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Sherriff v. Astrue

May 30, 2008

JOHN G. SHERRIFF, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

MEMORANDUM OPINION

Introduction

Pending before the court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claim of John G. Sherriff ("plaintiff") for disability insurance benefits ("DIB") under Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 423, et seq., and supplemental social security income ("SSI") under Title XVI of the SSA, 42 U.S.C. §§ 1381, et seq. Plaintiff contends that the decision of the administrative law judge ("ALJ") that he is not disabled, and therefore not entitled to benefits, should be reversed because the decision is not supported by substantial evidence, and that the case should be remanded for reconsideration of the evidence in order to determine that an award of benefits is proper. Defendant asserts that the decision of the ALJ is supported by substantial evidence, and the prior ruling by the ALJ should be upheld. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. By reason of the ALJ's decision being supported by substantial evidence, defendant's motion for summary judgment shall be granted, and plaintiff's motion shall be denied.

Procedural History

On March 29, 2005, plaintiff protectively filed a Title II application for a period of disability and DIB, along with a Title XVI application for SSI. (R. at 15, 238-40). In both applications, plaintiff alleged the onset of disability to be October 10, 2003, and that the claim for disability was due to degenerative joint disease of the left shoulder, arthritic gout and degenerative disc disease of the lumbar spine. (R. at 15, 17). On October 12, 2005, plaintiff's applications were denied at the initial level. (R. at 77-80). A request for review of the hearing decision order was filed on October 28, 2005. (R. at 11, 15, 83-84).

A hearing was held on July 25, 2006 before the ALJ. (R. at 25-74). Plaintiff appeared and testified. (R. at 31-61). A vocational expert (the "VE") also testified before the ALJ. (R. at 61-74). Plaintiff was represented by an attorney at the hearing. (R. at 31).

In a decision dated October 22, 2006, the ALJ determined that plaintiff was not disabled and, therefore, not entitled to benefits. (R. at 15-23). On December 19, 2006, plaintiff requested a review of that determination. (R. at 252-55). Plaintiff sent a supplemental letter to the Appeals Council on May 24, 2007. (R. at 252). In a responsive letter dated June 22, 2007, the Appeals Council denied the request for review, making the ALJ's decision the final decision of the Commissioner. (R. at 5-8). Plaintiff timely filed the present action on July 12, 2007, seeking judicial review of the ALJ's decision.

Plaintiff's Background and Medical Evidence

Plaintiff was born on October 19, 1957, and was forty-eight years old at the time of the administrative hearing. (R. at 33, 89). He is a high school graduate, and has vocational training in aircraft maintenance. (R. at 33). Plaintiff has past relevant work as a construction laborer, an assembler, cemetery worker, service training aircraft mechanic, material handler, mechanic, glass cleaner, and cabinet maker. (R. at 21). Plaintiff is divorced and lives alone. (R.at 33-34). While testifying at the hearing, plaintiff admitted that he had not attempted to look for work since the alleged onset of disability in 2003. (R. at 37). He stated that it was difficult to maintain employment as a result of his continuing pain because he "kept missing days...because [he] couldn't make it to work... and [he'd] lose [his] job." (R. at 37, 60). Plaintiff also indicated that he received some form of unemployment benefits from the state as a result of the shoulder injury he suffered, and those payments ceased in or around June 2004. (R. at 35-37).

Plaintiff testified that his primary care physician is Dr. Sivarama Guntur ("Guntur"), whom he sees approximately every three months, or on an as-necessary basis, for treatment for his arthritis and his back. (R. at 38). Plaintiff indicated that he began going to the Greensburg Veterans Administration Hospital (the "VA") in April 2006, and planned to continue to seek treatment from the VA, but indicated that if he was in immediate need of treatment he would have to see Guntur because Guntur's office is closer to plaintiff's residence. (R. at 38).

At the time of the hearing, plaintiff testified that he was currently taking prednisone*fn1 and oxycodone*fn2 , both of which had been prescribed by Guntur. (R. at 41). The prednisone was first prescribed in 2004, and plaintiff was directed to take 10mg daily. (R. at 139.). The oxycodone was initially prescribed on or about December 12, 2005, with the direction to take 325mg daily. (Id.). Additionally, plaintiff testified that the VA had renewed prescriptions for indomethacin*fn3 and Allopurinol,*fn4 and that the indomethacin makes him feel "woozy" or "dizzy... for a couple of hours." (R. at 40-41). The indomethacin was originally prescribed to plaintiff in 1995, with plaintiff directed to take 100mg daily. (Id.) The Allopurinol was originally prescribed to plaintiff in 2000, with the direction that plaintiff take 300 mg daily. (Id.).

Guntur prescribed a cane to plaintiff. Plaintiff was without his cane on the day of the hearing, had previously lost one cane on a public bus, and admitted that he did not like to use his cane in public because it embarrassed him. (R. at 45-46). Plaintiff's need for the cane arises out of his swollen knees, and he uses it for standing, sitting or walking, and he switches which hand holds the cane depending on the amount of pain he is experiencing in his hands on a particular day. (R. at 46).

Regarding the specific instances of pain, plaintiff testified that he has had gout for approximately ten to thirteen years, and that it affects his feet, knees, wrists and hands. (R. at 43). He is right-hand dominant, and experiences swelling in that hand occasionally from a previous break, in addition to the gout, and he indicated that on some days he is unable to lift anything with that hand. (R. at 42-43). He testified that the arthritis flare-ups in his knees, numbness in his right leg, and the problems with his wrist arise approximately one to two times per week, causing him severe pain and an inability to do anything. (R. at 43-44). Plaintiff testified that the pain in his right shoulder was the result of a torn rotator cuff that he did not have surgically repaired due to a lack of medical insurance. (R. at 44). Plaintiff's complaints of a torn left rotator cuff were unsubstantiated by an x-ray dated December 8, 2003. (R. at 149). The X-ray was conducted by Frick Hospital, and the hospital records indicated Guntur was the attending physician. (Id.). Plaintiff further stated that an MRI ordered by Guntur revealed a herniated disc in his back, and that results in pain which affects the length of time that plaintiff can sit or lay down, and also affects his ability to walk. (R. at 44). Plaintiff indicated that it is difficult to stand for any length of time beyond approximately fifteen minutes. (R. at 45). Plaintiff stated that he has been hospitalized for his pain, but that he was not aware of any plan by the VA to operate on his shoulder because it was not deemed to be necessary. (R. at 53).

The initial residual functional capacity ("RFC") assessment was performed on or about October 7, 2005 by the Social Security Administration. (R. at 136-37). At the time the RFC assessment was conducted, Guntur reported that "in between sporadic attacks, the [plaintiff] is completely normal. was hospitalized once [that] year when [the plaintiff] had run out of medication during a flare-up [of gout]." (R. at 136). During plaintiff's hospital stay, he was again prescribed medications to treat his symptoms, specifically Indocin and Allopurinol. (R. at 136). After three days of medication, plaintiff's pain had reduced to the point of being 95% gone. (R. at 136). "Less than one month after [plaintiff's] discharge, [Guntur] reported that the gout was under control." (R. at 136.) The RFC assessment also revealed that plaintiff has relied on Guntur for nearly all of his medical treatment, despite having VA coverage, and that Guntur indicated that plaintiff should seek further pain treatment from Westmoreland Hospital. (R. at 138).

Plaintiff testified about his day-to-day activities. He indicated that he was able to vacuum his residence, prepare meals, operate his own checking account, pay his own bills, shower and dress himself on a regular basis, and perform other tasks which require fine manual dexterity, but that his ability to do any of those activities was determined by the amount of pain that he felt on a given day, and that if he was unable to shower or dress himself, he did not ask for assistance from the on-site nurses at his residence because it embarrasses him. (R. at 48, 53-54, 56). Plaintiff does not have a driver's license, and therefore does not drive himself to the doctor's office or anywhere else. He requires assistance at times if he goes grocery shopping. (R. at 47, 52). He stated that he does not sleep well on a regular basis because of the pain, and that cold weather generally worsens the pain. (R. at 48-49). Plaintiff testified that he spends approximately five or six hours per day watching television and doing crossword puzzles, takes two half-hour naps, and spends at least three hours per day reading "anything that he can get his hands on." (R. at 54-56).

Between the time of the hearing and the onset of the alleged disability, plaintiff testified that his pain had grown much worse, that he can no longer do "the lifting, the hard work, the construction," and that there are some weeks when he is unable to lift anything -including a fork - from several days to an entire week. (R. at 57-59). Plaintiff testified that the medications prescribed for him by Guntur and the VA do not alleviate the pain. (R. at 61).

On May 3, 2003, plaintiff was hospitalized for acute gout of right wrist and hand. It was determined that plaintiff was out of Indocin, and a new prescription was written by Guntur. (R. at 144). Plaintiff was hospitalized on September 11, 2003, this time for pain in his left shoulder. (R. at 146). The treating physician was Dr. Thomas W. Pifferetti, who indicated that plaintiff was suffering from severe bursitis and should be examined by his employer's physician since the shoulder injury was a work-related injury. (R. at 146-47). Further testing by Dr. Anthony J. Nicolette reflected that there were no abnormalities in plaintiff's shoulder. (R. at 148). An MRI of plaintiff's left shoulder was performed on December 8, 2003 under the supervision of Guntur. (R. at 149). The MRI showed significant AC joint*fn5 degenerative changes present. (Id.).

In December 2003, plaintiff was referred to Phoenix Rehabilitation and Health Services ("Phoenix") for physical therapy as treatment for DJD of his left shoulder. (R. at 154-60). Plaintiff attended two physical therapy sessions before indicating to David Angels, his assigned physical therapist, that he was would no longer be able to continue the sessions because he needed to look for employment. (R. at 154). Plaintiff, however did not seek employment after the alleged date of onset. (R. at 37). Notes from the rehabilitation center indicated that plaintiff's condition had improved after only two sessions, and that numerous phone calls to plaintiff regarding additional sessions went unreturned. (R. at 154).

Plaintiff was hospitalized again on February 15, 2005 at Frick Hospital for acute multiple gouty arthritis. (R. at 163-76). He was discharged on February 18, 2005 and Guntur indicated in the medical record that plaintiff's condition was 95% improved. (R. at 163). The medical records from this visit indicate that plaintiff was supposed to be taking Indocin and Allopurinol, but he stated that he was not taking them.

Plaintiff pursued further treatment from the Greensburg VA outpatient clinic on April 12, 2006. (R. at 216-21). On that date, plaintiff advised Dr. Radhika Kondaveeti that he had a history of arthritis, but that the pain is controlled with medications and further advised that on that particular date, he could rate his pain at a level two ...


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