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Geary v. Astrue

September 2, 2008


The opinion of the court was delivered by: Lenihan, M.J.

Doc. Nos. 14, 16

Magistrate Judge Lisa P. Lenihan


Currently before the Court for disposition are Plaintiff's Motion for Summary Judgment (Doc. No. 14) and Defendant's Motion for Summary Judgment (Doc. No. 16) in this Social Security appeal. For the reasons set forth below, the Court will deny the Plaintiff's Motion, grant the Defendant's, and affirm the decision of the Commissioner of Social Security to deny Plaintiff's application for benefits.


On December 14, 2006, Mark A. Geary ("Plaintiff"), by his counsel, timely filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of the Commissioner's final determination disallowing his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. The history of Plaintiff's claim is as follows.

On March 21, 2001, Plaintiff filed his first applications for DIB and SSI payments alleging that he became disabled on January 2, 2001 due to back and neck injuries that allegedly resulted from a fall while self-employed. On September 14, 2001, the Social Security Administration denied his initial applications. On December 21, 2001, Plaintiff filed a new application for SSI payments and on January 8, 2002, he filed a concurrent application for DIB. These claims were again denied. Plaintiff filed a timely request for a hearing which was held on November 19, 2002. On March 25, 2003, the Administrative Law Judge (ALJ) issued an unfavorable decision. On May 9, 2003, Plaintiff filed a timely request for review of the ALJ's decision, which the Appeals Council denied on July 1, 2003. (R. 14.)

On August 23, 2004 and September 3, 2004, Plaintiff filed another set of applications for SSI and DIB, respectively. (R. 41-50.) On March 1, 2005, those claims were initially denied. (R. 29.) Plaintiff timely requested a hearing before an ALJ which was ultimately held on February 3, 2006 before ALJ Donald T. McDougall. (R. 34, 23.) On April 5, 2006, the ALJ denied Plaintiff's claim for benefits, concluding that although Plaintiff had severe impairments,*fn1 he retained the residual functional capacity to perform light, unskilled work, with certain restrictions, and that such work existed in significant numbers in the national economy. (R. 18-21.) Plaintiff filed a timely request for review of the ALJ's decision which the Appeals Council denied on August 4, 2006. (R. 6-8.) Plaintiff then filed the present action in this Court.

On appeal to this Court, Plaintiff raises one issue, asserting that the ALJ's decision is not supported by substantial evidence at Step 5 because it is based on a defective hypothetical question that failed to incorporate all of Plaintiff's work-related impairments. In particular, Plaintiff submits that the ALJ failed to include the non-exertional limitation of moderate deficits in his ability to maintain concentration, persistence and pace, which Plaintiff claims is supported by the medical evidence. (Pl.'s Br. in Supp. of Summ. J. at 5.) For the reasons set forth below, the Court finds no merit to Plaintiff's argument.


Plaintiff was born on May 25, 1959 and was thus 46 as of the date of his administrative hearing. He has a high school education, followed by four years in the United States Air Force during which he worked and received training as a sheet metal fabricator. (R. 223.) After being honorably discharged from the U.S. Air Force in 1985, Plaintiff worked several different jobs, including a sheet metal fabricator, glass plate technician, and car detailer, until January 2, 2001. (R. 62-63, 85.) From 1994 to 2001, Plaintiff worked intermittently, and in most of those years, his earnings fell below the SGA level. (R. 53-59.) Plaintiff had no income in 2001 through 2005. (R. 59.)

Plaintiff alleges that his disability began on March 26, 2003 (R. 28, 42, 62 & 69),*fn2 and that it resulted from back and neck injuries sustained in a fall on January 2, 2001, while lifting a garage door (R. 223). The medical records show that on February 23, 2001, Plaintiff saw an orthopedic surgeon, W. Timothy Ward, M.D., about severe left leg pain. (R. 112.) An MRI revealed a ruptured disc and foraminal stenosis at the left side at L5-S1. (Id.) The MRI also revealed a large ruptured disc at C6-7, but he had no evidence of radiculopathy or myelopathy at that time. (Id.) At the recommendation of Dr. Ward, Plaintiff underwent an L5 laminectomy and foraminotomy on March 14, 2001 to relieve his ruptured disc and foraminal stenosis. (R. 110.) In addition, the records of Dr. Ward and Plaintiff's primary care physician, J. Miller Oppy, M.D., demonstrate that Plaintiff received prescriptions for strong pain medications from April until July of 2001.*fn3

Following surgery, on April 27, 2001, Plaintiff complained to Dr. Ward of bilateral arm numbness and clumsiness to his gait. (R. 109.) After reviewing a new MRI showing a very large ruptured disc, Dr. Ward planned another surgery, a C6 corpectomy, for May 9, 2001. (Id.) Following surgery, Dr. Ward noted on May 25, 2001 Plaintiff's chronic complaints of neck pain, but that he no longer experienced numbness in his arms and legs and was walking much better. (R. 108.) On June 29, 2001, Plaintiff reported to Dr. Ward that he was "doing beautifully" recovering from his C6 corpectomy. (R. 107.) Dr. Ward noted Plaintiff's gait had improved and his previous numbness and pain in his arms had completely subsided. (Id.) At that time, Dr. Ward also noted that Plaintiff reported severe right thigh pain, "of new onset" and sent Plaintiff for an MRI of his lumbar spine to ensure the health of his lumbar roots. (Id.) On July 13, 2001, Plaintiff denied his previous pain in his right thigh, but complained that he suffered from severe pain radiating from his left buttock to his left leg. (R. 106.) Dr. Ward's neurological exam of his lower extremities was unremarkable. (Id.) Dr. Ward noted it was unclear what bothered Plaintiff, and prescribed him 75 tablets of Vicodin for pain, noting that if Plaintiff did not improve in four weeks or so, he may have to undergo additional exploratory surgery at the L5-S1 disc. (Id.)

Between July of 2001 and August of 2004, Plaintiff saw Dr. Oppy on several occasions for unrelated illnesses/conditions, and during that time, the office notes contain only one reference to complaints of, or treatment for, back pain. (R. 131.) On May 6, 2002, Dr. Oppy's notes reveal that while seeking treatment for dermatitis, Plaintiff inquired about Vioxx for chronic back pain and the possibility of physical therapy. (R. 141.) Dr. Oppy noted that his back pain was currently not too bad, but he gets occasional flare-ups of pain. (Id.) Dr. Oppy provided Plaintiff with samples of Vioxx and instructed him to contact the office when he experienced another flare up of back pain, and physical therapy would be initiated at that time. (Id.)

Two years later, on May 4, 2004, Plaintiff saw Dr. Oppy, complaining of pain and numbness in his left hip and foot, for which Dr. Oppy ordered an MRI. (R. 131.) Dr. Oppy noted Plaintiff was taking Percocet and Ibuprofen for the pain. (Id.) On June 15, 2004, Dr. Oppy reviewed the result of the MRI, which showed that Plaintiff suffered from mild spinal stenosis at L2-4. (R. 132.) Dr. Oppy gave Plaintiff a sample prescription of Vioxx and discontinued his Ibuprofen. (Id.) He also prescribed physical therapy, three days a week for four weeks. (Id.) On June 29, 2004, Plaintiff reported to Dr. Oppy that physical therapy was going well, although he was still tight at night time. (Id.) At a follow-up appointment for Plaintiff's back pain on July 13, 2004, Plaintiff related that his pain was not improving after having completed physical therapy, and Dr. Oppy referred him to a neurosurgeon and continued Plaintiff on Vioxx and Ibuprofen. (R. 129.)

On August 6, 2004, Plaintiff saw Dr. Ward for new onset of left leg pain. (R. 126.) Dr. Ward ordered a new MRI and directed Plaintiff to return for follow-up visit with the results of the MRI. (Id.) On August 20, 2004, Dr. Ward saw Plaintiff in follow-up for his recurrent left leg pain and reviewed his recent MRI, which showed significant foraminal changes on the left at L5-S1 and a significant degenerative disc at that level. (R. 125.) On September 8, 2004, Plaintiff underwent L5-S1 laminectomy and fusion and was discharged on September 10, 2004 in good condition with Percocet and Flexeril for pain. (R. 122-23.)

On September 24, 2004, Dr. Ward saw Plaintiff for follow up examination post-surgery. (R. 124.) Dr. Ward reported that Plaintiff's left leg pain was gone and encouraged Plaintiff to walk as much as possible, but to avoid bending and twisting. (Id.) On that date, Dr. Ward also noted anterior right thigh pain resulting from pressure on Plaintiff's cutaneous nerve during surgery. (Id.) Dr. Ward explained to Plaintiff this pain would go away over time. (Id.) Dr. Ward prescribed Plaintiff 60 tablets of Vicodin. (Id.)

On October 7, 2004, Plaintiff saw Dr. Oppy with a complaint of pain in his right thigh since the back surgery. (R. 128.) Plaintiff reported that his back was doing much better, but that right thigh pain persisted. (Id.) Dr. Oppy recommended Plaintiff apply moist heat or ice to his thigh and replaced Vioxx with Bextra, and referred Plaintiff for nerve conduction study (NCS) in both legs. (Id.) On October 20, 2004, Frank B. Artuso, M.D. reported the results of the NCS. (R. 149-150.) Dr. Artuso found right anterior lateral femoral neuropathy. (R. 149.)

Plaintiff began weekly out-patient psychotherapy treatment with Family Behavioral Resources on September 22, 2004 for depression. (R. 169-177.) At his initial interview on September 22nd, the therapist noted on the intake form that Plaintiff suffered from acute pain and fatigue (R. 169), and indicated Plaintiff was experiencing numerous symptoms, including: angry outbursts, attention problems (due to pain), anxiety, relationship difficulties, depression/sad mood, hopelessness, energy level change, low self esteem, and mood swings (due to pain and financial situation). (R. 169, 171.) The therapist also conducted a Mental Status Examination ("MSE"), which showed that Plaintiff was well-oriented times three, he displayed average overall short-term and long-term memory, his overall level of insight and judgment was average, and in the area of memory and concentration, Plaintiff was able to count backwards in series of 7's.*fn4 (R. 176.) The therapist noted that his mood was depressed and he had a flat affect. (Id.) The MSE showed his thought process and speech were normal. (R. 177.) The therapist ...

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