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Alan Clark v. Michael Astrue

August 5, 2011

ALAN CLARK,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION

OPINION

Presently before this Court is Plaintiff Alan Clark's (the "Claimant") appeal seeking review of the Administrative Law Judge's ("ALJ") decision denying his application for disability benefits pursuant to §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. This Court has considered the submissions of the parties and decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, this Court affirms in part but remands for the ALJ to consider the severity of a combination of Claimant's impairments and any medical equivalence of his impairments with the listings.

PROCEDURAL HISTORY

On February 9, 2006, Claimant applied for disability insurance benefits alleging disability beginning December 12, 2005. The Social Security Administration ("SSA") denied his claim on June 12, 2006 and upon reconsideration on May 8, 2007. Claimant requested a hearing by an ALJ pursuant to 20 C.F.R. § 404.929. On November 14, 2008, a hearing was held in New York, N.Y. where Claimant testified. On November 20, 2008, the ALJ found Claimant not disabled. The Appeals Council denied Claimant's request for review on July 29, 2010. On September 1, 2010, Claimant filed a complaint in this Court appealing the ALJ's decision. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

FACTS

At the time of the hearing, Claimant was forty-nine years old and a high school graduate.

(R. 27-28). He worked as a roofer from 1977 to 1995. (R. 28, 98). In 1988, he fell off a ladder while working, which caused him to undergo a vasectomy and surgery in 1996. (R. 28-29, 165). He could no longer work as a roofer and started collecting disability benefits. (R. 28). In 2001, he achieved a Bachelor of Science in electrical engineering technology. (R. 29).

From 2001 to 2002, Claimant worked as a technical writer with NBS Card Technology in Paramus, NJ. (R. 29, 40). This job consisted primarily of computer work, and he did not need to lift anything heavier than a camera. (R. 40-41).

In 2003, Claimant began employment at Patterson Public School System. (R. 29). There, he was the PC Technician responsible for running and operating the school system's telecommunications system. (R. 30). For this job, he had to lift and carry a ladder up the school stairs. (R. 30). The job also involved sitting and bending. (R. 30).

On March 28, 2005, a 150-pound cabinet fell off a wall and onto Claimant's body while he was working. (R. 30). Claimant last worked for the Patterson Public School System on December 12, 2005. (R. 42).

On December 13, 2005, Claimant had surgery performed by Dr. Steinberger. (R. 189-202). Dr. Steinberger diagnosed Claimant with spinal and lumbar stenosis, spinal disk herniation, and discogenic disease. (R. 190, 283, 292). Dr. Steinberger dissected scar tissue from nerve roots and removed several herniated discs. (R. 191). Since that operation, Dr. Steinberger followed up with Claimant, who continued to feel pain and stiffness in his movement (R. 281-3). An MRI on Claimant's lumbar spine showed degenerative disc disease and spinal stenosis. (R. 281-2). On October 11, 2006, Dr. Steinberger noted that Claimant continued to experience low back, neck, and shoulder pain. (R. 273). Dr. Steinberger concluded that Claimant was a candidate for surgery. (R. 272-3).

Claimant had another surgery on January 22, 2008. (R. 348). Dr. Steinberger again diagnosed stenosis and discogenic disease. (R. 348). On April 23, 2008, Dr. Steinberger noted that Claimant still suffered from chronic pain and limitations on activity. (R. 331). An MRI performed on August 15, 2008 showed disc herniation in the upper thoracic spine. (R. 340). On September 26, 2008, Dr. Steinberger noted that Claimant was no longer able to perform his job duties because he still experienced "severe persistent pain in [his] entire spine." (R. 361) (emphasis in original).

Claimant underwent physical therapy at the Kessler Institute for Rehabilitation from January to June 2006. (R. 252-6). His physical therapist noted that Claimant still suffered pain in L-5 and had difficulty walking up and down stairs as well as bending or lifting. (R. 252). As of June 14, 2006, Claimant still suffered pain registering an eight out of ten. (R. 252). The physical therapist remarked that Claimant's pain continued to limit his functional activities. (R. 252).

On May 8, 2006, Dr. Vassallo, an orthopedist, examined Claimant in connection with his disability application. (R. 214-8). Dr. Vassallo noted limitation in range of motion at the cervical and lumbar spines. (R. 217-8). Dr. Vassallo opined that Claimant could not "sit, stand or walk for prolonged periods of time." (R. 215-6). Nonetheless, Dr. Vassallo found no muscle weakness in the left or right extremities. (R. 218).

On April 26, 2007, Dr. Klingbeil performed similar motion testing on Claimant and found reduced lumbar spine lateral and extension flexion. (R. 260). Dr. Klingbeil also found no muscle weakness in the left and right extremities. (R. 260). At the time of the hearing, Claimant continued to experience pain across his body, and limited ability to stand, sit, bend, or walk for long periods of time. (R. 34-35).

For his disability application, Claimant underwent a consultative psychiatric examination by Dr. Miskin on May 23, 2006. (R. 227-30). Dr. Miskin found Claimant mildly frustrated and melancholic but otherwise without any suicidal ideas. (R. 228). Claimant's cognitive functioning seemed normal, and he performed several basic tests. (R. 229). Dr. Miskin concluded that Claimant had a "fair ability to understand, carry out and remember instructions" and a "limited ability to respond appropriately to supervision, co-workers, and mild work pressures in a work setting." (R. 230). He diagnosed Claimant with moderately severe major depressive disorder. (R. 230).

On June 9, 2006, SSA psychologist Dr. Weitzman reviewed Dr. Miskin's consultative findings and found that Claimant did not meet any of the Mental Impairment Listings. (R. 234-46). Dr. Weitzman noted that although the depression was major, it did not affect Claimant's daily functioning. (R. 237, 244). Throughout that time, Claimant had not sought or used mental health treatment or medications. (R. 246).

On May 1, 2007, Claimant underwent a psychological examination by Dr. Jain. (R. 262-4). Dr. Jain reported restlessness and edginess in Claimant's mood. (R. 263). Nonetheless, Claimant performed various cognitive tests without difficulty in memory, attention, or concentration. (R. 263). Dr. Jain concluded that Claimant suffered depression symptoms because of his physical pain, but ruled out major depression disorder. (R. 264). Dr. Jain instead diagnosed Claimant with Adjustment Reaction with depression and anxiety. (R. 264).

At the time of the hearing, Claimant lived with his fianceee and her children. (R. 37). He spent much of his time taking care of his elderly mother, who lived across the street. (R. 37). He could drive. (R. 37). His social interactions were limited to his fianceee and children. (R. 38). Claimant generally got along well with others and authority, and enjoyed fishing. (R. 119-21). He also followed oral and written instructions well. (R. 128).

Also at the hearing, the ALJ pointed out that Claimant had received $8,694 in earnings from the Patterson Public Schools System in 2006. (R.42, 83). When asked what the earnings were for, Claimant was equivocal and suggested it was ...


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