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Rosina v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

January 29, 2014

JOSPEH LEWIS ROSINA, JR., Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

ROBERT S. BALLOU, Magistrate Judge.

Plaintiff Joseph Lewis Rosina, Jr. ("Rosina") filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), finding him not disabled and therefore ineligible for disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433. Specifically, Rosina alleges that that the ALJ failed to find certain impairments severe, that Rosina is entitled to a closed period of disability, and that the ALJ committed legal error when denying Rosina continuing disability.

This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g). This case is before me by referral pursuant to 28 U.S.C. § 636(b)(1)(B). The parties have fully briefed all issues and the case is now ripe for decision. I have carefully reviewed the administrative record, the legal memoranda, and the applicable law. I conclude that the ALJ did not err in her determination of the severe impairments affecting Rosina and that substantial evidence supports the ALJ's determination that Rosina was not disabled at any time following the alleged onset of disability. Furthermore, I find that the continuing disability standard is inapplicable and that no legal error was committed by the ALJ. As such, I RECOMMEND DENYING Rosina's Motion for Summary Judgment (Dkt. No. 9), and GRANTING the Commissioner's Motion for Summary Judgment. Dkt. No. 14.

STANDARD OF REVIEW

Section 405(g) of Title 42 of the United States Code authorizes judicial review of the Commissioner's denial of social security benefits. Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001). This court limits its review to determining whether substantial evidence exists to support the Commissioner's conclusion that Rosina failed to demonstrate that he was disabled under the Act. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). If such substantial evidence exists, the final decision of the Commissioner must be affirmed. Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990).

Rosina bears the burden of proving that he is disabled within the meaning of the Act. English v. Shalala , 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C. § 423(d)(5)). The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Disability under the Act requires showing more than the fact that the claimant suffers from an impairment which affects his ability to perform daily activities or certain forms of work. Rather, a claimant must show that his impairments prevent him from engaging in all forms of substantial gainful employment given his age, education, and work experience. See 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).

The Commissioner uses a five-step process to evaluate a disability claim. Walls v. Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). The Commissioner asks, in sequence, whether the claimant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of a listed impairment; (4) can return to his past relevant work; and if not, (5) whether he can perform other work. Johnson v. Barnhart , 434 F.3d 650, 654 n.1 (4th Cir. 2005) (per curiam) (citing 20 C.F.R. § 404.1520); Heckler v. Campbell , 461 U.S. 458, 460-462 (1983). The inquiry ceases if the Commissioner finds the claimant disabled at any step of the process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of proof at steps one through four to establish a prima facie case for disability. The burden shifts to the Commissioner at step five to establish that the claimant maintains the Residual Functioning Capacity ("RFC"), considering the claimant's age, education, work experience, and impairments, to perform available alternative work in the local and national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger , 512 F.2d 664, 666 (4th Cir. 1975).

STATEMENT OF FACTS

Social and Vocational History

Rosina was born on July 12, 1961 (Administrative Record, hereinafter "R." at 163), and is considered younger person under the Act. 20 C.F.R. § 404.1563(c). Rosina is insured through December 31, 2013 (R. 203); therefore he must show that his disability began before the end of his insurance period, and existed for twelve continuous months to receive DIB. 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). Rosina completed high school and attended two years of college, but has not obtained any degree. R. 31. Rosina was employed by the U.S. Postal Service, starting as a mail clerk, then as a clerk supervisor, and later as a mail handler. R. 46, 215, 222. Rosina also briefly worked as a car salesman. R. 46, 215. Rosina reported that during the relevant period, he had the capacity to perform household chores, go fishing, read, visit others, shop for groceries, and manage his finances. R. 227-33.

Claim History

Rosina protectively filed for DIB on April 21, 2008 claiming that his disability began on February 28, 2008. R. 203. The state agency denied his application at the initial and reconsideration levels of administrative review. R. 51-55, 62-64. On October 5, 2010, ALJ Geraldine H. Page held a hearing to consider Rosina's disability claim. R. 26-50. Rosina was represented by an attorney, Susan Waddell, at the hearing, which included testimony from Rosina and vocational expert Donald Anderson. R. 26.

On October 25, 2010, the ALJ entered her decision denying Rosina's claims. R. 10-21. The ALJ found that Rosina suffered from severe impairments of spondylolytic spondylolisthesis at L5-S1 status post hemilaminectomy and diskectomy in August 1999 and an anterior lumbar interbody lumbar fusion in December 2008; rotator cuff tear in the right shoulder status post arthroscopy surgery in September 2010; and early degenerative arthritis of the knees. R. 12-14. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 15. The ALJ further found that Rosina retained the residual functional capacity ("RFC") to:

lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours our of an 8 hour workday; stand and/or walk for 2 hours out of an 8 hour workday; push/pull in the lower extremities equivalent to the lift/carry amount; and occasionally climb ramps/stairs, balance, kneel, crawl, stoop, crouch, and reach overhead with the right upper extremity. However, the claimant can never work around hazardous machinery, work at unprotected heights, climb ladders/ropes/scaffolds, or work on vibrating surfaces.

R. 15. The ALJ determined that Rosina could not return to his past relevant work as a mail handler, mail clerk, automobile salesman, and mail clerk for the postal service (R.19), but that Rosina could work at jobs that exist in significant numbers in the national economy: namely order clerk, inspector/tester/sorter, and cuff folder. R. 20. Thus, the ALJ concluded that he was not disabled. R. 21. On ...


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