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Marvin Melvin v. Michael Astrue

July 8, 2011

MARVIN MELVIN,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION

OPINION

Marvin Melvin ("Plaintiff") appeals from the final decision of the Commissioner of Social Security ("Commissioner"), denying Plaintiff Disability Insurance Benefits and Supplemental Security Insurance Benefits under the Social Security Act ("Act"). The Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). On appeal, Plaintiff contends that the substantial evidence in the Administrative Record ("AR") establishes eligibility for and entitlement to the benefits for which Plaintiff applied. Specifically, Plaintiff argues that the Administrative Law Judge ("ALJ"), at Step Four of the sequential process, erroneously found that Plaintiff could resume his employment as a security guard. After reviewing the administrative record, this Court finds that the ALJ's decision is based on the substantial evidentiary support required by 42 U.S.C. § 405(g). Therefore, the ALJ's decision is affirmed, and Plaintiff's appeal is dismissed in its entirety.

I. Overview

A. Procedural History

Plaintiff filed a Title II application for Disability Insurance Benefits and a Title XVI application for Supplemental Security Income on May 16, 2006. In both applications, Plaintiff alleged his disability began on September 6, 2005. The applications were initially denied on October 13, 2006 and again after reconsideration on April 23, 2007. After the denials, a timely request for hearing was filed. The hearing took place before ALJ Joseph Hilegas on August 11, 2008. The ALJ denied Plaintiff's application on September 22, 2008. Plaintiff next filed a Request for Review with the Appeals Council, but the council denied the request. Plaintiff subsequently filed the instant matter with the District Court.

B. Background and Medical History

Plaintiff claims he has been unable to work since June 10, 2007 due to hearing loss in his left ear, vertigo and headaches. Administrative Record ("AR"), 16, 25. Prior to the onset of his symptoms, Plaintiff worked briefly as a forklift driver for a furniture warehouse in 1991 and then as an apartment complex security guard from 1993 until he was fired in 2002. Id. at 102, 124. After Plaintiff's termination, he worked as an auto parts driver for Hamilton Mazda from April 2003 to April 2004.*fn1 Id. at 23, 102. Plaintiff was unemployed from April 2004 until his symptoms began in 2005. Id. at 101.

On September 30, 2005, Plaintiff was seen by Dr. Sgarlato-Inducci at Robert Wood Johnson University Hospital. Id. at 152. Plaintiff complained of a gradual decline in hearing sensitivity in his left ear. Id. Pure tone test results revealed normal hearing in the right ear, but mild to moderate conductive hearing loss in the left. Id. Dr. Sgarlato-Inducci concluded that Plaintiff would need amplification for his left ear. Id.

On October 4, 2006, Plaintiff was examined by Dr. Raja who confirmed via audiogram the prior diagnosis of mild conductive hearing loss in Plaintiff's left ear. Id. at 152-53. Dr. Raja recommended additional evaluation for the left ear. Id. at 153. Four days later, Plaintiff was evaluated by a state agency medical consultant, Dr. Acuna, who reaffirmed Dr. Raja's and Dr. Sgarlato-Inducci's diagnoses. Id. at 165. However, Dr. Acuna noted that Plaintiff's "allegation of an inability to hear instructions is not corroborated by the objective evidence regarding the degree of hearing loss." Id. at 166. Indeed, Dr. Acuna concluded that Plaintiff would only have problems hearing softer sounds from his left side and as such, should not work around concentrated noise. Id. at 165.

From January 5, 2007 onward, Plaintiff was seen by his family physician, Dr. Obuz, for hearing-related treatment. *fn2 See id. at 173-99. Though Dr. Obuz's handwritten notes are, at times, difficult to decipher, the notes indicate that Dr. Obuz referred Plaintiff for a hearing test in early 2007. A hearing test was completed that June, which test results stated that hearing in his right ear was normal but his left ear displayed "profound mixed hearing loss." Id. at 189. Following the June 2007 test, Dr. Obuz conducted follow-up examinations in October and November of that year.

On May 12, 2008, Dr. Obuz completed an examination report form submitted to him by the State of New Jersey for work-related disability determination purposes. See id. at 181. In that report, Dr. Obuz indicated that Plaintiff's primary diagnosis was vertigo and that his other diagnoses were (vesticular) labyrinth and migraines. See id. at 182. The report thereafter states that Plaintiff's conditions rendered him unable to perform full-time employment. Id.

Shortly thereafter, on July 15, 2008, Dr. Obuz completed a residual functional capacity questionnaire. In that questionnaire, Dr. Obuz observed that Plaintiff would occasionally need to take breaks during the workday and would miss four or more days of work per month due to his ...


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