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August 25, 2005.

CYRIL L. PAYNE, Plaintiff,
JO ANNE B. BARNHART, Commissioner, Social Security Administration, Defendant.

The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge


This matter comes before the Court on defendant's motion for judgment of affirmance [10] of the Commissioner's denial of benefits, plaintiff's opposition and defendant's reply thereto. Upon consideration of the parties' submissions, the administrative record, and the entire record herein, defendant's motion will be GRANTED.

I. Procedural Posture and Administrative Record

  On August 2, 1996, plaintiff filed an application for disability insurance benefits in which he claimed to have become disabled and unable to work on July 21, 1996. (Administrative Record "AR" at 84.) Plaintiff further claimed that he remained disabled at the time in which he filed his application. (Id.) On the same date, plaintiff filed a "Disability Report" in which he claimed that his "severe lower back pain . . . prevents any sitting or standing for over a period of 15 minutes" and as such, prevented him from working. (Id. at 155.) On September 18, 1997, the Social Security Administration ("SSA"), Office of Disability and International Operations notified plaintiff that his application for Social Security disability benefits was denied. (Id. at 32.) On October 6, 1997, plaintiff notified defendant of his request for a reconsideration of this decision. (Id. at 35.) In his request for reconsideration, plaintiff identified "chronic back pain deterioration" as his reason for requesting a reconsideration, while also asserting that he has "persistent muscle back spasms, limitations in bending, sitting and standing for long periods . . . spinal disk deterioration." (Id. at 38.) After an independent reconsideration, plaintiff was notified on April 12, 1998 that his initial denial of Social Security benefits was affirmed and that he does "not meet the disability requirements of the law." (Id. at 40-41.) The letter also noted that upon reconsideration, the SSA found that plaintiff's "remaining physical capacities are consistent with the physical demands of several jobs that [plaintiff has] held in the relevant past such as car salesman and driver." (Id. at 41.)

  Plaintiff again disagreed with the decision of the SSA and in a letter dated May 7, 1998, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 43.) Because plaintiff resides in Panama, he also waived his right to appear at this hearing, and requested that a decision be rendered on the evidence. (Id. at 46, 24.) At the hearing, Judge Jan K. Michalski implemented the five-step sequential process as set for at 20 C.F.R. § 404.1520 in determining whether plaintiff was disabled and thereby eligible for Social Security disability benefits. (Id. at 25.) In making the determination, the ALJ relied upon the diagnosis of Dr. Alfredo DuBois, M.D., who conducted a consultative orthopaedic evaluation of plaintiff on June 9, 1997. (Id.) Dr. DuBois diagnosed plaintiff with, among other things, "low back pain and limited back motion related to L4-L5 bulging disc, L5-S1 HNP, and L4-L5 and L5-S1 degenerative joint disease; left ankle pain. . . ." (Id. at 26.) Dr. DuBois also concluded that plaintiff "could sit for 6 hours out of an 8 hour work day, and he could walk for 1 hour at a time and a total of 3 hours in work day, and he could stand for 2 hours at a time and a total of 4 hours out of an 8 hour work day . . ." (Id. at 26.) The ALJ then determined that plaintiff "did not have significant limitations in his ability to do basic work related activities such as light lifting and carrying, as well as moving his head and neck in jobs with the option to sit or stand to suit his comfort, on July 21, 1996, and through the date of the decision." (Id. at 27.) Accordingly, on August 3, 1998, the ALJ then found that plaintiff "was not under a `disability,' as defined in the Social Security Act, at any time from July 21, 1996 to the date of this decision . . . [and] is not entitled to a period of disability or disability insurance under Sections 216(i) and 223, respectively, of the Social Security Act." (Id. at 31.)

  On September 28, 1998, plaintiff requested an appeal and review of the ALJ's decision. (Id. at 49.) Upon consideration of the appeal, the SSA, Office of Hearings and Appeals remanded the case back to the ALJ to "mark and number the evidence as exhibits," as well as to "consider [plaintiff's] other jobs, in addition to the job of truck driver, in determining he can perform past relevant work . . . [in addition to further evaluating plaintiff's subjective complaints and [providing] rationale reflecting that the factors in 20 C.F.R. 404.1529 were addressed." (Id. at 69.)

  On remand to the ALJ, plaintiff again waived his right to appear and testify, and requested that a decision be made on the evidence in the record. (Id. at 11.) Furthermore, plaintiff chose to proceed with a hearing without a representative. (Id.) Utilizing the same five-step process, the ALJ relied upon medical records from the Department of Veterans Affairs for the time period of October 1969 through August 8, 1996 — the time in which plaintiff served in the military. (Id. at 13.) In these records, the ALJ noted that on July 19, 1996, plaintiff had complained of low back pain for thirteen years. The ALJ also again relied upon the diagnosis from Dr. DuBois, who noted that plaintiff would "have minimal symptoms providing he is not involved in strenuous activities involving the back and left ankle." (Id.)

  The ALJ then reviewed the diagnosis of Dr. Jaime A. Jaspe C., an orthopedics and traumatology surgeon, who noted that plaintiff had "chronic back pain for over 9 years and [an] X-Ray performed in December of 1997 showed arthosis sign [sic]." (Id. at 14.) Dr. Jaspe C. noted that periods of long driving will produce more pain and more disability for plaintiff. (Id.)

  The ALJ then analyzed plaintiff's allegations of pain and other subjective symptoms in finding them not entirely credible. (Id.) In making this determination, the ALJ relied on the findings of Dr. DuBois who suggested "that claimant does not experience debilitating pain when performing less strenuous activities as reflected in the established residual functional capacity." (Id. at 15.) The ALJ further noted that "[t]he validity of Dr. DuBois report is supported by the findings of the Disability Determination Services' medical consultant who reviewed the evidence and found that claimant retains the residual functional capacity of light level work." (Id.) In concluding, the ALJ determined that plaintiff retained the residual functional capacity to perform the "actual functional demands and job duties of his past relevant security guard job, as it is ordinarily performed in the national economy, and as the [plaintiff] actually performed that job." (Id. at 16.) As a result, the ALJ therefore determined on October 24, 2001 that plaintiff is not disabled within the meaning of the Social Security Act. (Id. at 16.)

  On May 1, 2003, the SSA denied plaintiff's request for an appeal of the ALJ's decision. Dissatisfied with this result, plaintiff filed this instant suit on June 30, 2003.

  II. Analysis 1. Applicable Law

  The Social Security Act provides for judicial review of any final decision of the Commissioner of the Social Security Administration after a hearing to which she was a party. 42 U.S.C. § 405(g). However, the court is to give deference to the Commissioner's findings: if they are supported by substantial evidence, they are to be treated as conclusive. Id. The Supreme Court has defined "substantial evidence" in this context as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). To determine whether the Commissioner's decision is supported by substantial evidence, the Court must "carefully scrutinize the entire record." Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983). The Court may not reweigh the evidence and "replace the [Commissioner's] judgment regarding the weight and validity of the evidence with its own." Davis, 566 F. Supp. at 1195. "[B]ecause the broad purposes of the Social Security Act require a liberal construction in favor of disability, the Court must view the evidence in the light most favorable to the claimant. This way, the Court can give effect to the remedial purposes of the Social Security Act." Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994) (internal citations omitted).

  The Social Security 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 twelve months.
42 U.S.C. § 423(d)(1)(A). The inability to engage in substantial gainful activity includes the inability to perform the claimant's previous ...

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