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Richard Michael Tway v. Michael J. Astrue

March 27, 2013

RICHARD MICHAEL TWAY,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 24) issued by United States Magistrate Judge William V. Gallo, recommending that the Motion for Summary Judgment (ECF No. 15) filed by Plaintiff be denied and the Cross-Motion for Summary Judgment (ECF No. 18) filed by Defendant be granted.

BACKGROUND

On April 13, 2010, Plaintiff filed an application for Social Security Disability Insurance benefits ("SSDI"), alleging disability beginning on June 13, 2002. (ECF No. 11-2 at 16). On August 10, 2010, Plaintiff's application was denied. (ECF No. 11-4 at 2-5). On September 9, 2010, Plaintiff's request for SSDI was denied on reconsideration. Id. at 8-12.

On September 10, 2010, Plaintiff requested an administrative hearing before an Administrative Law Judge ("ALJ"). Id. at 14-15.Two hearings were held, on April 6, 2011 and September 6, 2011, before ALJ Edward D. Steinman. (ECF No. 11-2 at 51-91). Plaintiff testified at the April 6, 2011 hearing, as did Malcolm A. Brahms, M.D., an impartial medical expert. Id. at 69-91.At the September 6, 2011 hearing, Dr. Brahms and Alan E. Cummings, a vocational expert, testified. Id. at 51-68.

On September 17, 2011, the ALJ issued a partially favorable decision in Plaintiff's case. (ECF No. 11-2 at 12-26). The ALJ found that Plaintiff had an impairment meeting the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.04*fn1 from October 1, 2007 through June 1, 2009, the period during which Plaintiff, a former piano mover, suffered from "degenerative disc disease of the lumbar spine, status post lumbar surgery." Id. at 19-21. The ALJ found that, beginning June 2, 2009, Plaintiff "has not had an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1." Id. at 21. The ALJ concluded that, "beginning June 2, 2009, [Plaintiff] has been capable of making a successful adjustment to work that exists in significant numbers in the national economy.... [Plaintiff's] disability ended June 2, 2009." Id. at 25. In reaching his decision, the ALJ found the testimony of Dr. Brahms, regarding the severity of Plaintiff's impairment and ongoing pain, to be "persuasive." Id. at 20. According to the ALJ, Dr. Brahms testified that "from June 2, 2009 on," Plaintiff, having undergone two surgeries, "continued to do well and was markedly improved compared to his preoperative status." Id. at 22. The ALJ found Plaintiff's testimony of his own pain not credible. Id. at 23. The ALJ stated: "The vocational expert testified that ... [Plaintiff] would be able to perform the requirements of representative occupations such as cleaner ...; assembler ...; and parking lot attendant...." Id. at 25.

On November 19, 2011, Plaintiff submitted a request for review of the ALJ's decision with the Appeals Council. (ECF No. 11-4 at 90). On February 3, 2012, the Appeals Counsel denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner"). (ECF No. 11-2 at 7-10).

On May 3, 2012, Plaintiff commenced this action for judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1).

On September 25, 2012, Plaintiff filed a Motion for Summary Judgment. (ECF No. 15). On October 23, 2012, Defendant filed a Cross-Motion for Summary Judgment. (ECF No. 18).

On November 29, 2012, the Magistrate Judge issued a Report and Recommendation. (ECF No. 24). The Magistrate Judge stated in part:

The ALJ provided numerous reasons to support his conclusion that Plaintiff's back and leg pain limited him to a residual functioning capacity for a reduced range of light work, but further limitation was not warranted. Substantial evidence further supported the ALJ's finding that, beginning on June 2, 2009, Plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy.

Id. at 28. The Magistrate Judge recommended that Plaintiff's Motion for Summary Judgment be denied and Defendant's Cross-Motion for Summary Judgment be granted.

On January 14, 2013, Plaintiff filed objections to the Report and Recommendation. (ECF No. 27). Plaintiff objects to the Report and Recommendation "insofar as the report finds that the Commissioner properly found that he was not presumptively disabled [as of June 2, 2009] pursuant to 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 1.04A." Id. at 1. With respect to the ALJ's finding that Plaintiff's impairments do not meet or medically equal a listed impairment as of June 2, 2009, Plaintiff contends:

The ALJ erred because the evidence of record established that Richard Tway's impairments are equivalent to the criteria set forth in Listing 1.04A... The ALJ found that Richard Tway's severe impairment is degenerative disc disease of the lumbar ...


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