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Sesko v. Commissioner of Social Security

August 17, 2009

STEVE SESKO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM ORDER

Introduction

Pending before this court for consideration is the appeal of Steve Sesko ("plaintiff") from the final decision of the Commissioner of Social Security ("defendant" or "Commissioner") denying his claims for supplemental security income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1382-83. Plaintiff argues that the determination made by the administrative law judge (the "ALJ") should be remanded for reconsideration. On September 15, 2008, plaintiff filed his motion for summary judgment. On October 15, 2008, defendant filed its cross-motion for summary judgment. Because the decision of the ALJ is supported by substantial evidence of record, plaintiff's motion for summary judgment will be denied and defendant's motion for summary judgment will be granted.

Procedural Background

Plaintiff protectively filed a claim for SSI on February 13, 2004, alleging an onset date of September 15, 1999. (R. at 13).*fn1 His claim was initially denied on May 12, 2004. (R. at 31). By letter dated May 19, 2004, plaintiff was advised by the Social Security Administration that "[w]e have determined that your condition is not severe enough to keep you from working." (R. at 34). On July 12, 2004, plaintiff filed a timely request for an administrative hearing. (R. at 39). A hearing was scheduled for November 9, 2005. (R. at 44-46). Plaintiff, however, returned an Acknowledgment of Receipt (Notice of Hearing), which stated that he could not be present at the time and place scheduled for the hearing. (R. at 52). Specifically, the acknowledgment, dated October 10, 2005 stated, "I do not have an [sic] lawyer or transportation to Pitts [sic]." (Id.) Plaintiff was sent a Waiver of Your Right to Personal Appearance Before an Administrative Law Judge form, which he completed, signed and dated October 18, 2005. (R. at 53). On the waiver form plaintiff provided the following reasons for waiving his right to a hearing before the ALJ:

I cannot afford a lawyer and I do not have any transportation. Also I cannot sit for any length of time. I also believe my appearance would not add any more information to my case. Besides my family doctor (Dr. Melidona) I also request you contact Dr. Ferri [and] Dr. Matta of Human Services. (Id.)

The ALJ issued a decision dated February 11, 2006, denying plaintiff's claim for SSI. (R. at 10-21). The ALJ specifically held that plaintiff was not under a disability within the meaning of the SSA. (R. at 14). Plaintiff filed a timely request for review of the ALJ's determination, which the Appeals Council denied on December 14, 2007. (R. at 3-5). On February 5, 2008, plaintiff commenced this action and filed a complaint seeking judicial review of the ALJ's determination. (Doc. No. 2).

Plaintiff's Background and Medical History

Plaintiff was born on October 6, 1956. (R. at 55). At the time he applied for SSI he was forty-seven years old. (Id.) Plaintiff has a tenth grade education. (R. at 76). He has prior work experience as a baker. (R. at 70-71). Plaintiff alleges that he worked in a bakery from 1978 until January 1988, at which point he stopped working to take care of his sick mother. (R. at 70-71). According to plaintiff, he began suffering on or around September 15, 1999, from chronic low back pain and right knee pain. (R. at 70).

Medical History Regarding Plaintiff's Knee and Low Back Pain

Plaintiff's family doctor is Dr. Frank Melidona. (R. at 72). According to the earliest records in plaintiff's file, Dr. Melidona ordered an image of plaintiff's knee, which was taken on April 9, 2002. (R. at 182). The examination was negative for any fracture, dislocation, marginal erosions and narrowing. (Id.) The examining physician noted that there appeared to be vascular calcifications*fn2 around the knee. (Id.)

In June 2002, Dr. Melidona referred plaintiff to Dr. Stuart Gardner, an orthopedic surgeon regarding plaintiff's complaints of back and knee pain. (R. at 181). According to Dr. Gardner's notes of plaintiff's visit on June 2, 2002, plaintiff's low back had bothered him for several years and his right knee had been bothering him for approximately four months prior to this visit. (Id.) The notes indicate that there had been no injury to the back or knee. (Id.) Dr. Gardner performed an exam and found no tenderness in the lumbar paraspinal region of plaintiff' back. (Id.) Dr. Gardner found that plaintiff had a range of motion of the lumbar spine with mild discomfort. (Id.) Plaintiff had medial and lateral joint tenderness in his right knee. (Id.) Dr. Gardner noted that there was crepitus*fn3 in the knee region with motion. (Id.) Dr. Gardner indicated that there was no swelling or effusion and no instability in the knee. (Id.) Plaintiff was injected with xylocaine and celestone*fn4 in his right knee. (Id.) Dr. Gardner advised plaintiff to treat with quad strengthening exercises and moist heat. (Id.)

Plaintiff saw Dr. Gardner again on July 11, 2002. (Id.) Dr. Gardner indicated that plaintiff did well for two weeks after the initial injection, but that the knee flared after that. (Id.) On examination, Dr. Gardner found that there was no significant swelling in the knee, but there was joint tenderness. (Id.) Dr. Gardner noted that plaintiff had good mobility in his right knee. (Id.) Plaintiff was given another injection and a prescription for physical therapy. (Id.)

Plaintiff saw Dr. Gardner on October 23, 2003. (R. at 180). Dr. Gardner's notes from that visit indicate that plaintiff was suffering again from knee and low back pain. (Id.) Dr. Gardner examined plaintiff's low back and found no tenderness. (Id.) He found that there was a range of motion in the lumbar spine with mild discomfort with flexion and side bending. (Id.) According to Dr. Gardner, the motor exam indicated that plaintiff's lower extremities were intact. (Id.) There was no swelling in the right knee and mild joint tenderness. (Id.) There was a range of motion with discomfort and flexion of the knee. (Id.) Dr. Gardner's impression at this time was that plaintiff had chronic low back pain and chronic right knee pain with degenerative change. (Id.) Plaintiff's right knee was injected with lidocaine and celestone and Dr. Gardner suggested exercises for plaintiff's back and knee. (Id.) Dr. Gardner noted that plaintiff was taking hydrocodone and 800 milligrams of ibuprofen for pain, as prescribed by Dr. Melidona. (Id.)

Medical History Regarding Plaintiff's Anemia and Gastrointestinal Problems

On March 16, 2003, plaintiff was admitted to Jameson Hospital in New Castle, Pennsylvania with complaints of nausea and vomiting. (R. at 111). He was seen by Dr. Melidona who referred him to Dr. Hofius for a surgical consultation. (Id.) Dr. Hofius performed a colonoscopy and esophagogastroduodenscopy.*fn5 (Id.) According to the records, these tests showed gastric and duodenal ulceration.*fn6 (Id.) Plaintiff was severely anemic. (Id.) On March 20, 2003, he was discharged from Jameson Hospital. (Id.) At that time, he was prescribed Carafate,*fn7 Prevacid and Iron Sulfate. (Id.) Naprosyn for his back and knee pain was discontinued. (Id.)

Plaintiff was referred to Dr. Simon for a follow-up evaluation. (R. at 176). In April 2003, Dr. Simon's impressions were that plaintiff had anemia, apparently as a result of chronic disease. (R. at 177). At this point, Dr. Simon believed plaintiff had an underling lymphoma or other malignancy. (R. at 178). She ordered a CAT scan of the neck, chest, abdomen and pelvis and contacted Dr. Hofius regarding a biopsy of the lymph nodes. (Id.)

After these tests were performed, Dr. Simon followed up with plaintiff in May 2003 and ruled out cancer as the cause of plaintiff's anemia. (R. at 174). At this point, she suspected that his anemia was due to an underling liver disease. (Id.) Plaintiff saw Dr. Simon again on August 12, 2003. (R. at 172). At this visit she noted that plaintiff was anemic and had an enlarged spleen. (Id.) She opined that plaintiff "may have anemia, a chronic disease, and he appears to have borderline iron deficiency, probably from his previous ...


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