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Conforto v. Colvin

United States District Court, E.D. Louisiana

November 19, 2014

CARL CONFORTO, SR
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Section:

REPORT AND RECOMMENDATION

KAREN WELLS ROBY, Magistrate Judge.

This is an action for judicial review of a final decision of the Commissioner of the Social Security Administration ("the Commissioner") pursuant to Title 42 U.S.C. § 405(g). The Commissioner denied Plaintiff, Carl Conforto's ("Conforto") request for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 423 and for Supplemental Security Income Benefits ("SSI") pursuant to Title XVI, 42 U.S.C. § 423.[1]

The matter was referred to the undersigned pursuant to Title 28 U.S.C. § 636(b), for the submission of Proposed Findings and Recommendations.

I. Background

Conforto is a fifty-one-year-old, 240 pound, 5' 6" male, [2] with a high school diploma, two years of college education, and with past relevant work experience as a roofing contractor.[3]

Conforto filed for a period of disability and DIB under Title II on October 21, 2010, and protectively filed for SSI under Title XVI of the Social Security Act, on October 25, 2010.[4] All claims were initially denied on May 16, 2011.[5]

He alleges that he became disabled on January 1, 2007, due to severe low back pain, with right lower extremity radiculapathy and weakness in the low back and leg.[6] Conforto additionally alleges that he experiences problems with concentration and getting along with others, even though he does not allege that he has any mental condition.[7] His last date insured was December 31, 2012.

Conforto filed a written request for a hearing on May 24, 2011.[8] Christopher Juge, the Administrative Law Judge ("ALJ") held a hearing on December 9, 2011.[9] The ALJ denied Conforto's claims on January 25, 2012, finding that he was not disabled under the meaning of the Social Security Act.[10]

In his decision, the ALJ analyzed Conforto's claims pursuant to the five-step[11] evaluation process used to determine whether a claimant is "disabled." Using this process, the ALJ found that he met the insured status requirements of the SSA through June 30, 2011, and that he did not engage in substantial gainful activity since September 21, 2007, the amended onset date.[12]

The ALJ further found that Conforto has a right sided ruptured disc at the L5-S1 level, which the ALJ concluded was a severe impairment.[13] The ALJ noted that Conforto alleged that he suffered with depression and personality disorder.[14] He found however that these conditions do not cause more than minimal limitation in his ability to perform basic mental work activities and are therefore non-severe.[15]

The ALJ noted that Conforto was not prescribed psychotrophic medications and he has not received any form of professional mental health treatment.[16] The ALJ further noted that the record contained no formal testing that resulted in a diagnosis of mental impairment. The ALJ noted that Conforto experienced no episodes of decompensation which have been of extended duration.[17]

The ALJ further held that Conforto has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1527 and 416.967.[18] The ALJ noted that Conforto was 47 years old, which is defined as a younger individual age 18-49 on the amended disability onset date and that Conforto subsequently changed age category to closely approaching advanced age.[19] The ALJ further found that the transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules directly supported a finding of "not disabled."[20] The ALJ further found that considering Conforto's age, education, work experience and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform.[21]

On February 1, 2012, Conforto requested review of the hearing decision.[22] On May 21, 2013, the Appeals council denied Conforto's request for review.[23] On September 18, 2013, Conforto filed the subject complaint seeking review of the ALJ's decision.[24] Conforto seeks reversal of the ALJ's decision because (1) the ALJ erred when he found that Conforto was not disabled based on his alleged failure to follow prescribed medical treatment; (2) the ALJ's finding that Conforto's Impairments are not of listing level severity is not supported by substantial evidence; (3) the ALJ's finding that Conforto does not have a severe mental impairment is not supported by substantial evidence; and (4) the ALJ failed to properly evaluate the opinion of Conforto's treating physician.[25]

In opposition, the Commissioner contends that (1) the ALJ properly found that Conforto refused treatment and the finding is consistent with agency policy; (2) the ALJ properly analyzed plaintiff's impairments at Step Three regarding musculoskeletal disorders; (3) the ALJ's decision at Step Two that Conforto had a severe impairment right side ruptured disc at the L5-S1 level is supported by substantial evidence; and (4) the ALJ's evaluation of the treating physician Dr. Gilo Kawasaki's "check-box" form, ...


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