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Desando v. Astrue

March 31, 2009


The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(Judge Vanaskie)


This action comes before the Court on objections of Plaintiff Anthony Desando to a Magistrate Judge's Report and Recommendation, proposing that the denial of Plaintiff's claim for disability insurance benefits be affirmed. (R & R, Dkt. Entry 19.)*fn1 In his objections, Plaintiff contends the ALJ committed reversible error in failing to find at Step Two of the five-step sequential evaluation process that his fibromyalgia and tarsal tunnel syndrome are "severe" impairments, and in failing to consider limitations from Plaintiff's carpal tunnel syndrome in making a residual functional capacity determination that Plaintiff was capable of working at the light exertional level. (Pl.'s Objections, Dkt. Entry 20, at 1 & 5.)

Where, as here, objections to a Magistrate Judge's Report and Recommendation are filed, the court must perform a de novo review of the contested portions of the Report. See, e.g., Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)). Although review is de novo, the Court is permitted to "rely upon the Magistrate Judge's proposed findings and recommendations to the extent [it], in the exercise of sound discretion, deem[s] proper." Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980) and Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984)).

When reviewing the denial of disability benefits, the Court must deem conclusive the findings of the Social Security Administration if they are supported by substantial evidence. 42 U.S.C. § 405(g); see, e.g., Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Substantial evidence is "more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)). A court should not set aside a decision if it is supported by substantial evidence, even if it would have decided a factual inquiry differently. See, e.g., Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)). The evidence of record will be assessed in the context of this deferential standard of review.


On May 8, 1999 (the alleged onset of disability date), at the age of thirty-eight, Mr. Desando slipped on a puddle of water in a stairwell at work and fell down a flight of stairs, striking his buttocks on eight steps as he fell. (Administrative Record ("AR"), 341.) He was then taken to Community Medical Center where he was treated and an x-ray was performed. (AR. 338.) It was noted that Mr. Desando could walk, but experienced some pain sitting. (AR. 340.)

Michael Alocci, M.D., Mr. Desando's family physician, ordered an x-ray of his lumbosacral spine three days after the accident on May 11, 1999. (AR. 148.) The x-ray revealed mild degenerative changes at L4-5 and no acute fractures. (Id.) Thereafter, an MRI performed on Mr. Desando's lumbar spine on August 2, 1999, did not find any abnormalities.*fn2

(AR. 147.) Neither the x-ray nor the MRI reported any limitation so severe as to prevent Mr. Desando from performing light duty work with restriction.

Other doctors seen by Mr. Desando arrived at similar diagnoses. Ted Piotrowski, M.D., on May 25, 1999, treated Mr. Desando for back and right leg pain. (AR. 100.) Dr. Piotrowski found no acute distress, and only "some tenderness to palpation over the right buttock area." (Id.) Mr. Desando had some difficulty reaching to his knees and limited back extension, lateral, and rotational movements, but he had normal sensation, good strength in the lower extremities and a normal gait. (Id.) Dr. Piotrowski's impression from the visit was a "possible contusion to the lower back area" and a possible strain, for which he prescribed physical therapy, Celebrex, and "Soma" for muscle relaxation.*fn3 (Id.) (emphasis added.)

On September 27, 1999, Mr. Desando met with Elizabeth Karazim-Horchos, D.O., for physical medicine and rehabilitation. (AR. 121.) Upon examination of his lower extremities, she observed "5/5 strength for bilateral hip extension, flexion, abduction, adduction, knee extension, flexion, dorsi and plantar flexion."*fn4 (Id.) He had "increased pain in the right SI area with palpation." She found he had "lower back pain secondary to right SI joint dysfunction as well as lumbar facet arthropathy." (Id.) She thought he would benefit from physical therapy.*fn5

Mr. Desando also continued to treat with Dr. Alocci. (AR 209-12.) In his entry for November 19, 2002, Dr. Alocci indicated that Mr. Desando had discontinued Vicodin some time ago due to elevated liver function tests, but was having so much pain that he was seeking other pain relief medication. (AR 212.) Dr. Alocci prescribed Vicoprofen. He also noted that Mr. Desando had cancelled an appointment with a rheumatologist "for personal reasons." (Id.) Dr. Alocci noted Mr. Desando's reported symptoms as aches and pains in the muscles and joints, as well as back pain, and included as part of the action plan for treatment of fibromyalgia rescheduling the appointment with a rheumatologist. (Id.)

Marianne J. Santioni, M.D., a rheumatologist, examined Mr. Desando on January 17, 2003. (AR. 159.) She noted that Mr. Desando was in a motor vehicle accident on May 19, 2002, and complained of neck, back, joint and jaw pain. (Id.) She also noted that Mr. Desando underwent a cervical spine fusion for three herniated discs nine years previously after an auto accident. (AR. 158.) She reported normal blood work and negative rheumatoid arthritis factor. (AR. 159.) She observed that Mr. Desando had a history of carpal tunnel and was wearing wrist splints. (AR. 158.)

Dr. Santioni ordered Mr. Desando to have an EMG study and two MRIs, one of the cervical spine and the other of the temporomandibular joint. The MRIs took place on July 9, 2003. (AR. 152-55.) John P. Iannone, M.D., observed that the MRI of the cervical spine showed, "overall, mildly advanced degenerative changes with a small broad based central disc herniation and osteophyte complex at C6-7 but without canal stenosis." (AR. 153.) (emphasis added.) He observed that the MRI of the temporomandibular joint showed the right side of the joint "demonstrates an anteriorly . . . dislocated ...

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