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Lickenfelt v. Astrue

May 30, 2008


The opinion of the court was delivered by: Conti, District Judge.



Pending before the court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claim of Vincent J. Lickenfelt ("plaintiff") for Supplemental Security Disability ("SSD") under Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 401-33. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that he has not been disabled since September 29, 2004, and therefore not entitled to benefits should be reversed and remanded to the Commissioner either for payment of disability on the current record or for further administrative proceedings because the decision is not supported by substantial evidence in the record. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny the motions of defendant and plaintiff for summary judgment, but will grant plaintiff's motion for remand for further proceedings by the ALJ to develop the record regarding the side effects of plaintiff's daily opioid medications, i.e., Oxycontin and Percocet.


On March 9, 2005, plaintiff applied for disability benefits alleging disability since September 29, 2004, due to right arm amputation and surgical re-attachment, sleep problems, sciatica problems, and neck and shoulder problems. (R. at 39, 86.) Plaintiff's claim was denied initially by defendant on June 22, 2005. (R. at 55.) On July 5, 2005, plaintiff timely requested a hearing before an administrative law judge. (R. at 60.) The ALJ held a hearing on May 1, 2006. Plaintiff, represented by counsel, testified, and a vocational expert (the "VE"), testified at the hearing. (R. at 286-343.) On June 28, 2006, the ALJ issued a decision finding that plaintiff could perform other work and was not disabled. (R. at 43.) On August 21, 2006, plaintiff filed a request for review of the ALJ's determination. (R. at 80.) On September 20, 2006, the Appeals Council granted the request for review and vacated and remanded the case for further proceedings. (R. at 52.) On remand, an additional hearing was held on December 5, 2006 where plaintiff, represented by counsel, was present along with an impartial vocational expert who did not testify. (R. at 15.) On February 21, 2007, the ALJ issued a decision finding that plaintiff was not under a "disability" as defined by the SSA from September 29, 2004 through the date of the decision. (R. at 28.) Plaintiff, on April 17, 2007, again requested review of the ALJ's decision to the Appeals Council. (R. at 11.) On May 16, 2007, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.

(R. at 7.) Plaintiff now seeks judicial review of defendant's final determination that he is not "disabled."

Plaintiff's Background

On March 9, 2005, when plaintiff was forty-six years old, he filed for disability benefits alleging that partial amputation of his right arm and subsequent re-attachment, sciatica problems, sleep problems, and neck and shoulder problems limited his ability to work. (R. at 86.) Plaintiff is literate and has an eleventh-grade education with subsequent technical training. (R. at 27, 124.) His prior work experience included being a construction worker from 1989 to 1991, a residential landscaper from 1991 to 1993, a mushroom deliverer from 1993 to 1994, and a machine maintenance worker from 1994 to 1997. (R. at 135-44, 297-300.) In 1997, plaintiff was severely injured at work when his right arm (his dominant hand) was partially amputated and then surgically reattached. (R. at 300-05.) Because of the injury, plaintiff could no longer perform maintenance on overhead cranes. (R. at 301.) He returned to work three years later as a machine operator, and he operated a centerless grinder and surface grinder. (R. at 301-02.) In addition to this work, he fixed and operated forklifts. (R. at 332.) On September 29, 2004, plaintiff was voluntarily laid off after alleging that the pain in his right arm prevented him from continuing to work. (R. at 360.)

Medical Evidence

In 1997, plaintiff's right arm was partially amputated above the elbow. (R. at 305.) The arm was reattached, but plaintiff continued to experience pain related to the incident and consequently was treated by Stephen Thomas, M.D., of Pain and Disability Management Consultants, from October 2000 through November 2006. (R. at 181-96, 240-45, 254-55, 273-77.) Dr. Thomas's treatment included regular dosages of Oxycontin*fn1 and Percocet*fn2 that plaintiff took consistently without abuse. (R. at 185, 196.) Dr. Thomas noted that the effects of the medications were not "undue" or "problematic." (R. at 181-83, 276.) In October 2000, Dr. Thomas's treatment notes indicated that plaintiff's new job at a machine shop contributed to increased strength and functioning of his upper right extremity. (R. at 193-95.) While plaintiff's pain medication dosages remained fairly constant, his medication was increased in 2001 to accommodate the performance of heavy lifting at work. (R. at 193.) As of April 14, 2005, plaintiff took 20 mg of Oxycontin three times a day, and 7.5 mg of Percocet three times a day as needed for severe pain. (R. at 208-18.) In 2005, after plaintiff was laid off, Dr. Thomas began to find weakness in the distal fingers and dysesthesia to the upper right extremity. (R. at 181.) In 2006, plaintiff began complaining of pain related sleep disturbance. (R. at 274.) In addition, Dr. Thomas's notes indicated that the pain in plaintiff's arm increased after a sixty-seven pound transmission casing fell onto his chest and arm while attempting to fix his truck. (R. at 277.) Despite the increased pain, Dr. Thomas continued to prescribe the same dosage levels of Oxycontin and Percocet. Id. Dr. Thomas repeatedly reported that plaintiff has a normal gait without antalgia and a non-antalgic sitting posture. (Tr. 18, 181-96, 240-45, 254-55, 273-77.)

In addition to Dr. Thomas, plaintiff received treatment for a variety of ailments from Dr. Prakash Vin. (R. at 201-03.) Dr. Vin diagnosed and treated the plaintiff for hypertension on December 7, 2001, hyerlidipemia on September 5, 1997, and chronic pain syndrome on September 5, 1997. (R. at 197.) For these ailments, Dr. Vin prescribed Accupril*fn3 , Lipitor*fn4 , and Lopid*fn5 . (R. at 202-03.) Dr. Vin's records also indicated plaintiff's past injuries included a motorcycle accident at age fifteen injuring his knee; a car accident breaking plaintiff's clavicle, left knee, and left ankle; and a seven-foot fall from a catwalk injuring his lower back and left hip. (R. at 249.) Dr. Vin noted that plaintiff had pain in his right arm, left hip, left knee, lower back, and left ankle. (R. at 248.) Because plaintiff had to compensate more with his left arm, he reported to Dr. Vin that it was "tired" from overuse. (R. at 248.) In addition, Dr. Vin reported that plaintiff's left ear had lost approximately 90% of its function. (R. at 223.)

Plaintiff was treated for depression by Dr. Vin who prescribed Lexapro*fn6 , an anti-depressant. (R. at 21.) Dr. Vin offered to send plaintiff for psychiatric evaluation, but plaintiff preferred to "wait and see." (R. at 246.) Plaintiff did not exhibit any other signs of mental health impairment and was not seen by a mental health professional. (R. at 21.) Plaintiff's treating physicians consistently described plaintiff as alert, in no distress, and with normal mood and sensorium. (R. at 21.)

Physical Limitations

In assessing plaintiff's limitations, Dr. Vin noted that plaintiff has limited movement in the fingers of his impaired right arm. (R. at 202.) Likewise, Dr. Thomas's records from February 8, 2005 through February 14, 2006, indicated that plaintiff had decreased rotation and physical movement of the right arm, and pain when the weather changes. (R. at 240-45.) In a Medical Source Statement for the Pennsylvania Department of Disability Determination, Dr. Vin opined that plaintiff should only lift and carry ten pounds occasionally and only with his left arm. (R. at 199.) Dr. Vin also proffered that plaintiff can only stand for intermittent periods up to four hours and can only sit for up to eight hours with position alterations. (R. at 199.) In addition, Dr. Vin found plaintiff should not crouch and can only occasionally bend, kneel, stoop, balance, and climb. (R. at 200.) Plaintiff was also limited in the handling, fingering, and feeling in his right arm. (R. at 200.) Because of the limited motion in his right arm, plaintiff was unable to apposite his right thumb to the little finger, and can barely touch the second, third, and fourth fingers due to poor grip strength. (R. at 224.)

On June 6, 2005, a Disability Determination Service Physician, K. Loc Le, M.D., performed a residual functioning capacity ("RFC") assessment for state disability benefits. (R. at 231-38.) Dr. Le opined that plaintiff could lift or carry twenty pounds occasionally and ten pounds frequently, could stand, walk or sit for six hours, and engage in limited pushing or pulling with his right arm. (R. at 232.) He also noted that plaintiff had limited fine and gross manipulation in his right hand. (R. at 234.) Lastly, because of his COPD,*fn7 plaintiff must avoid odors, fumes, gases, dust, and poor ventilation. (R. at 235.)

Plaintiff testified that he is able to prepare simple meals, dress himself, drive, vacuum, fill a dishwasher, wash clothes, shop for groceries, take out the trash, watch television, visit family, attend his son's basketball games, and attend the local social hall. (R. at 314-20.) In June 2006, the record reflects that plaintiff attended a camping trip over a long weekend. (R. at 259.)

Plaintiff testified about the side effects that he experienced when taking his pain medications. At the hearing before the ALJ, plaintiff testified:

It's a matter of the pain. And the pain medication I take, I get drowsy. They've already had to take me home. Someone has already taken me home from work because I overmedicated myself, not realizing that-because my arm was hurting so bad, not realizing that I already had taken. . . .

(R. at 305.) During the hearing, the ALJ questioned plaintiff about the side effects of his medications:

ALJ: You getting any side effects from any of the meds you're taking? Plaintiff: On side effects, what do you mean? Like being drowsy?

ALJ: Well, some unintended effect, okay? Sometimes, you know, you're taking a medication for blood clots, for example, so, so, it's, you know, supposed to thin out your blood.

Plaintiff: Um-hum.

ALJ: And because you get your blood thinned, you keep throwing up.

You know people-

Plaintiff: No, nothing like that.

ALJ: Okay Plaintiff: Just side effects, I would say, just being like unaware, like not sure-ALJ: Okay, that'd be from the opiates, the Oxycontin and the ---Plaintiff: Yeah, and the Percocets, yeah.

(R. at 313-14.) Plaintiff also testified that pain affects his memory and that he wrote things down at work to remember. (R. at 326-27.) Regarding the medications, plaintiff testified that Dr. Thomas would have to increase the "pain medication because some day down the road he's going to run across a bridge where he's not going to be able to increase it. Which I have no problem with because I know some day something is going to have to give." (R. at 352-53.)

Vocational Evidence, Hypothetical

The VE was told by the ALJ that plaintiff was forty-seven years old at the time of the hearing with an eleventh grade education and that plaintiff has past relevant work as a construction laborer, delivery person, a landscaper, a machine operator, and machine repairer.

(R. at 334.) The ALJ asked the VE to assume a hypothetical individual of the same age, education and work experience as the claimant. This person is limited to no more than the light category of exertion as that is defined in our regulations; no climbing of ropes, ladders, and scaffolds; no more than occasional . . . overhead reaching, feeling, pushing, pulling with the upper right extremity; and no more than occasional pushing and pulling with the right upper extremity. . . . . . . . hand levers less than five pounds would be frequent; five pounds or more would be more than occasional; avoid prolonged cold temperature extremes or extreme wetness or humidity; no unprotected heights; and limited to simple, routine, and repetitive tasks, and simple work-related decisions. . . .

(R. at 337.) The VE testified that the hypothetical individual would not be able to perform his past relevant work, but would be able to perform other jobs in the national economy. In response to the ALJ's question for examples of jobs the hypothetical individual might perform, the VE testified that person could be employed as a locker room attendant, folding machine operator, fashion design applier, and laminator. (R. at 338-39.) The VE also testified that an employer would expect an employee to work an eight-hour day, 40-hour week with two 15-minute breaks per day plus a thirty to forty-five minute ...

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