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Thompson v. Astrue

March 30, 2010


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


Before the Court is Plaintiff Victor M. Thompson's ("Thompson" or "Plaintiff") appeal of the Commissioner of Social Security's (the "Commissioner") final decision that Plaintiff is not disabled and therefore not eligible for disability insurance benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 421 et. seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Venue is proper in this District under 28 U.S.C. § 1391(b). This appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b). For the reasons discussed below, the Court AFFIRMS the Commissioner's decision.


i. Employment, Medical and Personal History

Plaintiff is a 49 year old man who graduated from high school in 1981. (Tr. 54-5.) After high school, Thompson completed a six-month electronics course at the Technical Career Center for Essex County College. (Tr. 55-6.) Upon completion of the course, he retained a job at an electronics store for a few months in the early 1980s. (Tr. 56.) In his most recent job, Plaintiff was employed at Sears Stores in the merchandising department where he assisted customers with items they intended to purchase and generally organized the sales floor. (Tr. 57.) Plaintiff began working at Sears on August 30, 2001 and was laid off in February 2005.*fn1 (Tr. 57-8.)

In January 2000, Plaintiff was diagnosed with nephrolithiasis and low back pain stemming from his presentation of pain in the neck, right groin, and lower back, as well as bilateral wrist pain and a "pinching and burning sensation in [his] toes." (Tr. 303.) In July 2000, Plaintiff was in a motor vehicle accident. (Tr. 622.) Plaintiff received MRIs in August 2000 which revealed several herniated discs in his lumbar and cervical spine. (Tr. 311-12.) Although there was evidence of compression upon the thecal sac, mild posterior annular bulging and loss of normal cervical curvature with torticollis, there was no evidence of cord or direct nerve root compression. (Tr. 311-12.) In October 2000, an examination noted Plaintiff's complaints of pain in the right groin for three consistent months and documented dizziness, headaches, shortness of breath with sweating, a herniated disc located in his lower back, nausea, and a yellow phlegm-producing cough. (Tr. 302, 304.) Plaintiff's hip and groin pain was consistent throughout November 2000 and seemed to worsen upon sitting and standing. (Tr. 300-01.) At this point, Plaintiff was diagnosed with myalgia and received physical therapy three times a week. (Tr. 300.) Plaintiff's complaints of back, groin, hip and wrist pain persisted through December 2000. (Tr. 298-99.) Additionally, Plaintiff was diagnosed with carpal tunnel syndrome, confirmed by an EMG; however, his bilateral hip x-ray was normal. (Tr. 559.)

Plaintiff took Celebrex and Mobic for his pain throughout January and February 2001. (Tr. 296-97.) In March 2001, Plaintiff presented with renal stones and a slight enlargement of the right kidney, for which a stent was placed through his pelvis. (Tr. 295.) He continued to experience groin pain throughout April. (Tr. 294.) In May 2001, Plaintiff was diagnosed with "discogenic disease in the cervical and lumbosacral spine by history, panic attacks, renal stones, and status post stent times three." (Tr. 624.) (numerical ordering omitted). From April through August 2001, Plaintiff consistently presented with complaints of pain in his lower back, right groin, neck, right wrist, and right knee. (Tr. 291-94.) Although Plaintiff complained of shortness of breath, with intermittent pain on the left side of his chest, EKG testing revealed normal results. (Tr. 294.) Routine check-ups in 2002 note that Plaintiff complained of pain due to kidney stones, occasional chest pain and pain on his right side when he sneezed. (Tr. 290.)

In January 2003, Plaintiff was diagnosed with hypercholesterolemia, arthralgias and myalgia. (Tr. 287.) In June 2003, Plaintiff was hospitalized for two days and diagnosed with hyperlipidemia, chest pains and a heart murmur. (Tr. 288.) At the end of the year, on December 30, 2003, Plaintiff was involved in a motor vehicle accident and, upon an emergency room examination, was diagnosed with musculoskeletal pain - after x-rays revealed his lumbar and cervical spine were normal.*fn2 (Tr. 21, 330-38.)

In January 2004, Plaintiff presented with stiffness and soreness in his head, neck and back, as well as numbness in his wrist, hand, leg and foot. (Tr. 439-44.) Plaintiff was diagnosed with neck and thoracic muscle spasms, right knee strains and sprains, and cervical radiculopathy.*fn3 (Tr. 443.) In February 2004, Plaintiff was still experiencing pain in the right leg; numbness in his foot, ankle, leg, and hand; and stiffness and soreness in his head, neck, and back. (Tr. 423-24.) One month later, MRIs revealed various abnormalities, including straightening of the normal cervical lordotic curvature and moderate disc bulging. (Tr. 456-57.) Plaintiff underwent lumbar disc percutaneous decompression nucleoplasty surgery in July 2004 in an attempt to alleviate the pain. (Tr. 492.)

By February 2005, Plaintiff's back pains appeared to worsen as he claimed that he could only walk approximately two or three blocks, that he could only sit for thirty minutes, and that he could only climb stairs one step at a time when he was tired. (Tr. 508.) A physical residual functional capacity report on February 10, 2005 diagnosed Plaintiff with exertional limitations of occasionally lifting or carrying twenty pounds, frequently lifting or carrying ten pounds, sitting or standing for six hours out of an eight hour workday, and postural limitations of frequently climbing ramps and stairs, occasionally climbing ladders, ropes and scaffolds, frequently balancing, stooping, kneeling, and crouching, occasionally crawling, and avoiding concentrated exposure to hazards. (Tr. 513-20.) Plaintiff was then diagnosed with lumbar disc disease and lumbar and cervical sprain. (Tr. 513.)

The following year, in April 2006, Plaintiff presented with kidney stones, pain in his neck, right thigh, the right side of his stomach, and numbness in both legs. (Tr. 572.) In June of that year, Plaintiff underwent a left heart catheterization, which resulted in a diagnosis of mild coronary artery disease. (Tr. 593.) Another catheterization was performed on Plaintiff in June 2007, confirming that he had mild non-obstructive coronary artery disease. (Tr. 906-07.)

ii. Procedural History

On June 24, 2004, Plaintiff submitted an application for disability insurance benefits for a period starting December 30, 2003. (Tr. 228-30.) His application was denied initially on February 14, 2005, and again on reconsideration on April 29, 2005, because Plaintiff's "condition [was] not severe enough to keep [him] from working." (Tr. 147-52, 155-56.) At Plaintiff's request, a hearing was held before Administrative Law Judge Michal Lissek (the "ALJ") on January 25, 2007, at which Plaintiff testified. (Tr. 46-83.) The ALJ also sent interrogatories to Rocco Meola ("Meola"), the vocational expert, and Dr. Martin Fechner ("Fechner"), the medical expert. (Tr. 867-82.) A supplemental hearing was held on August 28, 2007 before the ALJ, at which Meola and Fechner testified. (Tr. 86-121.) After Plaintiff underwent additional diagnostic tests, the ALJ held another hearing on November 15, 2007 so that Meola and Fechner's testimony could reflect any new evidence from the tests. (Tr. 124-44.)

Through interrogatories, the ALJ posed questions to Meola and Fechner describing Plaintiff's purported ailments. In his interrogatory, Fechner confirmed that Plaintiff's neck and back pain was supported by the medical record. (Tr. 869.) Fechner further remarked that Plaintiff's alleged right knee pain was only partially supported by the medical evidence. (Tr. 869.) At the August 28, 2007 hearing, Fechner opined that "the medical record does not substantiate the intensity" of Plaintiff's alleged chest pain, dizziness, and lightheadedness. (Tr. 106.) Fechner ...

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