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Elder v. Astrue

July 9, 2010


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



This is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claim of Daniel Elder ("plaintiff") for social security disability insurance benefits ("DIB"), under Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 401-33; 20 C.F.R. pt. 404 and supplemental security income ("SSI"), under Title XVI of the SSA, 42 U.S.C. §§ 1382-83; 20 C.F.R. pt. 416. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that he is not disabled, and therefore not entitled to benefits, should be reversed because the decision is not supported by substantial evidence. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny the cross-motions and remand this case for further proceedings.

Procedural History

Plaintiff previously filed two applications for DIB and SSI -- on August 31, 2002, and July 25, 2006 -- which were denied. (R. 313-23, 339-42.) Plaintiff filed the applications at issue in this appeal on January 23, 2007, asserting a disability since February 28, 2001.*fn1 (R. at 9, 379, 388.) On June 5, 2007, plaintiff's claims were initially denied. (R. at 9, 343-51.) A timely written request for a hearing before an administrative law judge was filed by plaintiff, and the hearing was held on November 7, 2008. (R. at 20-61.) Plaintiff, who was then forty-two years of age, appeared with counsel and testified at the hearing. (Id.) In a decision dated February 18, 2009, the ALJ determined that plaintiff was not under a disability within the meaning of the SSA. (R. at 19.) The ALJ determined plaintiff had severe and non-severe impairments; however, plaintiff had the residual functional capacity to perform the full range of sedentary work at all times since the alleged onset date. (R. at 14-17.) Plaintiff filed a timely request to review the ALJ's decision, which was denied by the Appeals Council on May 27, 2009. (R. at 1-3.) Plaintiff timely filed this present action seeking judicial review.

Plaintiff's Testimony and Medical Evidence Testimony

Plaintiff's hearing was held on November 7, 2008 (R. at 20.) At the hearing, plaintiff testified that he was first injured while working at Camden Metal, when the corner of a box hit him in his neck. (R. at 31.) After he was hurt, plaintiff received workers' compensation for a period of time and he attempted to go back to work. (R. at 31-32.) Plaintiff continued to work for three years despite his injury until he was told that he was going to be fired. (R. at 32.) Since that time, plaintiff has not worked any other job. (R. at 33.) Plaintiff stated that he suffers from anxiety, which has worsened with his increased difficulty with his mobility. (R. at 34.) Plaintiff has an ulcer and feelings of anger and worthlessness due to his condition. (R. at 35-37.) Plaintiff complained about difficulty sleeping because of his pain and inability to get comfortable in bed.

(R. at 38.) Plaintiff stated that his pain was located on the right side of his neck and shoulder and goes down through his arm to his fingers. (R. at 39.) Plaintiff has constant pain in his knee. (Id.) He testified that he has difficulty going up and down steps, which limits his ability to stand and walk. (R. at 41.) Plaintiff will lay down during the day and he stated he cannot sit continuously for six hours at a time. (R. at 41, 43.) Plaintiff stated that his depression causes him to be a recluse and that he no longer spends time with friends and has very little energy to do any activities. (R. at 47-48.) Plaintiff testified that he did not feel that he could lift more than ten pounds and when he has to use his right arm, his fingers go numb and his shoulder cramps up.

(R. at 52.) Plaintiff stated that he could not stand for a period of two hours or more without changing position. (R. at 52-53.)

A vocational expert (the "VE") testified that a person limited to standing or walking only four hours in an eight-hour workday would not be able to perform plaintiff's past relevant work of a shipping and receiving clerk, collating machine operator, and press operator. (R. at 57-58.) The VE explained that plaintiff's past relevant work was classified as medium and heavy physical exertion that would have required at least six hours of standing or walking. (Id.) Neither the ALJ nor plaintiff's attorney had any further questions for the VE. (R. at 58.)

Questionnaire on Daily Living

In the questionnaire of plaintiff's activities of daily living, plaintiff stated that he lives with a friend or occasionally in an empty space of his father's warehouse. (R. at 181.) Plaintiff stated that increased physical activity would cause pain to radiate from behind his right ear down his arm to his fingers and it would make it very hard for him to sleep. (Id.) Plaintiff's condition has required him to get help with doing his laundry and cleaning up. (R. at 181-82.) Plaintiff is able to wash himself and take care of personal grooming; however, he stated that washing his hair and feet are difficult and cause him pain. (R. at 182.) Plaintiff is able to do his own grocery shopping if he carries one bag at a time. (Id.) Plaintiff takes short walks to try to maintain his health and he stated he can walk one-half mile to one mile without stopping. (R. at 183.) Plaintiff stated that he can sit for twenty to thirty minutes before needing to stretch his neck, shoulders and arms. (Id.)

Plaintiff stated that he is in constant pain that is located in his neck, shoulder, arm and hand and that he has to use a heating pad before he goes to bed and after he wakes up. (R. at 185.) He can only sleep up to four hours at a time before the pain wakes him up. (Id.) Plaintiff stated that his pain causes him problems in paying attention and being able to focus and make decisions. (R. at 186.) Plaintiff used a TENS unit in the past; however, it did not result in any lessening of his pain. (Id.) Plaintiff has had nerve blocks done, but they did not provide any results. (R. at 187.)

Medical Evidence

On June 3, 1997, plaintiff was seen by Dr. John Moossy for evaluation. (R. at 310.) Plaintiff complained of persistent neck and shoulder pain as a result of a workplace injury. (Id.) Dr. Moossy found plaintiff's nonfocal neurological examination to be of a good strength and that he had mildly hyperactive lower extremity reflexes. (Id.) Review of plaintiff's MRI revealed a C5-6 disc eccentric to the right side with impression on the spinal cord and C6 nerve. (Id.) Dr. Moossy noted that plaintiff lacked radicular symptoms and that his main complaint was of neck and interscapular pain that was common after neck surgery. (Id.) Plaintiff was advised that further surgery was likely not to be useful and non-surgical therapy such as soft cervical traction, physiotherapy and non-narcotic pain medication were recommended. (Id.)

Plaintiff was seen by Dr. Howard Bursch on December 23, 1998. (R. at 308.) Dr. Bursch noted that plaintiff continued to have pain in his neck and right shoulder and that plaintiff reported that he was quite uncomfortable. (Id.) At the time, plaintiff was taking four Lorcets*fn2 a day and two to three Norflex.*fn3 (Id.) Plaintiff had diffused tenderness over the scapula and thoracic outlet; however, his reflexes were brisk and symmetrical. (Id.) Dr. Bursch took plaintiff off his job for six weeks and sent him to physical therapy. (Id.) On February 1, 1999, Dr. Bursch stated that although plaintiff was still complaining of bitter pain and spasms along the right scapula, a CT scan did not show a source of plaintiff's symptoms,. (R. at 307.)

On February 2, 1999, plaintiff was seen by Dr. Bill Hennessey. (R. at 301-03.) Plaintiff complained of increased pain in his right shoulder, but denied any weakness in his upper right limb. (R. at 301.) Dr. Hennessey indicated that plaintiff had a greater slope from his neck to his right shoulder as compared with his left. (Id.) Flexion, abduction and extension testing indicated normal and symmetrical muscle bulk and there was no evidence of long thoracic nerve injury or spinal accessory nerve deficit. (R. at 302.) No other abnormalities were noted that would cause the significant pain over plaintiff's right trapezius muscle. (Id.) Dr. Hennessey concluded that plaintiff's symptoms were not related to his previous surgery and that his clinical history, physical examination, and electro-diagnostic findings did not support any specific medical diagnosis associated with the pain complaints. (R. at 302-03.)

Plaintiff was referred to Dr. Arthur Androkites on April 8, 1999. (R. at 298.) Dr. Androkites recounted plaintiff's workplace injury to his neck and stated that plaintiff's main complaints were spasms involving the right side of the neck radiating to the trapezius and scapular region. (Id.) Plaintiff stated he was walking three miles per day. (Id.) Dr. Androkites diagnosed plaintiff as having chronic neck and right parascapular pain which might be myofascial in origin and planned to try plaintiff on Neurontin*fn4 and recommended plaintiff consider aquatics rehabilitation and to continue his walking program. (R. at 299.) Dr. Androkites recommended that plaintiff lift no more than twenty pounds with no repetitive use of his right extremity and avoid lifting over his head with the right extremity. (Id.) Dr. Androkites indicated that plaintiff could work a full day with these restrictions. (R. at 297.) On April 19, 1999, Dr. Androkites stated that plaintiff was not tolerating Neurontin very well due to mental status changes, including lethargy, and that it was not improving his symptoms. (R. at 295.) Plaintiff was started on Flexeril*fn5 and Lorcet and plaintiff reported that he was able to perform most of his usual job duties at work. (Id.) Dr. Androkites gave plaintiff a series of stretching exercises to perform and told plaintiff that his goal was to reduce his Lorcet intake. (Id.) On April 27, 1999, although plaintiff took off work one day due to an exacerbation, plaintiff reported that he had been performing the stretching exercises. (R. at 294.) Dr. Androkites injected plaintiff with Lidocaine and plaintiff noted significant improvement. (Id.)

Plaintiff was again seen on May 21, 1999, where he reported that the injection had providing significant relief; however, progressive pain had increased and his right arm was tingling. (R. at 291.) Dr. Androkites gave plaintiff another injection of Lidocaine and plaintiff stated that he felt significant relief. (Id.) On June 14, 1999, plaintiff reported that his work was going reasonably well with the additional pain control and he requested another Lidocaine injection. (R. at 288.) Plaintiff told Dr. Androkites that he had lost his pain medication -- Lorcet -- over the weekend and Dr. Androkites was somewhat disturbed by that loss. (Id.) Dr. Androkites explained to plaintiff that the Lidocaine injections were not a chronic treatment and if plaintiff needed chronic opioids he believed that plaintiff ought to see a pain management specialist. (Id.) On June 24, 1999, Dr. Androkites asked plaintiff if he was addicted to Lorcet, which plaintiff denied. (R. at 287.) Dr. Androkites explained that the loss of a prescription is considered abuse in the medical literature and Dr. Bursch agreed that plaintiff may not be an ideal candidate for chronic opioids. (Id.) As a result, Dr. Androkites referred plaintiff to a chronic pain specialist, Dr. Stephen Thomas. (Id.)

Plaintiff returned to Dr. Bursch on July 6, 1999. (R. at 262.) Plaintiff had chronic upper back pain and neck pain and was taking four to six Lorcet pills a day for the pain. (Id.) Plaintiff admitted to being dependent upon the Lorcet; however, he did not feel that it affected his work performance. (Id.) Dr. Bursch noted that plaintiff appeared angry and agitated that he was not getting better, having difficulty getting his prescriptions filled and paying for treatment. (Id.)

On September 15, 2000, Dr. Stephen Thomas had a follow-up visit with plaintiff and noted that plaintiff attempted to return to work at a medium to heavy physical level. (R. at 281.) Plaintiff had a marked increased in his pain symptoms and Dr. Thomas advised plaintiff to forego returning to his work because of the likelihood of further injury. (Id.) Dr. Thomas examined plaintiff on November 13, 2000 and noted that plaintiff continued to have severe right neck pain and pain related sleep disturbance. (R. at 280.) Dr. Thomas stated that plaintiff's pain medications were proving to be insufficient and he discussed with plaintiff the possibility of increasing his medication dosage. (Id.) It was noted that plaintiff's mood was dysthymic,*fn6 his cervical range of motion was limited and the best treatment option was a multidisciplinary chronic pain management and function restoration program. (Id.) On January 15, 2001, it was indicated that plaintiff was still in severe pain and the use of OxyContin*fn7 was becoming less effective. (R. at 277.) During that check-up, Dr. Thomas performed a right C6 selective nerve root block on plaintiff. (Id.) Dr. Thomas reported on March 15, 2001, that plaintiff remained relatively stable since his last visit. (R. at 274.) Plaintiff continued to have significant pain in his posterior shoulder girdle. (Id.) Plaintiff was assessed as having cervical postlaminectomy syndrome, cervical radiculopathy, and pain related sleep disturbance and was given a nerve block injection. (Id.)

On April 18, 2001, plaintiff was seen by Dr. Bursch with complaints of neck and shoulder pain. (R. at 510.) Dr. Bursch reported that plaintiff's pain was a six-year problem and that he had a history of drug and alcohol abuse. (Id.) Plaintiff asked Dr. Bursch for 20mg ...

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