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Re: Dennis Pelech v. Commissioner of Social Security

January 4, 2011

RE: DENNIS PELECH
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: Jose L. Linares, United States District Judge

C H AM B ER S O F M A R TIN L U T HE R K IN G JR. JOSE L. LINARES FE D E R A L B U IL D IN G & U .S. C OU R T H O USE JU DG E 50 W A L N U T ST ., R O O M 5054 P.O . B ox 999 Newark, NJ 07101-0999 973-645-6042

NOT FOR PUBLICATION

LETTER OPINION

Via Electronic Filing Abraham S. Alter Langton & Alter P.O. Box 1798 1600 St. Georges Ave. Rahway, NJ 07065 Benil Abraham Special Assistant U.S. Attorney Social Security Administration Office of General Counsel 26 Federal Plaza, Room 3904 New York, NY 10278

Dear Counsel:

Presently before the Court is an appeal filed by Dennis Pelech (hereinafter "Claimant") seeking review of the Administrative Law Judge's ("ALJ") decision denying his claim for Supplemental Security Income Benefits ("SSI"). No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. Plaintiff claims that the ALJ's decision was not supported by substantial evidence and therefore requires reversal, or alternatively, remand to the Commissioner for further proceedings. In opposition, Defendant argues that the ALJ's findings are supported by substantial evidence and should be upheld. The Court, having considered the parties' submissions, and for the reasons set forth below, affirms the decision of the ALJ.

PROCEDURAL HISTORY

Claimant applied for SSI on June 8, 2006. The application was denied initially and again upon Reconsideration. Hearings were held before ALJ Michael L. Lissek on February 5 and March 25, 2009 respectively. ALJ Lissek denied Claimant's application on April 16, 2009 and the Appeals Council further denied Claimant's request for review. Claimant now appeals ALJ Lissek's ruling pursuant to 42 U.S.C. Ãé§ 405(g).

FACTUAL BACKGROUND

Claimant, Dennis Pelech, was born on August 25, 1960. (R. 55). He has a high school education but cannot read or spell. (R. 56). Plaintiff has held various positions as a machine operator in different companies throughout his adult life. (R. 56-58). His most recent position was in 2004 at a cheese factory, where he worked for five weeks. (R. 57). Plaintiff alleges he stopped working at this position because he was having difficulty performing the duties required of the job, stating "everything was going numb on me, my hands, my legs, my stomach." (R. 57). Prior to that position, Claimant worked as a machine operator in a machine shop for two years between 1998 and 1999. Id. Claimant would lift between thirty to forty (30-40) pounds in this position. Claimant alleges he was unable to maintain full-time work for extended periods of time because of the numbness and pain he would encounter while working. (R. 59).

At the time of his February 5, 2009 hearing, Claimant stood 5 feet 11 inches tall and weighed 325 pounds. (R. 60). Six months prior to that hearing, Claimant weighed 386 pounds.

(R. 60-61). Claimant has been a diabetic since 2004. (R. 63). During his February 5, 2009 hearing, Claimant alleged he had neuropathy in his feet from his diabetes and that his arms, hands, stomach and the upper part of his legs would go numb. (R. 59-60). Claimant further alleged that during the previous ten years he would get out of breath and get lightheaded when walking, taking showers, tying his shoes, bending down and standing*fn1 . (R. 62). Claimant testified at the hearing that he had been trying to lose weight under doctors orders, but that his recent weight loss of over sixty pounds did not help mitigate his health issues. (R. 62-63).

Since becoming diabetic, Claimant has been monitored with medication, but has not taken insulin. (R. 63). Claimant testified that his blood sugar levels ranged from 250-340 on a daily basis and that he was unable to afford seeing a diabetic specialist. (R. 64). Claimant testified that he does not perform any daily activities besides watching television and going down a flight of stairs to check the mail. (R. 67). He further stated that he only leaves his apartment to pick up "his check"*fn2 once a month and to go to the doctor every three months. Id. Claimant testified that he smokes approximately two cigarettes per day. (R. 70).

Claimant has been treated by Dr. Rizzo, M.D. at Union Family Medicine for the past ten years. (R. 61). Dr. Rizzo's examination notes consistently document morbid obesity along with relatively normal physical examinations. On a June 1, 2005 doctor's visit, Claimant's blood pressure was 150/100 and his blood glucose was 293. (R. 333). Claimant's blood glucose level was down to 243 on October 31, 2005. (R. 318). On March 1, 2006 Claimant's blood glucose was 190, on June 6, 2006 it was 177, and on November 1, 2006 it was 185. (R. 303, 307, 315). Claimant's blood pressure remained relatively constant. On February 11, 2005 his blood pressure was 140/80, on June 25, 2005 it was 142/90, on August 29, 2005 it was 146/80, on October 18, 2005 it was 130/94, on February 24, 2006 it was 140/100, on May 3, 2006 it was 122/87, on October 27, 2006 it was 150/100, on November 15, 2006 it was 125/82, on February 27, 2007 it was 130/85, and on June 4, 2007 his blood pressure was 132/90. (R. 295, 301-02, 310, 314, 321, 328-29, 331, 337). During most evaluations, Claimant complained of being fatigued, tired and having a shortness of breath. However, despite continuos recordings of hypertension, morbid obesity and high cholesterol, Claimant's physical evaluations were otherwise normal.

Claimant was admitted to Union Hospital on April 24, 2004 with complaints of back pain. (R. 265). Examination of the back was negative for spasm, tenderness, and deformity. Id. While Claimant's blood glucose was 238, his cardiovascular examination was normal, a chest xray revealed no active disease, and examination of the heart and lungs was normal. (R. 265, 269, 273, 277, 280, 283). Claimant was again admitted to Union Hospital emergency room on March 24, 2007 after complaining of a coughing fit that rendered him disoriented after a two-day drinking binge. (R. 230). Examination of the head, eyes, ears, ...


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