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Smith v. Astrue

August 30, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronically Filed



Plaintiff, George R. Smith ("Smith"), brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). 42 U.S.C. §§ 401-433,1381-1382f. The parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The record has been developed at the administrative level. For the reasons set forth below, the Commissioner's decision will be affirmed.


Smith protectively filed for DIB and SSI on June 28, 2007, alleging disability as of May 1, 2007. Record of Smith v. Astrue, 09-1264, 99-108 ("R."). Smith alleged disability due to lupus, gout, bursitis, poor balance, cirrhosis, hepatitis C and back pain. R. 11, 13-14, 99-108. The applications were administratively denied on September 20, 2007. R. 38-45. Smith responded by filing a timely request for an administrative hearing. R. 49.

On March 3, 2009, a hearing was held in Johnstown, Pennsylvania before Administrative Law Judge James J. Quigley ("ALJ") who appeared via video from Norfolk, Virginia. R. 19-34. Smith, who was represented by counsel, appeared and testified. R. 19-32. Joseph J. Bentivegna, an impartial vocational expert ("VE") also testified. R. 32-34.

In a decision dated March 27, 2009, the ALJ determined that Smith was not "disabled" within the meaning of the Act as his residual functional capacity ("RFC") did not prevent him from returning to his past relevant work as a machine shop maintenance man. R. 11-18. The Appeals Council denied Smith's request for review on July 27, 2009, thereby making the ALJ's decision the final decision of the Commissioner. R. 1-3. Smith commenced the present action on September 17, 2009. Doc. No. 1.


Smith was fifty-eight years of age at the time of the hearing. R. 22. He has a high school equivalency diploma. R. 22-23. His past relevant work was as a machine shop maintenance man. R. 32, 112. Smith testified he did not operate machines. R. 31-33. The documentary record indicates that Smith suffers from multiple physical impairments. In his claim for benefits, Smith submitted evidence of physical impairments including hepatitis C, arthritis, gout, lupus, and back pain. R. 166, 186.

On September 4, 2007, at the Agency's request, Smith was examined by Victor Jabbour, M.D. R. 166-75. Smith was found to be in good general health. R. 168. He denied problems with shortness of breath, cough, or chest pain and had no complaints about his gastrointestinal or urinary tract. Id.

Physical examination revealed Smith's head, neck, eyes, ears, heart rate, mouth, and throat were normal. R. 168-69. Smith's arms and legs did not show weakness or limited range of motion. R. 169. There was no swelling or tenderness in his feet. Id. Smith's neurological examination was normal, including motor system, reflexes, deep tendon reflexes, sensation, coordination, and ranges of motion. R. 170, 174-75. Dr. Jabbour noted that Smith could get on and off the examination table, walk on his heels and toes with a normal gait, and squat. R. 170.

Dr. Jabbour diagnosed Smith with 1) back pain secondary to arthritis and possible disc disease; 2) history of gouty arthritis; 3) history of hepatitis C; 4) lupus; and 5) possible high blood pressure. R. 170. Dr. Jabbour also completed a medical source statement of claimant's ability to perform work-related physical activities. R. 172-175. Dr. Jabbour assessed that Smith could stand and walk one hour or less; sit less than six hours; occasionally perform postural activities of bending, kneeling, stooping, crouching, balancing, and climbing; and his impairments were affected by heights, moving machinery, vibration, and temperature extremes.

R. 172-73. Dr. Jabbour also assessed that Smith could lift and/or carry two-three pounds frequently and ten pounds occasionally. R. 172.

On September 20, 2007, Mary Ellen Wyszomierski, M.D., a state agency physician, reviewed Smith's record. R. 176-82. Dr. Wyszomierski assessed that Smith could lift fifty pounds occasionally and twenty-five pounds frequently. R. 177. She concluded that Smith could stand and/or walk for six hours and sit with normal breaks for six hours in an eight-hour workday. R. 177. Dr. Wyszomierski did not impose limitations in pushing/pulling or postural, manipulative, visual, or communicative activities. No environmental restrictions were noted. R. 178-79.

Dr. Wyszomierski noted that Smith was not on medications for hepatitis C, lupus, arthritis, or cirrhosis. R. 181. She found that Dr. Jabbour "relied heavily on [Smith's] subjective reports of symptoms and limitations" and his assessment "is not consistent with all of the medical and non-medical evidence in the claim folder." R. 182.

On November 28, 2007, Smith was examined by Jill Constantine, M.D. R. 185-186. Smith's skin, head, ears, nose, throat, carotid arteries, heart, abdomen, arms, legs, and lymph nodes were normal. R. 185. His arms and legs were noted to have a full range of motion with no signs of edema. Id. Smith's reflexes were normal. Id. Dr. Constantine noted ...

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