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Norwood v. Astrue

November 3, 2008


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


This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying the application of Claimant Raymond Norwood ("Claimant") for disability insurance benefits under Title II of the Social Security Act and for supplemental security income benefits under Title XVI of the Social Security Act. See 42 U.S.C. §§ 401-34, 1381-83. Claimant filed an application for disability insurance benefits and supplemental security income with a protective filing date of December 11, 2003, alleging his disability onset date as November 16, 2003, and claiming that he was unable to work due to irritable bowel syndrome and depression. (R. at 67-69.) Claimant urges this Court to reverse the decision of the Commissioner and order an award of benefits or, in the alternative, to remand his claim to the Commissioner for a proper determination of disability as required by statute. The Commissioner requests an order affirming his decision on the record under the "substantial evidence" standard.

At issue in this case is whether there is substantial evidence in the record for the Administrative Law Judge's ("ALJ") determinations that Claimant was not disabled at any relevant time and that Claimant has the residual functional capacity for light, unskilled work.

The Court has considered the submissions of the parties pursuant to Local Civil Rule 9.1. Because the ALJ properly followed the five-step sequential evaluation process and explained the basis for his decision as required by applicable federal regulations, the Court finds substantial evidence in the record to support the ALJ's decision that Claimant has not been disabled throughout the relevant time period as defined under Titles II and XVI of the Social Security Act. The Court further finds substantial evidence to the support the ALJ's determination of Claimant's Residual Functional capacity.


A. Procedural History

On December 11, 2003, Claimant Raymond Norwood filed an application for disability insurance benefits and supplemental security income benefits, alleging that he was disabled as a result of irritable bowel syndrome and depression. (R. at 67-69, 260.) The Social Security Administration denied his application initially on June 24, 2004. (Id. at 36-38.) Claimant's application was denied on reconsideration on August 12, 2004. (Id. at 43-46.) Claimant subsequently filed a timely Request for an Administrative Hearing on October 13, 2004. (Id. at 47.) The initial hearing was held on November 10, 2005 before an Administrative Law Judge ("ALJ"). (Id. at 264-94.) A supplemental hearing to consider additional evidence was held on February 16, 2006 before the same ALJ. (Id. at 295-309.) The ALJ issued a decision on June 23, 2006, ruling that Claimant was not disabled. (Id. at 23-31.)

Claimant requested review by the Appeals Council on July 10, 2006, (id. at 19-20), and the Appeals Council denied the request for review on September 7, 2007. (Id. at 4-6.) The ALJ's decision therefore became the final decision of the Commissioner. (Id.)

Having exhausted his administrative remedies, Mr. Norwood, through his attorney, timely filed the present action with this Court on September 28, 2007, seeking reversal of the Commissioner's determination and an award of benefits, or in the alternative, a remand for a new hearing. The Commissioner requests that the Court affirm his decision under the "substantial evidence" standard.

B. Facts

1. Claimant's Testimony

Claimant testified at his Administrative Hearing on November 10, 2005 that he was six feet and two inches tall, and weighed 250 pounds. (R. at 285.) He testified that, while he had lived alone for some time between 1988 and 2001, at the time of the hearing he lived with his sister in Vineland, New Jersey. (Id. at 270, 275, 283.)

Regarding his education and work history, Claimant testified that he graduated from high school in 1988 and has worked for three companies since that time. (Id. at 270.) He testified that he held two jobs in 1988, originally mopping floors for Apple Farms and then stacking boxes from a railroad car for East Coast Refrigeration. (Id.) Claimant then accepted employment at Seabrook Brothers in 1989 and held three positions at that company until he was let go in November of 2003. (Id. at 270-71.)

Mr. Norwood testified that for four of the fourteen years that he spent at Seabrook Brothers he served as a line leader, in which position he supervised the operation of a frozen food bagging line. (Id. at 271-72.) In that capacity Claimant supervised line workers as well as the appearance and net weights of the bags of frozen vegetables that came off the line. (Id.)

Additionally Claimant testified that he spent some of his time while employed by Seabrook Brothers as a laborer. (Id. at 273.) For that position, Claimant had to break up 800-pound frozen blocks of vegetables with a metal pole and had to lift objects weighing between forty-five and fifty pounds. (Id.)

Claimant testified that he spent the remainder of his employment with Seabrook Brothers in quality control, checking the grades of individual beans as well as their weight and any damage to them. (Id. at 272.) Claimant testified that he suffered a knee injury in the course of his employment in 2003. (Id. at 274.)

According to Mr. Norwood's testimony, after he was cleared to return to work from his knee injury, Seabrook Brothers attempted to find him a job that he could perform even with his physical limitations. (Id. at 288.) According to Claimant, these jobs included stacking boxes on a pallet, strapping wooden pieces to the sides of boxes and sealing them in place, and finally quality control as described above. (Id. at 289-90.) Claimant testifed that the quality control job involved too much walking and required him to work at a distance too far from the bathroom. (Id. at 291.) He testified that he had a number of bathroom problems while performing this job. (Id.) Claimant indicated that these problems forced him to take leave from his employment under the Family Medical Leave Act from August until November of 2003. (Id. at 291.) In November 2003, Claimant testified, he was terminated when he did not return to his employment after his allowed leave time ran out. (Id. at 291-92.)

Claimant testified as to his daily activities that he could not help his sister with many household chores beyond some cooking, dusting and cleaning laundry and that he had trouble concentrating enough to read a book or newspaper. (Id. at 283, 287.) He also testified that he was able to shop for food and clothing, manage his own money and bathe and dress himself. (Id. at 287.) Claimant testified that he does not socialize at all and spends much of his time during the day sleeping. (Id. at 282.) Claimant further testified that he does not garden or do yard work. (Id. at 284.)

With regard to his knee injury, Mr. Norwood testified that he suffered the initial injury while on the job in 2003. (Id. at 274.) By the date of his hearing, Claimant testified that he still suffered from swelling, pain and weakness in the knee and that he wears a knee brace and occasionally uses a cane to get around. (Id. at 278-82.) Mr. Norwood testified that he experiences pain in the knee if he holds his knee in the same position for ten minutes or if he walks for more than five minutes. (Id. at 278-79.) He also indicated that he experiences pain if his knee is exposed to cold. (Id. at 279.) Claimant testified that his knee pain has disturbed his sleep on many occasions. (Id. at 277.)

According to Claimant's testimony about his irritable bowel syndrome ("IBS"), prior to 2003, he took medication in an effort to control the condition but the medication was not controlling it well. (Id. at 274.) Claimant testified that he had an occurrence of his IBS on average once a week and that he would have several other instances where he would experience cramping and abdominal pain. (Id. at 276-77.) He further testified that he had not attempted to wear an adult undergarment for his IBS. (Id. at 280.) He claimed that the occurrences were too powerful and he did not believe that such an item would do any good. (Id.) Claimant indicated that his IBS manifests itself often in sharp pains and cramping that would result in him voiding his bowels and then feeling sick or weak for ten to fifteen minutes. (Id. at 284.) Claimant testified that prior to his knee injury he was taking Donnatol to control his IBS. (Id. at 275.) While Claimant noted that the medication was not controlling his IBS entirely, he testified that he stopped taking the medication simply because he no longer could afford to buy the medication or travel to the doctor for prescription of medication. (Id.)

Mr. Norwood also testified that he had developed an infection as a result of his knee injury and that this infection had affected his eyes. (Id. at 275.) Claimant indicated that, as a result of this infection, his eyes developed a sensitivity to bright lights and that he began to experience severe migraine headaches and nausea. (Id.) Claimant testified that antibiotics prescribed to wipe out the infection only made the sensitivity and headaches worse. (Id.)

Regarding his depression, Claimant stated that his condition predated the time that he stopped working. (Id. at 283.) Claimant testified that his depression would manifest itself in his sleeping patterns during the day and in his mood. (Id. at 282.) Claimant added that his depression kept him from concentrating on reading materials or from remembering simple things such as dates. (Id. at 283.) Claimant testified that he had received medical advice that his depression was aggravating his IBS and that he should treat the depression first. (Id. at 282.) At the time of his first hearing Claimant testified that he was being treated for his depression by Dr. David Friel. (Id. at 281-82.) Claimant testified that he was then taking Effexor XR for his depression. (Id. at 277.) He said that the drug was also meant to treat his IBS to a minimal degree. (Id.) At the time of his supplemental hearing on February 16, 2006, Claimant testified that he remained in the care of Dr. Friel, that he saw the doctor once every two or three months, and that the doctor believed that his depression was worsening. (Id. at 299-301.) At that time Claimant testified that Dr. Friel had begun prescribing Lexapro for his depression and that his visits to Dr. Friel included one-hour counseling sessions. (Id. at 300-01.)

2. Medical Evidence

a. Claimant's Knee Impairment

On February 2, 2003, Mr. Norwood slipped and fell at his place of employment and developed pain and an abrasion on his left knee. (Id. at 176-77.) Claimant was first treated for this injury by Dr. W.G. Harris, who is listed as his primary care provider, on February 5, 2003. (Id. at 177, 232-33.) He was subsequently treated for the same injury at South Jersey Hospital's Emergency Room on February 8, 2003. (Id. at 144-48.) At that time, Claimant exhibited swelling and scabbing on the affected knee and complained of pain around the patella area of the knee. (Id. at 144.) Claimant was diagnosed as having a left knee contusion and was released with a prescription for Naprosyn. (Id. at 145-46.)

Claimant continued his treatment at SJHS Occupational Health beginning on February 11, 2003. (Id. at 149-79.) At that time, Claimant was diagnosed with a left knee contusion, a lower leg contusion, a knee sprain and an abrasion to the left knee. (Id. at 176.) He was prohibited from assuming awkward positions, walking or standing for more than one hour, kneeling or squatting, and stair climbing. (Id.) The doctors at SJHS prescribed ibuprofen for Claimant's pain and requested that he treat the injury with heat. (Id.) Eight days later, Claimant was returned to regular work and was prescribed Tylenol or Advil as needed and told to apply a hot compress to the injury. (Id. at 171-72.) On February 26, 2003, in response to his further complaints of pain in the knee, Claimant was prescribed a course of physical therapy. (Id. at 164-67.) On March 12, 2003, Claimant was fitted for a knee brace and instructed to wear that brace as part of his treatment. (Id. at 156-57.) Finally, on April 1, 2003 Claimant was fully discharged from the care of SJHS Occupational Health and returned to full work duty. (Id. at 149.)

Dr. Anthony Rosa examined Claimant at the request of the Social Security Administration on April 16, 2004 and determined that Claimant walked without any assistive device and that his gait was normal. (Id. at 212-13.) Dr. Rosa's physical examination revealed no swelling or redness of the joints, and concluded that Claimant was able to squat and stand without problems. (Id. at 213.)

Dr. Marshall Pressman examined Mr. Norwood at his attorney's request on May 10, 2005. (Id. at 238-42.) Dr. Pressman found a small scar and tenderness in Claimant's left lower leg. (Id. at 240.) He noted that Claimant's left knee exhibited crepitation*fn1 with tenderness resulting from compression of the knee as well as medial and lateral joint line tenderness*fn2 and varus stress tenderness.*fn3 (Id. at 241.) As a result of these findings, Dr. Pressman determined that Claimant now experiences a permanent orthopedic impairment of 32.5% of his left leg. (Id.)

b. Claimant's Irritable Bowel Syndrome

Claimant was first diagnosed with possible irritable bowel syndrome ("IBS") in February 2001 by Dr. Christopher Altamuro (Id. at 205.) Dr. Altamuro scheduled him for a colonoscopy with Dr. Kirit Chhaya and prescribed Levbid. (Id.) Dr. Chhaya performed the colonoscopy on March 1, 2001 and determined that Claimant's internal hemorrhoids were "inflamed, irritated and friable." (Id. at 181.) The doctor prescribed Sitz baths, Anusol HC suppositories or cream and roughage or bulk producing laxative. (Id.)

Dr. Altamuro noted six more instances where Claimant complained of IBS symptoms between February 2001 and September 2003. (Id. at 187-90, 193, 202-04.) On each occasion, the doctor urged Claimant to visit Dr. Chhaya for a re-evaulation and possible medication for his condition. (Id.) Dr. Altamuro also noted that he thought claimant suffered from anxiety disorder and depression. (Id. at 202-03.) The doctor believed that treatment of these other conditions with anti-depressant medications and psychiatric counseling might also result in an improvement of the IBS. (Id.) Notes from Dr. David Friel, a psychiatrist treating Claimant for his anxiety disorder and depression, indicate that Claimant complained of flare-ups of the IBS condition as late as June 23, 2005. (Id. at 244.)

c. Claimant's Depression/Anxiety Impairment

Dr. Altamuro diagnosed Claimant with anxiety disorder and depression in September of 2002. (Id. at 204.) The doctor offered to treat the depression at that time, but Claimant decided to attempt to treat his IBS symptoms through visits to Dr. Chhaya first. (Id. at 204.) Twice more, in January and April of 2003, Dr. Altamuro offered to prescribe antidepressant medication to Claimant, but he refused the treatment. (Id. at 202-03.) Finally on June 5, 2003 Dr. Altamuro diagnosed Claimant with depression and prescribed Lexapro, an antidepressant, to help curb the symptoms. (Id. at 192.)

Dr. Friel, Claimant's treating psychiatrist, began treating Claimant for depression in October of 2003, shortly before the end of his employment at Seabrook Brothers and almost two months before his application for disability was filed with the Social Security Administration. (Id. at 247.) At that time, Dr. Friel changed Claimant's prescription to the antidepressant Effexor XR. (Id. at 249.) Dr. Friel diagnosed Claimant with depression and dysthymic disorder.*fn4 (Id. at 244-46.) Dr. Friel described Claimant in his notes as logical and goal-directed. (Id. at 244-47.) The doctor also registered a fluctuation in Claimant's depression, noting that Claimant was "improved" in April of 2004 and "stable" in May of the same year. (Id. at 245.) However, Dr. Friel then indicated that Claimant was "not so good" during his visit on October 21, 2004. (Id. at 244.) While Dr. Friel does describe Claimant's lack of social interaction, he makes no mention or diagnosis of any personality disorder. (Id. at 245-46.) Although the record only shows notes from Dr. Friel containing visits by Claimant until June 23, 2005, Claimant in his testimony at the supplemental hearing indicated that he continued to see Dr. Friel for depression long after his initial hearing before the ALJ and that Dr. Friel changed Claimant's prescription from Effexor XR back to Lexapro. (Id. at 299.)

Frederick Kurz, Ph.D., a psychologist, examined Claimant at the request of the Social Security Administration on April 9, 2004. (Id. at 208-10.) Dr. Kurz found moderate levels of depression and diagnosed Claimant with dysthymic disorder but found nothing in his examination to "suggest the presence of any thought or personality disorder." (Id. at 210.)

At the request of Claimant's attorney, Dr. Edward Tobe, a psychiatrist, examined Claimant on December 17, 2005. (Id. at 251-52.) Dr. Tobe's evaluation was based both on an in-person meeting with Claimant as well as a review of the records and reports from Dr. Friel, Dr. Pressman, Dr. Altamuro and Dr. Catherine Wisda. (Id. at 251.) Dr. Tobe notes that Claimant's anxiety disorder stems from his knee injury and has caused a "17.5% permanent of total psychiatric disability." (Id. at 252.) Dr. Tobe further notes in summary that Claimant has a pre-existing history of dysthymic disorder and schizoid personality disorder*fn5 but makes no citation to any record for this history. (Id.) As a result of these pre-existing conditions and Claimant's observed frustration and anxiety with his knee injury, Dr. Tobe assessed Claimant as having a 70% permanent total psychiatric disability. (Id.)

At the request of the Social Security Administration, Lewis A. Lazarus, Ph.D. evaluated claimant on April 10, 2006, after the supplemental ALJ hearing but before the decision was rendered. (Id. at 253-57.) Dr. Lazarus based his evaluation on an in-person visit with Claimant as well as a review of the reports by Dr. Kurz and Dr. Tobe. (Id. at 253.) Dr. Lazarus found that Claimant's score of 87 on the Wechsler Adult Intelligence Scale-III test fell well within the average range relative to Claimant's age. (Id. at 254.) Dr. Lazarus diagnosed Claimant with dysthymic disorder and IBS and indicated that "claimant demonstrated the ability to follow and understand directions and ...

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