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Rosseno v. Colvin

United States District Court, D. Arizona

December 1, 2014

John Rosseno, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

Plaintiff, John Rosseno, filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Plaintiff presents four issues on appeal: (1) whether the Administrative Law Judge ("ALJ") provided legally sufficient reasons for rejecting the opinion of Plaintiff's treating physician; (2) whether the ALJ erred by relying on the opinion of the non-examining medical records' reviewer; (3) whether the ALJ erred in finding Plaintiff's symptom testimony not credible; and (4) whether the ALJ erred in failing to properly apply the Medical Vocational Rules. (Doc. 21.) Before the court is an opening brief filed by Plaintiff (Doc. 21), and Commissioner's memorandum in response (Doc. 28). Plaintiff filed no reply brief.

The United States Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73, having received the written consent of both parties. (Doc. 9, 11.)

The Defendant's decision denying benefits is affirmed.

I. Procedural History

Plaintiff filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on July 5, 2007, alleging disability as of June 14, 2007 due to a "[d]eteriorated spine, mass in lungs, [HIV] positive." Transcript/Administrative Record (Tr.) 208-215, 245. The application was denied initially and on reconsideration. Tr. 113-117, 123-139. Plaintiff appeared with counsel and testified before an ALJ at an administrative hearing on November 30, 2009. Tr. 41-72. The ALJ issued a decision on January 13, 2010, finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 98-104. On March 18, 2011, the Appeals Council granted review and remanded the case to the ALJ for further consideration of: (1) a treating physician's opinion; (2) Plaintiff's maximum residual functional capacity ("RFC"); (3) whether Plaintiff is capable of performing his past relevant work; and (4) to obtain evidence from a vocational expert if warranted. Tr. 110-111. On December 14, 2011, Plaintiff appeared with counsel and testified before an ALJ at a supplemental administrative hearing. Tr. 73-90. The ALJ issued a decision on January 26, 2012, finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 27-35. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 1-3. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1)

II. The Record on Appeal

a. Plaintiff's Background and Statements in the Record

Plaintiff was 53 years of age on the December 13, 2006 alleged disability onset date, and 56 years of age on his date late insured, September 30, 2009. Tr. 28, 240. Plaintiff, a veteran with a high school equivalency degree and one or two years of college, worked in the recent past as a carpet cleaner, day laborer, electrical helper, and telemarketer. Tr. 44, 62, 246, 250.

Plaintiff testified at a hearing before the ALJ on November 30, 2009 that activities such as sitting or standing cause sharp, shooting pain in his lower back extending in his legs down to the knees. Tr. 48. Plaintiff can stand for about 40 or 50 minutes before needing to sit or lie down. Tr. 48-49. Plaintiff can also sit for about 40 or 50 minutes before needing to walk or move around for 20 or 30 minutes before he can sit again. Tr. 49. Methadone, the only treatment he has been prescribed for his back pain, provides temporary relief but causes nausea if he doesn't eat enough, and occasional headaches. Tr. 50-51. Plaintiff does things around the house like cleaning the kitchen, sweeping floors, laundry, dusting, and taking the trash out, but takes breaks during that time. Tr. 56-57. Plaintiff had worked recently as a scorer at a skeet shooting tournament[1], but was able to alternate between sitting and standing. Tr. 59-60. Plaintiff did not think he could do the job on a full-time basis because of his tendonitis and consistent pain in his back. Id. Plaintiff also worked as a day-laborer as part of a clean-up crew on construction jobs but would get in trouble for sitting down on the job, and was fired one time for this but continued to work as a day-laborer at another construction site. Tr. 60. In June 2008 he was able to stay on one construction cleanup job for six weeks until it ended. Tr. 47. Plaintiff has no problems as a result of his human immunodeficiency virus ("HIV") infection.

The ALJ reviewed Plaintiff's earning statements with him during the hearing, and Plaintiff agreed that in 1996 he worked a full-time job the entire year as a telemarketer. Tr. 65-66. He stopped working because "the company went belly up." Tr. 66. In 1998 Plaintiff worked again as a telemarketer for three months, then the "company went down." Tr. 67. He worked as a telemarketer again in 1999 but that job ended because the call lists were repetitive and it "just didn't work out with it." Tr. 67-68.

Plaintiff testified he would have a hard time with telemarketing now because he would have a "hard time sitting and standing" that he would "just have to go lay down" and there was no place to lie down and stretch his back out. Tr. 68-69.

Plaintiff testified at the supplemental hearing before the ALJ on December 30, 2011, that the pain in his back comes and goes, but is mainly there. Tr. 81. When asked what makes it better, Plaintiff stated "just standing and sitting a lot. Standing and then laying down on my back and then standing again, but its - I have to rotate." Id. He lies down about three times a day for 20 to 45 minutes. Id. Plaintiff stated that he was told that physical therapy wouldn't work, and surgery has not been mentioned. Tr. 82.

A vocational expert (VE) testified that Plaintiff's past relevant work as a telemarketer is sedentary and semi-skilled. Id. The VE testified that a hypothetical individual would be able to perform Plaintiff's past relevant work as a telemarketer when the ALJ posed the following hypothetical limitations: sedentary work with standing, walking or sitting for a total of six-hours in an eight-hour day, can frequently climb ramps or stairs, balance, stoop, kneel, crouch; can occasionally climb ladders, ropes, scaffolds, and crawl; and should not be exposed to concentrated levels of fumes, odors, gases, unprotected heights, or hazardous, moving machinery. Tr. 86-87.

The VE testified that the ability to do even sedentary work would be eliminated if a person could only sit for less than six hours in an eight hour day or if the person had to lie down for 20 to 45 minutes three times during a workday. Tr. 87-88.

b. Relevant Medical Evidence Before the ALJ[2]

i. Treating Sources

There are few treatment notes in the record regarding Plaintiff's back pain. The records from the Veteran's Administration ("VA") indicate that Plaintiff was diagnosed in August, 2004, by Registered Nurse Elizabeth Graham, with "Chronic Low Back Pain by report of patient s/p [status post] MVA [motor vehicle accident] and HNP [herniated disc or herniated nucleus pulposus]." Tr. 467, 896. Plaintiff's treating physician Dr. Neil Ampel, a staff physician in Infectious Diseases at the Southern Arizona VA Health Care System prescribed methadone to treat the pain, (Tr. 1046) and Plaintiff continued on the same medication and dosage for treatment of his pain throughout the period in question and continuing to the time of the ALJ's decision. See generally Tr. 396, 460, 465, 467, 469, 477, 474, 482, 836, 906-912, 1042-1045.

In April 2005, MRI of Plaintiff's thoracic spine revealed several abnormalities, including mild to moderate multi-level degenerative disk changes throughout the thoracic spine; the findings were most significant at the T9-10 and T10-11 levels where moderate-to-severe spinal canal stenosis was noted due to the presence of posterior disk-osteophyte-complexes. Tr. 382. ...


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