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Shaner v. Astrue

August 21, 2008


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

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Plaintiff, Raymond Shaner, ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB").The parties have filed cross-motions for summary judgment, and the record has been developed at the administrative proceedings.


Plaintiff filed an application for DIB and SSI on November 13, 2003, alleging disability since June 19, 2003, due to misalignment of his feet (foot and toe pain). On April 14, 2004, Plaintiff timely requested a hearing after his initial claim was denied.On February 7, 2005, Plaintiff appeared with counsel, before Administrative Law Judge ("ALJ"), Douglas W. Abruzzo, and both Plaintiff and vocational expert, Eugene Hoffman ("VE Hoffman") testified. A second vocational expert, Mark Heckman ("VE Heckman") was questioned through interrogatories on December 9, 2005 and February 13, 2006.

On June 29, 2006, the ALJ denied Plaintiff's claim under the five-step sequential analysis used to determine disability. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since alleging disability on June 19, 2003. Although Plaintiff had made three attempts to return to work (in August, October, and November 2003, respectively), these attempts lasted at least a day and no more than one month. R. 21.*fn1 Consequently, the ALJ classified these attempts as unsuccessful and were not considered to be substantial gainful activity. Id. The ALJ determined at step two that Plaintiff had the following severe impairments: obesity and bilateral foot pain, secondary to failed surgeries. At step three, the ALJ determined that Plaintiff's impairments did not meet any of the criteria set forth in 20 C.F.R. §§ 404, Subpart P, Appendix 1, Regulation No. 4. The ALJ concluded, at step four, that Plaintiff is unable to perform the duties of his past work as a maintenance worker, an auto mechanic, and a boiler operator. R. 26. At step five, the ALJ determined that Plaintiff has the residual functional capacity (RFC) to perform work at the light exertional level requiring the lifting and/or carrying of no more than ten pounds frequently and twenty (20) pounds occasionally, standing and/or walking four hours in an eight-hour workday and some pushing and/or pulling of arm or leg controls. R. 22.

After the denial, Plaintiff requested a review of the ALJ's decision which the Appeals Council denied on September 14, 2006, thus becoming the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff then filed his complaint herein seeking judicial review of the Commissioner's final decision. The matter is now before this Court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.


Plaintiff was born on August 3, 1947, was 58 years old at the time of the hearing, and considered to be of advanced age.*fn2 R. 24, 231, 232, 258. He obtained a high school equivalency diploma and training for a commercial driver's license. R. 144. From June 1984 to May 1990, Plaintiff worked as a mechanic/service station attendant. R. 107, 124-125, 151, and 258.

Beginning in May 1990, Plaintiff worked in the maintenance department of a hospital until September 2002. Id. He also provided security at the hospital.*fn3 R. 258. The following month, Plaintiff started working as a boiler operator and stayed in that position until June 2003. Id. In August 2003, Plaintiff attempted to work for one day, as a driver. Id., 117, 124-125. In October 2003, Plaintiff again attempted to work as a laborer, also for one day. Id., 116, 124-125. Plaintiff made his last attempt to work in November 2003 for about fourteen days, as a truck driver. Id.

The Court notes that Plaintiff's medical records are sparse as he does not have any insurance and lacks the finances to pay for treatment. R. 23, 145, 148. Plaintiff has stated that his foot and toe pain began in 1990, thirteen years before his alleged onset of disability. R. 136. He has been seeing podiatrist, Dr. John A. Marty ("Marty") since September 1999. R. 240. Dr. Marty diagnosed Plaintiff with osteoarthritis of the feet and legs, malalignment of the metatarsal, instability, and plantar fasciitis. R. 191.

On February 13, 2004, Plaintiff was examined by consultative examiner, Dr. Lloyd Richless ("Richless"). Dr. Richless observed that Plaintiff had a normal gait and station, had no difficulties with weight-bearing or ambulation, and did not require the use of any assistive devices. R. 164. Plaintiff did have difficulty standing on his toes and was not able to walk on his toes. Id. He was able to balance on his heels. Id. Dr. Richless noted that Plaintiff had decreased sensation to light touch although he was able to squat without significant difficulty.

Id. Plaintiff did not have any motor atrophy present in his feet nor were there any signs of joint deformities. Id. Dr. Richless assessed Plaintiff as having chronic bilateral foot pain, obesity, and deconditioning. R. 165. He recommended an Electromyography exam, in order to check for peripheral neuropathy. Id. He felt that Plaintiff's sensory loss might be attributable to the peripheral neuropathy. Id. Dr. Richless opined that Plaintiff had no limitations with sitting or pushing and/or pulling. R. 167. Plaintiff could occasionally bend, kneel, stoop, and crouch. R. 166. Plaintiff could never balance. Id. Plaintiff could frequently lift and/or carry between two and ten pounds and occasionally twenty pounds, stand and/or walk for more than two hours but less than six hours. R. 167.

On February 23, 2005, Dr. Marty completed an Employability Assessment Form for the Pennsylvania Department of Public Welfare ("PA DPW") stating that Plaintiff is "unable to work because of pain in feet and toes." R. 185. Dr. Marty also noted that Plaintiff was permanently disabled which precluded him from engaging in any gainful employment. R. 186. Again, on March 15, 2005, Dr. Marty observed that Plaintiff's "feet were disabled" but also indicated that Plaintiff's noncompliance with prescribed procedures and failure to follow-up post-surgery, played a role in hampering the healing process. R. 188, 239. Dr. Marty also stated that Plaintiff was experiencing difficulty in ambulating when using shoes and noted that future surgical reconstruction was possible but will not return Plaintiff's feet to their pre-injury state. Id., 253, 254.

At the behest of consultative examiner, Dr. Richless, an EMG/MCV (Electromyography/Mean Cell Volume) study was conducted in April 2005 and showed that Plaintiff had "moderately severe peripheral polyneuropathy" indicating circulatory deterioration.

R. 182-184. The EMG/MCV study also revealed that Plaintiff's other extremity parameters showed no abnormalities and were within normal limits. R. 184. Plaintiff was again examined by Dr. Richless on April 21, 2005. Dr. Richless reviewed Plaintiff's EMG/MCV study and confirmed his previous postulation of a moderately severe state of peripheral polyneuropathy and stated that this condition was indicative of "diabetes or other conditions which can cause peripheral neuropathy such as alcoholism, [and] familial acquired conditions." R. 178. Dr. Richless noted that Plaintiff "had no significant interval changes in his medical history since his evaluation" in February 13, 2004. R. 180. In June 2005, MRI (Magnetic Resonance Imaging) results showed the existence of some minimal thickening of the dermis in Plaintiff's left foot which was possibly due to scarring or granulomatous (inflammatory) reaction. R. 190.

On June 17, 2005, Plaintiff presented to Dr. Matthew J. Sabo ("Sabo"). Dr. Sabo evaluated Plaintiff and noted that he had tailor's bunion and "multiple lesions [on] the plantar aspect of the left foot." R. 198. Plaintiff also experienced numbness and tingling in the toe close to the tailor's bunion and pain on direct palpation of the dorsal lateral eminence of the tailor's bunion. Id. Plaintiff also saw Dr. Marty on June 17, 2005. Id. Plaintiff complained of pain in his heels. Id. He had trigger point Dupuytren's contractures (a painless thickening and contracture of tissue beneath the skin on the palm of the hand and fingers) on his hands with the lesions being about three centimeters in diameter at the mid-arch area.*fn4 Id. Dr. Marty recommended that Plaintiff try injection therapy in ...

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