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Bayhurst v. Astrue

December 9, 2008

RICHARD E. BAYHURST, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.

MEMORANDUM OPINION

Plaintiff, Richard E. Bayhurst, commenced the instant action pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff filed an application for DIB on February 23, 2005 alleging disability since October 30, 2004 due to having only partial use of his right shoulder (Administrative Record, hereinafter "AR", 51-52).*fn1 His application was denied, and he requested a hearing before an administrative law judge ("ALJ") (AR 35-39). Following a hearing held on April 23, 2007, the ALJ found that Plaintiff was not entitled to a period of disability or disability insurance under the Act (AR 13-22; 249-272). His request for review by the Appeals Council was denied (AR 4-6), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, we will deny the Plaintiff's motion and grant the Defendant's motion.

I. BACKGROUND

Plaintiff was born on August 17, 1954, and was 52 years old on the date of the ALJ's decision (AR 20; 51). He is a high school graduate, with past relevant work experience as a driver, machine operator, Zamboni driver and janitor (AR 20; 53; 264).

Plaintiff injured his right shoulder in a work-related accident in 1991 (AR 214). He has undergone five surgeries to repair this injury (AR 215; 263). His first surgery in 1991 was for impingment syndrome (AR 215). In 1992 and 1993 a torn tendon was repaired, as well as a rotator cuff (AR 215). He underwent arthroscopic surgery in either 1993 or 1994 and the ligaments around the shoulder were tightened in 1994 or 1995 (AR 215). In 2002, Mark Suprock, M.D., an orthopedic surgeon, formed an impression of persistent instability with post-traumatic arthritis of the right shoulder and opined that Plaintiff was restricted from engaging in repetitive use of his right arm, could perform no overhead activity or climbing and could not lift more than 20 to 30 pounds (AR 180).

On March 18, 2005, x-rays of Plaintiff's lumbar spine revealed mild anterior subluxation of L4 on L5 and findings most consistent with bilateral facet arthritis at L4-L5 and L5-S1 (AR 209).

On April 26, 2005, Plaintiff underwent a consultative examination performed by Valerie Gilreath, D.O. (AR 214-227). He relayed his right shoulder history and reported pain in "the axilla and across the anterior aspect of the shoulder" (AR 217). Plaintiff further reported numbness radiating down his right arm into his fingertips, that his arm felt asleep all the time and that occasionally he suffered from swelling in his right hand (AR 217). He reported that he had a work restriction of five to ten pounds with no climbing of ladders, lifting or working overhead and could not engage in repetitive motion (AR 217).

On physical examination, Dr. Gilreath noted that Plaintiff was morbidly obese and was in no acute distress (AR 217). Dr. Gilreath further noted that he did not exhibit any pain behavior during the examination (AR 217). Plaintiff exhibited no deformity of his bilateral shoulders, wrists, elbows or finder joints (Ar 217). The skin of both his upper limbs was warm and moist and he had no signs of Sudeck's reflex dystrophy (AR 218). Dr. Gilreath observed that his hands were clean but callused, as if he had been doing some type of heavy labor with his right hand (AR 218). He had good peripheral pulses in the upper limbs, as well as good muscle bulk and power in his upper extremities (AR 218). His right hand grip was reduced in comparison to his left hand grip (AR 218).

Dr. Gilreath reported that Plaintiff's sensory examination was grossly intact to temperature, pinprick and proprioception (AR 218). His motor examination was not tested because of the instability of his right shoulder, but based upon his observation of Plaintiff throughout the exam, he saw no evidence of brachial plexopathy or cervical radiculopathy (AR 219). Dr. Gilreath noted that Plaintiff's his gait was normal, he was able to walk on his toes, heels and tandem walk without any significant difficulty and there was no drifting of his upper limbs or muscle twitching (AR 219).

Dr. Gilreath's impressions were history of multiple surgeries; right shoulder instability as noted by Dr. Suprock with post-traumatic arthritis; history of stage II prostate cancer which was surgically treated; and depression with chronic pain (AR 219). Dr. Gilreath found no evidence of neurovascular compromise (Ar 219). Dr. Gilreath further found that Plaintiff's surgeries were not anatomically consistent with his subjective complaint that his right arm kept falling asleep (AR 219). He stated that Plaintiff's subjective complaints "far exceed[ed] those of the physical findings" (AR 219). Dr. Gilreath concluded that Plaintiff's impairments did not preclude him from engaging in all work activity (AR 220).

Dr. Gilreath completed a Medical Source Statement relative to Plaintiff's ability to perform work-related physical activities (AR 222-223). Dr. Gilreath concluded that Plaintiff could occasionally lift and/or carry two to three pounds; had no limitations with regard to standing, walking, sitting, pushing and pulling; could never climb ladders; and had no environmental limitations (AR 222-223).

K. Loc Le, M.D., a state agency reviewing physician, reviewed the medical evidence of record and completed a Residual Functional Capacity Assessment form on May 20, 2005 (AR 228-236). Dr. Le opined that Plaintiff could occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; could stand and/or walk about six hours in an 8-hour workday; could sit about 6 hours in an 8-hour workday; was unlimited in his push/pull ability; and had no other limitations (AR 229-230). Dr. Le noted that Dr. Gilreath's lifting restrictions of two to three pounds were not suggested by his physical examination of Plaintiff (AR 234).

Plaintiff was examined by Vincent Rogers, M.D., an orthopedic surgeon on July 5, 2005 (AR 238-239). On physical examination, Dr. Rogers reported that Plaintiff's neck had normal flexion and extension but was limited with lateral bending (AR 238). A neurologic examination of his upper extremities revealed normal reflexes (AR 238). There was numbness in all dermatomes of his upper right arm but none in his left arm (AR 238). Plaintiff's right shoulder had a range of motion of 150 degrees of flexion, 75 degrees of glenohumeral abduction, 70 degrees internal rotation and 50 degrees of external rotation (AR 238). Dr. Rogers noted he had chronic supraspinatus and infraspinatus tendon malfunction with atrophy of the muscle bellies and weakness in abduction and external rotation (AR 238).

Dr. Rogers reported that cervical spine x-rays showed significant facet sclerosis (AR 238). X-rays of Plaintiff's right shoulder showed two metal suture anchors in his proximal humerus from his previous surgery, his subacromial space was normal and the distal third of his clavicle had been removed (AR 238). The glenohumeral joint showed inferior spurring at the humeral head and the inferior glenoid process (AR 238). Dr. Rogers diagnosed Plaintiff with osteoarthritis of the right shoulder and degenerative spondylosis of the cervical spine (AR 238). He opined that these two diagnoses had disabled Plaintiff from the use of his right upper extremity for his job, in lifting and in driving (AR 238-239). Dr. Rogers stated that Plaintiff was limited to lifting 20 pounds, was not able to engage in overhead work with his right arm and was "disabled and limited at this time, and permanently for anything but sedentary activity"*fn2 (AR 239).

An MRI of Plaintiff's right shoulder dated February 22, 2007 showed slight degeneration and partial thickness tear of the supraspinatus tendon (AR 240). There was degeneration and partial thickness tear involving the biceps tendon with slight enhancement of the biceps ...


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