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Michael Lee Rodriguez v. Commissioner of Social Security

March 28, 2011

MICHAEL LEE RODRIGUEZ, PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION

I. INTRODUCTION

Michael Lee Rodriguez ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401 -- 433 ("Act"). This matter comes before the Court on cross motions for summary judgment. (ECF Nos. 6, 7). The record has been developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment will be DENIED, and Defendant's Motion for Summary Judgment will be GRANTED.

II. PROCEDURAL HISTORY

Plaintiff filed for DIB with the Social Security Administration on April 27, 2009, claiming an inability to work due to disability beginning April 25, 2004. (R. at 136)*fn1 . Plaintiff was initially denied benefits on July 17, 2009. (R. at 77 -- 81). A hearing was scheduled for January 4, 2010, and Plaintiff appeared to testify represented by counsel. (R. at 6). A vocational expert and Plaintiff's fiancee also testified. (R. at 6 -- 40). The Administrative Law Judge ("ALJ") issued his decision denying benefits to Plaintiff on January 20, 2010. (R. at 65 -- 76). Plaintiff filed a request for review of the ALJ's decision by the Appeals Council, which request was denied on September 1, 2010, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1 -- 4).

Plaintiff filed his Complaint in this Court on October 14, 2010. Defendant filed his Answer on January 3, 2011. Cross motions for summary judgment followed.

III. STATEMENT OF THE CASE

A. General Background

Plaintiff was born January 13, 1971, and was thirty eight years of age on the date of his administrative hearing.*fn2 (R. at 136). He resided in a second floor apartment with his fourteen year old son. (R. at 11). Plaintiff was engaged to be married, and had two other children by another woman. (R. at 32, 298). Plaintiff had no post-secondary education, having only completed the eleventh grade. (R. at 13). Also, for much of Plaintiff's time in school, he was placed in special education classes for a learning disability. (R. at 13). Plaintiff was still capable of maintaining gainful, full-time employment as a heavy equipment operator/ laborer for an excavating company, and previously as an auto body mechanic. (R. at 14). He also served as a firefighter. (R. at 23).

Plaintiff sustained injury to his lower back on April 25, 2004, while working on-scene as a fireman. (R. at 229, 233, 297). Plaintiff was pulling a tree away from a fire area, when his right foot struck a curb and he fell backwards onto a large branch. (R. at 285, 294). Plaintiff did not seek treatment and worked through the rest of the day. (R. at 15, 294, 297). The following day Plaintiff's pain was "severe." (R. at 297). Since that time he has complained of constant back pain and intermittent numbness in the left foot. (R. at 294). Plaintiff received a worker's compensation settlement due to his accident. (R. at 12). He has neither engaged in nor sought out employment opportunities since his injury. (R. at 14).

B. Treatment History

Magnetic resonance imaging ("MRI") of Plaintiff's spine was conducted on May 5, 2004.

(R. at 240). The thoracic, lumbar, and sacral spine were imaged. (R. at 240). Scanning uncovered only a central disc herniation slightly compressing the thecal sac at the L4 -- L5 level of the lumbar spine. (R. at 240). Results were otherwise unremarkable.

At the recommendation of his doctor, Plaintiff engaged in physical therapy beginning in May of 2004, and ending in October of 2004. (R. at 210 -- 20, 222 -- 29). From the outset, Plaintiff was noted as exhibiting a negative attitude about participating in physical therapy. (R. at 220). At his initial consultation on May 11, 2004, Plaintiff complained of substantial, radiating lower back pain, which was disturbing his sleep patterns and was not responding to chiropractic intervention. (R. at 229). Plaintiff stated that he could not maintain any position for more than five minutes due to his pain. (R. at 229). At the time, he was not taking any pain medication. (R. at 229).

After approximately five therapy sessions, Plaintiff's spinal mobility had not exhibited much improvement, though there was improved tolerance for increased activity. (R. at 228). There was an antalgic pattern to Plaintiff's gait, though this was not apparent when Plaintiff was asked to do lunges. (R. at 220, 228). There was also an absence of deep tendon reflexes. (R. at 220). By June 17, however, Plaintiff experienced a reduction in pain and his functional mobilization and range of exercises had increased. (R. at 218 - 19, 227). Some reflexes in Plaintiff's lower extremities were also detectable. (R. at 219). Plaintiff tolerated exercises without difficulty, and was able to heel and toe walk. (R. at 218). Neurotension signs were also reduced. (R. at 219). However, positive straight leg raising was noted. (R. at 219).

As therapy progressed, Plaintiff continued to have gait deviations, but his straight leg raising improved. (R. at 217). Plaintiff's lower extremity strength was improving, as well. (R. at 225). Plaintiff's overall pain intensity was lessened, he felt more mobile, and had an increased tolerance for stretching. (R. at 215 -- 16). Plaintiff generally tolerated his therapy without problems. (R. at 215 -- 16). However, his range of motion in the lower back was not making significant improvements, and Plaintiff also reported deep lower back pain accompanied by paraspinal spasm. (R. at 215, 225).

By August of 2004, Plaintiff exhibited negative straight leg raising, and claimed an overall higher tolerance for activity. (R. at 212, 224). Plaintiff was able to walk on his heels and toes. (R. at 224). Yet, deep tendon reflexes were still difficult to elicit. (R. at 214). Plaintiff continued to tolerate his therapy regimen without problems. (R. at 212 -- 14). Plaintiff had also been released for light duty work, although he could not yet return to his former employment because no light duty work was available. (R. at 212).

During his therapy sessions in September of 2004, Plaintiff continued to see some improvement in symptoms and continued to tolerate his therapy without problems. (R. at 211). Yet, significant improvements were not observed. (R. at 210). It was noted that Plaintiff's strength deficits were related to his pain and were not in a neurologic distribution. (R. at 223). Plaintiff was recommended for discharge from physical therapy because of a lack of further progress. (R. at 223). Plaintiff was advised to engage in a weight-lifting program at a local health club to maintain his strength and level of activity. (R. at 223). At the date of discharge, on October 5, 2004, it was noted that Plaintiff tolerated his therapy and exercise regimens well. (R. at 222). It was again noted that Plaintiff was not limited in a neurological pattern, but rather by his reported low back pain and associated resistance in the lower extremities. (R. at 222).

On October 13, 2004, Plaintiff visited Jorge L. Acevedo, M.D. regarding his back pain.

(R. at 233). Upon examination, Dr. Acevedo noted markedly reduced flexion of the back, positive straight leg raising, and an absence of deep tendon reflexes in the lower extremities. (R. at 233). Dr. Acevedo made note of Plaintiff's May 2004 MRI results indicating degenerative changes and protrusion of the disc at the L4 -- L5 level of Plaintiff's spine. (R. at 233). Dr. Acevedo recommended a lumbar myelogram and computed tomography ("CT") scan of Plaintiff's lumbar spine. (R. at 233).

On October 25, 2004, Plaintiff underwent a lumbar myelogram and CT scan of the lumbar spine. (R. at 234 -- 35). The myelogram was unremarkable -- the lumbar spine showed anatomic alignment, and the thecal sac ...


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