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Kelly v. Astrue

August 20, 2009


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


This Social Security case is now before the Court for disposition of the objections of the Defendant, Commissioner of Social Security, to the July 1, 2009 Report and Recommendation of U.S. Magistrate Judge Carol Sandra Moore Wells that this matter be remanded for proper determination of (1) whether Plaintiff's back condition existed prior to June 30, 1999, (2) what his residual functional capacity is and (3) whether he can perform his past relevant work. For the reasons which follow, we find the Commissioner's objections to be well-founded and we therefore decline to adopt the Report and Recommendation.

History of the Case

The Plaintiff, Edward Kelly, who is presently 61 years of age, last worked in 1995. On February 10, 2005, he applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §401, et. seq., claiming that he had been disabled within the meaning of the Act since November 1, 1997.*fn1

Prior to the alleged onset of his disability, Mr. Kelly had been employed and self-employed as a stone mason, masonry supervisor, and as an aide in an adult residential care facility. (A.R. 219). He has little formal education, having completed only the 7th grade. (A.R. 66).

Mr. Kelly filed his application for social security disability benefits on February 10, 2005 which was subsequently denied. The plaintiff then sought and was granted a hearing before an Administrative Law Judge and the matter was ultimately heard by Judge Paula F. Garrety on January 10, 2007. Both plaintiff and the Administrative Law Judge were in agreement that his date last insured was June 30, 1999.*fn2

At the hearing, Mr. Kelly and his wife (with whom he resides) testified that he suffered a work-related injury to his back for which he underwent surgery in or around 1978; he ultimately settled the worker's compensation claim for that injury for approximately $60,000 sometime between 1980 and 1981. (A.R. 219-220). In 1986 or 1987, the plaintiff started his own masonry business in which he would secure and supervise the masonry jobs and keep the books, but would hire outside sub-contractors to actually do the physical work, as he was unable to do it himself. According to the plaintiff and his wife, there were instances where he would drive to a job site and Mrs. Kelly would have to go pick him up, drive him home and help him out of the truck because of pain in his back and/or neck. (A.R. 226, 228). He operated that business until 1994 or 1995. For a brief period of time commencing in 1992, Mr. Kelly also worked at Community Options as a night-time aide, watching the residents, assisting them with their baths, and washing their clothes. Because he was unable to do much lifting, this job lasted less than one year. (A.R. 220-222, 229). The plaintiff has not worked since 1995. (A.R. 223).

The Kellys' also both testified that since at least 1990, Mrs. Kelly has done most of the driving, and that since approximately 1995 or 1996, Mr. Kelly can lift at most 15-20 pounds, provided that he's already standing straight up as he is unable to reach down and pick something up. When Mr. Kelly first stopped working, his wife gave him a number of household chores to do including vacuuming, washing and ironing clothes, taking out the trash and washing dishes. With the exception of putting laundry into the washing machine and putting dishes into the dishwasher, Mr. Kelly was unable to perform any of these tasks without ending up bedridden from back pain. (A.R. 227, 229-230).

Over a number of years, the plaintiff has used muscle relaxant and anti-inflammatory drugs, specifically Flexeril and a Medrol Dosepak, a TENS unit, a heating pad, over-the-counter and prescription painkilling medications including Motrin, Tylenol-3, Vicodin, and Percocet. He spends most days either sitting or laying around his home. Since Mr. Kelly stopped working, the couple has taken only one trip away from home when they took a cruise, but the plaintiff spent nearly all of his time in their cabin in bed. (A.R. 227-228, 230-231).

In addition to the testimony from the plaintiff and his wife, the Administrative Record contains some medical records, most of which either pre-date 1995 or are subsequent to 2000. Those records reflect that in the 1994-95 period, the plaintiff had several x-ray, MRI and radiologic studies done of his lumbar and cervical spines, brain and abdomen, which evinced some mild spurring at C3 through C7, a small disc bulge at C5-C6, anterior spurring throughout much of the lumbar spine, a hiatal hernia, esophagitis, and non-specific white matter disease of the brain. In or around that time frame, Mr. Kelly was suffering from muscle spasms and acute pain after walking and sitting for even short periods of time. The range of motion in his neck and lower back was limited and he had radiating pain down his legs. He was treated conservatively with the Medrol Dosepak, Flexeril, Daypro and Vicodin, and sent to physical therapy. (A.R. 85-93) Ariel F. Abud, M.D. a neurologic surgeon, did not find any definite neurosurgical pathology when he saw the plaintiff in consultation for pain in the right side of the neck radiating down to the right elbow and down the left radiating to the index finger. He suggested that he be put on a new traction apparatus using a total of 10 pounds for 15 minutes several times per day and that he undergo an EMG. (A.R. 192).

In November, 1997, the plaintiff was evaluated by an ophthalmologist for blurry vision and watery eyes. According to the report generated from that examination, Mr. Kelly's medical history included hypertension, arthritis, a family history of diabetes and heart disease, and suspected glaucoma. (A.R. 94-97).

There are no medical records whatsoever in the Administrative Record for the period between the date of Mr. Kelly's above-referenced eye examination on October 30, 1997 and February 29, 2000, when he had radiologic studies of his upper gastrointestinal tract and chest. These tests showed a small sliding type hiatal hernia and mild degenerative changes in the thoracic spine. There was then no evidence of cardiovascular disease. (A.R. 98-99). On March 27, 2000, Plaintiff had an electrocardiogram, which was normal. (A.R. 100-102).

In July 2000, Mr. Kelly underwent MRI of the lumbar spine and he was seen again by Ariel F. Abud, M.D., neurologic surgeon, on July 25, 2000 for complaints of pain in the lower back, left hip, leg and back with numbness and tingling in the thumb and index finger of the left hand. The MRI revealed and Dr. Abud found that he had a herniated disc at L3-4 and scar tissue or a small recurrent disc at that level from his previous surgery, as well as disc degeneration at multiple levels and a diffuse annular bulge at L2-3. He prescribed Darvocet, and Vioxx as well as a high lumbosacral support. Dr. Abud recommended that Mr. Kelly have an EMG to rule out lumbar radiculopathy and asked that he return for follow-up after those studies were completed but there are no records of any immediate follow-up visits. (A.R. 190-195).

On June 21, 2001, Mr. Kelly had a CT scan of the brain and an MRI of the right shoulder. The brain scan was normal, but the MRI showed probable degenerative tendinopathy and/or tendinitis in the shoulder. (A.R. 103, 115). An MRI of the brain was done on September 27, 2002, due to a head injury some 6 weeks prior, which evidently caused some problems with the plaintiff's sense of smell. The MRI showed some patchy ...

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