reported that he had seen Dr. Gregorius and was undergoing physical therapy. (AR 194.) Plaintiff returned to see Dr. Gregorius on May 4, 2005. (AR 139, 203.) In a May 4, 2005, letter, Dr. Gregorius stated that Plaintiff had "a constant, burning sensation in the lumbar spine . . . [and] burning in the shoulders, on both sides." (AR 139, 203.) Dr. Gregorius indicated that Plaintiff had no leg pain, had attended physical therapy, where he learned exercises to do at home, and "it would [not] be advisable for [Plaintiff] to have surgery . . . [because] his pain is all gone now." (AR 139, 203.) Dr. Gregorius noted that Plaintiff "will look for another line of work since I do not think he can go back to lifting, bending and stooping." (AR 139, 203.) Dr. Gregorius continued Plaintiff's "TTD until he can find another area of work" and would see him again as necessary. (AR 139, 203.)

On June 10, 2005, Plaintiff saw Dr. Tso for a follow-up appointment. (AR 193.) Dr. Tso noted that Plaintiff was "not taking anything for pain . . . not working . . . having [an increase in] pain . . . [and] cannot lift, bend or stretch . . . or sit for long periods of time." (AR 193.) Dr. Tso stated that Plaintiff "should be on disability." (AR 193.) Dr. Tso noted prescriptions for Naproxen,*fn5 Promethazine*fn6 with Codeine, and Hydrocodone-acetaminophen.*fn7 (AR 193.)

On July 14, 2005, Plaintiff saw Dr. Tso for a check-up. (AR 191.) Dr. Tso noted Plaintiff's pain and degenerative disc disease. (AR 191.)

Dr. Gregorius examined Plaintiff again on August 31, 2005. (AR 141.) Dr. Gregorius prepared a letter which did not report any physical therapy but did state that Plaintiff had a "tingling sensation down the right leg all the time" and that Plaintiff "does not want to consider surgery right now," although the possibility for surgery was discussed. (AR 141.) Plaintiff claimed to have "seen a consultant in Mexico who advised him against having surgery . . . [and] fe[lt] like he would rather live with his problem than have an operation." (AR 141.) Plaintiff claimed to "work[] for a day and then has to spend three days in bed." (AR 141.) Additionally, Plaintiff complained of "an inability to work." (AR 141.) Dr. Gregorius noted that he "thinks the [Plaintiff] is permanently, totally, and completely disabled from any occupation." (AR 141.) He recommended Plaintiff "apply for Social Security Disability." (AR 141.)

On September 27, 2005, Plaintiff saw Dr. Tso for a follow-up appointment; he noted Plaintiff's daily exercises and that he was given the option of surgery with Dr. Gregorius. (AR 190.) On December 12, 2005, Plaintiff was seen for a possible toe fracture to his right, little toe caused by stubbing it on a desk, but an x-ray was negative. (AR 189, 201.) On April 5, 2006, Dr. Tso reported that Plaintiff suffered from degenerative disc disease. (AR 188.) Dr. Tso also assessed Plaintiff as disabled. (AR 188.)

2. Medical Records After June 1, 2006

On September 13, 2006, Plaintiff saw Dr. Tso for cold symptoms, but did not report pain in his back or knees, and a physical exam of his back was "within normal limits." (AR 187.) Dr. Tso did note, however, that Plaintiff was experiencing degenerative disc disease with radiculpathy. (AR 187.) On October 3, 2006, Plaintiff again saw Dr. Tso for cold symptoms but did not report pain in his back or knees. (AR 186.)

On April 26, 2007, Plaintiff was given a "complete orthopedic evaluation" by Dr. Nathan Pliam, a consultative examining orthopedic surgeon. (AR 144-50.) Plaintiff complained of "back pain and knee pain." (AR 148.) Dr. Pliam observed that Plaintiff "sits and stands with normal posture. The [Plaintiff] is able to arise from a chair without difficulty. The [Plaintiff] walks normally. He can walk on his toes slowly with some apparent discomfort. He states that he is unable to walk on his heels due to heel pain." (AR 145-46.) Plaintiff's range of motion for his cervical spine was within normal limits, and his range of motion in his upper extremities, including shoulders, elbows, wrists, hands and fingers, was within normal limits. (AR 146.) His range of motion in his lower extremities, including hips, knees, ankles and feet, was also within normal limits. (AR 147.)

After examining Plaintiff and reviewing his medical records, Dr. Pliam diagnosed him with "[c]hronic low back pain with radiologically documented spondylosis at multiple levels." (AR 148.) Dr. Pliam opined that Plaintiff was limited as follows:

[L]ifting 20 pounds[] occasionally and 10 pounds repetitively. Bending should be limited to occasional. Sitting should be limited to two hours continuously for a cumulative total of six hours per day. Standing in one place should be limited to 30 minutes, continuously for a cumulative total of two hours per day. The [Plaintiff] should be precluded from posturally demanding activities such as crouching, crawling, squatting, climbing, etc. (AR 148.)

On May 8, 2007, Dr. John Meek, a non-examining State agency physician, reviewed Plaintiff's medical records and completed a physical residual functional capacity assessment on May 22, 2007. (AR 151-57.) Dr. Meek concluded that Plaintiff could occasionally lift 20 pounds, frequently lift and/or carry (including upward pulling) 10 pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, sit (with normal breaks) for a total of about six hours in an eight-hour workday, push and/or pull (including operation of hand/foot controls) for an unlimited time, within the limitations for lifting and carrying. (AR 154.) Dr. Meek based these conclusions specifically on "multi-level degenerative changes" to Plaintiff's lumbar spine. (AR 154.)

Dr. Meek considered Dr. Gregorius's letters, particularly the facts that Plaintiff's prescribed exercises reduced the pain in his right leg, the range of motion in his spine became normal, and Dr. Gregorius noted that Plaintiff had declined surgery. (AR 157.) Dr. Meek opined that the severity or duration of the symptoms was disproportionate to the expected severity or expected duration on the basis of Plaintiff's medically determinable impairments. (AR 157.) Additionally, Dr. Meek commented that Plaintiff's "allegation of knee pain and numbness . . . is not fully credible as [his] gait is intact." (AR 152.) Dr. Meek recommended a residual functional capacity ("RFC")*fn8 for light work.*fn9 (AR 152, 157.)

On September 24, 2007, Plaintiff underwent an x-ray to determine if he had acute tuberculosis, due to a positive purified protein derivative skin test on September 21, 2007. (AR 180, 185.) The x-ray was negative for active tuberculosis but showed signs of spondylosis; he underwent a computed tomography ("CT") scan the same day for further evaluation. (AR 179-180.) In a letter dated December 18, 2007, the CT scan yielded evidence of "degenerative changes of [his] thoracic spine." (AR 179.)

On October 15, 2007, Dr. Leonore Limos, a non-examining State agency physician, affirmed Dr. Meek's ...

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