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DESHIELDS v. BARNHART

February 26, 2004.

STANLEY DESHIELDS, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court are the Report and Recommendation of United States Magistrate Judge Charles B. Smith on cross-motions for summary judgment, and Plaintiff Stanley DeShields' ("Plaintiff") objections thereto. Plaintiff seeks judicial review of the decision of Defendant Commissioner of the Social Security Administration ("Defendant") denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381-1383f. Magistrate Judge Smith recommends that the Court grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment. Upon careful and independent consideration of the administrative record, for the following reasons, this Court OVERRULES Plaintiff's objections, and APPROVES and ADOPTS Magistrate Judge Smith's Report and Recommendation. Accordingly, we DENY Plaintiff's motion for summary judgment and GRANT Defendant's motion for summary judgment. Page 2

I. BACKGROUND

 A. Procedural History

  Plaintiff filed a protective application for SSI on November 19, 1996, claiming disability due to a gunshot wound (cerebrovascular accident) in his spine, back pain, problems with his right shoulder, knee and foot, depression, hypertension, blurry vision and dizzy spells, shortness of breath and diabetes. (R. 21, 140-148, 241-244.) The claim was denied initially and on reconsideration. (R. 96-98, 101-103.)

  Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), which was originally scheduled for July 1, 1998. (R. 104, 108.) Due to an alleged transportation strike, Plaintiff did not attend on that date, and ALJ Malvin B. Eisenberg continued the hearing to November 17, 1998. (R. 37-38.) Plaintiff appeared at that hearing, without counsel, indicating that he believed a state attorney would be available to represent him.*fn1 (R. 38.) The ALJ rescheduled the hearing for January 14, 1999, to allow Plaintiff additional time to secure counsel. (R. 39-40, 44.) The ALJ emphasized, at that time, that the case would not be relisted again and that, if Plaintiff desired, Plaintiff was to obtain representation well in advance of the hearing date. (R. 40-43.) Page 3

  On January 14, 1999, the hearing before the ALJ took place. (R. 44-91.) While still unrepresented, Plaintiff testified, along with vocational expert ("VE") Margaret Preno. Id. On June 25, 1999, the ALJ issued his decision finding Plaintiff not under a "disability" as defined in the Social Security Act. (R. 18-30.) The Appeals Council thereafter denied Plaintiff's request for review, making Defendant's decision to deny benefits final. (R. 8-9.)

  Having engaged legal counsel, Plaintiff seeks judicial review of the ALJ's finding of "not disabled," and objects to Magistrate Judge Smith's Report and Recommendation. Specifically, Plaintiff contends that Defendant's denial must be reversed because substantial evidence does not support the conclusion that he can perform a limited range of light work. Plaintiff further contends that the ALJ based his determination on an inadequately developed record, failed to analyze the evidence presented, misapplied the legal standard for determining the severity of Plaintiff's impairments, and improperly relied on the VE's testimony that did not reflect all of the Plaintiff's impairments.

 B. Factual Background

  Plaintiff was born on October 18, 1946, making him fifty-two at the time of the ALJ's decision. (R. 59-60.) He has an Page 4 eleventh-grade education, and his past relevant work included positions as a tractor trailer driver with two different companies from October 1977 to November 1985. (R. 157, 172.)

  1. Examination by Evelyn Sabugo, M.D.

  On November 30, 1996, Plaintiff's family physician, Evelyn Sabugo, M.D., provided a medical source statement. She explained that she had been treating Plaintiff from June 1985 to November 1996 on a sporadic basis of two to three times per year. She diagnosed Plaintiff with hypertension, cardiovascular disease with seizures in April 1995 that affected his speech, low back pain as a result of a penetrating gunshot wound and weakness in his right arm. (R. 213.) She further noted that he has some parathesia in his upper right extremity. (R. 214.) The only treatment she prescribed for his back pain was rest and use of Lodine. (R. 213.) She also noted that Plaintiff took Cardizem daily (R. 215), which is used to treat high blood pressure. (R. 232.)

  Dr. Sabugo's examination of that same date revealed no paravertebral muscle spasm and no atrophy, but did note positive straight leg raises on both legs. (R. 213-14.) Plaintiff's range of motion was normal in the cervical region, and slightly limited in the lumbar region. (R. 214.) Dr. Sabugo described Plaintiff's gait as steady and commented that he did not need an Page 5 assistive device for ambulation. (R. 214.) Observing Plaintiff's mobility/agility, Dr. Sabugo remarked that Plaintiff had difficulty walking on his heels and toes and squatting, but only slight difficulty getting on and off the examining table and no difficulty arising from a chair. (R. 215.) She opined that he could lift and carry up to twenty-five pounds frequently and up to fifty pounds occasionally. (R. 217.) Further, Dr. Sabugo stated that Plaintiff must periodically alternate sitting and standing at two-hour intervals, that he should only occasionally climb, stoop, kneel, crouch and crawl, and that he was limited in pulling and dexterity. (R. 217-18.) She gave him no limitations in standing, walking, balancing, pushing, seeing, hearing and speaking. (R. 217-18.)

  In January 1997, Dr. Sabugo completed an Employability Assessment Form, indicating that Plaintiff would be temporarily disabled for a period of two months, until March 3, 1997. (R. 221.) At that time, Dr. Sabugo diagnosed him with hypertensive cardiovascular disease that was under control, with a secondary diagnosis of degenerative osteoarthritis in his back and weakness and numbness in his right arm. (R. 221.) She stated that her assessment of "temporarily disabled" was subject to further evaluation of the right arm weakness. (R. 221.) Page 6

  2. Consultation with Martin Goldstein, M.D.

  As recommended by Dr. Sabugo, on February 11, 1997, Plaintiff underwent consultation with neurologist Martin Goldstein, M.D., a state agency physician. Reviewing Plaintiff's history, Dr. Goldstein noted that Plaintiff had been shot in the shoulder thirty years prior and the bullet had lodged up against his spine before it was removed. (R. 222.) Plaintiff indicated that he continued to work at that time, but suffered multiple symptoms, including shortness of breath and pain in his back. (R. 222.) He further reported that, approximately a year-and-a-half prior, he had a seizure that "was some kind of a stroke," which caused temporary paralysis on his right side. (R. 222.) Although Plaintiff attempted to return to work as a tractor trailer driver following the stroke, he stated that he could not do so. (R. 222.) According to Dr. Goldstein's summary, Plaintiff was on Lodine twice a day for pain, Trental twice a day for circulation and Cardizem once a day for blood pressure. (R. 222.)

  Upon neurological examination, Dr. Goldstein found Plaintiff to have full range of motion, but noted that he had pain at the extremes. (R. 222-23.) He had no pathologic reflexes of any kind. (R. 223.) Dr. Goldstein commented that Plaintiff maintained a fairly normal, although slow, gait and stood with his feet together. (R. 223.) His arm and grip strength on the Page 7 right was diminished, but only mildly. (R. 223.) Otherwise, he could do gross and dexterous manipulative functions, get on and off a chair without difficulty, dress and undress himself, hear, understand, produce and sustain normal speech. (R. 223.) While he bent forward with pain, he could bend his knees in order to reach his toes. (R. 223.) Further, Dr. Goldstein found no muscle atrophy or sensory deficit. Ultimately, he diagnosed Plaintiff as follows: (I) post-gunshot wound with back pain as described; (2) post-cerebrovascular accident with history of seizure and mild hemiparesis*fn2 on the right; and (3) adjustment disorder with depression by observation and patient's description of his unhappiness of not being able to work. (R. 223.) The prognosis was guarded. (R. 223.)

  Dr. Goldstein also completed a Medical Source Statement of Claimant's Ability to Perform Work-Related Activities. (R. 224.) He opined that Plaintiff could occasionally lift and carry fifty pounds, could walk between two and six hours, sit for six or more hours and could only occasionally climb, balance, stoop, kneel, crouch and crawl. (R. 224-25.) Otherwise, Plaintiff had ...


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