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Walter Gomez v. Michael J. Astrue

December 15, 2010

WALTER GOMEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Faith S. Hochberg

NOT FOR PUBLICATION

OPINION & ORDER

HOCHBERG, District Judge:

I. INTRODUCTION

This matter comes before the Court upon Plaintiff Walter Gomez's motion to review a final determination of the Commissioner of the Social Security Administration (the "Commissioner") pursuant to the Social Security Act, as amended, 42 U.S.C. § 405(g). The motion has been decided upon the written submissions of the parties pursuant to Federal Rule of Civil Procedure 78.

II. PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits on August 9, 2004, alleging that he was disabled as of February 4, 2004. Plaintiff's date of last insured was December 31, 2008. The Commissioner denied the application in a final order dated July 28, 2006, which affirmed the March 1, 2006 opinion of ALJ Dennis O'Leary. Plaintiff appealed that order to the District Court, Judge Greenaway presiding, which remanded the case back to the Commissioner for further proceedings on September 5, 2008. Judge Greenaway held that the ALJ had failed to articulate sufficiently (1) his reasons for identifying listing 1.04(c) at step three as the relevant listing, and (2) how he reconciled conflicting probative evidence in making his credibility determination regarding plaintiff's subjective complaints of pain. Although plaintiff had argued that the ALJ's residual functional capacity determination was not supported by substantial evidence, Judge Greenaway did not reach that question.

Following the remand, the case was heard by ALJ O'Leary in combination with a second application for benefits for the period following the Commissioner's decision. At the hearing before the ALJ, plaintiff requested that his applications be amended to request a closed period of benefits from February 4, 2004 until July 21, 2008. Plaintiff requested this amendment because, as discussed more fully below, he returned to work on July 21, 2008. The ALJ denied plaintiff's amended application in an opinion dated March 4, 2009. Plaintiff now appeals that determination before this Court.

III. FACTUAL BACKGROUND

A. Plaintiff's Medical and Vocational History

Plaintiff Walter Gomez is a 34-year-old male, born on August 8, 1976. At all relevant times, plaintiff has had a GED. (Tr. 58.) He received an Associate's Degree in respiratory therapy through a joint program with Union County College and The University of Medicine and Dentistry of New Jersey in March 2008. He has been employed as a respiratory therapist since July 21, 2008. Until the onset of his alleged disability, he was employed as a forklift driver at IKEA. That job frequently required lifting large and heavy objects, such as mattresses and sofas. On February 4, 2008, plaintiff injured his back while operating a forklift.

Two years prior to this accident, plaintiff had injured his back and undergone spinal surgery to repair it. He also underwent weight-loss surgery in 2005.

A radiological report by Dr. John McCormick dated March 5, 2004 diagnosed plaintiff with (1) "right paracentral recurrent or residual disc herniation L4-5 producing a right ventral dural deformity resulting in moderate central spinal stenosis" and (2) "[r]ecurrent or residual right paracentral disc herniation L5-S1 impinging upon the right S1 nerve root sheath with enhancing ventral epidural scar." (Tr. 127-28.)

Plaintiff visited Dr. Michael Rieber, an orthopedic surgeon, on three occasions: March 15, April 5, and April 14, 2004. Dr. Reiber reported that plaintiff suffered from back pain. He could forward flex barely to the knee and was able to stand on his heels and toes. On exam, plaintiff appeared neurologically intact with good strength and reflexes. Dr. Rieber prescribed conservative treatment and pain medication. He stated on March 15, 2004 that plaintiff "certainly [was] okay to do light duty as long as he [was] not doing any kind of heavy lifting, pushing or pulling, or twisting." (Tr. 129-31.)

Dr. Kenneth Kopacz reported on April 26, 2004 that plaintiff suffered from pain in his back without "much in the way of radicular complaints," and he recommended epidural steroid injections to be followed by physical therapy. He noted that plaintiff exhibited good strength and reflexes. (Tr. 132-33.) On several follow-up visits, Dr. Kopacz recommended continued treatment with pain medication and physical therapy.

Dr. Richard Nachwalter examined plaintiff on June 17, 2004. He found that plaintiff's motor strength was 5/5 throughout both lower extremities and that he could rise on his heels and his toes. He noted that plaintiff had a "fair amount of back pain" and recommended an epidural injection. If that failed, Dr. Nachwalter suggested that plaintiff could "either live with his symptoms or pursue surgery in hopes that his pain is improved." He diagnosed plaintiff with recurrent disc herniation and lumbar degenerative disc disease. (Tr. 137-39.)

At Dr. Kopacz's request, plaintiff underwent a functional capacity assessment with Timothy O'Kay, a physical therapist, on August 10, 2004. The assessment concluded that in an eight-hour workday, plaintiff could sit for 4 to 5 hours, up to 60 minutes at a time, stand for 8 hours, up to 60 minutes at a time, and walk for 3 to 4 hours occasionally. (Tr. 100.) The assessment was "conditionally valid" due to a perceived lack of effort by plaintiff. (Tr. 100, 107.) Dr. Kopacz concluded from the results that plaintiff could engage in sedentary activity and recommended that he be "retrained and vocational [sic] rehabilitated somehow, to train him in a position that he is more suited for." (Tr. 107.)

In the file is a physical residual functional capacity assessment dated September 14, 2004 by a state agency medical consultant identified on the report as J. Pringle. It concluded that plaintiff was able to occasionally lift and carry 10 pounds, frequently lift and carry less than 10 pounds, stand or walk at least 2 hours in an 8-hour day, sit about 6 hours in an 8-hour day, and push and pull without limitation. It identified additional postural limitations: plaintiff could climb stairs, stoop, crouch, and crawl occasionally; and he could not kneel. No other physical limitations were identified in the assessment. (Tr. 118-25.) The assessment was affirmed on reconsideration on November 30, 2004. (Tr. 22-23.)

Plaintiff began vocational training through the New Jersey Division of Vocational Rehabilitation ("DVR"). From January 2005 through March 2008, plaintiff was enrolled full-time in a joint program in respiratory therapy with Union County College and the University of Medicine and Dentistry of New Jersey. He attended class 12 hours per week and did not receive any ADA accommodations. Attending class involved sitting for 1-3 hours at a time, with occasional breaks, and a two-hour lab, during which plaintiff remained standing for the entire period. He also had to complete outside reading assignments at home.

On October 27, 2006, Dr. Kopacz reported that plaintiff was pursuing Social Security disability benefits on the belief that he could not perform even sedentary work; Dr. Kopacz noted that he was "not sure if that is directly correct, given his pain complaints and ability to go to school." He ...


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