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Fadil Salim Salih v. Michael J. Astrue

February 5, 2013

FADIL SALIM SALIH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; DEFENDANT.



The opinion of the court was delivered by: Cheryl R. Zwart United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Fadil Salim Salih ("Salih"), seeks review of a decision by the defendant, Michael J. Astrue, the Commissioner of the Social Security Administration ("Commissioner"), denying his application for disability benefits and payment of disability insurance benefits under Title II and Title XVI of the Social Security Act. (TR 126-29, 133-38). After carefully reviewing the record, the Commissioner's decision will be affirmed.

I. PROCEDURAL BACKGROUND

Salih applied for social security disability benefits on July 10, 2008, (TR 126-138), claiming low back injuries rendered him disabled and unable to work since December 12, 2007. Social Security Transcript ("TR") at 38,. His application for disability benefits was denied initially on September 4, 2008, (TR 75-78), and upon reconsideration on October 15, 2008. (TR 80-83).

Salih filed a hearing request on December 9, 2008. (TR 11-12, 86-87). A hearing was held before an Administrative Law Judge ("ALJ") on April 6, 2010. (TR 33-68). Salih was represented by counsel at the hearing. (TR 11-14, 84). Testimony was received from Salih, and from a vocational expert ("VE") who appeared at the ALJ's request. (TR 96-97, 113). In addition to the back problems identified in the plaintiff's application, the ALJ heard and considered testimony regarding plaintiff's complaints of stomach and hip pain. (TR 22-40, 300-407).

The ALJ's adverse decision was issued on July 13, 2010, (TR 16-32), and Salih's request for reconsideration by the Appeals Council was denied on October 5, 2011. (TR 1-3). Salih's pending complaint for judicial review and reversal of the Commissioner's decision was timely filed on November 30, 2011. Filing No. 1.

II. THE ALJ'S DECISION.

The ALJ evaluated Salih's' claims through all five steps of the sequential analysis prescribed by 20 C.F.R. §§ 404.1520 and 416.920. TR 18-33. As reflected in his decision, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.

2. The claimant has not engaged in substantial gainful activity since December 12, 2007, the alleged onset date.

3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine; and chronic right lower lumbar pain; and chronic right hip pain.

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant, when provided the opportunity of normal breaks in the mid-morning, lunch time and mid-afternoon, has the residual functional capacity to: lift twenty pounds occasionally and ten pounds frequently: stand for six hours in an eight hour workday: sit for six hours of an eight hour workday: and walk on a frequent basis. Salih is limited to performing only occasional activities of bending, stooping or kneeling. He must not be exposed to concentrated cold temperature extremes or wetness. He has no limitations with regards to the use of his extremities, performing overhead reaching or the ability to climb stairs.

6. The claimant is capable of performing past relevant work as a production assembler (light, unskilled, SVP 2, DOT 706.687-010) and as a cashier II (light, unskilled, SVP 2, DOT 211.462-010). Work at these jobs does not require the performance of work-related activities precluded by the claimant's residual functional capacity.

7. The claimant has not been under a disability, as defined in the Social Security Act, from December 12, 2007 through the date of the ALJ's decision (July 13, 2010).

(TR 21-28).

III ISSUES RAISED FOR JUDICIAL REVIEW.

Salih claims the ALJ's determination must be reversed because:

1. Salih's actual job history was not correctly described and analyzed, and the VE's opinions, which relied on this incorrect identification of Salih's past relevant work, cannot provide a basis for denying Salih's claim.

2. The jobs named by the VE as providing a basis for denying Salih's claim lie beyond the RFC as found by the ALJ, or were identified in response to a legally defective hypothetical question posed by the ALJ;

3. The ALJ's credibility finding was not supported by substantial evidence and rests in part upon the use of an incorrect legal standard;

4. The vocational testimony responded to a hypothetical question which did not include all documented impairments; and

5. The RFC determination is not supported by substantial evidence.

(Filing No. 18, at CM/ECF pp. 2-3).

IV. THE RECORD AND PROCEEDINGS BEFORE THE ALJ.

The plaintiff is an adult male who came to the United States from Iraq in 1992. Salih attended high school and two years of technical school in Iraq before entering the United States. (TR 39, 70, 173). He can speak, read, and write English, and can correctly exchange American money when conducting financial transactions. (TR 39, 70, 168). Between 1992 and his injury in 2007, the plaintiff worked as a cashier, a production assembler, a general laborer, a hand packager, and an industrial truck operator. (TR 39, 144-48, 168-185, 221, 236).

On December 12, 2007, Salih injured his low back and right hip when he stumbled and fell while working as a stocker for his employer, Tecumseh Poultry, LLC. (TR 152-53). Following the accident, he was seen and treated by Dr. Stephen J Haudrich, at Concentra Medical Centers. During the examination, Salih was able to flex his lumbar spine to 90 degrees with only mild pain, extend to 20 degrees, and had a negative bilateral leg raise, a normal gait, symmetric reflexes, and no palpable spasm, sciatic notch tenderness at either buttock, or tenderness at the sacroiliac (SI) joints. (TR 250). Salih was diagnosed as having a lumbar sprain. He was offered a prescription for ibuprofen, but refused because it was "too strong." Salih was released to return to work the next day with the following restrictions: No repetitive lifting of over 20 pounds, and no pushing and/or pulling with over 40 pounds of force. (TR 242, 249-50).

Salih began physical therapy, (TR 252), with follow up doctor's appointments scheduled for December 17 and December 26, 2007. (TR 242-43). After two physical therapy treatments, Salih reported that his back was better, but still sore--possibly from sleeping on the floor to alleviate his back pain. He was ready to try sleeping in a bed again. (TR 255). Salih was discharged from physical therapy on December 17, 2007 with instructions for home exercises. (TR 256-58). Salih stopped working on December 19, 2007, reportedly due to pain. (TR 267, 281).

At his doctor's appointment on December 26, 2007, Salih complained that his symptoms were getting worse. (TR 259). Dr. Haudrich referred Salih back to physical therapy, (TR 261), and released Salih to return to work with the following additional restrictions: No prolonged standing and/or walking longer than one hour per shift and no bending. (TR 244). His doctor's appointment was scheduled for December 31, 2007. (TR 235).

When Salih attended physical therapy on December 31, 2007, he was "upset with his employer for what he views as not letting him use his sick days," and stated he would "refuse any work for January," and would "wait and see about returning to work in February." (TR 265). Salih's effort at the physical therapy session that day was "[q]uestionable," with his subjective report of symptoms "inconsistent with objective findings." (TR 266).

Dr. Haudrich's medical examination, performed on December 31, 2007, revealed: Negative bilateral leg raise. Spasm of the paraspinous muscles only on the right today, No tenderness at the sacroiliac joints. No sciatic notch tenderness at either buttock. Negative Waddell tenderness. Negative Waddell overreaction.

(TR 267). The x-rays taken that day revealed early degenerative disc disease at L2-3, but no evidence of a compression fracture. (TR 246). The plaintiff was allowed to return to work with the following restrictions: No repetitive lifting over 20 pounds, no prolonged standing or walking longer than one hour per shift, no pushing or pulling over 40 pounds, and no bending. (TR 247).

After conferring with the physical therapist, Dr. Haudrich discontinued the prescribed physical therapy, explaining: "I see no need to prolong formal therapy at this time, as it is not helping" (TR 267). Salih was referred to a specialist for further treatment. (TR 247).

Dr. Benjamin Gelber, a neurosurgeon, saw the plaintiff on January 8, 2008. After performing an examination, Dr. Gelber concluded "[t]his is probably a muscle and ligamentous injury. I do not see anything to suggest lumbar radiculopathy." (TR 281). Dr. Gelber prescribed Flexeril and Naprosyn and ordered a Magnetic Resonance Imaging (MRI). The MRI scan of the lumbar spine, conducted on January 9, 2008, showed some minor degenerative changes, but no sign of disc protrusion or extrusion, and no nerve root problems. (TR 278, 284).

Salih was again seen by Dr. Haudrich on January 30, 2008. Salih stated his pain was "getting worse to the point he cried with pain 2 days ago,". . "could not walk that day or sleep," and the "pain feels 'hot' at times," radiating down the right leg, particularly at his right buttock," with "some upper back muscle pain between his shoulder blades." (TR 269). He claimed the symptoms had been ongoing for the last six day. But his January 30, 2008 examination revealed:

Negative bilateral leg raise. Normal FROM. Normal gait. Reflexes symmetric. No sciatic notch tenderness at either buttock. No tenderness at the sacroiliac joints. No point ...


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