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Patrick Foor v. Michael J. Astrue

September 16, 2011

PATRICK FOOR, 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") properly considered Plaintiff's pain testimony, and otherwise failed to provide adequate reasons for his finding that Plaintiff's testimony was not credible;

2. Whether the ALJ properly considered lay witness testimony from Plaintiff's girlfriend; and

3. Whether the ALJ properly assessed the compounding effects of Plaintiff's pain, injuries and impairments, including his diabetes and pain medication, on his ability to sustain gainful employment.

(JS at 2-3.)

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 EVALUATED PLAINTIFF'S PAIN TESTIMONY In Plaintiff's first issue, he asserts that the ALJ failed to properly evaluate his subjective pain testimony. Indeed, Plaintiff's description of his pain is so extreme that, as he concedes in his portion of the JS, "If credited, plaintiff's testimony would require a finding of disability." (JS at 4.)

In the course of Plaintiff's work as a petroleum technician, he suffered a series of on-the-job injuries which eventually led him to stop working. He described these as a "crushed" right elbow which he suffered in 1987; a "broken" neck in 1990; and low back and left wrist injuries which he sustained in 2005 or 2006. (See AR at 13.) He had right knee surgery in 1999. He developed continuing pain in his right elbow. He had surgery on his right elbow in April 2005 which at first helped, but he asserts that he developed arthritic right elbow pain which increased over time. He continued treating for an increasing symptom of neck pain, and various surgeons considered surgery which would fuse four of his neck vertebrae in 2007. Plaintiff declined because he was afraid of the risks. Despite this pain, he continued to work, but in 2005, he incurred two work-related injuries to his left hand and lower back, which led to radiating leg and arm pain, ulnar nerve entrapment in his left elbow, and tendinitis in his left wrist. (AR 11-13, 29, 204, 390.)

At the administrative hearing on June 16, 2008 (AR 18-54), substantial attention was devoted to the issue of pain. Plaintiff indicated he spends most of his time in bed, and even so, he suffers constant excruciating neck pain. (AR 31.) He takes medication which only helps a little bit "mentally." (Id.) He has throbbing pain in his right elbow because of what he asserts to be severe arthritis in that joint. His elbow locks up on him, preventing him from doing any kind of pushing or pulling, and even brushing his teeth or shampooing his hair results in excruciating pain. He also has constant radiating pain in his left arm which sometimes causes him to lose his grip. (AR 32.) He attributes these symptoms to a work injury which he indicates "locks my elbow up and I can't straighten it. Or my bones in my hands and everything are like somebody smashed it with a sledgehammer." (AR 33.)

Due to another injury Plaintiff sustained while working, he has been subsequently afflicted with constant back pain for which he takes medicine. (AR 35.) This pain is a "pinching, burning, just a real soreness." ...


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