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Adan Duran v. Michael J. Astrue

December 20, 2010

ADAN DURAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the appeal of Adan Duran ("Plaintiff") from the final decision of the Commissioner of Social Security ("Commissioner"), denying Plaintiff's claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure.

As detailed below, the final decision entered by the Administrative Law Judge ("ALJ") is affirmed.

I. BACKGROUND*fn1

A. PROCEDURAL HISTORY

On August 30, 2005, Plaintiff filed an application for DIB and SSI benefits alleging disability beginning September 22, 2003. (Tr. 17). The applications were denied initially on November 2, 2005, and, upon reconsideration, on December 21, 2005. Id. Thereafter, Plaintiff filed a timely written request for a hearing. Plaintiff appeared and testified on March 20, 2007. Following a post-hearing consultative examination ordered by the ALJ, a supplemental hearing was held on August 8, 2007, before ALJ Joel H. Friedman. At the close of the second hearing, the record was left open for twenty-one days to allow Plaintiff's attorney to obtain additional medical evidence from Dr. Albert Mylod, a non-treating physician. When nothing was received, the ALJ issued an unfavorable decision on December 26, 2007, (Tr. 14-16), finding that Plaintiff was not disabled in accordance with 20 C.F.R. Part 404, Subpart P, Appendix 1, (Tr. 20). Appeals Council review was sought on February 26, 2008, (Tr. 12), and on May 31, 2009 the Appeals Council found no grounds to review, (Tr. 6-8). District Court action was thereafter timely commenced and this matter is now properly before the Court.

B. FACTUAL HISTORY

1. The Findings of the Administrative Law Judge

ALJ Friedman made the following eleven findings regarding Plaintiff's applications for DIB and SSI: (1) Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2008; (2) Plaintiff has not engaged in substantial gainful activity since his application for DIB and SSI on September 22, 2003; (3) Plaintiff's degenerative disc disease is a severe impairment; (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Plaintiff has the residual functional capacity to perform work involving lifting and carrying objects weighing up to 20 pounds, and sitting, standing and walking up to six hours in an eight-hour workday; (6) Plaintiff is unable to perform any past relevant work; (7) Plaintiff was born on December 28, 1961, and was 41 years old, which is defined as a younger individual age 18-49, on the date the applications for DIB and SSI were filed; (8) Plaintiff is illiterate but is able to communicate in English; (9) transferability of job skills is not an issue because the claimant's past relevant work is unskilled; (10) considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform; and (11) Plaintiff has not been under a disability, as defined in the Social Security Act, since September 22, 2003, the date the application was filed. (Tr. 19-25).

2. Plaintiff's Medical History and Evidence

Plaintiff alleges that he has been disabled since September 22, 2003, after the truck he was driving flipped over and hit a telephone pole, causing him to injure his neck, low back and elbow. (Tr. 134, 273). Plaintiff's medical history and the evidence pertaining to his impairment are summarized below.

I. Initial Emergency Room Examination

Plaintiff was taken to the emergency room at the Robert Wood Johnson University Hospital on the same day as the accident. Dr. Davis, a treating physician, indicated in his report that Plaintiff's condition was stable but that he had paravertebral tenderness and midline tenderness at the C5-6 level in his neck, lumbar paravertebral tenderness in his back, and abrasion to the left elbow from no crepitus. (Tr. 134). Plaintiff was treated with Flexeril, Motrin and Percocet, (Tr. 135), and was not kept overnight because his condition had improved, (Tr. 134). There was no evidence of serious head, neurologic, chest or abdominal injuries. (Tr. 134). Cervical x-rays and a cervical CAT scan were negative. (Tr. 139-142).

ii. Chiropractic Examination

From October 24, 2003 through March 10, 2004, Plaintiff was under the care of a chiropractor, Dr. Addesa, at the Union Pain Relief Center. (Tr. 175). Plaintiff complained of constant severe headaches, acute severe neck pain, acute pain in the low back, pain, numbness and weakness down the left leg and difficulty sleeping. Id. Following an examination, Dr. Addesa stated in her report that Plaintiff was suffering from a post traumatic sprain/strain of the cervicodorsal spine with resultant central disc herniation at the C3-4 level approaching the ventral surface of the spinal cord and cervical myalgia, as well as from a post traumatic sprain/strain of the lumbosacral spine with resultant small central disc herniation at the L4-5 level producing a focal ventral dural deformity, and a posterior disc bulging at the L5-S1 level just abutting the right S1 nerve root sheath. (Tr. 177). Dr. Addesa reported that this data was consistent with the type of injury suffered by Plaintiff and noted that Plaintiff's strength was equal and intact bilaterally, reflexes in the lower extremities were within the normal range, and Plaintiff was able to toe walk, heel walk, mount and dismount the examination table and to move from the supine to prone position without difficulty. (Tr. 176-77). Plaintiff had a variety of manipulative treatments directed at his neck and back. Dr. Addesa, however, provided no prognosis as to Plaintiff's health pending further treatment. (Tr. 177).

iii. MRI Results

On November 25, 2003, a cervical MRI administered at the Cranford Diagnostic Imaging Center that showed loss of disc height at the C2-3 through C5-6 levels, decreased disc signal at the C2-3 through C6-7 levels consistent with degenerative desiccation, central disc herniation C3-4 approaching the ventral surface of the spinal cord, posterior vertebral body osteophyte disc complex C4-5, C5-6 and C6-7 resulting in dural deformities, left-sided neutral foraminal stenosis C4-5 secondary to facet joint hypertrophy, and right-sided neutral foraminal stenosis C5-6 secondary to vertebral body osteophyte disc complex. (Tr. 194, 197). A lumbar MRI, on the same date, showed a small central disc herniation at the L4-5 level producing a focal ventral dural deformity and posterior disc bulging L5-S1 just abutting the right S1 nerve root sheath. (Tr. 195-96).

iv. Emergency Room Examination

On May 21, 2004, Plaintiff was seen at the Union Hospital emergency room for complaints of pain in the lower back radiating to the posterior thigh and buttocks. (Tr. 164). Plaintiff was treated with Toradol, Valium and Percocet for minimal relief. Plaintiff was not admitted to the hospital because his condition improved during the emergency room evaluation. Id. He was given additional Valium and Dilaudid with moderate relief and side effects. Plaintiff had minimal gastric relief following Reglan intramuscular injection and total relief following Phenergan IV. Id.

v. Orthopedic Examination by Dr. Tiger

Plaintiff was referred by his then attorney to Dr. Arthur Tiger for an orthopedic examination in connection with a Workers' Compensation claim on July 27, 2004. (Tr. 147). During the examination, Plaintiff complained of a constant discomfort in the lower back as well as pain, discomfort and numbness radiating into his left leg. (Tr. 198). He could not turn, twist, lift or bend and had difficulty squatting and kneeling. He had lost a lot of flexibility and mobility in his back and had limited ...


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