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Sipp v. Astrue

January 30, 2009

CHARLES KENNETH SIPP, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

I. Introduction

Plaintiff Charles K. Sipp ("plaintiff") brought this action for review of the decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433.The parties submitted cross-motions for summary judgment. After consideration of the decision of the administrative law judge ("ALJ"), the submissions of the parties, and the entire record, the court finds the ALJ's decision is supported by substantial evidence, and will grant the Commissioner's motion for summary judgment, deny plaintiff's motion for summary judgment and enter judgment in favor of the Commissioner.

II. Procedural History

On December 4, 2004, plaintiff applied for DIB alleging disability beginning November 20, 2002.*fn1 Plaintiff alleged his disability was due to injuries sustained in a motor vehicle accident on August 18, 1999. On May 4, 2005, plaintiff timely requested a hearing after his initial claim was denied. (R. at 38-39.) The hearing was held before the ALJ on December 11, 2006, during which plaintiff, represented by an attorney, testified, as did a vocational expert ("VE"). (R. at 525-69.) The ALJ denied plaintiff's claim on January 25, 2007. (R. at 13-25.)

On September 7, 2007, the Appeals Council affirmed the ALJ's decision, which became the final decision of the Commissioner. (R. at 5-7.) Plaintiff filed a complaint seeking judicial review of the Commissioner's final decision.

III. Plaintiff's Background and Medical Evidence

Plaintiff was born on December 30, 1962 and was forty-three years old at the time of the hearing before the ALJ. (R. at 529.) He finished tenth grade and obtained a general equivalency diploma . (R. at 533.) He has past relevant work as a licensed plumber. (R. at 534-36.) The relevant period at issue is the date of the alleged onset of disability -- November 20, 2002 -- to the date he was last insured -- March 31, 2004. (R. at 18.)

Plaintiff's medical history prior to November 20, 2002 is quite extensive. Plaintiff was involved in a motor vehicle accident on August 18, 1999. (R. at 287, 536.) On September 10, 1999, plaintiff met with his physician, Timothy Janeway, M.D. ("Dr. Janeway"). (Id.) He complained of soreness in his neck, occipital headaches, and pain going towards the shoulders.

(Id.) X-rays conducted on his cervical spine showed that his spine was normal. (Id.) Dr. Janeway noticed some tenderness in a long segment of plaintiff's cervical spine as well as plexus (nerves) tenderness bilaterally. (Id.) He diagnosed plaintiff with hyperextension of the cervical spine and noted that plaintiff's range of motion was about seventy percent. (Id.) Dr. Janeway prescribed a soft cervical collar. (R. at 286.) Dr. Janeway opined that plaintiff was disabled and would not be able to work at that point in time. (Id.)

On October 1, 1999, Dr. Janeway reported that plaintiff suffers from migraines. (Id.) Dr. Janeway recommended that plaintiff enroll in a therapy program and prescribed moist heat, cervical traction, and a massage for the cervical spine. (Id.) Plaintiff's migraines and stiffness persisted through visitations in November and December 1999 and January 2000. (Id.) Plaintiff had a cervical manipulation in January 2000, and reported it provided much improvement. (Id.) Plaintiff was not using his cervical collar and was experiencing less pain. (Id.) Plaintiff had started to mobilize his neck. (Id.) During a visitation on January 28, 2000, Dr. Janeway noted that plaintiff's post as a plumber had been terminated, although Dr. Janeway opined that returning to his job would be difficult due to his condition. (Id.) Dr. Janeway noted that plaintiff would have difficulty as "a plumber working in overhead positions and [he would] need to still be careful and protective of his neck." (Id.) Dr. Janeway also mentioned the possibility of future manipulation. (Id.)

On May 2, 2000, Dr. Janeway reported that an MRI of plaintiff's cervical spine was conducted and revealed a disc bulging at C5-6 level and posteriorly swelling of the spinous processes C6-7. (R. at 284.) Plaintiff continued to suffer occipital headaches. (Id.) Dr. Janeway noted that plaintiff's employer had not allowed him to return to light duty or supervisory positions and he could not perform his regular duties as a plumber since he could not raise his head. (Id.) Plaintiff remained stiff at the cervical spine and had fifty percent motion. Dr. Janeway noted his view that plaintiff could not return to his previous position as a plumber. (Id.)

On August 8, 2000, plaintiff's condition was still the same although Dr. Janeway noted that plaintiff would be able to do "light duty sedentary type of employment . . . ." (Id.) On September 18, 2001, Dr. Janeway recommended that plaintiff undergo another manipulation procedure for his neck. (R. at 281.) He noted that plaintiff had not been able to return to work and the neurosurgeon that plaintiff saw had advised against an operative procedure. (Id.) Plaintiff continued to experience stiffness and soreness in his neck as well as nausea-inducing occipital headaches that radiated over the top of his head. (Id.) Dr. Janeway referred to the MRI results of August 2000 and also reported that plaintiff's former employer, Summit Academy in Butler, had eliminated his position as the head plumber. (Id.)

Plaintiff returned to see Dr. Janeway a year later on September 25, 2002. (R. at 274.) He observed that plaintiff was still having difficulty with his cervical spine. Although cervical spine manipulation did provide good benefits, plaintiff could not continue with the procedure since he was uninsured. (Id.) Dr. Janeway again stated that plaintiff would not be capable of being employed in any gainful fashion. (Id.) Dr. Janeway completed a physical capacity evaluation ("PCE") form reporting that plaintiff could stand and walk continuously for thirty minutes and sit continuously for sixty minutes. (R. at 278.) In an eight-hour day, Dr. Janeway stated that plaintiff could sit for three hours and stand for two hours. (Id.) Plaintiff could alternate between sitting and standing for five hours and lie down for three hours. (R. at 276.) Plaintiff could only lift five pounds, perform simple grasping, and occasionally climb, stoop, balance, and crouch. (Id.) Plaintiff did not have the capabilities to bend, kneel, crawl, reach, push, or pull. (Id.)

Plaintiff was to avoid moving machinery, hot air temperatures, vibrations, auto exhaust, and humidity. (Id.) Plaintiff also received treatment from William Zillweger, M.D. ("Dr. Zillweger"), prior to November 20, 2002. (R. at 264-67.) On September 21, 2002, plaintiff presented with migraines for which Dr. Zillweger prescribed medications. (R. at 266.)

During the period in issue -- November 20, 2002 until May 31, 2004 -- Dr. Janeway, on April 8, 2003, completed another PCE form. (R. at 271.) He noted plaintiff's diagnosis of chronic cervical spondylosis and migraine headaches. (Id.) The PCE form listed the same limitations that were set forth in the September 2002 PCE form. (R. at 271-73.)

After the period at issue, i.e. after March 31, 2004, plaintiff met with Dr. Janeway on January 4, 2005, who observed that plaintiff continued to have significant problems with the stiffness in neck and with his migraines. (R. at 269.) Plaintiff also had a limitation of motion, although there was no gross loss of neuralgia. (Id.) Dr. Janeway repeated his view of plaintiff's inability to engage in gainful employment due to his chronic posttraumatic cervical and lumbar spondylosis and migraine headache disease. ...


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