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Thomas Petrowski v. Michael J. Astrue

June 3, 2011

THOMAS PETROWSKI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

NOT FOR PUBLICATION

OPINION

Plaintiff, Thomas Petrowski, seeks review, pursuant to 42 U.S.C. 405(g) and 42 U.S.C. 1383(c)(3), of the determination of the Commissioner of Social Security (the "Commissioner"), denying Plaintiff's application for Disability Benefits under Title II or Title XVI of the Social Security Act. Plaintiff contends that substantial evidence exists in the administrative record to support a finding of disability and that there were numerous deficiencies in the Hearing decision.

I.BACKGROUND

On September 12, 2006, Plaintiff filed an application for supplemental security income ("SSI"), alleging disability beginning March 1, 2006. (R. at 52.) On January 31, 2007, the claim was denied initially and upon reconsideration on May 25, 2007. (R. at 41, 31.)On July 24, 2007, the Plaintiff filed a written request for hearing. (R. at 28.) On November 20, 2008, the Plaintiff appeared and testified at a hearing in Newark, New Jersey before administrative law judge ("ALJ") Gerald J. Ryan. (R. at 57.) On February 17, 2009, ALJ Dennis O'Leary (ALJ Ryan had retired a few months prior (R. at 5))issued a decision that, in light of the medical evidence, Plaintiff did not have any medically determinable severe impairments and he had not been under a disability within the meaning of the Social Security Act since September 12, 2006, the date the application was filed. (R. at 9.) On April 8, 2009, Plaintiff submitted a request for review of the ALJ's denial. (R. at 4.) On December 11, 2009, the ALJ's decision became final when the Appeals Council denied Plaintiff's request for review. (R. at 1.)

i. Plaintiff's history and claims

Plaintiff is a sixty-three year-old U.S. citizen who was previously employed in a bar as a part-time worker, on an as needed basis. (R. at 52, 56.) The highest level of education he has completed is the twelfth grade. (R. at 87.) Plaintiff lives by himself in an apartment. His daily routine generally includes waking up, eating breakfast, going to work, coming home, preparing a light meal ,napping, watching television, having dinner, and going to bed. (R. at 89.) He prepares his own food, usually taking just a few minutes, and does most of his own housework including washing dishes, dusting, and doing laundry. His sister occasionally helps with washing the floor and cleaning the bathroom. (R. at 91.) Plaintiff does most of his own shopping , which takes about an hour two times a week. (R. at 92.) His hobbies include watching sports and reading the newspaper. (R. at 92.) Plaintiff described his job at the bar saying he set up the register for his shift, served customers drinks, and operated a lottery machine. (R. at 98.)

On September 12, 2006, Plaintiff applied for disability benefits complaining of numbness in the right hand and both heels, right knee pain, sciatica, and acid reflux. (R. at 52.)

Plaintiff indicated his conditions affected lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, and stair climbing." (R. at 93.) Plaintiff reported being able to walk two to three blocks and that, if he needed a rest, he could usually resume walking within five to ten minutes. (R. at 94.)

ii. ALJ Hearing

On November 20, 2008, Plaintiff testified at a hearing before ALJ Gerald J. Ryan.

Plaintiff testified he was unable to work, saying, "I have trouble standing on my feet for more than a couple of hours. I get pain. I have to sit. After about an hour and a half, two hours, I have pain in my right side and I just have to sit sometimes to relieve the pain . . . I have problems with my right knee, too, sometimes. (R. at 62.) He stated that this affects his ability to work because "if I have to lift anything or after a couple hours, I wind up sitting and I have people asking me what's wrong with you? . . . It goes away and it comes back." He said that if he has to work a full shift of six hours, at the end of the day, "I'm like beat."(R. at 62.) He has difficulty lifting a case of beer and wouldn't try to lift two at once. (R. at 65). During a six hour work period, Plaintiff stands for "maybe half the time." (R. at 66.) Plaintiff testified he had been doing this type of work in a bar for about five or six years and that it was as a result of his pain in his right knee and right side that he has cut back his hours. (R. at 63, 69.)

When the ALJ asked Plaintiff if he had any difficulty with his hands or arms, Plaintiff responded, "I do with my right hand. I get numbness but it works itself out." (R. at 66.) Plaintiff testified that Motrin and Advil are the only medications he takes for his pain. (R. at 63-64, 67). The ALJ asked "[i]n what way do they help?" to which Plaintiff said, "It just seems to ease, the pain goes, especially with the Motrin." (R. at 67.) He also uses a cane sometimes, that wasn't prescribed by a doctor, which seems to ease the pain. (R. at 67.)

The last time Plaintiff saw a doctor was about a year and a half before the hearing. He reportedly saw the doctor for the pain in his hip and knee. (R. at 67.) Prior to that visit it had been many years since Plaintiff had seen a medical care provider. (R. at 68.) At the conclusion of the hearing, the ALJ recommended that Plaintiff be sent out for an examination. (R. at 71.)

iii. Medical Evidence

On December 27, 2006, approximately two years before the ALJ hearing, Dr. Samuel Wilchfort, a social security doctor, examined Plaintiff. The doctor noted that Plaintiff had a positive history for sciatic pain, that he complained of unmoving pain in the right buttock, and complained of some numbness in his right hand but had no history of carpal tunnel syndrome or cervical spine injury. (R. at 125.) Dr. Wilchfort also noted that Plaintiff used a cane, that was not prescribed, to help with the pain in his right buttock area and support his right knee. Id. Plaintiff reported taking Advil or Aleve (or sometimes changing his position) to alleviate the pain in his buttock area. Id.

Dr. Wilchfort reported that Plaintiff had twenty/twenty-five vision in both eyes when corrected. His blood pressure was 150/100. His reflexes, muscle strength, and range of motion in his hands, wrists, elbows, and shoulders were all normal. In his lower extremities, the flexion of his hips, knees, and ankles were all normal. His straight leg raising test was negative at about fifty degrees bilaterally. He could bend over to ninety degrees. Plaintiff did display some difficulty with toe walking, heel walking, and squatting. All other reported results were normal. (R. at 126.)

In his summary, Dr. Wilchfort indicated that Plaintiff had probable hypertension, suggested by his blood pressure results, which the doctor noted should be repeated and followed up on. Plaintiff had pain in the right buttock. The doctor noted that Plaintiff "says its sciatica," but that he had "not really seen a physician." Dr. Wilchfort suggested X-rays of the LS-spine would be helpful. The doctor also noted some reported numbness in the ...


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